New FCIL Librarian Series: Creating a New Research Guide

By Jessica Pierucci

This is the fifth in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

When I attended the 2017 AALL Annual Meeting a few weeks into my new job last year, I ended up at a table next to Marci Hoffman at an FCIL-SIS interest group meeting. She provided some excellent wisdom I took to heart. She advised me to create guides on FCIL topics as a way of getting to know the field. Creating a guide requires thinking in depth about how to start and organize a particular type of research in order to convey that to other researchers.

Following Ms. Hoffman’s words of wisdom, I’m pleased to have added a brand new Foreign Law Research guide to the UCI Law Libraries series of LibGuides. This guide is the result of reviewing established guides (most notably Georgetown’s fantastic guide), consulting books on the topic (most notably the Hoffman & Rumsey Coursebook), responding to and assisting with faculty and student questions on foreign law, and identifying some of the sources requested through Int-Law as time permitted throughout this past year.

foreign_law_research_guide_screenshot

This guide’s target audience is UCI Law students who are either collecting sources for work on a law journal or engaging in independent foreign law research for a class, to write a student note, or just for fun. I also created this guide for fellow UCI Law librarians to assist students with this research. Students working on our newest law journal, the UC Irvine Journal of International, Transnational, and Comparative Law, and students working on certain articles in the UC Irvine Law Review, may be tasked with collecting foreign law sources for the first time. This was a relatively frequent question on my reference desk shifts last year, so I thought a new guide to aid students in this process, along with added information for those wanting to do more than locate a source, would be a great addition to the library’s guides.

One of the most interesting aspects of creating this guide was considering which aspects of foreign law research are universal and which aspects are country-specific. Through this guide, I aim to share the universal information in digestible chunks and continuously remind users to locate country-specific resources if needed, particularly if they move beyond source collection. Considering how to create streamlined, but comprehensive steps and how to select resources for source collection across countries was a valuable learning process that I believe will improve my reference desk interactions on this topic. I’m sure I’ll continue to edit the guide and my approach as I put the guide into action and see how it works in practice.

I’m tremendously thankful to all the librarians who created the resources already out there that I was able to draw upon in creating this guide. As part of the learning process, I would encourage other newer FCIL librarians to similarly spend time with established resources and then use what they learn to create their own guides. Creating a guide from scratch forced me to consider how to convey foreign law research topics in a manner that makes sense to me and I hope will make sense to UCI Law students. This pushed me to understand the topic in a deeper way than I believe would have been possible without having to put my understanding of the topic onto virtual paper.

Mapping the Civil Law World: Ancient Outlines

By Marylin Raisch


Why even mention ancient Roman law or medieval canon law to any modern-day law student? What possible relevance could it have to a student in a professional school studying law today with the aim of becoming a practicing lawyer, particularly here in the United States? It is a fair question in light of tight budgets at law schools with regard both to resources and time. As Dante Figueroa pointed out in his 2015 post to the Law Library of Congress’s blog In Custodia Legis, however, Roman law has been referenced by the U.S. courts in the past and Tim Kearley of the University of Wyoming has studied the appearance of major translations, such as Justinian’s work, undertaken by a state judge and others in our American legal history.

The traditional answer regarding the utility of studying comparative law or taking surveys of law around the world may be a surprisingly practical one: how does the rest of the world do it? That is, what do other constitutions provide by way of the structure of government and any rights of citizens. Who is even considered a citizen? What about federal and unitary states and the hierarchy of laws- where would you look to find out what body of law governs contracts between private citizens /entities or between the government of the country and one such private person?

