New FCIL Librarian Series: Supporting International Moot Court Programs

By Sarah Reis

This is the fifth post in a series of posts about adjusting to my new position as a foreign and international law librarian. I started my position at the Pritzker Legal Research Center at Northwestern Pritzker School of Law in February 2018.

Reis - Parillo Court RoomOur Class of 2019 graduated in mid-May and our returning law students are now hard at work at their summer jobs, so things have really quieted down around the library. Summertime is the best time to work on all of those projects that you never have quite enough time to get around to during the fall and spring semesters. One project I plan to focus on this summer is to figure out how to improve our support to our international moot court programs.

During this past academic year, a faculty member put together an inaugural team for the Price Media Law Moot Court Programme. This team was comprised of both JD and LLM students along with a student (LLM) coach who had previously participated in this competition. The team successfully advanced to the international rounds and competed at Oxford in April. In late January, I was invited to help out with one of their practice sessions before they traveled to compete in the regional round. I reviewed the memorials they submitted and then attended a session to hear their oral arguments and ask them questions alongside two other professors.

For next year, I have already coordinated with the supervising professor about possibly holding a session on conducting international legal research in the fall. Although the competition rules do not permit anyone to assist team members with researching, writing, or editing, an in-person research session will at least help make them aware of resources they have access to through the library, many of which they may not have encountered or used before.

We also had a team compete in the Willem C. Vis International Commercial Arbitration Moot in Vienna in April. I helped a few of the Vis team members locate some resources in the fall, but I would like to form a closer relationship with the future teams. Our library worked to obtain a trial subscription to Born’s International Arbitration Lectures in the weeks preceding the competition because one of the team members requested it. This resource would be helpful for future participants, but Wolters Kluwer only permits access via individual usernames and passwords, so we were unable to subscribe to it when the trial period ended. If any of you have successfully managed to arrange for IP access to this resource with Wolters Kluwer or know of any helpful (and less cost prohibitive) video alternatives covering international arbitration concepts, I would greatly appreciate your suggestions to pass along to our future teams.

In the upcoming academic year and beyond, I plan to touch base with the participants on these two teams and our Jessup team as soon as the problems are released to let them know about resources available through the library. This summer, I will also be working on creating research guides on international commercial arbitration and international media law to support next year’s Vis Moot and Price Media Law Moot teams. I would love to hear how you support your moot court teams at your law schools so I can steal some of your great ideas!

Globalex May 2019 Issue Now Live

By Lucie Olejnikova

The May 2019 issue features four articles: a new Third-Party Funding in Investor-State Dispute Settlement, and three updates Benin, Gabon, and North Korea. Benin and Gabon articles are in French. Webmasters and content managers, please update your pages. Congratulations! Thank you to all of our established and new contributors!

Researching Third-Party Funding in Investor-State Dispute Settlement by Shery Xin Chen & Kirrin Hough at http://www.nyulawglobal.org/globalex/Third-Party_Funding_Investor-State_Dispute_Settlement.html.

Sherry Xin Chen is a legal information librarian and lecturer in law at Boston College Law School. She teaches both U.S. and international legal research courses and is active in AALL’s Foreign, Comparative & International Law section, currently chairing one of its interest groups on electronic research and resources. She holds a B.A. from Shanghai International Studies University, China, and both a J.D. and a M.S. in Library Science from the University of Michigan, Ann Arbor. She is admitted to practice law in the State of New York.

Kirrin Hough is a U.S. attorney admitted to practice law in Maryland. She is a Graduate Fellow of the Boston College Law & Justice in the Americas Program and a member of the Boston College Law School Working Group on Investment Reform. She has authored and coauthored articles on investment arbitration and investment law reform for the American Society of International Law’s Insights, the International Institute for Sustainable Development, and the Journal of International Economic Law. Kirrin holds a B.A. from Georgetown University and a J.D. from Boston College Law School

METTRE À JOUR: Introduction au Système Juridique et Judiciaire du Bénin by Dr Gérard AÏVO et Lazard H. HOUNSA at http://www.nyulawglobal.org/globalex/Benin1.html.

