WestPact 2018 Recap: Charting the Legal Systems of the West Pacific Islands: Tracking Down Primary Documentation

By Shay Elbaum

WestPacIslands.jpgVictoria Szymczak, Director of the Law Library and Associate Professor of Law at the University of Hawai’i William S. Richardson School of Law, led off the “Teddy Talks” segment of the program with a look into the process of creating her research guide, Charting the Legal Systems of the Western Pacific Islands, recently published by Hein. This guide grew from Szymczak’s collection development work in this area. Hawai’i is, of course, a Pacific island itself, and the mission of the UH School of Law expressly recognizes a responsibility to the Pacific region. As the only American academic law library in a region especially vulnerable to climate change, the library’s work with Pacific island legal systems is particularly timely. The uniqueness of these legal systems also drew Szymczak to this work; rather than “mixed” or “pluralist”, these systems are best described as “hybrid”, merging elements of indigenous and Western systems into a unified whole.

Two major challenges Szymczak faced were the complexity of Pacific island legal systems and the differences among them. Nearby islands can have vastly different legal systems, depending on – among other things – whether they had been colonized by France, Britain, or the United States; whether the indigenous culture was Melanesian, Micronesian, or Polynesian; and what the colonial status of the island was. Szymczak chose to focus only on five former British colonies for this guide, but still had to grapple with the differences between colonies, protected states, protectorates, and condominiums, the many name changes as islands went from independent to colony (or protectorate, or…) and back to independent, and the frustrating lack of citations to primary sources in many of the works she consulted.

The result is a detailed and eminently usable guide to researching the legal systems of Tonga, Tuvalu, Kiribati, Vanuatu, and the Solomon Islands. Szymczak helps the reader navigate through those complexities and more, and gives us the tools to identify, access, and interpret the relevant primary sources. In her presentation, she highlighted the many different lawmaking authorities in each nation during the colonial era, each with different powers and producing different kinds of law depending on the unique features of their nation. She also discussed some particularly useful sources, such as Hertslet’s Commercial Treaties; Hertslet’s contains primary documents relating to British commerce, and includes many Pacific island-related documents because of their locations along major trade routes.

Szymczak closed with some illustrations of the unique blend of customary and British law found in these legal systems. She gave the example of the Solomon Islands’ constitution, which provides for the continuation of certain colonial laws where not inconsistent with customary law. As a result, the courts of that nation must interpret and apply customary law alongside other sources of law.

This presentation packed quite a bit into the half-hour “Teddy Talk” time slot. I enjoyed learning about what goes into creating a resource like this – and now that I know about this guide, I’m looking forward to having an opportunity to use it!

Introducing…Melissa Abernathy as the November 2018 FCIL Librarian of the Month

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1. Where did you grow up?

I grew up in Monterey Park, CA, a suburb about 10 miles east of downtown Los Angeles.  Monterey Park is known for having a vibrant Chinese-American community, producing several Chinese-American mayors and one U.S. House Representative (Judy Chu).  It’s also home to the best dim sum, hands down.

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

As a second year law student at Lewis & Clark I worked as a faculty RA, Westlaw student rep, circulation desk worker, and was very involved in law review.  Between those four positions I spent a LOT of time in the law library.  One day, a reference librarian and I waded through the CIS index and down into the bowels of the microfiche collection, on the hunt for some legislative history I needed for cite-checking.  I have to admit I shot her a few dubious glances as we dug deeper and deeper, dutifully writing down SuDoc numbers.  Like magic, she unearthed the item we needed and loaded it onto the microform machine.  Color me impressed! By my third year I was hanging around the reference desk enough that the librarians began mentioning the possibility of library school.  Many of them had matriculated through Penny Hazelton’s program at the University of Washington so I applied straight away and was accepted.  As they say, the rest is history.

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

I got my first taste of international law working with the International Environmental Law Project during law school.  One research assignment involved endangered gorillas crossing protected areas in three countries: Uganda, Rwanda, and the Democratic Republic of Congo. Treaties, domestic legislation, and Virunga mountain gorillas, oh my! You could say I was hooked. Several international law courses and papers later, I ended up applying to an FCIL librarianship position at the University of San Diego straight out of library school.

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

I have been with the University of San Diego, Legal Research Center since 2007.

5. Do you speak any foreign languages?

Sadly, I do not.

