From the Reference Desk: Researching African Health Laws

By Amy Flick

550px-Africa_(orthographic_projection).svgOur summers at Emory start with numerous requests to help faculty and their research assistants get started with large summer projects. I had a request from a professor in May to help her research assistant find legislation on the public health systems, and information on the ministries of public health, for several African countries: Ethiopia, Liberia, Guinea, Madagascar, Mozambique, and Nigeria.

I have fielded several requests for Nigerian law in the last few years – and I thank Yemisi Dina for her help with the first of these – and I included Nigeria as an option for students for the final project in my Foreign and Comparative Legal Research class. So I started with some sources for Nigerian legislation, including some found by my students that I didn’t know of before my class. Resources for the other countries in the faculty request were less familiar.

I started with making a list of resources to investigate:

  • The Foreign Law Guide database, since it has subject headings including Health. It had citations for public health laws for all the countries on my list, but the only working legislative link was for Nigeria.
  • Law Library of Congress Guide to Law Online, with links to Parliaments and Official Gazettes. This added sources to my list for Madagascar’s laws (on the National Assembly website, in French) and to Mozambique’s legislation listed by “sectores” (on the government portal, in Portuguese).
  • GlobaLex Research Guides added sources for legislation to my list for Liberia and Ethiopia, as well as some ministries and government portals. I also checked Julienne Grant’s Research Guide on Global Health Law for more sources to try.
  • Global Legal Monitor from the Law Library of Congress, to look for recent news under their Health topic. I did find a 2017 story about a 2017 Liberian bill, as well as the 2014 Nigerian National Health Law.
  • Also on my list, but not helpful for this particular project: ILO NATLEX (includes laws on Occupational Safety and Health), FAOLEX (laws on Food and Nutrition), and Index to Foreign Legal Periodicals (which did have some articles on the Nigerian 2014 law).
  • Google, which I used to fill in the health ministry websites that I hadn’t found through the Guide to Law Online or GlobaLex. Mozambique’s Ministry of Health turned out to be an additional source for their health laws and regulations.

But what you really want is the sources for those countries’ legislation for when you get similar requests. So, here’s my list:

As I have found with other projects dealing with the law of other countries, it took multiple portals and research guides to find the legislation I was looking for, as well as multiple websites compiling laws for some countries. I found a lot of dead links along the way, and many collections were not current. And for some countries, I could not find public health laws at all. Google Translate helped for navigating sites, but for reviewing the documents themselves, I needed a few phrases to look for in French and Portuguese. Final lessons: 1) do not expect foreign law to be readily available or easy to find, 2) do not expect foreign law to be readily available or easy to find in English, and 3) assign students projects that might come in handy for my own work on faculty requests!

New Resources: UN Women’s Family Law Database

By Gabriela Femenia

The Global Women’s Leadership Project (GWLP) at Penn Law has launched a new database of national laws governing women’s status in the family. Developed under the auspices of Under Secretary General and Executive Director of UN Women Phumzile Mlambo-Ngcuka, the UN Women’s Family Law Database is the first mapping of its kind that goes beyond the boundaries of traditional family law to examine the entire legal system of a country to identify the law’s subtle and powerful impact on a woman’s status in her family.

UN Women’s Family Law Database Home.png

Lead by Rangita de Silva de Alwis, Penn Law’s Associate Dean of International Affairs and Project Director, and compiled by Penn Law students and research fellows, this project maps the full range of laws that regulate a woman’s role in the family and society, including laws governing property, inheritance, custody, guardianship, marriage, divorce, residence, citizenship, domicile, age of marriage, guardianship, female genital mutilation (FGM), “husband obedience “ and sex-selective reproductive decisions.

The first phase of the database surveyed the 54 African countries; the 19 civil law countries in Latin America and 32 states of Mexico; the 51 independent states of Europe; Israel; India; and Pakistan. The data is currently available via the Biddle Law Library as a Google document and map, and will ultimately be accessible and searchable through a UN-designed database interface. Phase 2, now underway, will identify the relevant laws for the Middle East region, in addition to presenting a series of analytical reports on the data.