It might be helpful to know where to look in a system that ultimately got codified by thinking first about remedies and then about keeping dispute resolutions somewhat consistent, a sort of rudimentary precedent system organized eventually into categories. Conservative Romans at a time long before Justinian wanted fidelity to edicts and honor in dealings (Schulz, 230-31). If you agree to supply someone with something or do something with or for the person in the future, you are under an obligation. If you injure them or their property, it’s an intentional or negligent wrong to be put right. People might acquire land or use it for planting or hunting. There could be a difference in how you can prove you own something, are owed something, or defend yourself from some allegation in this network of citizen cooperation often punctuated by disputes. The difference between you and another may be one of status: you are a child, a woman, or, terrible as it was, a slave. Even today you can be a minor, a non-citizen, a convicted felon, or a state official. So you could be ineligible for some procedures and immune from others, differences we have inherited and still recognize today for a much more limited list of people. Children, non-citizens, convicted felons, and “persons in need of supervision” or guardianship are fortunately some of the last groups whose status carries legal meaning in most (though not all) jurisdictions. (And in our modern world equality before the law may not match facts on the ground).

These categories, a kind of taxonomy of law and legal thinking, arose in ancient Rome and subsisted in various lists of laws and harmonized compilations.  As far back as this ancient time there arose even more basic common terms that our English as well as our civil law colleagues use: the distinction between public and private law and, it turns out, intentional and negligent acts. In fact, one way to encourage the embrace of civil law history as a way for students to understand more about civil and criminal law may be to point out that civil law countries group two big areas in the first year U.S. law school curriculum into one big area: contracts AND torts come under the big umbrella of obligations.

Here is what some scholars[1] think happened that makes Roman law similar both to English legal developments and to the categories of the more systematic modern civil law thinkers. The ancient Roman civilization started as did not much of human history: with rulers, kings, who controlled land, armies, and order in an agricultural city-state. There was a law code, the Twelve Tables, in the fifth century B.C and by the late third century B.C. things became more orderly in an ongoing struggle between aristocrats and peasants, or patricians and plebeians, and two consuls eventually replaced the king as authorities over law. Private law administration came under two praetors, one for laws and disputes involving citizens and the other for a regime involving at least one non-citizen. Disputes over injuries evoked a concept of justice that grew out of vengeance but came to straddle the line between public injuries, or crimes, and those more limited to private wrongs. The Romans also had a strong sense of honor and traditionally correct behavior. Not living up to an agreement or damaging property were both obligations and both generated some duty to make it right: the first type contractual; the other, delictual. (We have acts that can be pursued as criminal or as civil for damages, such as assault).

Actually, rather than organize similar cases of dispute, the praetor, really a magistrate, would draw up an action (formula) based on damage costs and other rules that had evolved, and hear facts about what happened within the parameters of the remedy and fact pattern. This is much like the English writ system, and some scholars find that Roman negligence theory arose by expanding on this kind of dispute settlement to prevent vengeance and uphold honor. But they were just bundles of random precedent. Looking through them suggested patterns that became rules, but with no Westlaw or Lexis, how to tell and be consistent?

After a few centuries of war, divided empire, lurid palace intrigue, social war, fanatical religions, and the like, the emperor in the east, Justinian, compiled writings of jurists from the late Republic through the third century A.C., the Corpus Juris Civilis (CJC), to gather it all in three parts (with a fourth update somewhat later) in the sixth century A.C. So where did all these categories end up- nowadays where DO we look in civil law countries for private law? Mostly, we look under these same categories in a civil code.

Justinian created a big collection of legal principles and writings that came at the end of the more creative and pragmatic era of Roman law, and since he forbade further commentary, many other primary texts are, or were, lost. One that was found showed earlier existence of many concepts in a work from the second century A.C. known as the Institutes of Gaius. It is the story of a palimpsest or the finding (in 1816) of the text of these Institutes under a writing of St. Jerome that had been transcribed over it.  Modern scholars now know more about the categories of laws and the history of the concepts.

