Teaching FCIL Research Series: Textual Selection

By Beau Steenken

Of all the decisions that go into designing a course, the selection of textbook perhaps impacts the students’ experience the most. Not only will students (presumably) spend dozens of hours diligently reading the text, but the organization of the text often informs, at least to some degree, the organization of the course. Similarly, the choices and selections made by the authors of texts can influence the choices of teachers adopting the text. (I find that there’s never enough time in a course to cover everything I’d like to in an ideal world, and the coverage of topics by the text helps with the necessary triage when deciding how to apportion limited class time.) Happily, those of us who teach FCIL research benefit from the availability of multiple high-quality textbook options.

When I was finalizing the syllabus for my first FCIL Research course a little over two years ago, I found myself seriously considering two texts, namely: International and Foreign Legal Research: a Coursebook by Marci Hoffman and Mary Rumsey[1]; and International Law Legal Research by Anthony S. Winer, Mary Ann E. Archer, and Lyonette Louis-Jacques[2]. Each text struck me as incredibly helpful and well-written, though the two works differ quite a bit in their coverage. For instance, Hoffman and Rumsey cover both international and foreign legal research, while Winer et al focus solely on researching international law (and mostly public international law at that). Also, Hoffman and Rumsey go a bit further in their coverage by providing topically-specific guidance (e.g. human rights research, international environmental law, etc.). While the inclusion of foreign research, comparative research, and private international law research made Hoffman and Rumsey appealing, ultimately I decided to go with Winer et al as the text for my course. I made this choice primarily because my course is a 1 credit hour course, and I could not envision working through everything covered by Hoffman and Rumsey in my limited class time. Secondary considerations were the fact that I also liked the historical background provided by Winer et al and the fact that Carolina Academic Press publications generally come with smaller price tags than works distributed by Martinus Nijhoff Publishers.

kuehltextEarlier this year I was excited to notice that in the time between when I first taught my course and when I will next teach it in the fall, another excellent textbook has hit the market: International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien.[3] Several aspects of the new text appeal to me, and I am planning on using it for my course next semester. First, in addition to covering public international legal research in a thorough and straight-forward manner, Kuehl and O’Brien also include a chapter on foreign legal research under the guise of cultural competence. Second, I like how Kuehl and O’Brien organize their book by introducing the sources of international law before turning to the research process itself to put everything together. As this is the organizational method I use to teach 1Ls, I anticipate this being a good fit with how I tend to design my courses. Finally, I think Kuehl and O’Brien’s tone and pacing will mesh very well with my 1 hour course. (While I personally love the historical background provided by Winer et al, I fear it may have eaten up too much of my limited course time the first time I taught the course, though this was probably due to a personal failing as once I start talking about history I have a hard time stopping and moving on to other things.)

All told, I’m quite excited to be trying out the new text in the fall, and I enjoyed investigating all three of these quality works. In fact, the investigation and comparison of the three texts also helped me think about the choices I am making for my course as I compared and contrasted the choices made by the authors of the three works. After all, a lot of the decisions of what to include in a course are similar to the decisions of what to include in a textbook, and approaching the decisions from other points of view can be enlightening.

If anyone is interested in learning more about the choices that go into creating a textbook or in hearing from FCIL research text authors about the specific approaches they took in creating their work, I encourage you to attend the FCIL-SIS Teaching Foreign and International Legal Research Interest Group meeting during AALL in Baltimore in July. Both Marci Hoffman and Heidi Frostestad Kuehl have agreed to share their experiences in writing their respective texts during the session, which will occur from 3:30 to 4:30 p.m. on Monday, July 16. It promises to be an interesting discussion, and may be of help in course design as well as text selection. I hope to see everyone there!

[1] Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: a Coursebook (2d ed. 212).

[2] Anthony S. Winer, Mary Ann E. Archer, & Lyonette Louis-Jacques, International Law Legal Research (2013).

[3] Heidi Frostestad Kuehl & Megan A. O’Brien, International legal Research in a Global Community (2018).