Feedback and questions about the database are most welcome and can be directed to Gabriela Femenia.

Comparative Constitutional Crises

PolandBy Lora Johns

Brett Kavanaugh’s nomination for the U.S. Supreme Court has created a kind of panic in the States. Activists, scholars, and commentators fear the crumbling of long-standing civil rights precedents, the downfall of democratic checks and balances, and the looming threats of a Court that, they suspect, would not hold the Executive Branch accountable to the people. At the same time as the United States is experiencing this ferment, another democracy’s judiciary is undergoing a far more turbulent upheaval.

Poland’s conservatives and liberals have been warring over the judiciary for several years. In the summer of 2015, the liberal Civic Platform-controlled Parliament appointed several judges. But in October 2015, the Law and Justice Party gained control of both houses of Parliament and just two months later used its new position of power to put hand-chosen judges on the Constitutional Court’s bench. It also refused to recognize the judges that the former Parliament had appointed.

Summer last year saw even more extreme legislative turmoil over the bench’s composition. The lower house of Parliament voted to give the political branches the ultimate control over the court’s composition. The job of nominating judges would pass from the National Judiciary Council to the Parliament, giving the legislature unprecedented control over the courts. Critics stressed that this would undermine the judiciary’s independence, and thousands of people took to the streets in protest, crying “konstytucja” (“constitution”). Despite a formal warning from the European Commission, President Duda signed an overhaul of the Polish judicial system into law.

Now, Parliament has mandated that the justices on the high court must retire at age 65. Enforcing this law would immediately dismiss 27 of the 74 judges currently serving from the bench. Only the President would have the power to override the retirement cutoff and reinstate a judge upon request. No criteria control the President’s discretion, and the law does not provide for judicial review of the decision to (not) reinstate a judge. Since the law also expands the size of the court to 120 judges, it would also give Parliament the opportunity to pack the court with its chosen candidates. Unsurprisingly, protests continue to flourish.

In the face of what many perceive as an authoritarian threat to a free judiciary, the European Commission has launched an infringement procedure to try to protect the independence of the Polish judiciary. It argues that the new laws are not in line with European standards on judicial independence and the rule of law as enshrined in Article 2 of the Treaty on European Union. The International Commission of Jurists, a nongovernmental organization, has also spoken out against the new system. Many other international legal bodies, like the Council of Bars and Law Societies of Europe, have made similar statements and taken actions aimed at mitigating the Polish Parliament’s manipulation of the judicial system.

In the U.S., some scholars and pundits have argued that various aspects of the current administration related to the Supreme Court threaten a constitutional crisis, in part because both the House and Senate are controlled by the same party; in part because of the circumstances under which Anthony Kennedy retired from the Supreme Court; and in part because Brett Kavanaugh was nominated to fill his seat. There have even been suggestions of court packing as a preventive measure against Executive tampering with judicial independence. But what makes the constitutional crisis in Poland different is the involvement of international bodies and nongovernmental organizations with the power to influence, if not directly control, the actions of that country’s legislature. The Treaty on European Union offers actors like the European Commission an opportunity to examine and analyze the Polish Parliament’s treatment of the courts in a way that ultimately lays bare the legislature’s political motivations and brings the facts to the public from a third-party perspective. The EU at large is neither for nor against either of Poland’s opposing political parties; it can serve as a (relatively) disinterested mirror to reflect the changing nature of judicial independence (or subservience) and provide much-needed perspective.

As we grapple with our own crises of democracy and courts and judges in the United States, it would serve us well to take a moment away from looking inward and turn towards the East, to observe, to compare, and to learn. A threat to judicial independence in any democracy is an issue that we should pay close attention to, no matter where we live.

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.