After the canon law of the church (Roman law influenced) and contributions to some areas of law that developed from customary law (in France, coutume, and in the centuries after the German tribes became more settled, some of their codes and customs as well), interest in the older Roman law emerged in the 12th century in universities, principally Bologna.[2] And after more centuries and the emergence of nation-states, and the settlement of religious wars, rulers like Napoleon seemed ready to pull together a schema of the law that emerged with these basic categories for private law remaining in his and future codes (with variations in the details).  The topics are cross-referential and integrated. They are as follows:

  • Status of persons (married, minor, adopted, gendered; early aspects of family law)
  • Obligations (injuries and contracts)
  • Ownership or modes of acquiring property (land transfer and inheritance)
  • Procedure (also often in separate codes for civil and criminal matters)

Thank you, ancient Romans. You just gave us a 1L curriculum. And a few second year electives as well. Our laws in the U.S and the common law world are not really in codes but really in collections of revised statutes, even if we call them a code. So we have to search through a lot of separate texts: statutes and cases. The internally consistent civil code was in once sense a boon to early legal research. Feel free to consult the table of contents (the topics above) and the index. You also gave us an outline for researching much of non-U.S. law. And thanks for the mind map.

[1] Summarized by Reinhard Zimmermann, Delict in General  in Law of Obligations: Roman Foundations of the Civilian Tradition (1996).

[2] For more detail on the CJC afterlife, see Frederick J. Dingledy, The Corpus Juris Civilis: A Guide to Its History and Use, 35 Legal Ref. Serv. Q. 231 (2016).

From the Reference Desk: When Librarians Google

By Lora Johns

Google.pngToday’s post is a reminder that sometimes, even for information professionals, Google really is the answer.

A patron forwarded a Google Alert to the library that linked to an article on India Today. The article reported a ruling from one of India’s High Courts holding that solitary confinement, even for death row prisoners, amounted to torture and violated basic human rights. It runs afoul of the U.N. Standard Minimum Rules for the Treatment of Prisoners (the “Nelson Mandela Rules”) and the Constitution of India.

The patron wanted to read the ruling itself. Easy! I thought to myself. I can find that. While I am far from an expert in the law of India, I knew from GlobaLex that Judis would surely contain the ruling I wanted. Off I went to the High Court website and searched by Court and date of judgment.

No dice. What the heck?

Here’s what I knew from the news article:

  • The article about the ruling was published April 27
  • The issuing court was the Uttarakhandi High Court
  • The petitioners were two men sentenced to capital punishment and solitary confinement
  • The justices who wrote the opinion were Justice Rajiv Sharma and Justice Alok Sing

I tried searching by justice (both names), multiple dates (just in case the article was off)… and still, I found nothing.

Sensing that the task may require an expert rather than a neophyte, I consulted my colleague John Nann, who literally wrote the book on legal research and is more adept at finding obscure Commonwealth case law than any other human being alive. Half an hour later, like magic, the ruling materialized in my inbox and the patron’s.

Rather awed, I asked John how he executed this feat of librarianship, when even the official court website was useless. I felt a tiny bit less self-critical once he said he’d followed the same research path that I had, without luck — except that he had additionally consulted SCC Online, “India’s premier legal database,” which also had no trace of the ruling.

So John — the consummate reference librarian par excellence — turned to Google. Pulling key terms from the India Today article, John added a twist that, in its simplicity, betrayed sheer genius. He added the word “judgment” to the Google search.

When I recreated his research trail (partly because I wanted to read the judgment, partly to practice being a better reference librarian for next time), Google immediately gave me another news article, published on LiveLaw.in. Its headline proclaimed, Solitary Confinement of a Death Convict Before the Exhaustion of His Complete Legal and Constitutional Remedies Unconstitutional: Uttarakhand HC [Read Judgment].

Published two days after the judgment issued, the article had embedded a PDF of the court’s judgment at the end. Success at last!

What are the takeaways of this story?