7 Things I Wish I Knew Before I Started Teaching Legal Research

By Alyson Drake

YoungerSelf2

Image via Women’s Executive Network.

I started as a Reference Librarian on August 1st, 2012, with just a few weeks before I was expected to take on my role as a law school professor, co-teaching in the first year Legal Research, Analysis, and Writing Program. I had graduated from law school a mere three months earlier–and had zero formal training in how to be an effective teacher (like the vast majority of law librarians and law faculty). I’ve learned a lot since then, but there are definitely a few things I’d wished I known.

  1.  There are a lot of great resources out there to help you. The RIPS-SIS Teach-In Kits; the FCIL-SIS Syllabi & Course Materials Database; the ALL-SIS Sourcebook; numerous articles in Spectrum, Law Library Journal, and LRSQ, among other law and education journals; conference presentations; webinars. No one is expecting you to start from scratch–and regardless of what time of year you’re starting, you probably won’t have time to anyway.
  2. Some of the greatest resources you can use are the other educators around you. I was particularly lucky in this regard. My teaching mentor, Terrye Conroy, took me up to a classroom before every class and ran through the materials. Then, due to being scheduled to teach first in the week, I’d go teach my own classes. The next day, I’d go watch Terrye teach her class. Each of these experiences helped me. In the preview, I’d watch her walk through the content, make sure I had a full grasp of everything we wanted the students to walk away with and see helpful ways she broke down the bibliographic skills we were teaching. Before my own class, I’d also walk through the materials carefully, including the in-class exercises (we created them as a group, so if I wasn’t the original designer of an exercise, this was particularly important). By watching Terrye teach her own class, I was able to learn a great deal about handling classroom dynamics–and sometimes I’d be reminded of things I wanted to emphasize to my class the next time I met with them. But Terrye was not the only professor I learned a great deal from; I went to all the sessions taught by the legal writing instructor I shared my section with the first year. From her, I learned an enormous amount about how to break down material into digestible pieces for my students. You have to be proactive about finding ways to learn from others; I was lucky enough to have Terrye offer to help teach me to be a good teacher, but I had to dedicate myself to it.
  3. Reflection is critically important. You can sense when an exercise doesn’t work well or when students aren’t fully grasping something. Most of the time, we teach the same class about a year apart; if you don’t reflect immediately after teaching and then make a note somewhere you will be sure to look back at it, you’re likely to forget by the next time you teach again. If possible, update any exercises that don’t work perfectly well right after using them, rather than waiting for the next year. Remember that we don’t read questions the same way novice student researchers do, so upon review sometime in the future, we may not see the problem. Immediately after my own class, I’d jot down notes about anything I thought I didn’t handle particularly well or things I wanted to make sure I wanted to remember for next year. I kept all those notes in a folder, so I could review them before I taught that same session again the next year.
  4. It’s okay to say you don’t know something. Students will know you’re uncertain. They’ll respect your honesty if you say you’ll get back to them, and when you follow up, it’ll build trust with your students.
  5. To be a really good teacher, you need to have some grasp on educational theory and curricular design, not just the area of legal research you’re teaching. It’s important to be an expert on the type of research you’re teaching, whether this is UN research or foreign law, but it’s just as important to be well-versed in teaching theory. This means reading about effective strategies for teaching in higher education. Because legal research professors almost never have enough time with our students to properly prepare them for practice, it’s critically important that we’re teaching them in the most effective way possible. Read about formative assessment, backward design, experiential education, etc., and then use what you’re reading about to develop your courses accordingly. Yes, this is challenging, because we are not JUST teachers and have many other tasks to do, but for many librarians teaching is a critical component of our jobs and we need to do it well.
  6. You will constantly have to advocate for your place in the law school and legal academy. Some of your fellow professors and perhaps even some of your students will look down on you because you’re not a “real” professor (regardless of what formal status you have in the law school). Some will see your class as less important and get frustrated if they have to “waste too much time” on your class. So, you’ll have to constantly remind them how much time is spent on legal research in practice and that research is an analytical task, not just Googling. We need to do better at this collectively, as a profession, if we want to progress our place in the legal academy as we’ve seen legal writing professors and clinicians do.
  7. Age, race, and gender matter. As a female professor, I’ve had male students wink at me from the back of class and when walking past me at the Reference Desk in the library. I’ve also had students who have been older than me and as a result thought they knew more than me about everything and students who have been around my age who have thought they could do better in my course by trying to be my friend. There’s no one set way to develop your professional persona or classroom style, as it depends on your age, gender, gender identification, race, etc., but you must put some consideration into your specific circumstances when figuring out how best to present yourself. Your students are going to pass judgment on you before your first class begins, so how you carry yourself and command your classroom matter. For example, I learned that having students call me by my first name in the library in my other role as student services librarian didn’t work, because then it follows into the classroom. I’ve also learned that it’s important to dress professionally, even on “casual Fridays”, to make it clear I’m not a student (though perhaps as I get older this will be less of an issue).

