From the Reference Desk: Who Are the Most Highly Qualified Publicists?

By Jonathan Pratter

In spite of its deficiencies (for example, it has nothing to say about international soft law or about unilateral acts), Article 38(1) of the Statute of the International Court of Justice is accepted as the classic statement of the sources of public international law.  Two sources are not true sources at all, but are described as “subsidiary means for the determination of rules of law.”  These are judicial decisions and “the teachings of the most highly qualified publicists of the various nations.”  “Subsidiary means” is misleading.  The French version of the Statute says “moyen auxiliaire”, which comes closer to reality.  Today, international judicial and quasi-judicial fora have proliferated.  It is simply an old-fashioned aversion to case law as a source of law that prevents their judicial decisions from being treated as true sources of international law.  In the case of the teachings of the most highly qualified publicists the distinction makes more sense.  A writer on international law does not have formal lawmaking authority.  Nevertheless, writers on international law can be very influential.  Their work can affect the course of development of norms in international law.

This raises the question of who are the most highly qualified publicists.  The question gains salience in the context of the Jessup International Moot Court Competition.  Participants need to know what kind of secondary authority can legitimately be cited before the International Court of Justice.  Two recent articles throw a lot of light on the question:  The Influence of Teachings of Publicists on the Development of International Law by Sandesh Sivakumaran, a professor at the University of Nottingham, published in 66 International and Comparative Law Quarterly 1 (2017) and Finding “the Most Highly Qualified Publicists”: Lessons from the International Court of Justice by Sondre Torp Helmerson, a professor at the University of Tromsø in Norway, published in 30 European Journal of International Law 509 (2019).

The first article categorizes publicists into state-empowered entities, such as the International Law Commission of the UN, expert groups, such as the International Law Association or the Institut de Droit International, and the broad category described as the “ordinary” publicist.  The article goes on to consider what constitutes teachings and arrives at the categories of digests, treatises and textbooks, monographs and edited collections, commentaries, journal articles, and even blog posts.  This catholic approach to who is a publicist and what are their teachings is surely correct, as an example makes clear.  Let’s say that during your research you encounter a student note in a United States student-edited law review, not necessarily from one of the most prestigious law schools.  In your view, the article is clearly on point, well written, and makes sound arguments, perhaps even innovative ones.  Should you or may you cite it?  In my view the answer is clearly yes.  In fact, academic integrity and the avoidance of plagiarism probably demand that you cite the article.  Now I concede that something turns on the nature of the audience.  If you are drafting a memorial before the International Court of Justice, you may have to think twice.

This is where the second article comes into play.  The author carries out a detailed analysis of the ICJ’s citation to publicists.  For example, a table in the article is the list of the top ten most-cited writers.  At the head of the pack is Shabtai Rosenne, but this is misleading.  Rosenne is the author of the leading treatise on the practice and procedure of the Court.  It may give us pause that all ten of the most-cited writers are old white men.

The article identifies several factors that go into the determination of what makes a most highly qualified publicist.  These are expertise, quality of the work, official position of the author, and agreement among multiple writers.  These factors are no surprise.  It would be desirable if going forward the ICJ cited from a more diverse range of publicists.  After all, the precise wording of article 38(1) is “the most highly qualified publicists of the various nations” (my emphasis).  The image for this post is of Hersch Lauterpacht, who came second in the list of the most-cited publicists.

GlobaLex January/February 2020 Issue is Live

By Lucie Olejnikova

As GlobaLex celebrates its 15th Birthday, January/February 2020 Issue features nine great updates: Ethiopia, Jordan, Netherlands, Peru, Philippines, São Tomé and Príncipe, Slovenia, Trinidad & Tobago, and the United Kingdom. Webmasters and content managers, please update your pages. We thank all our wonderful authors, new and established, for their continuous contributions and Happy Birthday GlobaLex!

 

UPDATE: Introduction to the Ethiopian Legal System and Legal Research by Alemayehu B. Bekele at https://www.nyulawglobal.org/globalex/Ethiopia1.html.

Alemayehu B. Bekele received his law degree from Addis Ababa University College of Law and Governance (LL.B., 2013) in Ethiopia. He is currently working as an attorney and investment consultant in Ethiopia.

