Skipped the London Eye, Headed for the UK Supreme Court

By: Amy Flick & Julienne Grant

After IALL in Oxford, some of us seized the opportunity to take a few extra days to explore London. London is full of tourists, and sometimes the lines can be daunting, particularly at sites like the London Eye.  Tourists were not pounding at the doors of the UK Supreme Court, however, which made for a very pleasant visit.  Several of us opted for guided tours and also explored the excellent exhibition in the basement.

The UK Supreme Court has only existed since October 2009 per the Constitutional Reform Act 2005. Final judicial authority for the UK was previously vested in the Appellate Committee of The House of Lords, its members serving as judges known as Law Lords.  When the UK Supreme Court opened for business, the 12 Law Lords became the first sitting UK Supreme Court Justices. According to the Court’s website, the Court was “established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasizing the independence of the Law Lords and increasing the transparency between Parliament and the courts.”

The UK Supreme Court is housed in the former Middlesex Guildhall, which sits on Parliament Square, across from the Houses of Parliament and next to Westminster Abbey. Constructed in 1913, the building once served as a Crown Court and was refurbished to house the new UK Supreme Court.  There are three courtrooms in the building with the first being the largest and most traditional in appearance. The second courtroom is sleek and modern, and its glass back wall is etched with an Eleanor Roosevelt quotation. Court 3 is used by the Judicial Committee of The Privy Council (JCPC).

The 12 Justices sit on panels of five, seven, or nine, with five being the most common. Panels are assigned by the Court’s president, currently the Lord Neuberger of Abbotsbury.  The Court is the final court of appeal for civil cases from all of the UK, and criminal cases from England, Wales, and Northern Ireland. The Court hears around 100 cases a year with about a quarter being criminal, and the rest covering a broad range of topics. The 12 Justices also sit on the JCPC, although other Commonwealth judges may be invited to sit on those panels.  The JCPC docket runs about 50 to 60 cases per year.

Cases can take up to four years to wind through the UK lower courts, but can be expedited if they are time sensitive.  Cases are chosen for a hearing in the Supreme Court if they have an arguable point of law and/or a “general impact on society.” The Court operates from October through the end of July, spread over four terms.  Hearings average between one and five days in length.  One recent, and quite compelling case, involved a transgender individual. In that case, the plaintiff applied for her state retirement pension when she was 60, but was denied as she had not formally applied for a gender recognition certificate.  The Court had not yet decided the case when we were on site, but the judgment came down last week. The Court elected to defer the legal question to the Court of Justice of the European Union (CJEU). One assumes that the CJEU will be out of the picture completely once Brexit is implemented.

The Court’s Justices are selected in a process that is quite different from that in the U.S., which is highly politicized. To be eligible to serve on the Court, a candidate must have served at least 15 years as a “qualifying practitioner” or two years as a judge in the UK court system.  An independent panel of legal and non-legal experts vets and interviews candidates.  The Queen formally makes the appointment.  Mandatory retirement age is 75 for those Justices who were Law Lords, and 70 otherwise.  In the next couple of years, half of the Court will be retiring.  Currently, two Justices are Scottish, another is from Northern Ireland, and the Baroness Hale of Richmond is the only female Justice.  The current lack of diversity on the Court will seemingly be addressed with the forthcoming wave of retirements.

The Court’s elegant emblem includes the blue flax flower of Northern Ireland, England’s Tudor rose, Wales’ green leek leaves, and Scotland’s purple thistle. These symbols are intertwined with a Libra representing the scales of justice, and an Omega, which represents the Court as the final source of justice in the UK.  The Court’s colorful carpeting repeats the emblem and was designed by Sir Peter Blake, who also designed the Beatles’ Sgt. Pepper’s album cover.  The Court’s interior is functional, but also quite attractive; you can even rent out the place for a wedding, dinner, or other event. (Somehow it’s difficult to picture a wild wedding reception taking place here, but anything is possible.)

The Court employs eight Judicial Assistants (JAs)—one permanent, the others serve for one year.  The four Justices with the highest seniority have their own clerks, while the remaining eight share four JAs.  The Justices don’t wear traditional robes in the courtroom and sit on the same level as the parties’ legal teams.  The Court’s usher does wear a gown, and barristers have the option of wearing wigs and robes.  Barristers address the Justices as “Lord” and “Lady.”  Hearings are streamed live and remain on the Court’s web archive for a year.