There are lots of other lessons, but I’d really like to hear from others about things they wish they’d known before they started teaching. Please comment below. After all, future librarians benefit from our collective knowledge.

 

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

By Marylin Raisch

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

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

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

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

Talmudic Law and Primary Texts

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

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

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

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

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

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

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

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

Bar-Ilan University Responsa Project

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

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

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

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

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

Digitization, Notable Journals and Collections: Specific to Jewish Law

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

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

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

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

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

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

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

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

Using the “A” Word in Legal Research Instruction

By Alyson Drake

Both the legal academy[1] and librarians[2] have long recognized that analysis is a critical component of the legal research process.  Despite this, legal research has long been put on the back burner in legal education and is often viewed by our colleagues and our student as a rote, mechanical task.  This is partially due to the fact that we don’t talk about research explicitly as an analytical task, probably because analysis is so entrenched in legal research that it seems obvious to librarians.

As legal research instructors, it is critical that we point out the analysis inherent in our research classes to our students. Students will value our courses more and get more out of them if they do not view research as simply a gathering task. Students will also become better researchers and attorneys by practicing engaging in analysis while they research.

Yes, this can be difficult to do. After all, it can be challenging enough just to teach students how to locate materials using the wide variety of databases and other sources they must be familiar with, and we only have so much time with our students. This may be especially true in FCIL research courses in which students are often researching outside of Westlaw and Lexis for the first time. But separating the ability to locate sources from analysis only serves to diminish the importance of researching as a lawyerly task.

So how can we bring the analysis into our classroom, even if we don’t always have considerable time to spend on it, due to the need to also teach the bibliographic side of legal research?

  1. Have a discussion about the values of a good legal researcher. In a fantastic post on the RIPS-SIS Law Librarian Blog this past week, Paul Gatz identified several virtues valuable to the legal researcher, including curiosity, intellectual honesty, perseverance, adaptability, and humanity. This discussion should expand into what skills legal researchers should have. Part of this discussion should include the importance of analytical thinking in conducting research effectively. Trust me, if they’re not hearing it from us, they’re definitely not hearing it from anyone else in their law school careers.
  2. Have discussions with your students about where analysis comes into play in legal research, from research planning to evaluating resources to knowing when it is appropriate to stop researching (plus many others). Without pointing it out, these times when students must use their analytical skills stay hidden. Students won’t be necessarily be able to identify those times when analysis is important if we don’t tell them; instead, they’ll look at research as just using technology to gather sources, rather than a problem-solving endeavor.
  3. ELRclass

    Whenever possible, try to incorporate simulations into your practice exercises so students have an opportunity to use their analysis skills.  Not every problem has to require students to analyze the sources they’ve found to a factual scenario–after all, first we do need to ensure they can locate a foreign law or a bilateral treaty. But they should do this regularly enough that analysis becomes a regular part of the research process for them. These simulations do not have to necessarily be long fact patterns; they can simply ask the student whether a certain provision of a treaty they just located would apply in a given situation and asking them to explain why. This simulates exactly what they would do in practice–considering whether that source would be relevant to the issue they’re researching.  Just like any other skill law students are learning, there must be multiple opportunities for practicing their legal research analysis. Treasure hunts, while they have a value for the bibliographic skills we must teach, tend to reinforce the ideas that research is just gathering and that analysis is a separate task.