 

UPDATE: Overview of the Hashemite Kingdom of Jordan Legal System and Research by Tamara Sakijha at https://www.nyulawglobal.org/globalex/Jordan1.html.

Tamara Sakijha is of Palestinian origin and grew up in Jordan. She graduated from the University of South Florida with a literature degree focusing on critical theory. During her undergraduate studies, Tamara was the research assistant to Professor Thomas W. Smith completing research and helping with translation for Prof. Smith’s book titled “Human Rights and War Through Civilian Eyes.” She is finishing her law degree at NYU Law School, is the Senior Articles Editor of the NYU Journal of International Law & Politics, and is a member of the 2020 NYU Law ICC Moot Court Team. She has participated in various volunteer projects including tutoring programs for inmates, challenging solitary confinement, and teaching high school immigrant and refugee students. While student at NYU Law School, Tamara has worked as a judicial intern at the United States District Court for the Eastern District of Virginia and as a summer intern for DLA Piper in New York.

 

UPDATE: Researching Dutch Law by Angélique Bessems at https://www.nyulawglobal.org/globalex/Netherlands1.html.

Mrs. Angélique Bessems holds a LL.M Master of Law Degree in Dutch law and is working for the Maastricht University Library as a specialist Legal Scientific Information & Skills Support. She is also an active member, secretary, of the Juridische Bibliothecarissen Overleg (JUBO), the Dutch Association of University Law Libraries.

 

UPDATE: Essential Issues of the Peruvian Legal System by Milagros Bustillos Pinto at https://www.nyulawglobal.org/globalex/Peru1.html.

Milagros Bustillos Pinto specializes in Tax Law (graduated from Pontificia Universidad Católica del Perú in 1985) and a Partner of Hernández & Cía. Abogados in Lima, Perú. She has participated in several research projects carried out by the Peruvian Institute of Tax Law, the International Fiscal Association (IFA) Peruvian Group, the International Association of Taxation and Human Rights, Latin American Institute of Tax Law, among others. She is a Past-President of the Board of Directors of the Peruvian Institute of Tax Law (IPDT) and an active member of the International Fiscal Association (IFA), Peruvian Group. She is a former assistant professor of Tax Law I (Tax Code) at the Law School of the Pontificia Universidad Católica del Perú and former Professor of Tax law II (Income Tax) at the University of Lima. She was also professor of Tax Law II at the Administration and Accountancy Schools of the Academic Department of Political and Social Sciences at The Pacific University.

 

UPDATE: Philippine Legal Research Part I and Part II by Milagros Santos-Ong at https://www.nyulawglobal.org/globalex/Philippines1.html and https://www.nyulawglobal.org/globalex/Philippines1_Part2.html.

Milagros Santos-Ong is the Director of Library Services of the Supreme Court of the Philippines, retired in 2017. She is the author of Legal Research and Citations (Rex Book), a seminal book published in numerous editions, the latest of which is 2018 and a part-time professor on Legal Research in several law schools in Metro Manila, Philippines.

 

UPDATE: São Tomé and Príncipe Legal System and Research by Gerhard Seibert at https://www.nyulawglobal.org/globalex/Sao_Tome_Principe1.html.

Gerhard Seibert graduated in Cultural Anthropology from Utrecht University, Netherlands, in 1991, and earned a Ph.D. in Social Sciences at Leiden University, Netherlands, in 1999. Until 2008 he was a postdoctoral fellow at the former Instituto de Investigação Científica Tropical (IICT), Lisbon, Portugal. From 2008-14 he was a researcher at the former African Studies Center at ISCTE – Instituto Universitário de Lisboa (CEA/ISCTE-IUL). From 2014-19 he was associate professor at Universidade da Integração Internacional da Lusofonia Afro-Brasileira (UNILAB), Campus dos Malês, São Francisco do Conde, Bahia, Brazil. He has conducted research in Mozambique, Cabo Verde, São Tomé and Príncipe and on Brazil – Africa relations. He authored book chapters, journal articles, and the book Comrades, Clients and Cousins. Colonialism, Socialism and Democratization in São Tomé and Príncipe (Leiden: Brill 2006), widely considered the definitive volume on the recent history of this African island state. He is co-editor of Brazil-Africa Relations. Historical Dimensions and Contemporary Engagements (Woodbridge: James Currey, 2019). Currently he collaborates with the postgraduate program PósAfro at the Centro de Estudos Afro-Orientais (CEAO), at Universidade Federal da Bahia (UFBA) in Salvador, Brazil, and is an associated researcher at the Centro de Estudos Internacionais (CEI), at ISCTE-IUL, Portugal.