  • Sometimes, the “right,” librarian-y methods are not necessarily the best or fastest path to an answer. I would have saved time if I’d tried Googling first. In fairness to me and John starting with more specific sources, it’s still a mystery why both the High Court website and the paid database both lacked this important judgment.
  • Google pays software engineers full-time salaries to design the best and brightest search algorithms. There is no shame in using them. (With the caveat, of course, that we must acknowledge that algorithms are as prone to bias as any human.)
  • I have brilliant, patient, and kind colleagues who invite me to reach out to them for help and generously lend me a hand when I need it. Especially as a baby librarian, I am grateful for the mentorship and guidance, and I hope to pay it back someday when I’m older and wiser.
  • I will be bookmarking in and following Apoorva Mandhani, the reporter who wrote the story, on Twitter to keep up-to-date with developments in Indian courts. Who knows when it may come in handy?

March GlobaLex Issue Now Live

By Lucie Olejnikova

The March 2018 issue of GlobaLex is now live, featuring four updates. We invite you to take a look and be sure to update your pages. Congratulations to our contributors!

UPDATE: The Crisis in Darfur – Researching the Legal Issues by Andrew Dorchak at  http://www.nyulawglobal.org/globalex/Darfur_Crisis_Research1.html.

Andrew Dorchak is Head of Reference and Foreign/International Law Specialist at The Judge Ben C. Green Law Library at Case Western Reserve University’s School of Law, University in Cleveland, Ohio. He has assisted law students researching international criminal law topics since 2002.

UPDATE: Immigration Law – A Comparative Approach Guide to Immigration Law of Australia, Canada, and the United States by Colin Fong, Angas Grant, and Daniel Costa at  http://www.nyulawglobal.org/globalex/Comparative_Immigration_Law1.html.

Colin Fong is a Senior Visiting Fellow, Faculty of Law, UNSW Australia. Before becoming an academic, he worked in various libraries such as the University of Sydney Law Library and the law firm, Allen Allen & Hemsley. Mr. Fong holds Bachelor of Economics from the University of Sydney, a Masters of Legal Studies from the University of Technology Sydney and an Associate of the Australian Library and Information Association.

Angus Grant is a lawyer and legal scholar, based in Toronto, Canada. He has practiced in the area of refugee law for many years, the last several of which have been focused on appellate litigation. Having completed his doctorate in law in 2016, Angus now teaches Refugee Law and Administrative Law at Osgoode Hall Law School, York University.

Daniel Costa is the director of immigration law and policy research at the Economic Policy Institute, a think tank in Washington DC. An attorney, his current areas of research include a wide range of labor migration issues, including the management of temporary foreign worker programs, both high- and less-skilled migration, and immigrant workers’ rights, as well as various forced migration issues.

UPDATE: Researching Haitian Law by Marisol Floren Romero at  http://www.nyulawglobal.org/globalex/Haiti1.html.

Marisol Florén Romero is the Assistant Director for Library Services and Foreign & International Law Librarian at Florida International University (FIU) College of Law.

UPDATE: Researching South African Law by Salona Lutchman at  http://www.nyulawglobal.org/globalex/South_Africa1.html.

Salona Lutchman is a Senior Lecturer in the Department of Public Law at the University of Cape Town. She is an admitted Attorney and Notary of the High Court of South Africa. Currently, Salona is a PhD candidate at the Faculty of Law at the University of Cape Town. She holds an LL.B. from the University of KwaZulu Natal and an LL.M. in International Legal Studies from New York University.

 

For more articles on international, foreign, or comparative law research, see http://www.nyulawglobal.org/globalex/index.html.

Teaching Religious Law Research as Part of Comparative Law: Focus on Jewish Law

By Marylin Raisch

Why bother to learn about legal research and methodologies in the niche area of religious law? From the perspective of training lawyers in law schools, this pursuit appears to be completely and literally academic (read: useless for the practice of law). In order to move from “what?” to “so what?” and beyond that to “ok, how?” one has to move into a mind-set that opens up to comparative legal systems generally and wants to find out if learning about the unfamiliar, even obscure, legal cultures helps one better understand one’s own. Practical inquiries made through comparative law may illuminate the impact of legal systems on economic development in their respective jurisdictions.[1] This topic can be a good way into comparing our common and many civil law systems with a system which permits conflicting opinions and is ultimately not driven by precedent at all.[2]

What follows below is an outline of selected sources that have been presented in a 40 minute research talk to a Jewish Law seminar at Georgetown. Some editions of texts we use are not necessarily definitive, but I list what we reference for the students. Unless otherwise indicated, web sites listed are free sources.