Gérard Aïvo est Docteur en droit public, Enseignant- Chercheur à la faculté de droit et de science politique de l’Université d’Abomey Calavi du Bénin.

Lazard Hounsa est Juriste et chercheur, Président de l’association des Jeunes juristes du Bénin, membre du Centre de droit constitutionnel.

METTRE À JOUR: Le Système Juridique Gabonais et la Recherche Juridique by Professeur Alexis ESSONO OVONO et NZE-MEZUIE Steevens at http://www.nyulawglobal.org/globalex/Gabon1.html.

Dr. Alexis Essono Ovono a obtenu son doctorat en droit public à l’Université Toulouse 1 en France, avec une mention honorable et des félicitations. Il est actuellement directeur de la maîtrise en droit public et gouvernance des organisations publiques à la faculté de droit et d’économie de l’université Omar Bongo au Gabon. Avant d’occuper son poste actuel, il était professeur adjoint de droit public.

Steevens Nze-Mezuie est titulaire d’une maîtrise en recherche avec option de droit public fondamental obtenue à l’Université Omar Bongo de Libreville, Liberville, Gabon. Il est actuellement titulaire d’un doctorat étudiant au département de droit public de l’Université Omar Bongo au Gabon. Ses recherches portent sur la relation entre investissement et droits de l’homme en Afrique.

UPDATE: Overview of the North Korean Legal System and Legal Research by Patricia Goedde and Martin Weiser at http://www.nyulawglobal.org/globalex/North_Korea1.html.

Patricia Goedde is Associate Professor at Sungkyunkwan University School of Law, in Seoul, South Korea. She received a J.D. and Ph.D. (Asian and Comparative Law) from the University of Washington, School of Law. Her latest publication on North Korea can be accessed here: Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization, 5 Asian J. Law & Society 175 (2018). It also appeared in North Korean Human Rights: Activists and Networks (D. Chubb & A. Yeo eds., Cambridge Univ. Press, 2018) publication.

Martin Weiser received an MA in political science at Korea University in Seoul, South Korea. His recent article on North Korean law can be accessed here: Unseen Laws: A Qualitative Approach to Developments in North Korea’s Legal System, 17 European J. of Korean Studies 22 (Spring 2018). Martin Weiser focuses his research on North Korea and developed and runs the North Korean Information Project, which collects and organizes information about and the laws of North Korea.

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

Ruminations on Researching Customary International Law

By Jonathan Pratter

customsfutureCustomary international law has been a contested concept for a long time. In 1939, a fateful year, Hans Kelsen remarked that the theory of customary international law “has no other function than to conceal [dissimuler] the important, not to say dominant, role that is played in the formation of customary law by the arbitrariness of the organ competent to apply the law.”  Hans Kelsen, Théorie du Droit International Coutumier, 1 Revue Internationale de la Théorie du Droit [new series] 253, 266 (1939).  (I note by the way that Kelsen, an Austrian, wrote this in French in a Franco-Austrian journal, the title of which was displayed in both French and German.  This brings out how essential multilingualism is in the study and practice of international law and international legal research, a point that has been made before on this blog.)  Critical attention to customary international law has increased recently.  The literature is extensive, but emblematic of the trend is the recent article, Why I Stopped Believing in Customary International Law by Daniel Joyner, 9 Asian Journal of International Law 31 (2019).  A key source is the collection of essays edited by Curtis A. Bradley, Custom’s Future: International Law in a Changing World (Cambridge University Press 2016).