 

UPDATE: Republic of Slovenia Legal System and Legal Research by Dr. Iztok Štefanec at https://www.nyulawglobal.org/globalex/Slovenia1.html.

Iztok Štefanec holds a law degree (2010) and Ph.D in Law, Constitutional Law (2018), both from the University of Ljubljana, Slovenia. He is a teaching assistant for constitutional law and currently works as an adviser to the Constitutional Court of the Republic of Slovenia.

 

UPDATE: Trinidad & Tobago Law and Legal Research by Catherine A. Deane at https://www.nyulawglobal.org/globalex/Trinidad_Tobago1.html.

Catherine A. Deane is the Bay Area Research Specialist for Shearman & Sterling LLP. She received her primary and secondary education in Trinidad. She has a B.A. in Cultural Anthropology with a Certificate in Latin American Studies from Princeton University, an M.A. in Cultural Anthropology and a J.D. with a Certificate in International and Comparative Law from the University of Tulsa in Oklahoma, and an M.L.I.S. degree from San Jose State University, School of Library and Information Science.

 

UPDATE: Researching Legal System of the United Kingdom by Hester Swift at https://www.nyulawglobal.org/globalex/United_Kingdom1.html.

Hester Swift has been Foreign and International Law Librarian at the Institute of Advanced Legal Studies, University of London, since 2007. She has written for the BIALL journal, Legal Information Management, and has been a contributor to successive editions of City Law School’s Opinion Writing and Case Preparation (Oxford University Press) since 2006. Previously she was European Union Librarian at the Law Society Library and she began her career at HM Treasury and Cabinet Office Library.

 

For more articles, visit https://www.nyulawglobal.org/globalex/index.html.

 

New FCIL Librarian Series: Q & A

By Janet Kearney

This is the third in a series of posts documenting my experience as a new FCIL librarian. I started as Foreign & International Law Librarian at Fordham University School of Law in February 2019.

Happy work anniversary to me! A year ago this month I officially became an FCIL librarian for the first time. To commemorate this date for the blog, I decided to do a Q & A with some other FCIL librarians to discuss how they got started, their favorite FCIL-SIS volunteer activities, and a few other questions I’ve had on my mind.

Thank you very much to the librarians who entertained my questions:

  • Loren Turner, Foreign, Comparative, and International Law Librarian at the University of Minnesota Law School and our fearless FCIL-SIS chair. (LT below.)
  • Amy Flick, Foreign and International Law Librarian at the MacMillan Law Library at Emory University School of Law, member of the FCIL-SIS Nominating Committee and editor of the International Calendar for the International Journal of Legal Information (IALL) (AF below.)
  • Marcelo Rodriquez, Research & Training Librarian at the US Second Circuit Court of Appeals Library, FCIL-SIS Latin American Law interest group chair (MR below.)

The comments below have been edited for grammar and style, and I’ve emphasized some of the takeaways.

 

Tell us a bit about yourself – where do you work? How long have you been an FCIL librarian, officially or unofficially?

LT: I am the official FCIL librarian at the University of Minnesota right now. I’ve been here for almost 4 years. Before that, I was an unofficial FCIL librarian at the University of Florida.

AF: I have worked for the Hugh F. MacMillan Law Library at Emory University since 1994, full-time since 1996. I have officially been the FCIL librarian since 2013. Unofficially becoming the FCIL librarian was more of a gradual process.

MR: I’m Marcelo Rodriguez, Research and Training Librarian, US Court of Appeals for the Second Circuit in New York, NY. We don’t have an official FCIL librarian. However, we do receive a few FCIL-related research questions either related to the fact that two of our Circuit states, New York and Vermont share borders with Canada, and New York City’s prominent role in international trade and finance.