Jewish Law in General; together with issues relating to American law

  • Hollander, David. Resources to Begin the Study of Jewish Law in Conservative Judaism, 105 Law Libr. J. 305 (2013) available via HeinOnline (fee-based).
  • ______________. Jewish Law for the Law Librarian, 98 Law Libr. J. 219 (2006) available via HeinOnline (hereafter Hollander, Jewish Law)
  • Elon, Menachem. Jewish Law: History, Sources, Principles = Ha-mishpat ha-Ivri; translated from the Hebrew by Bernard Auerbach and Melvin J. Sykes. 4 vols. Philadelphia: Jewish Publication Society, 1994.
  • University of Miami Law Library, Jewish Law Research Guide
  • WashLaw: Legal Research on the Web (Washburn University Law School), Jewish Law portal.
  • Cardozo Law-Yeshiva University Center for Jewish Law and Contemporary Civilization, blog Ancient Traditions, New Conversations (highlights legal questions within Jewish law along with book reviews useful for new title acquisitions.

Talmudic Law and Primary Texts

The Halakha (transliterated variously) is defined broadly at the Jewish Virtual Library’s Encyclopedia Judaica as the totality of oral and written law from the Bible (Torah/Pentateuch) down from Moses through sages, codification, and rabbinic literature, with some of the latter in the form of specific decisions answering thorny legal questions, called responsa.

From a library collections point of view, primary texts would include:

  • The Mishnah, and edited collection from the late Second century CE attributed to Rabbi Judah the Prince that collected oral law or the oral Torah to transmit teachings after the destruction of the Second Temple in 70.
  • The Mishnah = [Shishah sidre Mishnah] [Jerusalem : Eliner Library, Dept. for Torah Education and Culture in the Diaspora, 1994-1996].
  • The Babylonian Talmud (TB) is a commentary on the Mishnah (and its commentary, the Gemara), and this version predominates in general study over a version produced at another Talmudic academy in Jerusalem, the Jerusalem Talmud, dating from 350–400 CE.
  • The [Babylonian] Talmud: the Steinsaltz edition, translated and edited by Adin Steinsaltz. New York: Random House, 1989- .  Digital copies are emerging, such as the one at the Jewish Virtual Library.
  • The Mishneh Torah (MT) of Maimonides, dating from 1170-1180 CE has been described as “the most comprehensive and significant code of Jewish Law ever compiled.” (see Eliav Shochetman, “Jewish Law in Spain and the Halakhic Activity of its Scholars before 1300” in work cited at footnote 2, above).
  • Maimonides, Moses, 1135-1204.The Code of Maimonides. New Haven: Yale University Press, 1949- .
  • The Shulchan Aruch of Rabbi. Joseph Ḳaro, in the sixteenth century, used the ṣefer halakhot and Maimonides’ Mishneh Torah to create an authoritative statement of halakha.
  • Karo, Joseph ben Ephraim. The Concise code of Jewish law: compiled from Kitzur Shulhan aruch and traditional sources: a new translation with introduction and halakhic annotations based on contemporary response. 2 vols. New York : Ktav Pub. House, 1977- .

(See Hollander, Jewish Law cited above at 228-233 for citation guides to these complex works).

Judaica Electronic Texts: This site at the University of Pennsylvania, contains texts in several languages, notably Hebrew-English parallel Bible from the Masoretic text, and “Internet Resources for the Study of Judaism and Christianity.”

Internet Sacred Text Archive, Judaism (older texts no longer in copyright)

Dafyomi Advancement Forum, at which provides hyperlinks to free online resources. Can be used as an easily accessible English summary of the Talmud, for basic orientation through daily study, from The Ministry of Religion and Culture of the State of Israel, Estate Distribution Fund of the State of Israel, Dr. Lindsay and Rivki Rosenwald, Memorial Foundation for Jewish Culture.

