AALL Annual Meeting 2021: Must-Have Program Topics

Dear FCIL-SIS:

In case you missed it during the start of the academic year and general global chaos, the AMPC has published its list of must have program topics! A number of these topics explicitly pertain to Foreign, Comparative, and International Law. For example:

  • Research and Analysis: specialized areas of research including foreign and international.
  • Information Management: preservation of legal information, including foreign law digital preservation methods.
  • Marketing and Outreach: access to justice, including legal aid nationally and internationally.

Additional must-have topics imply an FCIL relationship, such as cross-cultural communication, cultural competency, etc. The complete list of must-have topics can be seen here, along with further information on how to submit your program proposals: https://www.aallnet.org/conference/resources/proposing-a-program/must-program-topics/

The call for proposals will occur on October 1, with all program proposals being due at 11:59pm on November 30. However, it is never too early to start thinking about program ideas!

The FCIL-SIS Education Committee stands ready to assist you in developing and drafting your proposals. Please contact Hunter Whaley (hwhaley@columbia.edu) or Dennis Sears (searsd@law.byu.edu) for assistance with any program ideas you may have. Cleveland will only be as successful as we all make it! We look forward to hearing from you during the proposal process.

Sincerely,

Dennis S. Sears and Hunter Whaley, Education Committee Chairs

FCIL-SIS Civil Law Workshop Recap: The Role of Civil Codes in France and Louisiana

By Jessica Pierucci

On July 21, 2020, the FCIL-SIS hosted an online four-session civil law workshop, Demystifying Civil Legal Systems for a Common Law Audience: Historical Traditions, Modern Developments, and Practical Research & Instruction Applications. The workshop explored civil legal traditions both from a historical perspective and the present day.

This recap seeks to summarize Olivier Moréteau’s fantastic session, The Role of Civil Codes in France and Louisiana.

Louisiana

Professor Moréteau started his remarks by tracing Louisiana’s history. The region was named “Louisiane” by Cavelier de la Salle in 1682 and considered a French colony from 1682 to 1762. After this period, France abandoned Louisiana to Spain and the region was a Spanish colony from 1769 to 1800. France then got Louisiana back from Spain and sold the region to the United States in the 1803 Louisiana Purchase.

Covers of two books: Jefferson's Louisiana by George Dargo and Codification, Transplants and History by John W. Cairns. Citation to Richard H. Kilbourne, Jr., A History of the Louisiana Civil Code: The Formative Years, 1803-1839, LSU Baton Rouge, 1987, Claitor's Baton Rouge, 2008.

Some recommended resources on Louisiana’s legal history

After the 1803 sale, France adopted its Civil Code in 1804. This timing is quite significant because a common misperception is that Louisiana has the Napoleonic Code, but this is wrong. Louisiana does have a civil law system, but is not the Napoleonic Code and the region was not under French control when France enacted this code.

France

Professor Moréteau started his discussion of France during the Ancien Régime, when the North followed customary law (droit coutumier) while the South followed written law (Roman law) (droit écrit). A goal of enacting the civil code was to unify the divided laws of the country.

Two key French Civil Code draftsmen came from the North, Bigot de Préameneu of Rennes and Tronchet of Paris, and two from the South, Maleville of Bordeaux and Portalis of Aix. Together, they sought a double compromise between customary and Roman law and between the Ancien Régime and revolution, ultimately creating a three book, comprehensive code, the French Civil Code or Napoleonic Code, enacted March 21, 1804.

The Napoleonic Code: "My true glory is not that i have won forty battles; Waterloo will blow away the memory of these victories. What nothing can blow away, what will live eternally, is my Civil Code." Includes portrait of Napoleon on a horse.Notably, the French Civil Code included an abrogation clause creating a complete break from the past for all matters covered in the code and requiring judges to apply the code, not older laws. The code attempted to provide simple, short provisions and avoid technicality. Articles 1382 and 1383 haven’t been revised, though they have been the subject of renumbering, and provide examples of this short, simple style:

  • Article 1382: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”
  • Article 1383: “Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.” (Presentation slides)

Back to Louisiana

Louisiana’s population nearly doubled from 43,000 in 1803 to 76,000 in 1810 and with this growth came conflict stemming from the mixture of cultures and legal traditions. The civil law tradition embraced more of a family and community spirit while the common law tradition was more individualistic, including in areas of marriage, family relations, succession, and property. The inhabitants of Louisiana generally resisted the common law tradition in favor of civil law.