Analysis does not belong solely with writing in the law school curriculum. By the time students sit down to write, they should already know which sources are helpful for which issues. As analysis has long been the hallmark of legal education, reclaiming it as a legal research skill may also be key to illuminating the importance of legal research in the law school curriculum, which is long overdue.

 

[1] See, e.g., Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138-141 (1992) (MacCrate Report).

[2] See, e.g., Am. Ass’n of Law Librarians, Principles & Standards for Legal Research Competency (2013).

 

Teaching FCIL Research Series: Fun with FCIL Assignments

By Beau Steenken

studentsworkingonassignments

Image courtesy of Wikimedia Commons.

One of my favorite parts of teaching is drafting assignments, as the activity provides an outlet for creativity to a greater degree than other parts of my job. If you think about it, drafting assignments does rather mirror writing fiction. You make up a client/protagonist, give said protagonist some sort of problem or conflict, and then set up the means of resolving said conflict. This is especially true of writing assignments for experiential simulation courses as you have to provide enough detail for the problems to simulate real case files. Engaging in this activity for an FCIL research course, however, presents a unique set of challenges.

The main difficulty I encountered in drafting assignments for my initial FCIL course was to come up with assignments realistic enough to satisfy the requirements for a simulation course without leading my students to pretend violate professional responsibility standards. (I feel comfortable in assuming that my students by and large will be licensed in the U.S. and not foreign jurisdictions. Furthermore, under simulation standards, I would be assuming the role of supervising attorney, and I’m also only licensed domsestically.) Additionally, I still needed to use the assignments to measure students’ proficiency in each of the discrete learning outcomes I identified for the course in getting it approved. Thus, I still needed assignments that would require students to:

  • analyze a set of facts to determine what legal issues are presented,
  • research the law to answer legal questions,
  • communicate clearly and effectively in oral and written form, including electronic media, and
  • explain ways in which laws are made and what gives different forms of law authority.

Though I took the learning outcomes I submitted for the course from our list of approved programmatic outcomes (meaning that they were designed with courses on American law in mind), they lined up well with conducting FCIL research. I especially like the last outcome for FCIL assignments, as the forms of law differ quite a bit, and so a large part of what I teach in the class is how to determine what sources exercise what level of authority for a given jurisdiction. Still, drafting assignments that combined these outcomes with realistic problems that could be worked on by attorneys licensed in the U.S. took a bit longer than anticipated.

Altogether I had my FCIL students complete three research assignments, one each for class segments on Foreign, International, and European Union legal research. By far the easiest (and most fun) to draft was the International Law assignment. The assignment required students to take on the role of advising a made-up state (because the state was completely made up, I was also able to make up its own professional responsibility standards rendering that particular concern null for at least one assignment) and to evaluate which of three legal arguments (preemptive self-defense, collective security, or invitation to intervene) would be the best justification for a military strike that had already happened. Sadly, I became so involved in writing the scenario and so giddy at my own cleverness in fictionalizing away professional responsibility, that I forgot to also balance the assignment with consideration of feasibility for my poor students (which they brought to my attention on course evaluations). Thus, in addition to being the easiest and most fun to write, it also stands as the assignment in need of most revision going forward.