The Court’s library is generally not open to the public, but we were allowed a visit, hosted very graciously by Head Librarian Paul Sandles (one of two librarians on staff).  The library spans two floors, and the walls have quotations (selected by the Justices) penned by a wide variety of authors ranging from Aristotle to Martin Luther King. The print collection is somewhat limited since most of the Law Lords’ book collection remained on site within the House of Lords. The library concentrates on basic texts on subjects covered in court, adding titles preemptively and as needed. There are some primary and secondary foreign materials. The library’s U.S. Reports set was donated by the U.S. Supreme Court after a visit by the U.S. Justices.

Although the Court tour does not offer the London Eye’s “view you’ll never forget,” it is nonetheless a worthwhile way to spend an afternoon.  In a jurisdiction that can lay claim to the Magna Carta (1215), it is fascinating to get a glimpse of a legal institution in its infancy.

 

#IALL2016 Recap: Precedent and Authority: the Continental Dimension

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By: Jim Hart

Professor Ibbetson began with the point that precedent has not always been a part of English law and has been more a part of Continental law than we think.  He explained that historically, in general, common law precedent focused on law as it was applied in court whereas civil law precedent focused on the principles and rules in the codes.

He began with England because here we’re on fairly familiar and firm ground. Before the nineteenth century there was no strict rule of bindingness and no structure by which courts were only bound by courts above them.  This is not surprising because it was only in the nineteenth century that we began to get enough regular, reliable reports and a clear hierarchy of courts to think of precedents binding on lower courts.

It was only in the seventeenth century that changes in the direction of the modern ways of thinking began to occur.   And it wouldn’t surprise anybody, especially after hearing Professor Baker’s lecture, that a central figure in this process was Sir Edmund Coke.  We need to address three closely related, but separate phenomena.  The first was the practice of following previous cases.  Although this was not new and it probably goes back as far as we think there was a common law system, it became more intense with high quality reports.  It’s probably hard for us to think of the common law without this since we expect judges to act consistently and English law had nothing like the books and rules of Roman law.

The second phenomenon was the development of the idea of authority. Professor Ibbetson paused a minute here before saying something more about it.  Naturally King had authority, sheriff had authority in his county, the bailiff in his bailiwick and so on.  From the late 15th century we begin to see that some texts were considered to have authority, which must mean that they contained rules that had to be followed, just as the instructions of King, sheriff or bailiff.  As the sixteenth century progressed we find it more normal to say that these texts were authority and being authority was something different from having authority. The only books that were authority, of course, were law books.  And increasingly there was a strong focus on decided cases that had been authorities.  I suspect that the development of the idea of authority at that time was related to the differences between Plowden and Dyer’s methods and those of the Year Books although Professor Ibettson did not say so.

And thirdly there was precedent.  Many lawyers had been familiar with precedent having prepared formal documents such as precedents of pleading.  In the early seventeenth century we find special status being given to judicial precedent, that is decided cases and, in particular, decided cases where the reasons had been recorded.  Just as we would say today that judicial rulings and decided cases as precedents were authorities.

This judicial authority developed from the theory of argument by dialectic, which would have been familiar to anyone from a medieval university.  At this time nearly any text could be authoritative.  But there were two categories of authority: necessary and probable.  The best example of a necessary authority was the Bible which was true by definition and any conclusion drawn from it was equally true as long as the argument was validly drawn from premise to conclusion.  Probable authorities were things that were not true in themselves, but might be true.  It was not what learned men said that constituted probable authority, but things like moralizing fables, popular sayings, and customary ways of doing things.  This is the world of the medieval university on the continent and in England.  In the early 16th century, perhaps first in Holland, a specifically legal dialectic began to appear about how to frame a forensic argument.  The argument from authority is the strongest in law (argumentum ab auctoritate est fortissimum in lege), wrote one commentator.  The authorities that formed the basis of the argument might be necessary or probable.  In the medieval university, the theory of authority was based on a tradition that went back to Cicero.  But dialectic and rhetoric were not miles apart.