The critique of customary international law has several aspects, but a central component is the observation that the standard model, the two-part definition of state practice and opinio juris, is not applied in practice.  This criticism is aimed in particular at courts, both international and domestic.  In Custom’s Future there is an essay by Stephen J. Choi and Mitu Gulati titled “Customary International Law: How Do Courts Do It?”  This is a rigorous empirical study based on a data set of 175 determinations of customary international law by the International Court of Justice and some other international tribunals.  If you can get through the mind-numbing statistical discussion, there is a lot to learn.  Early in the essay there is a sub-section titled “Superhuman Research Skills.”  The context is a discussion of the question whether there is a customary norm permitting a state to reject odious debts.  The authors, who worked on this question, have this to say: “Not only was the type of evidence being requested unlikely to exist … but it was impossible to collect, as a practical matter, unless one somehow assembled an extraordinary team of anthropologists, economists, historians, political scientists and lawyers who would then be able to spend decades excavating the historical record.”  The authors should have added international law librarians to the list of needed professions.

A key finding of the study is that the piece of evidence most frequently cited for the existence of a rule of customary international law is the treaty.  But referring to treaties for this purpose is famously problematic.  After all, the raison d’être for an international agreement might well be the sense of a gap in the law.  The authors conclude that “[t]he data suggest that international courts do not come anywhere close to engaging in the type of analysis the officially stated two-part rule for the evolution of CIL sets up.”  A similar result was reached by Stefan Talmon in his article, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, 26 European Journal of International Law 417 (2015).  Concerning similar results for the domestic courts of the United States, see Ryan M. Scoville, Finding Customary International Law, 101 Iowa Law Review 1893 (2016).

It has to be conceded that the critique of customary international law is found in the academic international law literature.  This is not a criticism of the critique, but an observation.  In 2018 the International Law Commission of the United Nations adopted its Draft Conclusions on Identification of Customary International Law, with Commentaries.  The Draft Conclusions can be found in the Commission’s report, A/73/10, and as an offprint on the Commission’s website.  It has to be said that the Draft Conclusions stick resolutely to the standard model, with little recognition even in the commentaries of the concerns that have been raised.

Where does this leave international law librarians who are called on to advise on researching customary international law, and to teach the method?  Clearly, there is a dilemma.  I think it is still possible to start with the standard, two-element model, as classically stated in Article 38(1) of the Statute of the International Court of Justice.  But more is clearly necessary.  I think we have to raise the critique and its main components.  Researchers and students need to be aware that researching customary international is beset with issues that a simple invocation of the standard model does not capture.  The research guide International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien (Carolina Academic Press 2018) integrates several elements of the critique into the discussion of researching customary international law without mentioning the critique explicitly.

What promise does the digital dispensation hold here?  Is there, or will there soon be, a giant database of state practice of the 195 states of the world to be mined by an AI-driven robot for evidence of a customary norm of international law?  I am comforted that the answer to the question is no.

Join the FCIL-SIS Continuing Education Committee for Our First Webinar and In-Person Event!

comelearn

The FCIL-SIS Continuing Education Committee is excited to announce its first two events!

Working with Non-English Materials for the English Speaker Webinar on June 6, 11 am-12 pm US/Central

On June 6, 11 am-12 pm US/Central, please join us for a webinar on Working with Non-English Materials for the English Speaker. Register for the webinar now at https://www.aallnet.org/forms/meeting/MeetingFormPublic/view?id=14E74000002E9!

As the world becomes increasingly interconnected, most of us will inevitably need to research laws from non-English speaking countries, whether we are helping a firm close an international business deal or a professor perform comparative research. In this webinar, a panel of experienced foreign, comparative, and international law librarians who have worked in Europe, Africa, Asia, Canada, and the Caribbean will provide practical guidance on finding English translations of non-English laws, gathering enough understanding about a non-English document to identify whether it is relevant to your research, and finding help if you’re truly stuck.

Participants will come away with a bibliography of reliable translation materials and the ability to select the dictionaries, translation services, and finding aids suited to a specific task, whether the goal is to catalog a document, provide document retrieval, or answer a complex research question.

The webinar will feature Erin Gow (Online Services Librarian, University of Louisville Law Library), Yemisi Dina (Acting Chief Law Librarian, Osgoode Hall Law School, York University), and Alex Zhang (Assistant Dean for Legal Information Services and Professor of Practice, Washington and Lee School of Law).