 

How did you get involved in FCIL librarianship?

LT: I have always wanted to be a FCIL librarian. I studied Latin/Italian in high school/college and then international law in law school, so as soon as I decided to become a law librarian, I decided to pursue FCIL librarianship. When I was at Northwestern’s law library, I met Heidi Kuehl, who later recruited me to be a co-Chair of the FCIL-SIS publicity committee and it was through that service that I met the FCIL-SIS community and started developing the niche.

AF: I started as the GovDocs librarian, so I got the questions about treaties and our EU docs, and the UN document questions because faculty thought we were a UN depository. (We weren’t, but the main Emory library had a large UN document collection.) Foreign law questions came later, as more knowledgeable librarians at Emory retired or left the library. I knew almost nothing about international or foreign law back then, but I learned international law librarianship along the way. So, if you’re a new FCIL librarian and don’t always know what you’re doing, you’re still doing better than I did back then.

MR: Once I realized that I wanted to become a librarian, FCIL librarianship felt like a natural path to me. I have always been interested in international relations and foreign languages. My initial career goal was to become a diplomat or work in an international organization. I did get to intern at the Library and Archives of the International Criminal Court at The Hague, Netherlands and the Central Library of the European Commission in Brussels, Belgium. More than any other area of law librarianship, FCIL librarianship forces the law librarian to think outside the box, and to take into consideration some many other variables, which may fall under the realm of non-legal. Every time I get a FCIL-related question, I’m eager to use my knowledge on geography, history, languages, international relations, and also be able to learn something else. Every FCIL question feels like a learning opportunity!

 

What is the best way to get involved in professional organizations? Do you think it’s important for newer FCIL librarians to participate in these groups?

LT: The best way to get involved in professional organizations is to put yourself out there: email anyone you know who serves in a group that interests you and/or just show up at group meetings during conferences. Don’t be shy! The FCIL-SIS is always looking for volunteers to develop new projects and maintain current ones. And, I think it is important for all FCIL librarians – newer or otherwise – to participate in these groups. None of us know everything. There is just too much to know. So, active participation in professional organizations keeps your skills and your connections fresh and there is an incredible community of FCIL librarians to meet.

AF: Just do it! If you see an announcement seeking volunteers – writing, presenting, being part of a committee – and it fits your interests and skill set, you’ll be welcomed. But make sure it won’t overwhelm you fitting it in with your regular responsibilities. I think it’s better to start small and do the job well than to overcommit. Professional organizations like FCIL-SIS and IALL are great for newer FCIL librarians. Besides building your resume, you make contacts that you’ll want when you get difficult questions.

 

Do you think it’s more important to develop specialties (like human rights, international arbitration, etc.), be a generalist, or both?

LT: In my experience, specialties develop over time based on the community you serve. When I was at the University of Florida, I developed a specialty in international commercial arbitration because I was recruited to co-coach a Vis Moot team (I had zero experience in international commercial arbitration before that). When I got to the University of Minnesota, however, I didn’t serve faculty or students interested in international commercial arbitration. Instead, my new community specialized in international human rights law, international humanitarian law, and national security/laws of war. And, through repeated faculty and student interactions, I’ve started to develop specialties in those areas. If there is a particular specialty that you have always wanted to pursue, then go for it! But, I recommend learning as much as you can about general international law (sources, databases, etc.) first so that you have the foundational knowledge you’ll need to have anyway for a career in FCIL librarianship.

AF: Being the Foreign and International Law Librarian is already a specialty within most libraries. There are few law libraries where you can spend the better part of your time in foreign and international law, much less specializing beyond that. But you will develop at least a little expertise in the subjects where your law school or firm has specialists. Emory has an IHL Clinic, so I get student questions on international humanitarian law and the law of war. And we have legal historians among our faculty who periodically send me requests for 19th century English cases or for 20th century State Department documents.

 

Are there any special skills that you think are critical to doing FCIL research?

LT: I’d say: curiosity and tenacity, which are critical skills for any librarian, but FCIL research can be tough. The answer to many FCIL questions may very well be: “I’m sorry, but that thing [English translation, speech transcript, etc.] is not available.” And, yet no one wants to give that answer! The FCIL librarian has to be willing to scour for a result long after others may have given up.