In line with this resistance, Louisiana drafted a civil code in less than two years drawing inspiration from the French three-book model and instances where French and Spanish laws were in agreement, but not copying the French Civil Code.

Ultimately, instead of adopting this as a “code, “ however, on March 31, 1808, Louisiana adopted a “digest,” the Digest of the Civil Laws, formally recognizing civil law in Louisiana, but not to the full exclusion of common law.

This distinction between adopting a code and a digest is meaningful. The French Civil Code, including its abrogation clause, created a full break from prior law whereas Louisiana’s digest allowed for continuity of prior law where there wasn’t a conflict. The challenge with this continuity, however, is that this necessitated looking to the older texts, not just referring to the digest, which in some ways defeated the purpose of creating a digest as it’s not actually a complete listing of all applicable law, an issue discussed in Cottin v. Cottin (1817).

To remedy these issues with the digest, the Louisiana Civil Code was adopted in 1825, including abrogating prior Spanish, Roman, and French laws in Article 3521. Ongoing revisions have continued ever since, including the transition to an English language only code by 1870.

Louisiana’s current code and its history remain relevant today as a model for understanding how to balance civil and common law traditions in situations where they must coexist.

Resources

To conclude the presentation, Professor Moréteau shared some helpful resources for civil law research. The resources are available on his slides and a more extensive bibliography is available as a handout.

In addition, all the slides and handouts from the workshop are publicly available on the AALL FCIL-SIS Annual Meeting Programs site. Recordings are available in AALL’s My Communities to AALL members.

AALL 2020 Recap: Fear and Loathing in Teaching Legal Research: Addressing Cultural Competence and Managing Implicit Bias

AALL 2020 Virtual Annual Meeting Panel Discussion Recap: Fear and Loathing in Teaching Legal Research: Addressing Cultural Competence and Managing Implicit Bias, Panel: Ronald Wheeler, Raquel Gabriel, Sherri Thomas, Mike Martinez

By Sue Silverman

One theme stood out in this panel discussion about addressing implicit bias and cultural competence when teaching legal research: implicit bias and race discussions are never going to be comfortable, but all the same, students want to have these conversations and it is our duty as instructors to not shy away from them.  In the wake of the BLM protests and the COVID-19 pandemic which drew attention to gaping racial disparities, there is a hunger to confront these issues. The failure to do so risks rendering legal education irrelevant to students whose lives have been upended by the pandemic and who have been disillusioned by the glaring marginalization and oppression of Blacks, Indigenous peoples, people of color, and LGBTQ communities.

Each speaker drew upon their own personal experience bringing discussions of race and implicit bias into the classroom.  One tip shared early on is the importance of setting the stage for these discussions – one way of doing this is assigning readings at the outset that address discrimination, oppression, and implicit bias. Professor Wheeler assigns an article he wrote, Michael Brown, Eric Garner, and Law Librarianship[1] which not only addresses these issues but exposes his own humanity and vulnerabilities. As Professor Wheeler pointed out, when talking about topics such as racism and homophobia, we are asking students to put themselves out there and it is only fair for us, as instructors, to do the same.  For those of us who are white and members of a privileged class, the panelists emphasized that in addressing racism and implicit bias, what matters most is honesty and authenticity.  It is important for us to research our own implicit bias, remain humble, and most importantly, as uncomfortable as we might feel in these discussions, we must try.

News printed on a piece of paper emerging from a typewriter

Photo by Markus Winkler on Pexels.com

The panelists presented several ideas for using exercises to address implicit bias.  One suggestion is to use news articles to bring what is happening in the world into the classroom.   Students should be asked to dig deeper into the articles: who is the journalist, how do they describe the events, what words do they use, how does their account compare to other journalist accounts?  We can also draft exercises that incorporate implicit bias.  For example, Professor Thomas uses a hypothetical student – Oyuki Tanaka, whose first language is Spanish – to point out the implicit bias in assuming this student’s first language is Japanese.  Professor Gabriel uses a landlord-tenant exercise in which she never mentions ethnicity or gender and asks her students to close their eyes and imagine what the client looks like.  She then asks the students whether implicit bias affected what they thought the client looked like and whether they would have researched the problem differently if the client lived in a more gentrified area – e.g., the Upper East Side of Manhattan instead of the Bronx.