What’s New with UN Resources at Fordham Law School on June 27th, 6:30-7:30 pm

If you’re in the New York area on June 27th, we also welcome you to join FCIL-SIS and LLAGNY from 6:30-7:30 pm at Fordham Law School Room 2-01A for a free lecture on What’s New with UN Resources. Register for the New York lecture now at https://www.llagny.org/index.php?option=com_jevents&task=icalrepeat.detail&evid=64&Itemid=176&year=2019&month=06&day=27&title=whats-new-with-un-resources&uid=53456656a8d7cd3e7c48b6e3aaf63cc9!

Susan Goard, Law Librarian and Training Coordinator at the UN’s Dag Hammarskjold Library, will present on how to locate the different types of documents produced by the main UN organs using the UN Digital Library and other tools, websites, and publications. She will provide updates on new research guides and tools from the UN Library, including the transition from UNBISnet to the UN Digital Library.

Ideas and Volunteers Welcome

The Committee welcomes both volunteers and ideas for future events! If you have any ideas for future FCIL-SIS Continuing Education events or if you’d like to volunteer to join the committee or teach a continuing education event, please reach out to the FCIL-SIS Continuing Education Committee chair, Caitlin Hunter, at hunter@law.ucla.edu or complete a short survey at https://forms.gle/2VqR5Zm8T6VWxJCq6.

Teaching FCIL as a Non-FCIL Librarian: Go-To Resources

By Janet Kearney & Michelle Penn

SlawFCILCareersWordle1This is the second in a set of posts from Michelle and Janet on FCIL for non-FCIL librarians; the previous post highlighted some go-to databases, and our next post will take a look at collection development. Michelle and Janet are both from Fordham Law Library, where Michelle is Faculty Services Librarian and Janet recently made the leap from Reference Librarian to FCIL Law Librarian. Thanks for having us!

When we first proposed this idea for a blog post, we did not realize just how often DipLawMatic Dialogues discusses tips for new teachers and FCIL teaching. Our challenge was to make this a useful post that doesn’t simply repeat the great advice of our colleagues who have come before us. We decided to once again focus on “go-to” resources in the hope that this will serve as a useful guide no matter what FCIL teaching situation finds you.

How might you find yourself teaching FCIL? In addition to the fact that we all do things outside our wheelhouse, teaching FCIL research can be a great way to help keep your FCIL research skills current even when you are not a FCIL librarian. Proposing a FCIL course can encourage you to brush up on your FCIL skills and help prepare you to move to a FCIL position in the future, if that’s something you want. For the less experienced non-FCIL librarian, teaching a FCIL class in a general advanced legal class, or offering research instruction for a doctrinal class, such as International Criminal Law or International Business Law, can be great ways to gain teaching experience and subject matter familiarity, without committing to teach an entire course on the subject. Offering research help for FCIL student journals, is another good way to explore different areas of FCIL research.

Although there are so many great resources out there on teaching, like 7 Things I Wish I Knew Before I Started Teaching Legal Research, here a few geared specifically towards FCIL.

Teaching Tip: Above all else, ask for help when you need it.

Do not hesitate to ask for help from other librarians! Even though our job is to provide assistance, it can still be difficult to turn around and be the one asking for help instead. Many of your colleagues probably have varying degrees of FCIL research experience and may be willing to share their course materials and insights on teaching FCIL. This includes your immediate colleagues, but the wider world of the FCIL-SIS is incredibly helpful as well.

Where can I ask for help?

The FCIL-SIS website, https://www.aallnet.org/fcilsis/education-training/teaching-fcil/, has information on existing classes and contact information for people willing to answer questions. You can send out an email on a listserv, like the FCIL-SIS My Communities forum or the Int-Law listserv. You could also leave us a lovely comment on this post!

Where can I find course documents, like syllabi or assignments?