There was another classical tradition.  This one was traced not back to Cicero, but to Quintillian. And here we find the Latin term, “praejudicia,” which we can translate as precedents.  We’re not sure what Quintillian meant by this term, but it might have meant things that had been adjudged before, the literal translation of praeiudicia.  In the early sixteenth century it was said that auctoritas and praeiudicia were interchangeable terms. We don’t know which of these ideas of legal dialectic were used in England, but we do know that some were.  Moreover as more common lawyers spent time at university, they would have come across Cicero and Quintillian and would be utterly familiar with the basics of dialectic and rhetoric.  We are sure that Coke was familiar with these precise terms when he was at university.  Coke used these two sources explicitly in his writing. Indeed he peppered his writings with quotations and near quotations on authority and precedent.  Coke was quite clear that these judicial precedents were only probable authority.  Although judicial precedent was only probable, it was authoritative in court.  All other things being equal, they should be followed.  But other things were not always equal. So from about 1700, England had a doctrine of precedent that was rooted in dialectical theory.  Notice that this process began about a hundred years before the period covered by Professor Baker and stretched to about fifty years later.

How different were things on the continent?  At first glance they weren’t very different in theory, but they differed in operation.  The writers on legal dialectic in Holland, Germany or elsewhere in Europe were thinking in terms of their own systems, not at all in terms of the unruly English common law.  So the argument from authority would have been utterly familiar.  To continental lawyers some authorities were necessary, in particular the writings of the Roman jurists.  It was laid down in Justinian’s code that they had the force of legislation.  The medieval jurists were not regarded as necessary authorities, but as probable ones and the same applied to all the modern writers.  The best way to influence a judge was to follow a long line of legal opinion.  But the dominant line of legal opinion might be held to be wrong, especially by an appellate court.  Previous cases were a problem.  Another Roman law text seemed to exclude their significance saying that judgments should be made on the basis of a lex rather than an exemplum.  But previous decisions could be distinguished.  What really mattered with previous decisions was that they came from a particular court that was known for its learning or issued its decisions under the name of the monarch or ruler.  It is tempting to conclude that the mass of citations from Roman law was little more than froth.  What really mattered was the jurisprudence of this court.  But we should resist that temptation.  We should say that the previous case showed the issue behind the mass of citation.  These were all probable authorities according to the writers on dialectic.  And the previous case merely showed what the correct path through all these authorities was.  Courts might look at previous decisions, but their decisions were made according to the true law.  Earlier decisions might help them to understand what law lay behind a complex plethora of authorities cited in a present case.  In England we can say that it was the printing of large numbers of reports that was really central in allowing the increase in the use of precedent in the early seventeenth century.

So do we get case reports in early modern Europe?  We certainly do and lots and lots and lots of them.  In Italy by 1600 there were thirty-two separate volumes of reports printed in very large folio volumes.  There was a real difference between these volumes and those in England.   The English reports included the arguments given in court sometimes together with the decision that had been reached, which allowed the successful arguments to be identified so that later readers could identify the reason for the decision and understand what the case was an authority for.  The continental model was different.  The reason for the decision was constructed by the person producing the volume.  In so far as they could be said to be authority, it was probable authority like all the other forms of legal writing that were being produced.

Although it’s anachronistic to make the comparison, the continental reports had the same authority as the textbooks used to elucidate the law whereas the English reports had far greater authority.  The legal systems of Europe of this time were similar and they were held together by the common Roman law.  Professor Ibbetson said that he didn’t think that it was an exaggeration to say that there was so vast an amount of legal literature on the continent in the sixteenth century that one could probably prove an argument and its opposite from it.  There was a crying need for something like the English doctrine of precedent to cut through all this mass.  A couple of Spaniards even suggested that all foreign law books should be burned.  And we do find something similar to the English doctrine, but, in one crucial respect, not identical to it.  We can begin tracing this in Naples in the 1490s; one of their statutes said that decisions of the Sacrum Concilium, the highest court, were given in the name of the prince.  Thus it was said that it was if the Sacrum Consilium’s judgements had been given by the prince himself, i.e. that they had legislative force.  This appeared in one of the most important collections of decisions.  But it did not apply to the most important court of the Roman Catholic Church, the Roman Rota, a court whose reasoning was worthy of enormous respect.  But its decisions were not given in the name of the pope so they didn’t count as legislation.  However, as the sixteenth century progressed all across Europe, decisions of courts were said to have the force of legislation.