CCAR (Central Conference of American Rabbis) Digital Responsa Collection (fee-based),

Bar-Ilan University Responsa Project

Article Indexes ISpecific to Jewish Law and available free on the Internet

RAMBI – the Index of Articles on Jewish Studies: A multi-lingual bibliography of selected articles on Jewish Studies, from the Jewish National and University Library, also via The Library of the Faculty of Law at Bar Ilan University, maintains its own Index to Legal Periodicals in Israel. This platform is the same Aleph platform as RAMBI. It contains articles, written in Hebrew and in English that address matters of Jewish Law. This index can be found by going to, choosing the hyperlink at the top left for English, and then the Index to Articles. The difference? This additional resource also searches for books.

Article Indexes II: General & Legal Periodicals Indexes; search within them for Jewish Law

Law reviews: via Index to Legal Periodicals and Books and the Index to Foreign Legal Periodicals; Lexis and Westlaw with easy search strings that add in the narrower topic, for example this search string: arbitrat! w/s divorce AND “Jewish law”

Google Scholar (with library links to your institution’s catalog)

Digitization, Notable Journals and Collections: Specific to Jewish Law

HeinOnline Religion and the Law collection, section on Jewish Law. Many valuable titles, some older or discontinued journals.

Hebrew digital library Otzar HaHochma: (fee based). May be cataloged as Otzar Online, containing “over 90,200” electronic texts, though not all are on Jewish law.

Treasures of the Library, Jewish National and University Library, Writings of Maimonides, Manuscripts and Early Print Editions

Jewish Theological Seminary, archives and links to other e-content and holdings,

HebrewBooks.org– digitization and free download, all in Hebrew, not all specific to law.

Touro College, Jewish Law Institute, Lillian Goldstein Traveling Judaica Collection – Upon request, they will loan your law school a teaching collection!

Finally, do not overlook the often-cited In Custodia Legis blog of the Law Library of Congress. Search this comparative law blog in the box at the upper left with phrase in quotations “Jewish law” for posts such as this one from 2011, highlighting their Jewish Law collection and rare materials within it.

[1] See Chapters 9 and 10 on legal systems and legal change in Milhaupt, Curtis J., and Pistor, Katharina. Law & Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World. Chicago: University of Chicago Press, 2014. Accessed February 28, 2018.
[2] “Stemming from the original prophetic concept of divine revelation, the concept persisted that rival, apparently (to humans) contradictory traditions, could subsist simultaneously, each claiming the validity of divine law. No ‘rule of recognition’ … could deprive such revelation of its validity. From this stems the understanding here propounded of both the ‘either-or’ phenomenon of the Talmud…” in Ben-Menahem, Hanina. “Postscript: The Judicial Process and the Nature of Jewish Law” in An Introduction to the History and Sources of Jewish Law, N. S. Hecht, B. S. Jackson, S. M. Passamaneck, Daniela Piattelli, and Alfredo Rabello, eds. Oxford: Oxford University Press, 1996 at p. 434-435. Oxford Scholarship Online, 2012. doi: 10.1093/acprof:oso/9780198262626.003.0016.

February 2018 GlobaLex Issue Now Live

By Lucie Olejnikova

The February 2018 issue of GlobaLex is now live, featuring four articles. We are pleased to bring you two new articles and two great updates. GlobaLex is an electronic publication dedicated to foreign, international, and comparative law research.

An Introduction to International Fisheries Law by Abdullah Al Arif at http://www.nyulawglobal.org/globalex//International_Fisheries_Law.html

Abdullah Al Arif is a Senior Lecturer at the Department of Law, Daffodil International University, Bangladesh. He is currently on study leave and writing his doctoral thesis on ‘Achieving Sustainable Marine Fisheries in Bangladesh: A Legal and Policy Analysis’ at Macquarie Law School, NSW, Australia. He has recently published an article entitled ‘Legal Status of Maximum Sustainable Yield Concept in International Fisheries Law and Its Adoption in the Marine Fisheries Regime of Bangladesh: A Critical Analysis’ in the International Journal of Marine and Coastal Law.