For the foreign and E.U. assignments, I got around the P.R. problem by employing a similar plot device in each assignment. My students took on the role of American attorneys conducting initial research to advise clients on whether those clients wanted to take the next step of hiring counsel in foreign jurisdictions. My foreign assignment tasked students with representing an eccentric entrepreneur who wished to relocate off-shore. They had to compare several jurisdictions of my choosing and evaluate those jurisdictions’ mechanisms for dispute resolution and the jurisdictions’ immigration regulations in order to make a recommendation as to which jurisdiction the client should relocate. (The former requirement allowed me to measure my final outcome while not breaking the Fourth Wall of the simulation assignment.) They delivered their recommendations via powerpoint presentations. In the E.U. assignment, the students represented a toy maker who’d been approached by a French company about expanding into new markets. The toymaker wanted to know whether it would be worth looking into by asking whether its current toys would likely satisfy safety regulations in Europe. Thus, students had to find and apply an E.U. Directive as well as French implementing legislation. Their conclusions on the matter took the form of either recommending that the toymaker engage French counsel or by advising that to continue would probably mean changing the toy manufacturing process. (This way they weren’t simulating practice in a jurisdiction in which none of us were licensed.) Interestingly, my students seemed to like this last assignment the best, I think because it was most similar to what they are used to doing with American law.

Ultimately, I feel like my assignments were successful, and I did get good learning outcome data from them. They were also a blast to write, not only because I enjoy FCIL subjects, but also because they required a certain degree of meta-narrative to satisfy both simulation requirements and outcomes-based education requirements.

 

Reflections on Teaching Foreign & International Legal Research for the First Time

By Beau Steenken

In my last post, I related my experiences designing and proposing a new Specialized Legal Research (SLR) course on Foreign & International Legal Research. This time around I thought I would share my impressions of how my course went in its first iteration. I will do so by discussing what went most right, what went most wrong, what went kind of right and kind of wrong, and the changes I plan to make in the next iteration (which will occur in the Fall 2018 semester.) Before I get to the analysis, though, I’d like to thank the seven wonderful UK Law students who were intrepid enough to take a brand new course and serve as my guinea pigs!

· What Went Most Right: “Partner Meetings”
My class featured three graded assignments, one for each of the subparts of the course (foreign legal research, international legal research, and European Union legal research). I generally tried to give the students two weeks for each assignment, and midway through the assignment window I required students to come conduct a mock “partner update meeting” with me. This was partially so that I could ensure everyone was on track as the topics were mostly brand new for all of my students, but it also served to fulfil the A.B.A. requirements for self-reflection in experiential simulation courses.i The simulated partner meetings exceeded my expectations. All of my students came in prepared having already conducted significant research on their problems. They also all happily engaged in self-assessment and rightly felt more confident with some sources than others. Finally, none of the students had fully exhausted their available research avenues, so they (and their assignments) all benefited from the meetings for which they were appreciative.

· What Went Most Wrong: Lecture/Discussion Balance
I tried to run my course as a simulation course in preparation of offering it as a way for students coming in under the new ABA rules to use it towards their experiential requirement.ii As such, I treated my class as a mock firm, and planned to deliver most instruction via discussion. We even met in the law school’s committee conference room. Unfortunately, I often found myself drifting back into lecture, as the topics were—well—foreign to my students. While a classroom instructional component remains a part of simulation courses,iii I think that I need to balance it better next time to keep students active more of the time.

· What Went Kind of Right and Kind of Wrong: Assignments
As mentioned above, I had three assignments. In the first, students prepared powerpoint presentations comparing the immigration laws and structures of three different jurisdictions. In the second, they prepared an internal memo recommending one of three possible international defenses for the use of armed force by a fictitious state. Finally, they wrote a client letter to a fictitious American toymaker advising the client whether or not taking steps to accept an offer to expand into the French market would make economic sense after an initial glance at E.U. laws on toy safety. I graded each
assignment with an outcomes-based rubric to track achievement of my course learning outcomes. The assignments went kind of right in that my students did in fact achieve many of the learning outcomes for the course. The assignments went kind of wrong in the fact that my course evaluations universally indicated that the amount of work that went into the assignments would have been more appropriate for a three hour credit course than a one hour credit course.

· Changes for Next Time
When I teach the course again next fall, I plan to do a couple of things differently to mitigate what went wrong last time. First, I am going to take a couple of steps to improve the lecture discussion balance. I think I am going to have students prepare oral reports to their fellow students on some instructive topics. I am also going to teach the international component (which I know better) before the foreign component, as I think I will establish a better balance with the material with which I am most comfortable. I also plan on reducing the size of assignments, possibly by breaking students into groups, so that each student only gets a single issue or jurisdiction, while allowing them to provide evaluation/synthesis as a group.

