From the Reference Desk: FCIL Librarians and Transnational Class Actions

By Jonathan Pratter

Our law school has a writing seminar titled Transnational Class Actions. A good number of questions come to me as the FCIL librarian from students in the seminar who are looking for reference assistance of various kinds. This semester questions have come from students looking for potential paper topics and for cases on point. This raises the question of how much the librarian should know substantively about a subject in order to provide reference assistance. In the course of several years of providing library support to the Transnational Class Actions seminar, including collection development, I have learned enough about the field to, for example, suggest some paper topics or steer students to cases on point. On the theory that questions dealing with the subject could arise in the work of other FCIL librarians, this post is devoted to some of the lessons learned about providing reference assistance on the subject.

The field of transnational class actions divides into two main categories. On the one hand, there is the U.S. class action that has transnational elements. On the other hand, there is the equivalent of the class action in other countries. These often do not have the name class action; they could be called group actions, collective actions or representative actions.

One of the outstanding transnational elements of the U.S. class action is the presence of foreign class members. This phenomenon raises difficulties. What happens if the courts in the foreign class members’ home jurisdiction do not recognize U.S. class action judgments? This situation has arisen. You would then have a failure of preclusion – the foreign class member would remain free to relitigate in their home jurisdiction. This issue arose and was debated in the U.S. law review literature several years ago. There are several articles on point. For example, there is the article titled “Foreign Citizens in Transnational Class Actions” in the Cornell Law Review (2011). This issue is still alive today and I recommended it to a student this semester, with the caveat that it would need to be updated with recent cases.

Joe Gratz, CC0, via Wikimedia Commons

A student asked for guidance finding a case in a foreign jurisdiction involving a mass tort with international plaintiffs. The case I recommended was in the UK Court of Appeal, Jalla v. Shell International Trading, [2021] EWCA Civ 1389. This was a representative proceeding on behalf of more than 28,000 members of the Bonga Community of Nigeria who sought to recover for harm caused by a major oil spill.

In Canada class actions are a matter of provincial law. For example, Ontario has its Class Proceedings Act, 1992. This can be used as a search term to find cases on point on CanLII. There is a recent textbook on class actions in Canada: The Class Actions Handbook (LexisNexis Canada 2022). Australia too has an active class actions scene. Class actions are governed by part IVA of the Federal Court of Australia Act. A recent secondary source on point is The Australian Class Action: a 30-year Perspective (Federation Press 2023).

In the non-common-law world a significant recent development is an enactment of the European Union: Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. Researching class actions in the non-common-law jurisdictions encounters the language obstacle. The Netherlands for example is an active class action jurisdiction, but the primary-source information about legislation and cases is in Dutch. A partial solution to the language obstacle will be found in English discussions of class actions in foreign jurisdictions found on the Web written by international law firms.

A note of caution: a student came to me looking for class action cases in Europe in which the plaintiffs prevailed. I had to point out to him that the EU directive dates from 2020 and that it is still being implemented in member states. While it is true that Europe is an active forum for class actions, it is difficult to track cases, due in part to the language obstacle.

Schedule of FCIL Events in Austin

Hello FCIL-SIS!  Are you ready for Austin next month?  We certainly are!

As we approach the 2017 AALL Annual Meeting in Austin, we encourage you to keep an eye on the blog and to follow us on Twitter for coverage of FCIL-SIS programming both during and after the conference.  

Also, PLEASE consider volunteering to recap a program (or two).  The recaps are super helpful for readers unable to attend the Conference (and for those of us who rely on recaps posted in the blog archives to refresh our dismal memories!).  If you are interested in volunteering to recap any of the events listed below, please contact Loren Turner (lturner@umn.edu) or Alyson Drake (alyson.drake@ttu.edu).

FCIL-SIS Events

2017 AALL ANNUAL MEETING, AUSTIN

Saturday, July 15

5:00 pm – 6:30 pm: Exhibit Hall Ribbon-Cutting/Opening Reception. Stop by the FCIL-SIS exhibit board!