One of the best discussions of this issue comes from early seventeenth century Portugal.  The core rule there was something like that of Naples: decisions of the Senate given in the presence of the King were treated as having legislative force since the king was presumed to have approved them.  But the king was not always present.  So further arguments were needed to bolster up the authority of court decisions.

One very important rule, backed up by a Roman law text, said that a rule of custom might displace a rule of Roman law itself since all law ultimately came from the people.  How could you identify such customs?  Decisions of the local court would suffice to do so provided of course that they had come from a court whose decisions were worthy of respect, effectively from a superior court.  Decisions of the Senate were always more or less acceptable.

European legal systems based on Roman law contained a great deal of probable authority, from many thousands of volumes, some of which were very thick.  But when we see citations to previous cases, they are overwhelmingly drowned out by the noise of commentators.  England had hardly any textbooks, but by the seventeenth century judicial precedents contained almost exclusively probable authority in what was a very small number of reports.  The continental doctrine of precedent, on the other hand, had come about differently.  For there the relevant case law in the judgment was necessary authority, which meant that it created absolutely firm binding rules.  The great advantage in the seventeenth century and today in the English doctrine was that it created a great deal of provisional bindingness.  But it was only the decisions of the House of Lords that produced any binding rules and they were relatively few in number.  On the continent Supreme Court decisions have stronger authority, but they lack the flexibility of the English doctrine.  Their very rigidity prevented them from developing into something like the English doctrine.  The continental doctrine lacked the ability to work over a very long time.

Professor Ibbetson followed with a gracious thank you and we with thundering applause.

 

#IALL2016 Recap: Law Reporting in England 1550-1650

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By: Jim Hart

After Professor Reynolds presentation, Diversities among Common Law Nations, Emeritus Professor Sir John Baker and Professor David Ibbetson spoke on the historical development of modern precedent and case reporting.  Although the two differ superficially, they are in fact deeply intertwined.  It may be said that they both spring from the same origin: changes in the theory of authority in the sixteenth and seventeenth centuries.

Professor Baker began with the origins of case reporting in England, as we know it, between 1550 and 1650.  The story begins at the end of the series of Year Books in 1535.  When Edmund Plowden entered the Middle Temple in 1538, he began compiling reports of cases and continued this practice throughout his career.  These reports were published as Plowden’s Commentaries in 1571. They were the first of the nominate reporters and differed in important respects from the Year Books.

Although the Year Books had been anonymous, Plowden published his Commentaries under his own name.  He had found out that someone had quickly and carelessly copied his notes and intended to publish them.  He was forced to publish them under his name to secure the credit for his assiduous work.  Indeed Plowden felt it necessary to apologize for putting out his reports in his own name.

A more substantive departure from the Year Books is his decision to include only considered decisions (decisions of particular importance that set precedent) in his reports.  Although he copied the Latin so that readers could see the pleadings, he translated them into law French because of the wide-spread doubt that the common law could be expressed satisfactorily in English.

But his greatest departure was recording cases after judgment because this is what the profession wanted.  The Year Books had recorded cases before trial, which is why they had not included many things that we now take for granted.   This is why the Year Books seem so inconclusive.  To the compilers of the Year Books, the judgment was considered legally uninteresting in comparison with the material that preceded it such as the pleadings, the issue, the arguments, etc.  At this time the judicial system was not designed primarily to elicit decisions, but to frame the points that were to be referred to a jury.  Judges’ rulings concerned procedure and were spoken in court so they were not available for copying.  By Plowden’s time things had changed.  The profession wanted to know how and why a case ended as it did.  It seems to me that this is the most important point made in Professor Baker’s talk.  For it was the development of the idea of precedent both on the Continent and in England at this time, as Professor Ibbetson was to explain next, that led to the changes in the legal system that the  profession’s need for a new kind of reporter.

Finally there were two other new, important practice adopted by Powden. Unlike the Year Books, Plowden also consulted those who were involved in the case to ensure accuracy and he included the judgment, which the Year Books could not have done because they reported cases before judgment.  The judgments were set in a different type so they wouldn’t be confused with the reports.