The FCIL-SIS website also contains a Syllabi and Course Materials Database, https://www.aallnet.org/fcilsis/education-training/teaching-fcil/syllabi-course-materials-database/. This resource is very helpful and mentioned in almost every teaching FCIL post on DipLawMatic Dialogues. Check out this entry, Teaching FCIL Research Series: Fun with FCIL Assignments, https://fcilsis.wordpress.com/2018/02/13/teaching-fcil-research-series-fun-with-fcil-assignments/.

What are the best texts to help me prep/assign for reading?

The general consensus seems to be:

  • Marci B. Hoffman & Robert C. Berring, Jr., International Legal Research in a Nutshell (2d ed. 2017).
  • Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: A Coursebook (2d ed. 2012).
  • Heidi Frostestad Kuehl & Megan A. O’Brien, International Legal Research in a Global Community (2018).

For more on textual selection see this AALL panel review and this post on selecting books.

How can I find more helpful DipLawMatic Dialogues posts on this subject?

This blog allows you to find posts by subject using both tags and categories using the right-hand side menu. Check the posts tagged teaching here, https://fcilsis.wordpress.com/tag/teaching/, and the category of teaching here, https://fcilsis.wordpress.com/category/teaching-2/. Last May, Alyson Drake compiled a great list, Teaching FCIL Research: Revisiting 15 DipLawMatic Posts on Teaching, https://fcilsis.wordpress.com/2018/05/22/teaching-fcil-research-revisiting-15-diplawmatic-posts-on-teaching/.

 

New FCIL Librarian Series: Spring Cleaning: Weeding the International Reference Print Collection

By Sarah Reis

This is the fourth post in a series of posts about adjusting to my new position as a foreign and international law librarian. I started my position at the Pritzker Legal Research Center at Northwestern Pritzker School of Law in February 2018.

Reis - I REF Collection.jpg
Our library has a collection of international reference materials (I, REF) in print that includes items such as dictionaries, research guides, directories, and encyclopedias intended for in-library use only. In anticipation of upcoming renovations, I have been doing a bit of spring cleaning—reviewing our international reference collection to determine which books should stay in our new downsized reference section and which books should be sent to our closed stacks/basement, off-site storage, or withdrawn.

I created a spreadsheet with all of the titles in the collection to keep track of my recommendations for where the various books should go. We had a little over 250 titles (including series) for a total of nearly 900 individual books spanning over three short bookcases in the international reference collection. It was easier than expected for me to recommend reducing the size of this collection down to about 15% of that initial size (to approximately 125 books).

A significant number of titles in this collection were either outdated or available electronically, which made it easy for me to suggest for them to be stored elsewhere. But occasionally, I would recommend for us to keep a print copy of a title in our reference collection despite having online access. I primarily suggested keeping titles such as the bilingual/multilingual legal dictionaries as well as dictionaries or encyclopedias pertaining to specific areas of international law (e.g., international trade, terrorism, human rights).

During the course of this project, I discovered several items for which we also have electronic access either through one of our subscription databases or freely available online. For instance, we had digital access to many of the encyclopedias in this collection, such as the Oxford Encyclopedia of the Modern Islamic World (via Oxford Islamic Studies Online), Encyclopedia of Genocide and Crimes Against Humanity (via Gale Virtual Reference Library), and the Oxford Companion to Politics of the World (via Oxford Reference Premium Collection). Additionally, many other titles were available through HeinOnline. I am brainstorming effective methods to make students aware of the availability of electronic access to many of these international reference books, whether it be by adding them to our A-Z database list or perhaps creating a new research guide on international reference materials available electronically.

Many items in the collection were outdated, particularly the directories, but also items like Treaties in Force (we had 2012 and 2013 on the shelf!) and research guides geared toward conducting research online from 1996 or 2000. On several occasions, I even discovered that our online access to a title was more up-to-date than the print copy on the shelf.