In teaching search terms including potentially offensive search terms, the panel emphasized the importance of addressing racism directly.  This means delving into the history and evolution of language while explaining that students may have to use “colored” or “African American” instead of Black when conducting searches.  To forewarn students, Professor Gabriel suggested raising in the handbook or syllabus that law is a product of the historical systems within which it was created and we cannot avoid discussing use of these terms if we want to research effectively.  However – a word of caution about forewarning students – one panelist brought up an example where she was pulled aside by an instructor to warn her that in the upcoming class, they would be discussing slavery.  While the instructor meant well, the panelist felt singled out for her race.

Finally, the panelists discussed the daunting challenge of having these conversations in a virtual environment. As Professor Martinez pointed out, in law schools there is a deification of professors, but the pandemic has flipped this on its head. Education in this new environment will rely on collaboration between students and instructors and instructors must seek out new ways to form connections with students.  For example, the panelists all encouraged more one-on-one interaction with students even if this means setting up more virtual office hours.  It is also important to figure out what can be accomplished asynchronously as many students (and instructors) may have connectivity issues or other obligations due to the pandemic that may hinder live instruction.

To be an effective lawyer, it is important to find commonality and exercise empathy with clients.  Perhaps the best way we can teach this to students is to exercise empathy ourselves and, as uncomfortable as it might be, strive to find commonality as we directly confront the challenges in creating a fairer and more just society.

 

[1] Ronald Wheeler, Michael Brown, Eric Garner, and Law Librarianship, 107 Law Lib. J. 467 (2015).

FCIL-SIS Civil Law Workshop Recap: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments

FCIL-SIS Workshop: Demystifying Civil Legal Systems for a Common Law Audience: Historical Traditions, Modern Developments, and Practical Research & Instruction Applications

Recap: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments by Xavier Beauchamp-Tremblay

By Melissa M. Hyland

U.S. law students are always equal parts fascinated and baffled by the role of cases in civil law jurisdictions. If there isn’t a formal tradition of stare decisis, does it at least still happen in practice? How do the courts ensure consistency in their decisions? What do the judicial opinions look like in these jurisdictions?

Xavier Beauchamp-Tremblay, President and CEO of CanLII and an attorney trained in the civil law system of Québec, discussed these very questions in his presentation, “The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments.” He based the presentation on an article he co-authored with Antoine Dusséaux for Slaw, Canada’s Online Legal Magazine: “Not Your Grandparents’ Civil Law: Decisions Are Getting Longer, Why and What Does It Mean in France and Québec?”.

Beauchamp-Tremblay began by discussing Aldo v. Yellow, 2007 QCCS 5050, a Québec case in which shoemaker Aldo alleged that discount competitor Yellow was copying its shoe styles. Aldo was unable to argue trademark infringement, and they had no legal recourse under either copyright or patent law. Aldo attorneys thus crafted a legal argument based on the French theory of “parasitic competition.” In responding to this argument, Beauchamp-Tremblay found himself researching in French case law, and he was immediately struck by the obvious differences between case law in Québec and France. French judicial opinions were short – usually no more than a page in length – and contained very little in the way of factual description or legal reasoning. As Beauchamp-Tremblay knew from experience, case law in many Québec courts tended to more closely mirror judicial opinions from common law jurisdictions. According to Beauchamp-Tremblay, one possible explanation for this difference was that Quebec’s legal tradition was not “purely civil law,” but rather fell somewhere in between the common law and civil law traditions.

After joining CanLII, Beauchamp-Tremblay more closely studied the nuanced differences in judicial opinions from Québec courts. He sampled 400 cases from each year between 2003-2017 and measured the average length (in terms of number of characters) of the opinions. He also tracked “citation density,” the average number of cited decisions in the opinion, over the same period of time.