AF: Foreign languages would help, but I don’t have that. And good research skills in general. It’s more important to have an interest in the subject, to enjoy looking for obscure documents, trying different databases, and reading enough news and professional literature to be able to interpret FCIL questions.

 

Do you have a strategy or approach to continuing education?

LT: My strategy is to do it! There is so much to know as a FCIL librarian and I’m not even close to knowing it all or even most of it. I try to attend as many conferences as my budget allows, and I volunteer for many different organizations so that I maintain my network and remain “in the know.” Also, now that the FCIL-SIS has started to produce free continuing education webinars (thanks to Caitlin Hunter), I watch those, and, when my schedule allows, I also attend free conferences or programs on international law at the University where I work. Also, I read/skim every issue of the American Journal of International Law and the FCIL-SIS Newsletter.

AF: I attend conferences and webinars, of course, and I read about legal research and international law. But I learn the most while preparing for classes, a reminder that experiential hands-on learning is the most effective kind.

 

What is your favorite FCIL resource (for example, Foreign Law Guide, GlobaLex, Justis, Max Planck, Darts IP, International Encyclopedias)? Why?

LT: I love the Max Planck Encyclopedia of Public International Law. I always try to start every new project with it because it forces me to stop and think and put the legal question(s) I am trying to answer into context. It strengthens my vocabulary and helps me refine my keywords before hopping onto Google or one of the many FCIL databases. It is always the first database I highlight whenever I am covering background sources for my classes, workshops, or guest visits.

AF: I’m guessing that “it depends on the project” isn’t a definite enough answer. For international law questions, I like to start students with the Max Planck Encyclopedia of Public International Law for background reading and a bibliography. It frequently has the citations for the most important documents for their project. Although that has to come with a reminder to check the article date. For foreign and comparative law projects, I like to start students with the Foreign Law Guide because it not only refers them to primary sources, it has citations to major statutes by subject area.

 

Me, reading all these answers:

Introducing…Anne Abramson as the February 2020 FCIL-SIS Member of the Month

02.04.20 anne abramson

1. Where did you grow up?

Chicago

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

I attended a career change course at NYU and librarianship was one of the careers recommended.

3. When did you develop an interest in foreign, comparative, and international law? I have always had an interest in all things international, starting with foreign language studies before and during college and majoring in International Relations at Stanford.

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

UIC John Marshall (fka John Marshall) since 1997

5. Do you speak any foreign languages?

French, Spanish, some German

6. What is your most significant professional achievement?

I am proud of my International Legal Research LibGuide, which I am in the process of updating, as well as the International legal research class that I developed and taught for three years. The LibGuide is like a textbook for the class.

7. What is your biggest food weakness?

Popcorn. I can’t stop eating it!

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

“Happy” by Pharrell Williams

9. What ability or skill do you most wish you had (that you don’t have already)? There are so many, but I would say music (ability to read and play and instrument and/or sing) and math/science skills just for starters.

10. Aside from the basic necessities, what is one thing you can’t go a day without? Getting outdoors & yoga or some form of movement/exercise.

11 Anything else you would like to share with us?

I am a home cook and yogi. I love international travel especially if it includes cooking and/or yoga classes. I also love birds and nature and am trying to find ways to experience even in a big urban environment like Chicago.

3 Lessons about International Law and Technology from ASIL Midyear

By Caitlin Hunter

At the American Society of International Law’s 2019 Midyear Meeting, hosted at Brooklyn Law School, international law scholars and practitioners talked candidly about the new challenges and opportunities that technology is creating for international law as part of three panels: The Status of Data under International Law, Cyber Affairs and International Law, and The Impact of Technology in International Law.

Here are three key take-aways:

  1. Existing privacy frameworks aren’t keeping up with governments’ use of technology.

Tamar Megiddo (University of Haifa) describes how governments use technology to systemize surveillance and suppress dissent. For example:

Megiddo argues that existing privacy frameworks have become increasingly inappropriate as a response to these tactics. When activists try to speak publically and are shut down by disinformation and troll swarms, the problem is not privacy. Megiddo recommends adopting a new framework focused on human freedom instead.