In conclusion, while I certainly enjoyed my first round of teaching Foreign and International Legal Research, there were definitely areas where I found I could improve. I am greatly looking forward to my second attempt next fall to see how the class improves in its second iteration!

i ABA Standard 303(a)(3)(iv).
ii See ABA Standards 303(a)(3), 304(a).
iii ABA Standard 304(a)(iii)ABA Standard 304(a)(iii).

Teaching Foreign Customary Law: Tips and Tricks

By Susan Gualtier

Researching foreign customary law can be a difficult process, so it is no surprise that many FCIL librarians struggle with how to teach this topic to law students.  Nonetheless, in my experience, it is a topic that students enjoy and that most have not previously encountered.  I was fortunate enough to experience the customary law research process as a student in the Georgetown University Law Center’s Women’s Human Rights Clinic in 2002, which included a fact-finding mission to Tanzania funded by a USAID grant.  My participation in the clinic was a life-changing experience that I was happy to revisit when I entered the law library profession in 2011.  However, teaching customary law in a classroom setting, without the opportunity to work with and speak to people who are subject to these laws, presents some challenges.  Having now taught this topic at both Louisiana State University, as part of my own FCIL research course, and at the University of Pennsylvania, as a guest lecturer, I offer the following thoughts on how to approach teaching this difficult topic.

  1. It is difficult for students to visualize customary law systems. Because most students will not have traveled to countries with customary law systems, and almost certainly will not have done legal work there even if they have visited, it can be difficult for them to visualize the customary law process, or even the people to whom customary law applies.  The wide variety of countries and regions practicing customary law, as well as the variability of customary law itself and of those who apply and enforce it, can also make it difficult to imagine and to explain.  I believe that it is important not to make customary law sound too “primitive” or to stereotype those to whom it applies.  I have found that photos (of courthouses, villages, or local attorneys, for example) can help illustrate the larger context in which customary law is applied.  If the course schedule provides enough time, a well-places documentary like Invoking Justice can help students to visualize customary and other unfamiliar legal systems.
  2. Some students will struggle to recognize customary law as a legitimate legal system. While the topic of customary law has generally been well-received by my students, I can remember two or three who struggled to accept that customary law is a fully formed type of legal system on par with common law, civil law, and religious law systems.  I believe that this stems from either the tendency to view customary law as primitive or outdated, or the objection to customary laws as necessarily discriminatory.  Both can be discussed in the classroom while at the same time emphasizing customary law’s depth and complexity as a legal system.  While customary laws can indeed be discriminatory, I have found that a thoughtful discussion of how they can be discriminatory and of why specific laws developed the way they did refocuses the students’ attention on the complexity of customary law systems and of the customary law research process.  It also helps to point out the history of customary law in Europe and how it affected and grew into the common law and the earliest civil codes.
  3. It helps to offer a case study. When I taught customary law at LSU, I had the luxury of giving the topic an entire class session, which allowed for a more in-depth discussion of customary law in practice in addition to an overview of the research process and resources.  As background reading, I asked my students to read a law review article, Tamar Erez, Inheritance Law in Tanzania: The Impoverishment of Widows and Daughters, 7 J. Gender & L. 599 (2006), describing the work of my women’s human rights clinic at Georgetown.  Articles offering case studies on customary law research are in abundance in databases like HeinOnline.  Though I have in the past assigned an article relating directly to my own experience, I did so because I could speak to it with first-hand knowledge.  More recent articles, and articles on a variety of different countries and regions, are certainly available.  Even without class time to discuss a case study in detail, offering one as background reading can help the students to approach the lecture with the beginning of an understanding of how customary law is practiced in real life.  As an alternative, a case study can be offered as suggested reading for any students who find the topic of customary law interesting or who wish to explore it in their final projects or in their writing seminars or clinics.