Plowden set a high standard and there was never to be another volume quite like it.  Most of what Plowden included is to be found in today’s reports. Indeed Plowden’s departures from the Year Books were the origin of our view of what a good report should include.  What we now call the judgment includes the judge’s informal statement of the case, the facts of the case, the legal question, the arguments presented in court, references to the authorities, and the reasons for the conclusion.

The second most important point that Professor Baker made, in my opinion, was that there was a continuous line of reporting that began with Plowden and continued through Dyer and Coke.  This line formed the tradition that the future nominate reports continued.

The work of the next reporter, Dyer, was published posthumously.  Sir James Dyer began gathering his reports in the 1530s, before Plowden had begun.  He left his manuscripts to his two nephews who were law students.  The published edition was taken straight from Dyer’s notebooks.  Although it included over a thousand entries, it left a lot out, e.g, cases that might embarrass a living person, cases that Plowden had already covered, and matters too sensitive to make public for reasons of state.  Within twenty-five years of their publication, the notebooks were in the possession of Sir Edmund Coke who cited them often.

It was common for judges to keep jottings in notebooks at this time as aids to memory.  The exception to this was Edmund Coke whose work was published in eight volumes.  He began taking notes in the 1570s and began making them available to others in the next decade.  The earlier notebooks were essentially the story of Coke’s rise in the bar.  Coke embellished and amplified on many of the cases.   In 1616 he was charged with inaccurate reporting and assigned to correct them.  Francis Bacon volunteered to help with the task.  In the very next year Bacon was made Lord Chancellor and banned Coke from Westminster.  He did, however, put forward a proposal to hire three lawyers to report on the cases at Westminster at a salary of £100 a year.  Although there were never more than two reporters, Bacon had revived the old custom.  He appointed lawyers to do the reporting because they did a better job than judges.  Before the reports were published, the reporters checked with the judges.  Bacon’s scheme continued Coke’s reports up to 1619 when there was a hiatus in reporting until 1621.

This presentation outlines the origins of the nominate reporters and our own systems of law reporting.  But many of them are still in manuscript form.  As the summary of Professor Baker’s presentation states, “Law reporting was to remain a matter of private initiative until the end of the eighteenth century, and many of the best reports…have still not been published.  Anyone seeking to trace the evolution of a legal doctrine or practice before about 1700 must regard manuscript reports as an essential recourse.”

#IALL2016 Recap: Diversities Among Common Law Countries

By: Julienne Grant

On the morning of August 1, Professor Francis Reynolds Q.C., Emeritus Professor of Law at Worcester College (University of Oxford), began the 2016 IALL Course with a talk on “Diversities Among Common Law Nations.” As indicated by the speaker, the purpose of the presentation was to provide only general observations of differences between selected countries following the common law tradition.

Before proceeding into the main content of his lecture, Professor Reynolds made a brief detour to define common law. According to him, the common law is a legal system wherein the application of law does not begin with a code, but rather a corpus of prior court decisions that judges utilize to reason by analogy.  In defining common law, the speaker also contrasted it with the civil law tradition, suggesting that the methodology is the same, but the technique is different; that is, the two systems differ in their treatment of precedent.

Professor Reynolds next segued into a general examination of the development and use of common law in various jurisdictions.  The speaker posited that the common law itself is largely an English invention that is now utilized in numerous countries across the globe, although its functionality varies.  The speaker emphasized that there is really no such thing as British law, as Scotland has its own legal system. He said that the term “U.K. courts,” however, can be accurate in the right context and noted that there is now a U.K. Supreme Court that has been operational since 2009.  The professor contended that the use of common law in the U.S. departs from that utilized in the U.K., partly because of the U.S.’ sheer size and geography.

Turning to Australia, the speaker specified that there is also no general Australian law and that emphasis there is on court opinions emanating from the states of Victoria and New South Wales, with the latter decisions being “more adventurous.” Professor Reynolds observed that the High Court of Australia, the country’s final court of appeal, has been reducing the number of categories of law as of late.  The professor also mentioned the 1974 Trade Practices Act, specifically §52, which created a new form of liability for deceptive conduct in the consumer protection context, along with a new remedy.  Focusing next on New Zealand, the speaker asserted that legal reform began there in earnest in the 1970s, specifically referencing the 1970 Illegal Contracts Act and the Contracts (Privity) Act of 1982.  Professor Reynolds noted that not all of the attempted legal reforms have been successful in that country, although these types of changes are generally easier to implement in smaller jurisdictions.