Sunday, July 16

7:45 am – 8:45 am: FCIL-SIS Electronic Resources Interest Group Meeting (ACC Room 8B)

9:00 am – 10:15 am: Opening General Session (ACC-Grand Ballroom D-G)

11:30 am – 12:30 pm: Global Energy Law: Perspectives from North America and Africa (ACC Room 18AB)

1:00 pm – 2:15 pm: FCIL-SIS Jurisdictions Interest Group Joint Meeting (ACC Room 4C)

5:15 pm – 6:15 pm: FCIL-SIS Foreign Selectors Interest Group Meeting (ACC Room 7)

6:15 pm – 6:45 pm: FCIL-SIS Standing Committees Joint Meeting (Hilton Room 402)

Monday, July 17

7:00 am – 8:30 am: Business Meeting (Hilton Room 400)

9:45 am – 10:45 am: Cuban Law and Legal Research: A Snapshot during the Deshielo (ACC Room 18AB)

3:30 pm – 4:30 pm: FCIL-SIS Teaching Foreign & International Legal Research Interest Group Meeting (ACC Room 5B)

4:45 pm – 5:45 pm: FCIL-SIS Schaffer Grant Presentation: Rosemarie Rogers presents: I am the River and the River is Me  (ACC Room 8C)

6:00 pm – 7:00 pm: International Attendees Joint Reception (Hilton Governor’s Ballroom Salon B)

Tuesday, July 18

7:30 am – 8:15 am: FCIL-SIS Education Committee Meeting (Hilton Room 404)

 

#AALL2016 Recap: Roman Law, Roman Order, and Restatements

By: Jennifer Allison

Although the title of this program promised content about Roman Law, this program actually was a bit more focused on digitization of library materials, especially materials and collections that are unique and important to researchers.  For both presenters, preserving materials is only one of several goals of library digitization projects.  Both had found that, perhaps, a more important goal is fostering and optimizing the connection between people and materials.

 

Marylin Raisch, a long-time member of the FCIL-SIS, served as moderator and employed a question-and-answer format for Professor Kearley’s discussion, which was both highly effective and quite enjoyable.

Marylin’s knowledge of many topics, including Roman law and U.S. legal history, is quite extensive, and she probably could have offered an informative and interesting program on this topic all on her own.  However, she really allowed Professor Kearley’s knowledge, expertise, and passion for the subject to shine through.

Beginning around 1920, Wyoming Supreme Court Justice Fred Blume, an expert in Roman Law, began work on his English-language annotated translation of the Codex of Justinian.  Transcripts representing various stages and versions of this translation are in Justice Blume’s papers, which are held by the University of Wyoming Law Library. Professor Kearney oversaw and edited the digitization and publication of this manuscript collection, both editions of which are hosted on the University of Wyoming Law Library’s website.

Justice Blume’s personal history, as described by Professor Kearley, provided some fascinating background on his translation projects.  Justice Blume, who immigrated to the United States at age 12, learned Latin in high school and ended up graduating Phi Beta Kappa with a BS in philosophy.  While he did not have formal legal training, he read law in a law office, eventually becoming a lawyer, judge, and politician in Wyoming.

Throughout his life he had a deep interest in Roman legal materials, and decided to translate ancient Roman legal codes after he tried to order English translations of them from book publishers and was told there were none available.

Justice Blume was, as Professor Kearney explained, not alone in the American legal community when it came to his interest in Roman law.  During the early 19th century, many U.S. legal scholars studied Roman legal materials as a part of a larger movement toward exploring the codification of U.S. law.  Although that movement had receded by the end of the civil war, there was a renewed interest in using a Roman or civil law taxonomy as a means of classifying the law in the early 20th century, especially as it related to the American Law Institute’s project on legal restatements.

As Professor Kearney pointed out, the early 20th century saw a “Jacksonian” anti-elitist movement similar to that which is taking place today.  To that end, Justice Blume took care to not discuss Roman law on the bench when he served as a justice on the Wyoming Supreme Court.  However, as Professor Kearney mentioned, among lawyers of a certain sensibility during that time, the language of Latin and Roman law served as an “old-school tie they waved at each other.”

Professor Kearney concluded by discussing the decision he made to include versions of Justice Blume’s work in manuscript form, which includes marginalia and other notes that make it hard to read, in the digital archive.  The advantage of including this as well is to create a real connection between the work and the researcher.

This conclusion created a nice tie-in to Angela T. Spinazzè’s presentation, in which she provided a more general discussion of establishing and managing digitization and digital archives projects.    Ms. Spinazzè focuses on three categories of questions: who, what, and how.