6. What is your most significant professional achievement?

I’m most proud of the inroads I’ve made with FCIL teaching at USD since starting here over a decade ago.  We now teach several classes in the LLM in Comparative Law Program and U.S. Law and Policy Program (foreign scholars mainly from Korea), as well as provide FCIL training for our Vis International Moot Court team and International Law Journal students. Most recently we added a 1-credit, 7-week course on International Legal Research for which I am the instructor of record.  We’ve only offered the course twice so far but the response has been very positive.

7. What is your biggest food weakness?

Pizza!

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

Wagon Wheel by Darius Rucker, or really any version.

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

Like many FCIL librarians, I would love the ability to speak one or more foreign languages.

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

A good belly rub for my sweet 17-year-old pup, Shadow.

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

My husband and I are expecting our first baby (a boy!) this December.

IALL 2018 Recap: Traditional Cultural Expressions and International Intellectual Property Law

By Joan Policastri

Dr. Lily Martinet of the Max Planck Institute in Luxembourg began by giving a brief description of what is included in Traditional Cultural Expression (TCE) and how it intersects with Intellectual Property (IP) Law.  While historically TCE has been associated with copyright law, developments within the United Nations have evolved the concept to meet with ideas from human rights, intellectual property law, and cultural law. Another aspect of this evolution is the sourcing of ideas originating in anthropology that are now being incorporated into law. The documents which have brought these together are The Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005), The United Nations Declaration on the Rights of Indigenous Peoples (2007), and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

While there is no accepted definition of TCE in international law, Dr. Martinet uses this: “tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms.”

The Key characteristics of TCE are: 1) cultural content, 2) a collective essence, which can include groups, tribes, nations, or other communities, but not an individual, and 3) intergenerational transmission. Cultural expressions result from the creativity of individuals, groups and societies, and that have cultural content. Cultural content refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities (Art. 4 of the Convention on Diversity of Cultural Expression).

In order to complete the picture, the diagram below shows the intersection of TCE and Traditional Knowledge. The overlap is Intangible Cultural Heritage.

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Some examples of TCE include the Māori Tā moko patterns, patterns used in Alençon Lace (an example of intergenerational transmission), and Champagne. Other topics raised were the registration of dance moves as cultural expressions, or the series of postures in Bikram Yoga.

Slides provided visual experiences of these expressions, including this example of “Misuse of Traditional Cultural Expressions” of the Tā moko patterns. Ironically, colonial governments once banned tattoo use by the traditional peoples who created them, but now indigenous designs are being exploited by commercial interests.

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The current situation was described as a quagmire and existing legal instruments have rarely been applied in practice. Dr. Martinet gave three reasons why laws need to be elaborated:

1) The misuse/appropriation of the expressions. While there might be an element of public domain, the central issue is that traditional peoples are not consulted prior to the use of their expressions, the benefits of the use are not shared with the originators, and the commercial users do not acknowledge the source(s). These practices lead to unfair and unethical uses.

2) Distortion. The commercial users appropriate the symbol without its meaning, without understanding the values it expresses, and denigrate the expression. Tā moko are not simply designs and true Tā moko are not superficial. Tā moko are about identity and they are carved into the skin.

3) The non-traditional users may claim a right in the expression. For example, a tattoo artist claimed royalties in a design and used the claim against the indigenous people who originated it.

An interesting question was raised concerning what could be considered historical appropriations such as Claude Monet’s use of Japanese style in his painting, “The Japanese Footbridge and the Water Lily Pond” (1899).

The core issue is the Community’s right to protect its cultural expressions; to preserve the dynamic development of cultures. But will the laws stifle freedom of expression? Dr. Martinet believes that finding a good balance is the key.

For more information on Intangible Cultural Heritage, see https://dpc.hypotheses.org/category/the-osmose-program-english-version. It references the Indian Arts and Crafts Act in the United States.

IALL 2018 Recap: Special Features of Luxembourg Law, such as its Sources

By Jessica Pierucci

This year’s IALL Annual Course was hosted in the country of Luxembourg.  On October 1, 2018, attendees were treated to a fantastic discussion of special features of Luxembourg law by Gilles Cuniberti, Professor of Private International Law and Comparative Law at the University of Luxembourg. This recap summarizes these fascinating details of the laws of this small European country.

