AALL 2022 Recap: Teaching FCIL Research Roundtable

By Meredith Capps

On Monday, July 18^th during the AALL annual meeting, the FCIL-SIS held its first in-person roundtable discussion in several years (hip hip hooray!) to discuss teaching FCIL research.  Meredith Capps of Vanderbilt University Law School introduced the featured speaker, Janet Kearney of Fordham University Law School.  Janet spoke about her efforts to enhance her own FCIL resource course, which she described in brief in the February 2022 FCIL-SIS newsletter article, Work-in-Progress: A Research Framework in FCIL Teaching?, for which she received the SIS’s Newsletter Article of the Year award. 

Janet described the first iteration of her 2-credit course as “disparate.”  In considering how to better organize the course, she considered the four-step research process upon which she relies in her first-year legal research course: 1) research planning, 2) secondary sources, 3) statutes and regulations, and 4) cases.  To adapt this framework for FCIL research instruction, Janet opted to reframe steps 3 and 4 and collapse them into a single category of primary sources.   Approaching each week’s content with this framework, Janet encouraged students to first plan their research, then identify secondary sources that might answer their question, and then locate relevant primary authorities.  Janet asked students to consider which sources of law might govern their problem, which would be binding, and in what way they would be binding (or persuasive).  Her students responded positively to the new framework, and as of this writing Janet is drafting a longer article discussing her experience in designing the course – stay tuned!

 

Breather breather, CC0, via Wikimedia Commons

            As is typical in a roundtable format, after discussing the initial topic of utilizing process frameworks in instruction, participants explored a number of other topics, questions, and concerns informally for the balance of the time, including:

• The needs of JD v. LLM students, and whether and when to teach separate JD and LLM research courses,
• How to better incorporate private international law problems into our courses, including utilizing trade and family law hypotheticals,
• How many sources to cover in a typical class, and how best to organize those sources for student reference,
• Encouraging students to first consider the subject before the jurisdiction,
• To what extent we utilize niche databases in our courses that students may not have access to in practice,
• Challenges associated with students’ variable knowledge of international law upon enrolling in an FCIL research course,
• Addressing student confusion in distinguishing between primary and secondary authorities…

…and more – it was a busy hour!

AALL 2019 Recap: FCIL-SIS Schaffer Grant Presentation – African Law for Everyone: AfricanLII and Laws.Africa

By: Loren Turner

On Monday, July 15, 2019, the 2019 FCIL-SIS Schaffer Grant recipient, Mariya Badeva-Bright, who leads the AfricanLII project at the University of Cape Town, South Africa (and recently co-founded Laws.Africa, a legislative commons), delivered a fantastic presentation titled “African Law for Everyone: AfricanLII and Laws.Africa.” Mariya’s presentation was a summary of her motivations and processes for gathering and digitizing African law as well as a “call to action” to law librarians worldwide for help in making African law accessible to all.

Mariya began her presentation by stating that there is no reliable, consistent, and up-to-date access to the law in many African countries – free or not.  Mariya provided several reasons for the lack of access to legal information: indifference of commercial publishers; lack of funds and skills on the local levels; poor record keeping; and low level corruption. She argued that there can be no justice without access to legal information.  When the law is not available freely and easily, judges cannot determine precedent; rich litigants have an unfair advantage.  As support, Mariya shared visual images of legislative texts in which pages were literally cut out, edited by hand, and then reinserted.  The reality, Mariya said, is that lots of African law is in such condition and this format frustrates access to justice.

Mariya explained that the AfricanLII and the Laws.Africa projects are about building an open infrastructure of African legal information with opportunity for sophisticated searches. They have to be open to anyone and offer speed, efficiency, services, growth and development.