• First, in response to “who,” she considers who the intended audience is, which focuses the work and allows for coalescing around a shared conclusion. This also helps illuminate biases and assumptions.
• Next, she thinks about the question of “what.” This means considering what the digitization project is intended to accomplish, and what the consequences would be of not digitizing the materials.
• Finally, the “how” question focuses really on the materials themselves: how should what you are digitizing be presented to target audiences, and, perhaps unexpectedly, how will the digitization project advance the purpose of the organization? Can it, for example, foster greater collaboration across more institutional departments?  Is a natural outcome of the work the identification of more shared activities across the organization?

Ms. Spinazzè then provided two examples of digitization projects, the Oriental Institute  at the University of Chicago, and the HEIR (Historic Environment Image Resource) at the University of Oxford.  Both of these projects provided unique and illuminating answers to the questions of who, what, and how that really illustrated the effectiveness of the methodology.

The Oxford project sounded particularly interesting.  It saved from destruction a collection of lantern slides and glass plate negatives that had been abandoned in an archive. As it turned out, in addition to saving the original materials, the digital library also provided a wiki-like forum in which researchers and scholars could tag the images (using a controlled vocabulary) and provide new content of the scenes as they had been re-photographed over time.

Overall, although the program was not exclusively about Roman law, it provided a thoughtful forum for contemplating the values of digital collections, and provided insight into how the audience could consider undertaking similar projects at their home libraries.

#AALL2016 Recap: Measuring Impact for Faculty Scholarship and Beyond: A Case Study from the University of Chicago

 

By Alexis Fetzer

On Sunday afternoon, July 17, BePress sponsored a two hour session (with refreshments) featuring Sheri Lewis and Thomas Drueke of the University of Chicago D’Angelo Law Library, who presented on how they track the impact of faculty scholarship and other online publications using the BePress product, Digital Commons.

Lewis and Drueke began their presentation with a brief overview of their institutional repository program. The law school first licensed Digital Commons, an institutional repository software, in December 2012.  In the summer of 2013, the D’Angelo Law Library, using Digital Commons software, created “the mothership”, a database that stores faculty scholarship.  In January 2014, the University of Chicago Law School and the D’Angelo Law Library, officially launched Chicago Unbound, a site in the Digital Commons platform.

Chicago Unbound includes full text journal articles, working papers, other publications, and the table of contents of some journals. It provides citations for other publications with OpenURL links and links to the Library Catalog.  At the time of this presentation, the platform includes over 23,000 citations, 9,000 PDF’s, all six journals published by the Law School, three working paper series, two law school publications, and four lecture series. The site reached 1,000,000,000 downloads as of April this year.

Lewis and Drueke said there are two ways to think about the impact of Chicago Unbound: externally and internally. Drueke presented on the external impact as reflected in metrics such as number of downloads or links provided in outside sources.  He posed the questions “what do these metrics mean?” and “what is the impact of having this information available?” He defined external impact in three different aspects, (1) discovery and use, (2) quantitative, and (3) qualitative.

By reporting on these metrics, they have discovered repository links to faculty work in online books and journals, syllabus and course materials used by students and teachers, government units and policy organizations, news sources, industry reports, comment sections and internet arguments. Drueke noted that some of these links are humorous. One faculty member’s work was even cited in an online article titled “The 50 Juiciest Parts of the 50 Shades of Grey”.

Lewis discussed the internal impact of the institutional repository. One interesting feature is that it links directly to faculty webpage biographies. The storage database (“the mothership”) is used to populate Chicago Unbound as well as faculty pages on the law school website. This generates custom lists for individual faculty members seamlessly. Another internal impact is that repository creates a centralized location for many integrated law school administrative processes. In addition to the faculty scholarship listings, the repository is a space for posting working papers and material for the various law school journals.

In the future, the repository will also serve as a location for archived historical materials as well as student work and publications from former faculty members. Another new development is the more recent relationship between the law school repository and the University’s new institutional repository. The law school’s Chicago Unbound project began before the greater University acquired their own institutional repository and the two entities are working together to determine what their relationship should look like going forward.