Graph of Length 2003-2017 showing rising numbers for QCCA, QCCQ, QCCS

Density 2003-2017 showing general increase except one dip for QCCA, QCCQ, QCCSThe findings of this study were quite impressive: the length of decisions in Québec’s lower courts increased by about 40% and in the appellate court by 20%. Citation density in the courts’ decisions also showed a marked increase over the same period. A similar study by Antoine Dusséaux of French courts produced similar results. Judicial opinions in these two civil law jurisdictions were getting longer and including more citations in support of legal arguments – characteristics traditionally only seen in opinions authored by common law judges.

The data collected by both Beauchamp-Tremblay and Dusséaux suggests that something is having an effect on the length and density of judicial opinions in both Québec and France. Beauchamp-Tremblay concluded his presentation by proposing several possible reasons for these changes, including increased access to the law, more complex legal and evidentiary issues in the cases, and judges writing more of their own opinions.

Slide - Text: Possible Causes: Increasing complexity of cases, More self-represented litigants, More evidence to discuss as a result of our current "data boom" New gen of judges more comfortable with word processing/writing their own judgments, But what if

Slide text: Possible causes: Globalization, Transnational courts (e.g. European Court of Human Rights, European Court of Justice), Influence of Common LawBeauchamp-Tremblay also explicitly noted that Cour de cassation, one of the highest courts in France, formally announced that it was changing its model for judicial opinions and now drafts judgments more akin to the style of Québec courts. Both Beauchamp-Tremblay and Dusséaux attribute this change to a recognition by French judges that they are writing for a larger audience these days – attorneys who like lengthier opinions, international readers in the EU and beyond, and the general public who now has increased access to the law online.

Do the changes in case law from these civil law jurisdictions indicate that they are moving closer to the common law? Beauchamp-Tremblay answered this question with an emphatic no – civil law judges are not legally bound by precedent and stare decisis does not exist in these jurisdictions. However, civil law judges are certainly taking more time to explain their reasoning, and their citations to case law indicate that they are aware of the persuasiveness of past decisions. The form and content of case law in civil law jurisdictions might be changing, but the underlying legal framework remains much the same.

 

 

 

Second Call for Bloggers: AALL 2020

We’re still looking for many more bloggers to recap AALL 2020 sessions for those who are not fortunate enough to attend.  If you’re attending a session, consider writing up a short summary for DipLawMatic Dialogues so your colleagues can get a taste of what you’re learning in all the wonderful programming you’re attending.

First  and foremost, we are still looking for more bloggers for the FCIL-SIS Civil Law Workshop on Tuesday, July 21st, comprised of four not-to-be-missed sessions led by your FCIL colleagues.  We have a volunteer willing to recap one of the sessions, but we’re still looking for three more to cover the other sessions.

  • 10:00am CST: Introduction to Civil Law Jurisdictions: Traditions, Origins, and Terminology, with Marylin Raisch
  • 11:00am CST: The Role of Codes in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments, with Olivier Moreteau
  • 12:00pm CST: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments, with Xavier Beauchamp-Tremblay
  • 2:00pm CST: A 90 minute “mock class” on research from a civil law perspective, in which panelists Jennifer Allison, Katarina Daniels, and Janet Kearney will focus on Germany, Quebec, and New Orleans.

Also of note is the Instructional Design for Law Librarians Workshop, spread out over three days from July 28 to July 30th. We’re particularly interested in making sure that Jennifer Allison’s session on helping LLM student thrive, from 1:00-2:15pm on July 28th, is recapped! There are also sessions on everything from backward design to designing learner-centric syllabi to best practices in instructional design for accessibility.

As always, we are happy to have recaps of any or all programs you’re attending, but we’ve identified a few other programs from the regular conference programming the FCIL-SIS community might be particularly interested in reading about in a recap:we_need_you_shutterstock_570489691

  • Wednesday, July 15th from 10:30-11:30am CST: Working From Home: Lost in Space, Home Alone, or Harry Potter and the Sorcerer’s Stone
  • Wednesday, July 15th from 3:30-4:30pm CST: What the Japanese, the Swedes, and the Minimalists Can Teach Us About Legal Instruction

If you are interested in recapping any of the Annual Meeting or webinar sessions above or others not listed, please contact Alyson Drake or Jessica Pierucci.