Moving to Hong Kong, the speaker indicated that the Court of Final Appeal there is a bastion of the retention of common law values. The Court, which is Hong Kong’s highest appellate court, has a high standing in the common law world.  He noted that there is increasing use of Chinese in the lower courts, which begs the question, can the common law be applied successfully in a language other than English. Turning to Singapore, the professor explained that there has been an increasing amount of commercial law litigation there in the past ten to fifteen years.  In Singapore, there is no third tier appellate court of review, and the country is currently experimenting with a new International Commercial Court.

Professor Reynolds conceded that he did not have a clear view of the common law in Canada, a statement that prompted laughter from many audience members.  He suggested that Canada is another example of where common law is utilized in a jurisdiction where its linguistic tradition is not exclusively linked to the English language.  He also briefly touched upon India, where he maintained there are serious delays in the judicial system and outdated codes. The speaker also mentioned the Judicial Committee of the Privy Council (JCPC), which he contended does not have enough vision, although there are still some important cases emerging from the JCPC.

The speaker closed his talk with a brief look at the current status and future of the common law. Overall, Professor Reynolds views it as a satisfactory method for private law cases and stipulated that the common law would be difficult to change, as its legal methodology is essentially a cultural matter. In addition, he pointed out the increasing popularity of international commercial arbitration, concurrently noting that the common law is often applied in that context.  Regarding the latter, he referenced recent developments in Singapore, Dubai, and Abu Dhabi.  Professor Reynolds concluded that the common law is indeed still vigorous and internationally viable.

Several attendees subsequently added to the discussion with information, questions, and comments. Professor Reynolds’ paper on his presentation topic will be published in a forthcoming issue of the International Journal of Legal Information (possibly in January 2017).

A Snapshot of Indonesian Law (and Indonesia) & the FCIL-SIS Throws a Party

By Julienne Grant

Rheny3Dr. Rheny Pulungan, recipient of the 2016 FCIL-SIS Schaffer Grant, gave a fascinating presentation on July 18 entitled “The Legal Landscape in Indonesia:  Limitations and Possibilities.”  This was actually Dr. Pulungan’s first time in the United States, and she admitted to being a little overwhelmed.  She was headed to NYC after her Chicago visit.

Dr Pulungan began her presentation with a quiz for audience members, “Fun Facts About Indonesia,” which tested us on our basic knowledge of the country, such as the number of islands (around 18,000);  population (about 250 million); and official religions (Islam, Hinduism, Buddhism, Protestantism, Catholicism, and Confucianism). Needless to say, the attendees were a bit stumped and surprised at the answers. The speaker also showed a slide of Indonesia embedded on a map of the United States, and many of us were astonished to see what a large geographic area the country spans.

Indonesia’s legal system is complex, with civil law attributes resulting from the archipelago’s time under Dutch rule.  One region, Aceh, applies Shariah law. Since 1945, Dr. Pulungan explained, Indonesia has been creating its own laws. Starting in the 1970s, efforts began to create a national legal information center that would make Indonesian laws more accessible, and beginning in 2004, laws and court opinions have been regularly posted on Indonesian government websites.

The speaker next turned to Indonesia’s judicial system. At the trial level are 250 district courts, appellate level high courts number 30, and the Indonesian Supreme Court is a court of cassation. There are also specialized courts, including religious courts and military courts, as well as a constitutional court.  The Supreme Court has a website where its decisions are posted, although none are translated into English. Dr. Pulungan described the search functionality of the site as being mediocre and indicated that the Supreme Court does publish a small number of its decisions in print.  In 2012, as part of USAID’s Changes for Justice Project, an electronic case tracking system (SIPP) was established that was designed to promote judicial transparency.  According to the speaker, it is possible to search by case number or party name to locate information.  Dr. Pulungan also noted that court decisions at all levels must be uploaded within three days of rendering.