A project like this would be beneficial for a new FCIL librarian who is looking for a good way to familiarize herself or himself with an important part of the law library’s FCIL collection. Going forward, I intend to review this international reference collection every year or two to ensure that it remains fresh and up-to-date. Too many outdated titles bring down the usefulness and perceived value of the collection as a whole. The collection also needs space to grow. I am eagerly awaiting the arrival of new materials that will be “planted” in this collection, such as the International Citator and Research Guide: The Greenbook!

GDPR and Data Privacy at the ABA TECHSHOW

GDPRBy Meredith Capps

I recently attended the ABA TECHSHOW in Chicago, IL (along with quite a few other law librarians, an impressive turnout!), primarily to stay current on recent e-discovery practices and platforms as my library’s resident e-discovery expert, per my prior life as a law firm associate.  As an FCIL librarian, however, I was compelled to step out of former-litigator mode and attend what proved to be a fascinating session on the EU’s General Data Protection Regulation (GDPR) and data privacy laws.  The speakers, Steven M. Puiszis and Judy Shelby, described the ways in which the practices of U.S. law firms and their clients regarding personal information may run afoul of the law, and how U.S. entities should analyze their risk and approach compliance.

Puiszis and Shelby discussed the GDPR’s expansive reach, noting that even minimal activity in an EU state may render a foreign entity “established” in the EU for purposes of the regulation, and that even data that is not “processed” in the EU is covered by the regulation.  They emphasized that “personal information” is defined in a manner far broader than U.S. lawyers would expect, that there is no small business exception to the regulation, and that this information may reside in many repositories maintained by the typical U.S. firm or business, such as human resource databases, marketing databases, client databases, and, of course, email correspondence.  They discussed lawful bases to process personal information, noting that a law firm conflict check should qualify as information necessary for the defense of legal claims, and discussed anonymizing data as one means of ensuring compliance with GDPR.   Though there is uncertainty as to how GDPR will impact requests for documents in U.S. litigation, Shelby noted that federal courts are generally not receptive to enforcing foreign blocking statutes, and that the typical U.S. approach to discovery runs counter to GDPR’s goals of minimum storage.  Cautious U.S. litigants should nevertheless consider narrowly targeting requests for data that may be subject to GDPR, and consider whether anonymized data would suit their purposes.

Their discussion raised a few issues that brought to mind research questions well suited to a course on FCIL research:

  1. National law: Though as a regulation, rather than a directive, GDPR is directly applicable to member states and does not require domestic implementing measures, Puiszis emphasized that EU states maintain their own privacy laws and policies that U.S. entities must consider in addition to GDPR.  Furthermore, I found that European Commission guidance issued in May 2018 specifically notes that the regulation empowers member states to impose conditions and limitations beyond those imposed by GDPR, and contemplates individual member state determinations as to the applicability of the rules in certain sectors.  The EC also states that interpretation of the regulation will be left to European national courts.  In constructing an EU research question concerning GDPR, instructors could well introduce foreign law questions into their hypothetical research problem–questions for which researchers would not enjoy the benefit of the national transposition measures list provided only for directives in EUR-Lex.
  2. Cyber-insurance: Shelby discussed the possibility of obtaining cyber insurance to cover fines associated with GDPR violations, but noted that these fines may not be insurable under the domestic law of some states, raising another potential foreign law companion question.
  3. Recognition of foreign judgments: Though due to time constraints they could not discuss enforcement issues in depth, the speakers mentioned difficulties surrounding the imposition of fines when an entity lacks assets in the EU, and that international treaties or domestic laws such as the U.S. Uniform Foreign Money Judgements Recognition Act may provide mechanisms for cross-border enforcement.  As enforcement proceedings inevitably proceed, they should raise interesting examples involving a mix of foreign and international law.
  4. Data Protection/Processing Agreements (DPAs): Puiszis discussed the importance of entering into, and modifying per GDPR, agreements with vendors and third parties with whom firms, and their clients, may share personal information.  Asking students to locate sample agreements would be an excellent way to reinforce research instruction from 1L and Advanced Legal Research courses regarding publications containing forms and sample contracts.