Call for Bloggers: AALL 2020

we_need_you_shutterstock_570489691It’s that time of the year–when we ask for volunteers to recap programs of AALL sessions of interest to the FCIL-SIS community.  With many employers imposing freezes on conference travel and others not being able to attend, it’s a wonderful way to share some of what you’re learning with your FCIL-SIS colleagues. In addition to Annual Meeting recaps, there are two pre-conference workshops that have been transitioned into a series or webinars that we encourage you to attend and to recap:

First up is the FCIL-SIS Civil Law Workshop on Tuesday, July 21st, comprised of four not-to-be-missed sessions led by your FCIL colleagues:

  • 10:00am CST: Introduction to Civil Law Jurisdictions: Traditions, Origins, and Terminology, with Marylin Raisch
  • 11:00am CST: The Role of Codes in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments, with Olivier Moreteau
  • 12:00pm CST: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments, with Xavier Beauchamp-Tremblay
  • 2:00pm CST: A 90 minute “mock class” on research from a civil law perspective, in which panelists Jennifer Allison, Katarina Daniels, and Janet Kearney will focus on Germany, Quebec, and New Orleans.

Also of note is the Instructional Design for Law Librarians Workshop, spread out over three days from July 28 to July 30th. There are sessions on everything from backward design to designing learner-centric syllabi to best practices in instructional design for accessibility, including two sessions by FCIL-SIS members:

  • July 28th from 1:00-2:15pm CST: Instructional Design: Empowering Foreign LLM Students to Learn and Thrive, with Jennifer Allison
  • July 30th from 1:00-2:30pm CST: An Introduction to Evidence-Based Instruction: Using Cognitive Theory to Improve Your Teaching, with Alyson Drake

As always, we are happy to have recaps of any or all programs you’re attending, but we’ve identified a few other programs from the regular conference programming the FCIL-SIS community might be particularly interested in reading about in a recap. Unfortunately, speaker information is not available at the time of publication, but we will update once it is.

  • Tuesday, July 14th from 12:00-1:00pm CST: Race, Responsibility, and Revolution: Difficult Conversations and a Call to Action
  • Wednesday, July 15th from 10:30-11:30am CST: Working From Home: Lost in Space, Home Alone, or Harry Potter and the Sorcerer’s Stone
  • Wednesday, July 15th from 3:30-4:30pm CST: What the Japanese, the Swedes, and the Minimalists Can Teach Us About Legal Instruction
  • Thursday, July 16th from 12:00-1:00pm CST:  Fear and Loathing in Teaching Legal Research: Addressing Cultural Competence and Managing Implicit Bias
  • Thursday, July 16th from 3:30-4:30pm CST:  Law Library Neutrality in a Time of Political Upheaval

If you are interested in recapping any of the Annual Meeting or webinar sessions above or others not listed, please contact Alyson Drake or Jessica Pierucci.

IALL 2019 Recap: International Environmental Law in Australia

By Julienne E. Grant

Professor Tim Stephens spoke to attendees on the final day of the IALL conference, October 30, 2019. He is Professor of International Law at the University of Sydney; an Australian Research Council Future Fellow; and Deputy Director of the University of Sydney’s Marine Studies Institute. The topic of Professor Stephens’s excellent presentation was “International Environmental Law in Australia: Old Problems, New Challenges.”

Photo of Professor Tim Stephens.jpg

Professor Tim Stephens, Professor of International Law at the University of Sydney.

The professor began his talk by defining International Environmental Law (IEL). He said that it is a type of public international law that “seeks to conserve/manage natural and cultural/built environments.” He added that IEL is becoming increasingly important around the world and that it operates somewhat like the concept of equity.