Decisions of the Constitutional Court (established in 2001) are translated into English and available on the Court’s website.  The Constitutional Court is not an appellate court and its authority is vested in the third amendment to Indonesia’s Constitution.  The Court’s database can be searched by multiple variables, including case number, case name, applicant names, and keywords.  The Constitutional Court’s role is “The Guardian of the Constitution.”

According to Dr. Pulungan, Indonesian legislation is relatively easy to find online, but locating official English translations can be difficult. There are several databases of note that contain Indonesian legislation: the State Secretariat Database (updated daily); Lexadin; some UN agency websites (such as UNODC); and Hukum.  Hukum is the only commercial database available for Indonesian law in both English and Indonesian.

The speaker next turned to secondary sources.  She recommended Cornell University’s “Southeast Asia Program” website and a quarterly publication called Inside Indonesia. She also mentioned the English-language law journal, Indonesia Law Review , which is open access, and the Australian Journal of Asian Law that is hosted on SSRN. The Jakarta Post covers legal news and developments, and Dr. Pulungan also noted the “Indonesia at Melbourne” blog and the website of the University of Melbourne’s Centre for Indonesian Law, Islam and Society.

The speaker closed her talk by emphasizing that translating Indonesian legal materials into English is inherently difficult.  She provided an example of a phrase in Indonesian translated into English by Google Translate as “hiking education,” while a UNESCO document translated it as “educational streaming.” She advised attendees to search for more than one English translation. Dr. Pulungan has created a LibGuide on Indonesian law and told audience members that she was available via email for assistance.

A question from the audience was raised about religious courts, which she explained are unique and preside over family law matters. As an aside, the speaker mentioned that Indonesian couples who marry must be of the same faith; Dr. Pulungan’s husband is Australian, and he had to convert to Islam for a day in order for the marriage to be legal in Indonesia.  Another attendee asked whether any Indonesian court decisions are precedential. There is no precedent, she said, but Supreme Court decisions include practice notes that can influence lower courts.

ReceptionAfter Dr. Pulungan’s excellent talk,[1] audience members headed to the FCIL-SIS reception for foreign visitors.  The reception was well attended, and I enjoyed chatting with FCIL colleagues there. Keith Ann Stiverson, 2015-2016 AALL President, welcomed the guests and announced the numbers of foreign attendees:  27 from Canada, 17 from the UK, 2 from Australia, 1 from Hong Kong, 1 from Ireland, 2 from South Korea, and 1 from Switzerland.  Ms. Stiverson’s remarks were followed by a few words from IALL President Jeroen Vervliet (Peace Palace Library). Mr. Vervliet related his adventures in Hyde Park at the University of Chicago’s Oriental Institute and Frank Lloyd Wright’s Robie House. He also announced that the International Journal of Legal Information has a new publisher (Cambridge) and a new look. Mr. Vervliet presented a copy of the new issue to editor Mark Engsberg (Emory U) who had not yet seen it. Overall, it was a great party, although I admit I could have used a few more coconut shrimp.

 

[1] I will also add that Dr. Pulungan made a fashion statement with her dress constructed with fabric covered with images of books. Loved it.

 

Recap: Asian Legal Information in English: Availability, Accessibility, and Quality Control

By Amy Flick

Because I frequently need to help students find primary authority of other countries, yet have no hope of finding materials published in Chinese, Korean, or Japanese, I was pleased to see a program on Asian Legal Information in English in the AALL Annual Meeting program. I was even more pleased to find the program interesting, useful, and supplemented with handouts.

Alex ZhangAlex Zhang was the coordinator, moderator, and introductory speaker. She started by stressing the importance of good, reliable translations, but noted that even “official” translations by government entities are still for informational purposes only. In presenting the portion of the program on finding primary law of China, she included:

  • The official site NPC (National People’s Congress) Database of Laws and Regulations. The search box is unreliable, so Alex recommended browsing by category, requiring some knowledge of the structure of Chinese law to find the appropriate category. She cautioned that the laws retrieved may not include the dates of coverage, making it unclear for the user if they have the most current version.
  • State Council Laws & Regulations
  • Commercial sources including Lawinfochina, Westlaw China, and Lexis China, all comparable, and expensive, but Alex is most familiar with Lawinfochina. She recommends it for comprehensive coverage and inclusion of the most recent laws, and for a citator link to amendments to laws.
  • Although case law is not considered primary authority in China, a Stanford Law School project is translating Chinese Guiding Cases.