 

 

 

Recap: FCIL-SIS Teaching Foreign & International Legal Research Interest Group Meeting

By Loren Turner

This year, Catherine Deane led and coordinated the Teaching Foreign & International Legal Research Interest Group meeting at the AALL Annual Conference in Chicago, Illinois.  She invited three speakers to present on their teaching experiences:

• Marylin Raisch shared a screencast, a MindMap, and a visual presentation, as examples of how she and her colleague, Charles Bjork, answer research questions in innovative ways.
• Alexis Fetzer explained how she, as a librarian without the FCIL title, successfully proposed and taught an FCIL research course at the University of Richmond School of Law. You can read more about Alexis’s experience in the May 2016 issue of the FCIL newsletter.
• Nina E. Scholtz spoke about her experience in creating an experiential learning course for LLM students. She shared her syllabus for that course and recommended implementing interactive discussion during class to overcome cultural differences.

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!

Roman Law – Translation, Images, Digital Projects and Visual Engagement!

By Marylin Raisch

At the upcoming AALL Annual Meeting, Professor Emeritus Timothy Kearley and digital projects consultant Angela Spinazzè will present a two-part program on creating exciting visual experiences in displaying special collections. First, Professor Kearley will describe the fascinating story of discovering manuscripts on Roman law and Latin translation of Justinian’s Code undertaken by Justice Fred Blume in the early 20th century. The orderliness of law concerned the ancient Romans and American codifiers, and an early taxonomy of law emerged. Then Angela Spinazzè, who has worked at the Art Institute of Chicago, will show beautiful visuals from her past projects for institutions in Chicago and Oxford that exemplify the best approach to creating functional and engaging virtual research experiences like the University of Wyoming’s unique online realization of Blume’s translation.

For those attending the conference, the location is the Hyatt Regency Hotel, Hyatt-Columbus EF at 8:30 a.m. on Tuesday, July 19^th.

 

An Experiential Learning Primer

Alyson Drake has published a helpful primer on the ABA’s experiential learning requirements on the RIPS-SIS blog today. Alyson has contributed significantly to FCIL-SIS through her work with DipLawMatic Dialogues. She is also Chair of the European Law Interest Group, incoming Co-Chair of the Publicity Committee, and a member of the Customary and Religious Law Interest Group.

RIPS Law Librarian Blog

by Alyson Drake

Editor’s Note: This week’s post is by incoming RIPS-SIS Vice-Chair/Chair Elect Alyson Drake. Alyson is currently the Reference and Student Services Librarian and the Coordinator of the Excellence in Legal Research Program at the Texas Tech University School of Law Library. 

It’s no secret that legal education is focused primarily on producing graduates who are “practice ready.” The ABA’s increased experiential learning requirement, requiring at least six hours of experiential courses for each student, is a direct response to the argument that new attorneys lack the necessary skills to act like a lawyer from day one on the job. With new attorneys reporting that they spend 35% of their time conducting legal research, it is no stretch to argue that legal education should devote more time and energy to experiential legal research education.

Our research courses have always focused on practical skills, but what else does it take to make…

View original post 477 more words

The Special Challenge of LL.M. Students

By Jim Hart

LL.M. students face a challenge that is more daunting than the one our J.D. students face; their knowledge of their own legal systems and legal publications interferes with their learning of ours.  Indeed, it is something like learning another language.  At the beginning, it’s like doing a puzzle in which all the pieces fit.  You learn it at this stage by comparing the foreign language to your own language.  At the intermediate stage, the two languages are no longer always comparable.  A lot of pieces of the puzzle don’t fit any more and it’s confusing.  At the advanced stage students don’t compare the languages anymore.  The foreign language has become separate from the native language.  Using it is now unconscious.

At the beginning of the semester, many LL.M.s don’t seem to have a clear idea of why they have to learn legal research.  But as the semester goes by, they become increasingly engaged.  I think that the reason for this apparent disengagement at the beginning is that, like American students, the U.S. legal system is entirely new to them.  American J.D. students, on the other hand, come to law without any previous idea to interfere with their learning the system.  LL.M. students, however, are already trained in their home legal systems.

Lawyers are experts in the legal systems of their own countries, including gazettes, codes, and other publications.  Their knowledge is highly complex, implicit, and entirely automatic to them.  They have used it as professionals for some period of time.  It would be nearly impossible for such knowledge not to interfere with new learning!  Let me explain.  We represent knowledge in our minds in structures.  It doesn’t matter whether you call them schemata (sg. schema), or mental models, or frames as used by Minsky.  These structures are organized hierarchically with more general concepts encompassing more specific ones and specific concepts encompassing particular instances.  Students are just learning these concepts and structures, but experts have become so adept at using them that they are unconscious of their use.  In other words, experts use them automatically.