Professor Stephens explained that IEL is predominately treaty-based; there are currently hundreds of such documents in force, with Australia being a party to more than forty multilaterals. The speaker explained, however, that treaties to which Australia is a party are not self-executing; that is, there is no automatic implementation, and only the Parliament of Australia can implement treaties. The professor indicated that the division between federal and state responsibilities is extremely complex in Australia, a fact that other conference speakers emphasized. Here, Professor Stephens cited the Tasmanian Dam Case” [1983] HCA 21, which radically expanded the power of the Australian parliament in external affairs. Overall, he said, the federal system has complicated Australia’s IEL commitments.

The speaker also indicated that the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC), although designed for the purpose of environmental protection, is not working; the federal government has not taken the lead on environmental management, leaving this to the individual states. He said that the Great Barrier Reef, a UNESCO World Heritage Site, is under significant environmental pressure; there is, for example, a coral “bleaching” problem, most markedly in the north part of the site. UNESCO, however, has not placed the Great Barrier Reef on its “In Danger” list yet.

The professor pointed out, though, that Australia has been a strong supporter of IEL overall, noting the country’s interest in protecting its unique species and biodiversity (he believes Australia is experiencing an extinction crisis with regard to both). He also noted that Australia brought a case to the International Court of Justice (ICJ) in 2010, accusing Japan of breaching several of its obligations under the 1946 International Convention for the Regulation of Whaling, as well as other international commitments to preserve marine mammals. Australia won the case (Australia v. Japan, decided March 31, 2014).

But the Australian government, Professor Stephens said, has taken an ambivalent stance on climate change because the country is a big user and exporter of fossil fuels. According to the speaker, there are weak emission targets in Australia, and the Clean Energy Future Act 2011 was repealed by the current government. He said that there are presently dozens of lawsuits in Australia related to climate change, and there is actually a separate Land and Environment Court in New South Wales (NSW). The current NSW government wants to override the federal “coal-friendly” administration. Gloucester Resources Limited (GRL) v Minister for Planning [2019] NSWLEC 7 has, however, changed the situation somewhat as dicta in that case suggests that climate change was a good reason to deny a construction permit for an open-cut coal mine. Professor Stephens called the language in that case “revolutionary,” as previously Australian courts did not look at anything related to IEL.

Professor Stephens concluded his lecture with the following thoughts:

  • IEL is being challenged significantly in the current geological era (Anthropocene), and we can expect to see a new round of IEL mechanisms;
  • Australian governments have generally been supportive of IEL treaties (but not always!);
  • Australia’s current federalist system has complicated its commitments to IEL;
  • The EPBC Act of 1999 has not been effective;
  • a new generation of environmental laws is needed in Australia, including a federal environmental act, monitored by independent institutions.

Overall, with regard to environmental protection, Professor Stephens believes that decision-making should be taken away from politicians and placed into the hands of scientists and other experts.

Professor Stephens’s PowerPoint slides for the presentation are posted on the IALL website.

IALL 2019 Recap: Australian Indigenous Peoples and the Law

By Meredith Capps

AustralianIndigenous

The panel at the Australian Indigenous Peoples and the Law program at IALL 2019.

On Monday, October 28th at 11:00 a.m., Thalia Anthony of the University of Technology, Sydney began the panel with her presentation titled Colonial Legal Histories and Indigenous Sovereignty.  Anthony described the concept of legal hybridity, and the historic tension between colonial jurisdiction and indigenous sovereignty.  She discussed the notion of ngurra-kurla embraced by the Warlpiri people, a philosophy embodying core elements of law land, law, language, skin, and ceremony, and how the Warlpiri utilize both compensation and shaming as punishment.  Recent policing of Warlpiri sacred sites in violation of its indigenous law provides an example of typical modern-day intracultural and intralegal conflicts.

Anthony discussed several significant Australian cases dealing with indigenous sovereignty, including:

  • R v Murrell (1836)–the Supreme Court of New South Wales (NSW) ruled that indigenous people are not “law-bearing people,” indigenous inhabitants subject to universal Anglo-Australian law;
  • Milirrpum v Nabalco & Cth (1971)–Supreme Court of the Northern Territories rejected a claim of native title;
  • Mabo v Queensland (No 2) (1992)–landmark decision of the High Court of Australia overturning Milirrpum, for the first time recognizing native title;
  • Walker v NSW (1994)–the High Court of Australia found that the legislature may pass general criminal statutes applicable to all persons;
  • Binge v Bennett (1988) & R v Buzzacott (2004)–NSW Supreme Court and Australian Capital Territory Supreme Courts dismissed concerns of racial bias in jury selection.