  1. Technology is challenging stereotypes about the developing world.

Block-chain might be stereotypically associated with Bay Area tech bros but Brittany Bennett (Florida A&M University College of Law) convincingly argues that it’s perfectly suited for adoption within and across African countries. Ideologically, block-chain’s decentralized, independent format fits well with ideals of pan-African socialism. On a practical level, block-chain can provide reliable and trustworthy currency, land registration, and election results in countries that struggle with corruption and lack of trust in government.The African Grid: How Blockchain Technology can Revolutionize African Governance, By Brittany Bennett

Katerina Linos (Berkeley Law) argues that widespread adoption of smart phones and social media is revealing fundamental flaws in the legal concept of refugees. Refugee law assumes that refugees flee their countries with guns to their heads and gratefully accept refuge in the first safe country they reach. The reality, however, is that most refugees exercise more agency that that. As refugees flee violence, their phones remain vital life lines for arranging transportation, finding work, and identifying the most welcoming countries and least crowded refugee camps. Host countries that ignore this and fail to maintain a social media presence allow rumors and misinformation to run rampant within refugee camps. Linos’ Digital Refuge Project maps how information and misconceptions flow among refugees on Facebook.

  1. Governments need to take responsibility for regulating the internet- but they must tread carefully.

Both Nele Achten (Harvard University Kennedy School of Government) and Dafina Bucaj (Loyola Marymount University Law School, Los Angeles) presented papers arguing that countries must take responsibility for preventing cyber-attacks from within their territory. The widespread use of the internet for everything from power plants to airports to elections has made countries increasingly vulnerable to cyber-attacks. At the same time, it’s often difficult to conclusively assign responsibility for cyber-attacks, such as the allegedly Russian-backed attacks on the Ukrainian power grid and the U.S. Democratic National Committee. Both Achten and Bucaj argue that governments have a due diligence obligation to prevent cyber-attacks originating in their territory, regardless of who actually commits the attacks. They analogize to the Corfu Channel case, which held that Albania had a duty to prevent the laying of mines within its water by outsiders, and to more recent environmental decisions, which held that countries must prevent pollution that spills into neighboring countries.

However, Kevin Benish (Holwell Shuster and Goldberg LLP) cautions that overuse of injunctions against websites can create “conflict of law on steroids”. The presumption against the extraterritorial application of injunctions is eroding as the European Court of Justice orders websites worldwide to remove personal data, German courts order websites worldwide to remove hate speech, Canadian courts order websites worldwide to remove trade secrets, and U.S. courts give Microsoft ownership of alleged Russian hacking websites. Given dramatic differences in countries’ attitudes towards free speech, hate speech, and privacy, these injunctions create serious potential for conflict unless courts develop new tests for extraterritorial application of injunctions.

IALL 2019 Recap: George Williams AO, Australia’s Constitutional Quirks

By Jessica Pierucci

The International Association of Law Libraries hosts annual courses in different locations around the world each year. I was lucky enough to attend the 38th Annual Course, Law Down Under: Australia’s Legal Landscape, held October 27-30, 2019 in Sydney, Australia. The course [The 38th Annual Course of the International Association of Law Libraries in Sydney, Australia] included fascinating presentations from Australian lawyers, scholars, judges, and more. Among them were George Williams AO, Dean of the Law School, Anthony Mason Professor, and Scientia Professor at the University of New South Wales. An expert on Australian constitutional law, Williams engaged the audience with an eye-opening presentation titled Australia’s Constitutional Quirks.

George Williams speaking at a podium

George Williams AO

Misunderstandings

Williams opened with some alarming statistics about misunderstandings of the Australian Constitution. On a survey a number of years ago, 47% of respondents said Australia does not have a constitution. This is incorrect. In another survey, 61% believed Australia has a national Bill of Rights. This is also incorrect. According to Williams, Australia is the only democracy without a Bill of Rights in its federal constitution.

When working on Victoria’s Charter of Human Rights and Responsibilities, Williams frequently came across people who believed they could “plead the 5th” in court, a concept they likely learned from U.S. television that does not exist in the Australian Constitution. These conversations furthered Williams’ concern about the apparent lack of understanding of the Australian Constitution by many Australians.