So when lawyers from other countries try to learn our legal system and its publications, they will find that the two systems do not have the same structures.  Some aspects of their native systems may not have corresponding features in ours at all and ours will have some aspects that their systems lack, not to mention those aspects that are partially congruent.  To make things worse, our legal publications form a bibliographic system that adds another system to the complexity.  If the foreign students come from a civil law tradition, they may have difficulty with the need for the volumes of case reporters that are essential to a common law system.  Our codes may seem like a disorganized hodgepodge of laws to someone who is used to codes that are written like philosophical treatises.  But, as they learn more about our system, they see the usefulness of our tools of legal research.

So I believe that our LL.M. students begin learning our system by comparing elements of theirs to ours.  As they learn more, they go through a period of confusion from which they emerge near the end of a semester.  At this point, they no longer compare their native system to ours.  They understand ours as a second, independent one.  This explanation is simplistic of course.  This is a blog post, after all.  I hope this will do.

I suspect that there is no complete solution to this problem.  But I also suspect that giving the LL.M. students an overview of our system that includes the bibliographic aspects at the beginning of the semester and reminding students of the role (purpose?) of the relevant publications in the system when they study them might both help.  In addition, this kind of experience can suck their self-confidence right out of them.  Give them sympathy and encouragement.  Of course a little tea and crumpets wouldn’t hurt either.

In summary, the idea is to link the structure and content of the legal system with the concomitant publications.

CAFLL-WestPac Recap: Legal Research Instruction In China and Innovative Library Space Solutions

By Ning Han

The joint conference of Chinese and American Forum on Legal Information and Law Libraries (CAFLL) and AALL WestPac was held in Honolulu, Hawaii, October 7-11, 2015. The conference was a huge success and offered opportunities for law librarians from both countries to network, exchange ideas, and learn from each other. This blog post recaps a panel discussion that focused on legal research instruction in China and innovative library space solutions supporting legal education. The panel was moderated by Anne Mostad-Jensen, Head of Faculty Services at University of North Dakota School of Law.

Lee Peoples, Director and Professor of Law at Oklahoma City University Law Library, who has published extensively on innovative library space solutions, introduced the audience to the concept of user-centric library space design. The traditional notion of what an academic law library should look like has been disrupted by a combination of factors in recent years. Designing law libraries to encourage learning is the new focus. The variety of ways students use space and their learning styles should be accommodated. Professor Lee showcased the implementation of this new design notion through examples of several recently constructed or renovated academic law libraries. Data diner booths, bar-height tables, and collaborative spaces with built-in trendy technologies are no longer novel. The offering of outdoor studying space, either courtyard or roof-top, is quietly happening as well. Professor Peoples indicated that a nicely designed library space helps with admission and attracts donations. He even mentioned that many law schools have already converted the so-called “prime” space from law professor offices to student learning space. The mindset of space use and how to promote admissions, marketing, and publicity through transforming space has radically changed. Law librarians from China showed strong interest in this discussion.

Ning Han, Technical Services Librarian and Assistant Professor of Law at Concordia University School of Law and Liying Yu, Director and Professor of Law at Tsinghua University School of Law delivered the findings of their recently conducted survey. The survey aimed to find out what the current practices of legal research instruction in China are and compare them to the American legal research education practices. This new survey was derived from a 2008 survey conducted by Professor Liying Yu, which confirmed the dearth of legal research course offerings at that time. Twenty-five law schools were surveyed this time and the survey found a steady improvement of legal research course offerings in law schools in China since the last survey. The offerings of basic legal research course have gone up to 73%. ALR and SLR courses were found to be more available than in 2008. 38% of law schools surveyed are offering some sort of ALR or SLR courses. The format of the course, credit structure, teaching method, assessment method, and more were studied and compared to the U.S. approaches. Professors Han and Yu also touched on students’ and legal employers’ perception toward legal research courses and legal research skills. They also examined whether there is any feedback or regulatory system in place among legal educators, legal employers, the bar association, and Ministry of Education. A more detailed analysis of the survey will appear in the paper that Professors Han, Yu, and Mostad-Jensen are currently finishing.