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Professor Gilles Cuniberti discusses special features of Luxembourgish law.

Luxembourg is a civil law jurisdiction, meaning that codes and non-codified statutes are the county’s primary source of law. Case law, while not an official source of law, nevertheless plays an important role in practice. Academic writing is also highly influential.

Luxembourg is a small jurisdiction. As of 2018, the county’s population of about 600,000 residents includes only 313,000 nationals. As of December 2017, the country’s judiciary includes a total of only 249 judges. Accordingly, the country has limited institutional capacity in the court system, so there are frequently few or no Luxembourg cases to refer to on a given topic.

Luxembourg was a French province until 1815 and, as such, Luxembourg law is primarily grounded in the Napoleonic codes. Although France has since reformed many of its laws, there has not been a strong desire or institutional capacity in Luxembourg to make the same reforms. As a result, understanding the law can sometimes require turning to old pre-reform French law books to help understand and interpret the current law of Luxembourg.

While much Luxembourg law is borrowed, Luxembourg uses its institutional capacity for law making in two key ways: First, to comply with international obligations and implement EU legislation and, second, to create innovative laws in banking and finance and in space law. Luxembourg is a prominent finance capital and the richest state in Europe. The space industry is a current state priority, leading to the proliferation of laws to implement this priority.

Academic literature is highly influential in the Luxembourg legal system. Luxembourg did not have its own university until the University of Luxembourg was established in 2003. As a result, judges and lawyers received their training abroad, frequently in France and Belgium, so French and Belgian scholarship is frequently cited in cases. Further, judges only practice law for two years after law school before becoming judges and often turn to academic writing, frequently from the country where they studied, to help them decide cases, particularly those based on imported law. In recent years, the Belgian influence has waned and it’s possible that, as the University of Luxembourg matures with more scholarship on Luxembourg law produced by law professors in Luxembourg, the French influence could wane with it. But given that masters programs are generally not offered in Luxembourg and university students at the University of Luxembourg are all required to partake in an Erasmus semester studying abroad, among other factors, the French influence is likely to remain for the foreseeable future.

While Luxembourg is a civil law jurisdiction, case law has recently played a greater role in the Luxembourg legal system despite not being an official source of law. Judges frequently follow Belgian courts for commercial law and consider French cases generally authoritative. One example is tort law, which is an almost entirely judge-made area of law in France and that is all but missing from the codes. Luxembourg courts typically follow French torts cases, with two notable exceptions. France has rejected acceptance of risk and personal immunity of employees, but Luxembourg still has these two elements of tort law.

The worldwide influence of French case law, including on Luxembourg, may be the result of two key factors. First, judges of many Francophone countries were educated in France because the county is generally considered prestigious and welcoming, but Russia, China, and other countries are becoming more welcoming, so it’s possible this could shift in coming years. Second, the French encyclopedia Juris Classeur (LexisNexis) is available electronically and has almost become authoritative in Luxembourg, allowing an exhaustive and detailed understanding of French law.

Ultimately, Luxembourg is a small civil law jurisdiction that has imported much of its law and continues to rely on the laws of other countries in numerous ways, but the country is slowly shaping its own legal tradition as it has done with business and finance, and space law.

Working with FCIL Collections in British Law Libraries

By Erin Gow

Most of my FCIL experience has come from working at law libraries in the United Kingdom, where I started my career. British collections are, understandably, not considered foreign in the UK. This means that I worked in libraries with extremely deep, strong, and wide-ranging British legal collections. Primary and secondary materials were collected in both print and electronic formats. The libraries held not only primary legislation and key treatises but also British legal reference materials, journals, law reports, secondary legislation, ecclesiastical law, historic materials, citators, indexes, and a wealth of other materials comparable to the range of American resources found in a law library in the US.

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The basic EU collection at Gray’s Inn Library.

Since the UK is a part of the European Union and Council of Europe, British law libraries also hold collections of legal materials related to these organizations. The law libraries that I worked at were attached to Inns of Court, which form a loose coalition and divide responsibilities for specialist FCIL collections between themselves. Gray’s Inn Library, where I was first employed, specializes in international law, while Middle Temple Library, where I worked until leaving the UK, specializes in European and American law. The other two Inn Libraries (Lincoln’s Inn and Inner Temple) divided the Commonwealth countries between them.