Aboriginal Discrimination

One major issue with the Australian Constitution is its treatment of Aboriginal people. Current and former articles of the Constitution illustrate the discrimination ingrained in this document, created without the input of Aboriginal people.

Shockingly, Article 25 allows people to be disqualified from voting based on their race. While not currently in use, the fact that this article is still in the Constitution is deeply concerning. Williams does not know of another country with a similar constitutional rule. Aboriginal people only gained the universal right to vote at the federal level in 1962, less than 60 years ago.

In addition, former Article 127, repealed in 1967, excluded Aboriginal people from the population count. This former exclusion is emblematic of the view that Aboriginal people were not part of the country.

An active debate at the federal government right now focuses on Aboriginal people, responding to the 2017 Uluru Statement from the Heart requesting voice, treaty, and truth. But only time will tell if Aboriginal people will be appropriately incorporated into the Constitution, among other proposed reforms.

Challenges for Reform

Constitutional change is slow and difficult. The federal Parliament must initiate constitutional changes and Williams has seen a frequent disparity between the will of the people and Parliament’s actions. Further, constitutional amendments require referendum and only eight constitutional referendums have passed, most recently in the 1970s. Many more have not passed and the most recent attempt at a referendum was two decades ago.

Compulsory voting requirements mean that uninformed voters may vote against a referendum even if they agree with the idea proposed due to lack of understanding. Williams writes a regular newspaper column in The Australian with the hope of increasing awareness of the government and the Australian Constitution among the public, but he wonders how effective this is as he is not sure how many people are still reading the newspaper.

Encouragingly, many state constitutions throughout Australia have undergone changes to include a Bill of Rights and acknowledge Aboriginal people, among other reforms. But it’s a completely different story at the federal level.

Conclusion

Ultimately, Williams’ presentation showed the Australian Constitution has a disturbing history and substantial changes may still be quite a ways off. Remedy Australia collects United Nations cases finding Australia in violation of human rights. The data shows Australia has failed to remedy the vast majority of these violations. This falls in line with Williams’ understanding of Australia’s constitutional history and the resistance to change at the federal level.

5 Tips for Teaching Foreign Law Students (Webinar Recap)

By Caitlin Hunter

As U.S. law schools recruit a growing number of foreign students, law librarians are increasingly called upon to teach students who are new to the U.S. education system. On December 5, four librarians discussed their experiences teaching foreign law students, in a webinar moderated by Jessica Pierucci (FCIL librarian at UCI Law) and featuring panelists Jodi Collova (Director of LL.M. Legal Research and Writing at Berkeley Law), Karina Condra (FCIL librarian at Sturm College of Law), Heidi Frostestad Kuehl (Director of the Law Library at NIU Law), and Mike McArthur (FCIL librarian at Duke Law). Panelists described teaching foreign law students in a variety of contexts, ranging from short, pre-semester introductions to U.S. law for LL.M.s to full semester research and writing classes including a mix of LL.M. and JD students. The full webinar is available here.

Here were my key take-aways on how to help foreign law students succeed:

  1. Recognize students’ individuality and diversity.

It’s important to prepare for common struggles faced by foreign students but it’s equally important to recognize the diversity of cultures and individual personalities.

Some students need to be encouraged to speak up; others need guidance on interjecting tactfully. Some students need to be encouraged to visit their professors during office hours; others need to be warned that U.S. professors will not provide the level of handholding they expect.

  1. Teach students how U.S. law school works.

Things that are obvious to a librarian who completed law school in the U.S. and has worked at a U.S. law library for years are not obvious to a 25-year-old who just got off a plane from China.

Librarians can help students succeed in all of their classes by pointing them to resources that they may not know about, such as:

  • Study aids, online and in print.
  • Legal dictionaries. Show students where to find English legal dictionaries and discuss how the same word can mean different things in conversational versus legal English.
  • Office hours and research and writing help. Students may not realize that they can visit professors during office hours. Likewise, they may not be aware of the school’s writing center or know that they can ask reference librarians for advice on citations, research for other classes, and research in practice. Tell them!