Alex wrapped up by noting that good translation is hard: “the question in legal translation isn’t which one is right, but which one is less wrong.” She suggests comparing and contrasting multiple translations and asking experts for help.

 

Anne Cathrine Mostad-JensenAnne Mostad-Jensen presented on law of Hong Kong and Macau. For these jurisdictions, she stressed that it is particularly important to understand their histories. Because of Hong Kong’s history as a British colony, it has a hybrid system of common and civil law, and English is one of its official languages for legal publication. Sources for Hong Kong legal information in English include:

Macao as a former Portuguese colony has a civil law system. English translation is available for only select legislation and some indexes, not for caselaw, and the translations are not official. Sources include:

 

Juice LeeJootaek “Juice” Lee demonstrated resources on law of the Republic of Korea in English. Although South Korea has a civil law system, it has been influenced by U.S. common law. English translations are not official, but English is widely used, and there are English language versions of most government websites. However, terminology can be an issue because of differences in civil and common law. Most primary sources are available in English, and government publishers try to provide accurate translations. Juice warned that Korean law changes rapidly, and English translations may not keep up. There are also issues with understanding the differences between public, private, and social law. He recommended sources including:

 

Mike McArthurMike McArthur had the final presentation in the program on finding Japanese law in English. Japanese efforts to be more international led to a 2004 Japanese law requiring translation of Japanese laws. Laws are first made available in tentative translation before an “official” version is available. Of course, translations are still unofficial. Mike warned that the Japanese calendar has a different date system, so he provided a “cheat sheet” for Japanese dates.  Sources for Japanese law in English include:

  • The Ministry of Justice’s Japanese Law Translation The database of laws and regulations is searchable with multiple options (title, number, category), and it has a dictionary for finding Japanese legal terms.
  • The Supreme Court of Japan. Although Japan has a civil law system, Supreme Court decisions are relevant, and some are translated into English.
  • An additional resource for Japanese legal research is ministry reports and white papers, which are translated into English, and which include detailed statistics.

Mike reminded the audience, as did the other speakers, that a legal researcher working with foreign languages and translations can get in over their head quickly, and that they should reach out to a specialist for help.

 

All of the presentations in the program were outstanding, and I appreciate the hard work by the speakers in putting them together!

FCIL-SIS Jurisdictions Interest Groups To Meet On Sunday

FCIL-SIS invites all AALL conference attendees to join us for our Jurisdictions Interest Groups Joint Meeting this Sunday, from 12:30pm to 2:00pm, in the Hyatt-Water Tower Room.  The program will include substantive presentations from several of our interest groups, as well as 15 minutes at the end of the meeting for each group to discuss their plans for the coming year.

The agenda for the meeting is as follows:

SUNDAY July 17, 2016

12:30 PM – 2:00 PM

FCIL-SIS Jurisdictions IG Joint Meeting (Africa, Asia, Latin America, Europe, Indigenous Peoples, Customary & Religious Law, Roman Law) (Hyatt-Water Tower)

Meeting Topics:

  • Welcome and Intro (Susan Gualtier, Louisiana State University School of Law Library) – 5 minutes
  • European Law: Recent Developments in German Law Related to Asylum and Refugees: A Brief Overview for Law Librarians (Jennifer Alison, Harvard Law School Library) – 20 minutes
  • Latin America: Cuban Legal Research Guide (Julienne Grant, Loyola University Chicago Law Library, et al.) – 10 minutes
  • Africa: Updates of the Digitization Case Law Project from South Western Nigeria (Yemisi Dina, Osgood Hall Law School Library) – 20 minutes
  • Indigenous Peoples: Indigenous Peoples and DNA Testing: Friend or Foe? (Steven Perkins, Greenberg Traurig, LLP) – 20 minutes
  • Individual Interest Groups business meetings – 15 minutes

Everyone is welcome to attend the presentations and to check out our interest groups, so please spread the word to anyone interested in these areas of foreign law.  FCIL-SIS looks forward to seeing you there!

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