Gray’s Inn Library did not have a designated FCIL or International Librarian when I worked there, so everyone was expected to assist with the specialist international collection. This meant lending a hand with cataloging international materials, consulting both primary and secondary international sources to answer reference questions, and assisting library users in accessing these materials. Nearly all the international materials held at Gray’s Inn Library were in English, and consisted mostly of secondary resources along with selected key primary sources such as treaties.

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A portion of the extensive collection of British law reports at Middle Temple Library.

At Middle Temple Library I worked as the European Librarian responsible for that special collection. While all the Inn libraries held some basic European Union materials, complex questions requiring more obscure resources were referred to the specialist collection at Middle Temple Library. The collection also included national materials from European countries, along with Council of Europe materials.

I found that being comfortable with a federal legal system gave me an edge in trying to wrap my mind around the European Union, which could be somewhat baffling to those used to a legal system where all powers are delegated from a central body. Although the distinction between the European Union and the Council of Europe plagued many people, the biggest learning curve for me came in working with national resources from civil law jurisdictions. Getting to grips with a completely different legal structure was particularly difficult for me in countries where the national language was not English. Most of our library patrons were English-only speakers, so the collection policy at Middle Temple Library focused on English resources whenever they were available. As an English-only speaker this made my life easier in many regards, but it was impossible to fulfill my responsibilities as European librarian or to maintain a complete collection without sometimes working with foreign language materials. There were several key French codes, for example, which Middle Temple Library traditionally held in print in the official French. When it became clear that these codes were woefully out of date I spent several weeks in protracted negotiations with French legal publishers tracking down and purchasing the appropriate replacements. Luckily my manager at the time was able to provide extremely competent translations of emails between myself and the French publisher, but I still had to identify the correct codes to purchase by cobbling together my own translations of the promotional materials.

Since Middle Temple Library specialized in American law as well, I interacted with this collection a fair amount, especially as my co-workers began to realize that they could call on me when the librarian responsible for the collection was absent. Explaining American legal resources as foreign law was an oddly frustrating sort of fun. It was nice to work with a collection where I was guaranteed to always know the language, particularly after some of my more complex excursions into European resources, but I found myself struggling to answer questions that British practitioners believed should be straightforward. I was frequently asked why Federal courts hadn’t ruled on a particular issue, for example, or which case reporters were the most authoritative for court use (I’m unaware of an American equivalent to the vital British concern of authoritative law reports). Law reporters arranged geographically were understandably unhelpful for British lawyers, and questions that tapped into the library’s special collection on the death penalty always reminded me just how ideologically foreign American law could be. My work with American legal materials while in the UK, more than anything else, made me realize just how many key differences can be masked by a shared language and history.

My experience of working with FCIL collections in the UK has continued to shape how I approach these resources now that I am in the US. A practical grounding in a variety of legal structures allows me to research unfamiliar topics across a range of jurisdictions with some confidence, but the experience of “foreign” as a changing concept ensures I never forget to respect the wide-ranging variety of FCIL resources.

IALL 2018 Recap: Robot Law

By Mike McArthur

We were privileged to hear Ms. Mady Delvaux-Stehres of the European Parliament provide some insight into the recent discussion and drafting of the report on Civil Law Rules on Robotics. Since she and the other members of the working committee didn’t have backgrounds in robotics, they relied on a team of specialists to get them up to speed. After about a year of work, she began drafting of the report.

The first issue the committee needed to address was the definition of robot they would use in the report. They wanted to encompass the wide application of uses, but ultimately excluded robots used for military application, as that would have ushered in a whole other level of considerations.

Ms. Delvaux-Stehres outlined 5 major themed challenges that faced the committee:

(1) Safety and security, encompassing cyberhacking and cybersecurity, are the most critical issues for the European Union.

(2) Data protection and privacy is still a concern, even with GDCP in force. She explained that it is yet to be seen how effective this new law will address advances in AI.

(3) Ethical considerations related to reliability, transparency, accountability and fairness are also a concern. So much data is fed into the system with machine learning, but there still needs to be a way to determine how reliable the results are. This process often happens in a black box, though, and the more the committee delved into the topic, the more questions that seemed to emerge.

(4) Jobs and skills are being impacted as well. The committee were not concerned about the winners, but were concerned about how society would take care of the losers. Education is effective but slow and there are still many resistant to change. On a side note, she mentioned she introduced the idea of taxing robots, but it was quickly dismissed by a majority of representatives.