Anthony then discussed Australia’s incarceration of indigenous people, the most incarcerated group in the world.  Indigenous women currently represent Australia’s fastest-growing prison demographic.  Anthony characterized efforts to forcibly displace indigenous persons during the 18th century as “palliative carceralism” while in the 19th century, Australian authorities engaged in “protective carceralism,” asserting control over indigenous populations through missions and settlement.  Such efforts evolved into what Anthony characterizes as “welfare carceralism” and “penal carceralism.”  Indigenous communities are subject to a high level of policing on the streets, and greater levels of criminalization at each stage of the justice system (arrest, prosecution, and bail).  Indigenous young people are more likely to experience abuses such as torture while in police detention.  Despite efforts by the 1991 Royal Commission into Aboriginal Deaths in Custody, indigenous persons die at increasing rates while in police custody.  Anthony reemphasized that indigenous communities do not utilize prison as punishment, and highlighted the need for a hybrid domain embracing initiatives such as community courts and community justice reports.

In Protecting Indigenous Cultural Property, attorney Terri Janke described intellectual property protections for indigenous land, documentation, arts, and language.  She discussed international protocols such as the Negoya Protocol, WIPO provisions regarding traditional cultural expressions, and the UN Declaration on the Rights of Indigenous People, which assert rights, but these rights do not automatically translate into domestic statutory law in Australia. Janke highlighted challenges common to protecting cultural history in different spheres.  Copyright, for example, does not protect content such as oral history, which does not exist in a fixed format.  In the patent realm, co-sharing agreements can provide a mechanism for protecting indigenous knowledge in medicinal use of plants.  Janke discussed a few notable cases dealing with indigenous cultural property, including Milpurrurru v Indofurn, in which indigenous artists prevailed in a copyright suit involving use of their art in woven carpets, Bulu v R&T Textiles, rejecting the idea of communal ownership of copyright but finding that the artist owed a duty to the indigenous group whose work he represented, and ACCC v Birubi Art Pty Ltd, penalizing Birubi for sale of fake indigenous art in souvenirs.

Finally, Magistrate Sue Duncombe presented NSW Circle Sentencing and the NSW Youth Koori Court.  59% of the juvenile detention population is indigenous, and the Youth Koori Court, awarded a $2.7 million, three-year government grant, hopes to address this imbalance.  Its goal is not necessarily to reduce recidivism, but to reduce risk factors for offending, and though some participants have reoffended, many participants now live independently, obtain employment, and maintain custody of children. Juvenile offenders accepted in the program will engage in a suitability exercise where they learn program expectations, including developing of their own action and support plans, and compliance with monitoring and reporting procedures.  At sentencing, punishments may not exceed those the youth would receive in the criminal justice system, and staff acknowledge and incentivize progress.

IALL 2019 Recap: Pre-Conference Workshop–An Introduction to the Australian Legal System and Legal Research

By David Isom

IALL 2019 Preconference Workshop.JPG

Larissa Reid and Fiona MacDowall present at the IALL Pre-Conference Workshop

This year’s IALL Annual Course Pre-Conference Workshop was titled “An Introduction to the Australian Legal System and Legal Research.” Held at the Parliament House of New South Wales on Sunday, October 27, the workshop was presented by Larissa Reid, Reader Services Manager at the New South Wales Law Courts Library of Sydney, and Fiona MacDowall, co-editor of the Australian Law Librarian. The workshop was as an excellent introduction to the law of Australia and a very helpful preparation for the sessions that followed. While I can’t do justice to the breadth and depth of their presentation in a summary of this kind, I have chosen to highlight those topics which I—as a non-Australian with little familiarity with the country’s history and legal system—found particularly valuable.