International Humanitarian Law by Thamil Venthan Anathavimayagan at http://www.nyulawglobal.org/globalex//International_Humanitarian_Law.html.

Thamil Venthan Ananthavinayagan holds an LL.M. from Maastricht University, The Netherlands and has submitted his PhD with the National University of Ireland, Galway. He is currently a lecturer for international law, international humanitarian law, and international criminal law at Griffith College, Dublin. Prior to joining Griffith College, he was a Fellow and research assistant at the Irish Centre for Human Rights in Galway, Ireland. Thamil has also studied civil/public and criminal law in Germany at the universities of Bonn and Marburg, with particular focus on international law.

UPDATE: Guide on Researching Chinese Mass Media Law by Alex “Xiaomeng” Zhang at http://www.nyulawglobal.org/globalex//China_Mass_Media_Law1.html.

Alex Zhang is the Head of Public Services and Lecturer in Law at Stanford Law School, USA. She received a B.A. in Philosophy and a Chinese Law Certificate from Nanjing University, China, and an M.A. in Philosophy from Tulane University. She attended the University of Kansas Law School earning her J.D. with a certificate in International Trade and Finance Law in 2006. She also received an M.S.I from the University of Michigan, School of Information in 2009. Before joining Stanford, Alex was a senior Foreign, Comparative, and International Law Librarian and Adjunct Professor of Law at University of Michigan Law School, USA.

UPDATE: Legal Information Institutes and the Free Access to Law Movement by Graham Greenleaf, Philip Chung, and Andrew Mowbray at http://www.nyulawglobal.org/globalex//Legal_Information_Institutes1.html.

Graham Greenleaf AM is Professor of Law & Information Systems at UNSW Australia, and Co-Founder, AustLII. Dr Philip Chung is Associate Professor of Law at UNSW Australia and Executive Director, AustLII. Andrew Mowbray is Professor of Law and Information Technology, University of Technology, Sydney (UTS), and Co-Director, AustLII.

 

For more articles, see http://www.nyulawglobal.org/globalex//index.html.

From the Reference Desk: Can You Do That? Filing Amicus Curiae Briefs in Other Countries

By Lora Johns

Slovakia“I would like to see an amicus brief filed by Alliance Defending Freedom in Slovakia.”

Before I got this question, it had never even occurred to me that Americans might want to—or even could—file friend-of-the-court briefs in other countries’ courts.

In this case, Alliance Defending Freedom—a group vehemently opposed to marriage equality for same-sex couples—wanted to file a brief in the Constitutional Court of Slovakia, which in 2014 was about to consider a petition on a proposed referendum to define marriage as heterosexual only to bar same-sex couples from adopting children, among other questions. Over 400,000 Slovak citizens signed the petition supporting the referendum. Slovak President Andrej Kiska asked the Constitutional Court to review the measure because the country’s constitution forbids holding a referendum to change “fundamental rights and liberties.”

What struck me is that the Slovak legal system is a “continental” civil-law legal system in which only statutes are technically recognized as sources of law—not the kind of common-law system we have in the States. The judicial system is very different from ours; the courts of first instance have no juries, but rather “lay judges”—regular people who serve as judges alongside one professional judge. The Constitutional Court is a strange creature as well. Subject to standing requirements, it reviews the constitutionality of any legislation, among other things, but its jurisdiction is very selective. In this case, the President asked the Constitutional Court to evaluate whether holding a referendum on same-sex marriage would violate the Constitution. The Court eventually ruled that the referendum could proceed; however, the referendum failed to pass in 2015 due to low voter turnout.