(5) Finally, specialists from a broad range of disciplines would need to be brought into the discussion, and they could not just rely on computer scientists. Examples she provided included lawyers and philosophers.

The talk then pivoted to issues related to liability. The current framework has limitations and the definitions are insufficient per Delvaux-Stehres. Using an autonomous car as an example, she mentioned that the types of damage that could occur far exceed the main category of product liability, namely defective products, and even that is narrowly defined. Summing up the government’s responsibility, she further explained that increasingly sophisticated products will require a very large safety net.

Further issues that the committee discussed included the question of obligatory insurance, which would be challenging to set rates for due to a lack of available data. Also, the concept of e-personality, or evolving algorithms, and whether liability would be assigned to the developer. And lastly, the speaker concluded by positing a few rhetorical questions. How do we need to change to make sure that AI will not just benefit the wealthy few, but society at large? How can we limit and control the mega-tech companies? Definitely topics that would require entire conferences of their own.

IALL 2018 Recap: Introduction to the Legal System of Luxembourg and Its History

By David Isom

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Professor Jörg Gerkrath of the University of Luxembourg speaks at IALL 2018.

Fittingly, the opening session of the 2018 IALL Annual Course was an “Introduction to the Legal System of Luxembourg and Its History,” given on the morning of October 1 by Jörg Gerkrath, Professor of European Law at the University of Luxembourg. Professor Gerkrath began by noting the Grand Duchy’s national motto: Mir wëlle bleiwe wat mir sinn (“We want to remain what we are”)—but does Luxembourg know what it is, and how did it come to be what it is? While it is impossible to fully address the history of Luxembourg and its legal system in such a brief lecture, he attempted to give provide introductory answers to both of these questions.

As a very small country—both in area (about 2,500 square kilometers) and population (about 580,000 people)—Luxembourg has long been influenced by (and sometimes ruled by) its larger neighbors since its founding in 963. Professor Gerkrath noted that Luxembourg’s history can be divided into three major phases: from roughly the 10th to the 15th centuries, as a small county; from the 15th to the 19th centuries, as a subject of foreign domination—including being part of the French Empire, the German Confederation, the Kingdom of the Netherlands, and the Kingdom of Belgium in the 19th century alone; and from the 19th century to the present, as a small independent state. Luxembourgish independence was a process which began with the Congress of Vienna in 1815, when it gained independence from the French Empire, was elevated to a Grand Duchy, and was given to King William I of the Netherlands. Its independence was further developed by the First (1839) and Second (1867) Treaties of London, with a constitution taking effect in 1868 ushering in an era of constitutional stability.

Professor Gerkrath explained that in its relatively short history as an independent nation, Luxembourg has been deeply involved in various international organizations and unions, including an economic union with Belgium and later the Benelux Union; the European Coal and Steel Community, the European Economic Community, and the European Union; the International Monetary Fund, World Bank, and United Nations; and the North American Treaty Organization. Luxembourg is also a signatory of the Schengen Agreement and a member of the Eurozone.

Professor Gerkrath also explained the structure of Luxembourgish government. It is a parliamentary monarchy; the head of state is the Grand Duke (currently Henri), and it has a unicameral legislature, the Chambre des députés (Chamber of Deputies). The Grand Duke appoints a government with the support of the parliamentary majority, forming the Conseil de gouvernement (Government Council) headed by the Prime Minister. Legislation is written by the Chamber of Deputies and promulgated by the Grand Duke. The Conseil d’État (Council of State, composed of 21 councilors serving 15-year terms) is required to examine and issue opinions on all laws passed by the Chamber of Deputies before they are promulgated, ensuring that they conform with the constitution, international law, and the rule of law—but its opinions are merely advisory. Universal suffrage was introduced by constitutional amendment in 1919, and voting is mandatory. While the constitution states that Luxembourgish is the country’s language, French is the primary language of its laws (with the exception of some fiscal documents in German), and its official journal (the Journal officiel du Grand-Duché de Luxembourg) is in French.

Professor Gerkrath’s lecture dovetailed with the one that followed, “Special Features of Luxembourg Law, such as its Sources” given by Professor Gilles Cuniberti, and Professors Gerkrath and Cuniberti answered questions jointly following their lectures.