Also, alert students to norms that may differ between the U.S. and their home countries, such as:

  • The Socratic Method and active participation. Many students are from cultures where being a good student means staying quiet and taking notes. Clearly explaining the different expectations in the U.S. can make students more comfortable speaking up.
  • In many countries, it’s normal for classes to start a half-hour or more after the posted time. Let students know that classes in the U.S. start at the posted time.
  • U.S. students are drilled from elementary school onwards to use their own words, rather than copying from the book. However, anyone who has ever taught U.S. law students knows how many of them struggle to understand what this means in practice. The problem is multiplied for foreign students who may have been taught that they should copy directly from the book to show respect for established scholars. Talk with students about the importance of using quotation marks and providing attribution in U.S. education.

Of course, many of these norms (especially the Socratic Method) are new to most law students. LL.M.s can benefit from participating in JD orientation, where they can join their American classmates in learning to brief cases and participating in mock law school classes.

However, foreign students face a particularly steep learning curve. LL.M.s may not know how to read a case at the beginning of the semester and, yet, by the end of the semester they must compete on exams with third year JDs.

  1. Create assignments that set students up for success.

Foreign law students are getting used to U.S.-style legal assignments and are typically reading and writing in a foreign language, so try the following:

  • Stay away from big stakes final exams and assignments with tight time limits and use a mix of methods to assess students.
  • Start the semester by having students memorize basic legal terms and then quizzing them. This gives students necessary U.S. legal vocabulary and memorization is familiar and comfortable for students from many countries.
  • Always provide written instructions.

Most foreign law students come from civil law jurisdictions, where law is based primarily on statutes with little to no emphasis on cases. These students tend to excel at dissecting and applying statutes but struggle with analogizing and distinguishing cases. To make the transition easier for students from civil law countries:

  • Start the semester with problems based on statutes and other codes, such as the evidence code, procedural rules, or rules of professional conduct for attorneys.
  • When introducing case law, provide exercises that teach students to make fact-to-fact comparisons between cases, rather than simply mining cases for sweeping rules.
  • Tailor cases and add discussion questions to make them more manageable. Have students discuss and compare cases as a group.

Although most of the librarians primarily taught legal research, they reported that many students’ biggest struggle was actually with writing and suggested the following:

  • Add a short memo or scholarly paper to a legal research class.
  • Try Plain English for Lawyers to help non-native English speakers get comfortable with English mechanics and help native English-speakers transition to the plainer American style from the more flowery style common in some other English-speaking jurisdictions.
  • During class, walk students through writing techniques that are less commonly used in other countries, such as drafting issue statements, case analysis and synthesis, and outlining.
  1. Be approachable.

Mike notes that:

Nothing can replace a positive, approachable attitude. Your demeanor conveys more than anything else and it can open and close doors with students.

He makes a point of participating in orientation week activities, such as lunches and barbecues, which provide opportunities to bring up differences in educational styles in a casual environment, where students can compare experiences with each other.Nothing can replace an approachable attitude

He also hosts a regular discussion group, where foreign students and scholars meet to discuss articles that he selects on unfamiliar U.S. legal topics that interest them, such as the mechanics of impeachment and why it’s surprising when Justice Thomas speaks.

Similarly, Karina coordinates an orientation event where incoming LL.M.s meet with four or five faculty, so that they can get to know and feel comfortable with their teachers and fellow students before classes start.

  1. Help students learn from each other.

Most students enjoy explaining how their own legal systems work and it’s easy to create opportunities for them to do so:

  • Ask for volunteers to discuss how the legal system and law in their jurisdiction differs from the U.S.
  • Encourage students to work together in class by pairing LL.M.s and JDs on in class assignments, grouping students from a mix of jurisdictions to discuss how a topic differs in their jurisdictions, or assigning students from a mix of jurisdictions to practice groups or firms to complete assignments.
  • Encourage students to get to know each other outside of class, by introducing JDs and LL.M.s, encouraging JDs to attend LL.M. events, and encouraging LL.M.s to participate in student organizations and journals.

The panelists universally agreed that foreign law students bring immense value to classes and that giving them the opportunity to share their perspectives provides invaluable benefits to other LL.M.s and JDs alike.