Reid and MacDowall began the workshop with an introduction to the Australian system of government and legal system. Australia remains a constitutional monarchy whose head of state is Queen Elizabeth II, represented locally by the Governor-General (currently David Hurley). It is a federal parliamentary democracy with a written constitution which took effect in 1901. Vast in area (just under three million square miles) but relatively small in population (slightly more than 25 million residents as of 2019), it consists of six states and two self-governing territories (as well as seven external territories and the Jervis Bay Territory).

The British colonizers of Australia applied the doctrine of terra nullius (“land belonging to no one”) to the land they settled—disregarding the Aboriginal peoples and their customary legal traditions—and established English law in Australia, making it a common law jurisdiction. Formal reception of English law began in 1828 in New South Wales (which then included what are now Queensland and Victoria) and Tasmania with the Australian Courts Act 1828 and continued in additional states and territories through 1911. After reception, any subsequent English legislation is inapplicable (though English common law was not fixed at such time). After reception, the Australian colonies had the authority to enact legislation of their own provided that it was not “repugnant” to the laws of England (under the Colonial Laws Validity Act 1865).

The passage of the Commonwealth of Australia Constitution Act 1900 joined the six Australian colonies as “one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland.” Organized into eight parts, the Constitution establishes three branches of government: a Parliament (consisting of a House of Representatives and a Senate), the Judiciary, and the Executive Government. The Constitution gives Parliament the power to legislate in enumerated areas (including but not limited to defense; interstate and international trade; taxation; marriage and divorce; immigration; and bankruptcy); the states have power to make laws in all other areas. While it contains no bill of rights, the Constitution explicitly mentions five individual rights: the right to vote; protection against the Commonwealth’s acquisition of a person’s (or State’s) property on unjust terms; the right to a jury trial; freedom of religion; and a prohibition of discrimination based on a person’s state of residency. Amending the Constitution requires approval from Parliament and a nationwide referendum (which requires a “double majority”—approval of a majority of voters nationwide, as well as a majority of voters in a majority of states).

Australia has both Commonwealth courts and state/territory courts; the court of last resort for both is the High Court of Australia. For Commonwealth courts, the principal intermediate courts are the Federal Court and the Family Court, and the trial courts are the Federal Circuit Courts. States and territories have Supreme Courts; beneath them are the District or County intermediate courts and Local or Magistrates trial courts.

Two major free resources for finding legislation across all Australian jurisdictions are Lawlex and AustLII. Government websites (both for the Commonwealth of Australia and for individual states and territories) are also important free resources; for the Commonwealth, the websites for the Federal Register of Legislation (for texts of legislation and government gazettes) and the Australian Parliament (for bills, explanatory memoranda, texts of parliamentary debates, and committee reports) are particularly useful. For caselaw, AustLII and the partly-free/partly-paid platform Jade both include judgments from courts, tribunals, and commissions, as well as citators. Court websites (both for the Commonwealth and for individual states and territories) are also useful sources of the texts of judgments; for Commonwealth courts, see the websites for the High Court of Australia, the Federal Court, and the Family Court.

Legally significant decisions are published in law reports; the most authoritative are those officially selected as authorized law reports, which exist for both the Commonwealth and individual states and territories. For the High Court, the authorized report series is Commonwealth Law Reports (CLR), available in part on AustLII and Jade and in full on Westlaw AU. The authorized report series for the Federal Court is Federal Court Reports (FCR), available on Westlaw AU. Access to authorized reports for states and territories varies; some are available at no charge via AustLII, while others are only available via Westlaw AU or Lexis Advance Australia.

A wide range of secondary sources specific to Australian law (including encyclopedias, dictionaries, looseleaf services, and textbooks) are available, though many are exclusive to Westlaw AU or Lexis Advance Australia. Useful free secondary sources include Trove (a service of the National Library of Australia, which includes archived government websites and gazettes as well as non-law materials); the Monash University guide to legal abbreviations; the Australian Guide to Legal Citation, available as a free PDF from the University of Melbourne; and the Australian Legal Scholarship Library, available on AustLII.

Second Call for IALL 2019 Bloggers

sydneyAre you heading down under for IALL 2019 in Sydney?  We’re still looking for bloggers to recap some of the program for the blog.  We’re had a few volunteers, but are looking for a few more, particularly for the following sessions, but are happy to have coverage of any session you’re planning on attending:

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Australia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.