The interesting question here from a legal research standpoint, though, is that amicus brief. The ADF sent it as a letter to the Chair of the Constitutional Court (predsedníčka Ústavného súdu Slovenskej republiky). The cover letter claims ADF has “special consultative status” (osobitný konzultačný status) at the Economic and the UN Social Council and “full accreditation” with the EU Fundamental Rights Agency, the European Union, and the Organization for Security and Co-operation in Europe. It also states that it has intervened in dozens of cases before the European Court of Human Rights.

To me, the form and addressee of the letter and the recitation of reasons why the court should take the attached brief under consideration indicated that they were not de rigeur in a civil law jurisdiction like Slovakia’s. I was curious, so I did a little research.

Amicus briefs have a history dating back to Roman Law, and while they are mostly a creature of common law jurisdictions—especially the United States—they make appearances in international adjudicatory bodies as well. This can be tricky, as many courts restrict participation in suits to parties only. However, the uptick in cases dealing with issues of broad interest—like human rights and environmental causes—means that more non-governmental organizations want to air their opinions in venues like the International Court of Justice, the European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights. See Dinah Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings,” 88 Am. J. Int’l L. 611 (1994).

It is easy enough to research these amicus briefs—standard procedures for researching cases in the ICJ, the ECHR, and other major courts usually suffices. But what’s more interesting is the acceptance of amicus briefs—like ADF’s—in civil-law courts that do not traditionally accept them. As distinct from rapporteurs publics or Vertreter des öffentlichen Interesses, who have a long tradition in France and Germany respectively of providing neutral research to the courts, more civil law jurisdictions are warming to the American style of amicus—a person or organization very much interested in the overarching policy surrounding the dispute, but with no concrete stake in the outcome of the particular case.

NGOs helped blaze the trail for the acceptance of amicus briefs by courts that, unlike common-law tribunals, had not used them before. See Steven Kochevar, Comment, “Amici Curiae in Civil Law Jurisdictions,” 122 Yale L.J. 1653 (2013). Some courts, especially those in Latin America, have formally adopted rules and procedures for accepting amicus briefs. (That is good news for those of us who may be called upon to find them.) In antitrust cases, the European Union requires its member states’ national courts to accept the “written observations” of certain governmental authorities. Individual jurisdictions—for instance, France and Poland—have gone further, welcoming amici in cases on a wider range of subject matters.

Other courts, however, have no formal procedures for submitting amicus briefs—though that hasn’t stopped would-be amici from trying (and often succeeding). These briefs are more difficult to research, not only because they span such a wide ideological spectrum, but also because of the informality with which they are offered and accepted. Recall that the ADF’s brief was sent as a personal letter to the chief judge of the Constitutional Court of Slovakia.

The increasing influence of international law and the pressure to conform national standards to international ones (e.g., the EU’s practice) might, in part, explain why more civil-law jurisdictions are accepting these non-standard filings. Whether or not it is a salutary trend for NGOs to wield increasing influence upon national courts is a topic that inspires much debate and diversity of opinion. But to even get to the point of discussing the pros and cons, you need to find the briefs in the first place to know what you’re dealing with. Here are some strategies that have worked for me:

  • In jurisdictions that have adopted formal submission rules, there are likely to be indicia of filing. Having a document number, or even a docket number, is an enormous help when you’re researching in unfamiliar jurisdictions.
  • In jurisdictions that don’t have formal submission rules, you may need to trawl through the news sites and legal journals of the local bar associations. GlobaLex is helpful for orienting yourself to this literature.
  • If you know that you’re looking for a brief from a particular NGO, chances are decent that they will have published the brief on their own website along with a press release describing the case. For example, you can read the Mental Disability Advocacy Centre’s brief to the Czech Constitutional Court and the International Trademark Association’s numerous foreign amicus briefs on their websites.
  • INTA has put together a handy chart on filing amicus briefs in Latin American jurisdictions. Helpfully for researchers, it indicates which courts do and do not accept amici and at what level (e.g. Supreme Court only).
  • Of course, you can always find foreign governments’ amicus briefs in the U.S. Supreme Court, for comparison’s sake—but you already know how to do that.