    GoT Meme

  4. It can help to include a pop culture reference. I like to use the Dothraki in Game of Thrones.  While we do not see a tremendous amount of their legal system in the books, and even less in the tv series, we do repeatedly hear reference to rules and laws of Dothraki life, followed by characters stating that “it is known.”  A simple meme has been enough to offer a visual for those of my students who have read the books or watched the show.
  5. The students will have to use their imaginations. Realistically, most research students will never encounter customary law in their doctrinal classes or in practice.  This does not mean that it is not worth teaching.  However, some allowance will need to be made for the fact that they are not going to have the experience of interviewing people about how the law is applied on the ground.  Nonetheless, I try not to limit my research problems or examples to the narrow topics that they might encounter as practitioners here in the United States, or that they can research in their entirely using secondary sources.  Asking them to imagine the questions they would ask or the obstacles that they anticipate in the research process can be as instructive as having them locate concrete sources.
  6. A solid in-class or take-home assignment can make or break the class. A good research assignment in customary law will encourage the students to imagine on-the-ground research, as well as to find useful sources from their own location, which helps them to see that customary law topics are approachable and able to be researched.  I generally revert to a human rights question, because I have the most experience there, and because it is generally interesting to most of my students.  For my first customary law lecture at Penn, I used the following problem as a post-class assignment, which combined elements of both customary and Islamic law:

Imagine that you are part of a small group of human rights attorneys and are just beginning a project involving intestate succession in Kenya.  Your project will focus primarily on the inheritance rights of women and of children deemed to be “illegitimate.”  You will eventually be traveling to Kenya on a grant-funded fact-finding mission, but for now, you must gather as much information as possible on the country’s legal system, the laws in force, and the application and enforcement of those laws.

Create a research plan that will allow you to begin drafting a report on which to base your fact-finding mission.  Which sources will you consult?  Which issues do you think will need to be fleshed out through interviews or other research when you arrive in Kenya?

If you have time, look at some of the websites that we have discussed and try to find some preliminary information on both the religious and customary laws in Kenya and how they treat questions of inheritance.  Identify, if possible, any issues that you think may arise from Kenya’s mixed legal system.

This problem allowed the students to explore all of the potential sources that I had covered in class, as well as to imagine real-life factors that might complicate the laws’ application, identify possible research difficulties, and begin brainstorming questions for interviews or for additional research based on what they found during their preliminary searches.  When putting together research problems, I often start with the U.S. State Department’s Human Rights Reports, which frequently identify human rights issues arising out of customary law.  I then build my problem from there to incorporate other resources, as well as any complicating real-life factors or relevant statutes or international issues, if I am going to include them in the problem.

  1. Much of your teaching can take place while giving feedback. The feedback phase is a chance to see what the students have absorbed and the sources to which they have gravitated, and to offer additional insight into the complex area of customary law, particularly when it comes to possible next steps beyond secondary source and internet research.  When I assigned the above research problem, I let the students know that it was complicated and asked them not to spend more than approximately one hour on it.  The students all did very well, and all identified a majority of the sources that I expected them to find.  However, the feedback phase was a valuable opportunity not only to highlight the easy-to-find sources that we covered in class, but to talk about some sources that were more difficult to find.  I also discussed how these sources could help the researcher to identify potential problems with application, enforcement, and choice of law, and to anticipate questions that would need to be explored during future stages of the research process.  (For a copy of my written feedback on this assignment, please feel free to contact me directly.)

Customary law may be a difficult topic to approach as a research instructor, but I believe that students enjoy it and that it should be included in any class that purports to cover foreign legal research.  I have had a surprising number of students choose customary law topics for their final projects in my research courses, always with great success.  I hope that this post will build upon recent AALL programming and existing guides on customary law research, and help my colleagues to approach this topic not only as researchers, but as instructors, as well.

If you are interested in customary law, please join the Customary and Religious Law Interest Group (CARLIG) on My Communities.  We look forward to hearing your thoughts and questions!