AfricanLII was founded in 2010 to promote the role of LIIs in Africa. It now offers a federated search of over 250k documents of African legal information. Additionally, in response to user demand, it has begun to create case indices, including the Human Rights Law Index and the Commercial Law Index. It also provides a current awareness newsletter that started out as a service for judges but has expanded to anyone interested in following legal developments in African law (subscribe at the bottom of this page). Most recently, AfricanLII launched a citator service, available in beta format. It is the first visual citator in the access to law movement, but what is more remarkable is that it creates a citator service for cases that were never published in law reports and, therefore, don’t have citations!  The AfricanLII database sees about 400,000 unique users per month, 90% of which are within Africa.  Users are primarily from the justice sector (lawyers, judges, paralegals, magistrates, law students, government workers, etc.) but there is an increase in “average joes” accessing the database.

When the AfricanLII project began, there was a conscious choice to focus on gathering and digitizing cases rather than legislation.  Cases have their own value, but outdated legislation has little value.  The creators of AfricanLII had concerns about the future credibility of their project if they uploaded outdated legislation.  Plus, the reality is that in most African countries, there is no free source of consolidated, up-to-date legislation.

The Laws.Africa project developed to address the lack of freely available access to African legislation. The creators of the Laws.Africa project surveyed other country’s attempts at making legislation current and freely accessible.  They decided that the UK’s legislation.gov.uk was the model “golden” standard outside of Africa because of its rich interface and up-to-date, authoritative corpus.  Within Africa, the “golden” standards were Kenya law, an authoritative source of Kenyan legislation, and OpenBylaws.org.za, which focuses on improving access to South African by-laws.

Laws.Africa is an open source, cloud platform for efficient cost-effective consolidation and publication of African legislation.  It aims to crowdsource an open digital archive of African gazettes and use technology (in particular, Akoma Ntoso, a non-proprietary, XML markup standard for legislative documents) to consolidate legislation. In terms of processes: once a gazette is uploaded onto the Laws.Africa platform, a group of contributors (law students and law library students) extract individual Acts and identify changes to the Act over time.  A small group of reviewers check the work of the contributors (there is a two-step review process). After review, the consolidated legislation becomes available in a variety of formats.

The Laws.Africa project has already acquired and uploaded over 13,000 national gazettes.  These gazettes are available in .pdf versions through a linked sister site called Gazettes.Africa.  But, it takes a village to make a complete collection!  Unfortunately, Mariya explained, the law of Africa is not in Africa.  Instead, many African gazettes, especially historical ones, are located in libraries outside of Africa.  To continue building the collection of African gazettes and legislation on the Laws.Africa portal, Mariya and her colleagues need law librarians and digitizers in the U.S. and U.K. to donate their African gazettes to the project.  Mariya believes that crowdsourcing these gazettes is the best way to reach the goal of a complete collection.

Mariya concluded her presentation with an appeal: Join our community! Donate your gazettes!  Spread the word about the AfricanLII and Laws.Africa projects!  She received a great round of applause.

For a video of Mariya’s FCIL-SIS Schaffer Grant presentation, as given at Yale Law Library subsequent to the 2019 AALL Annual Meeting, follow this link.

FCIL-SIS Book Discussion Group to Meet Again During Washington, D.C. Conference

Over the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s company.

This year, the group will meet on Monday, July 15, at 12:15, during the Attendee Lunch in the Exhibit Hall.  We will meet in the Registration Area, find a table, and take advantage of the complimentary lunch.

This year’s book selection is No Friend But the Mountains: Writing from Manus Prison, by Behrouz Boochani.  Mr. Boochani is an Iranian-Kurdish journalist, human rights defender, poet and film producer. He was born in western Iran and has been held in the Australian-run Manus Island detention center since 2013.  The following book description appears on the Pan Macmillan Australia website:

 

WINNER OF THE VICTORIAN PREMIER’S LITERARY PRIZE FOR LITERATURE AND FOR NON-FICTION 2019

Where have I come from? From the land of rivers, the land of waterfalls, the land of ancient chants, the land of mountains…

In 2013, Kurdish journalist Behrouz Boochani was illegally detained on Manus Island. He has been there ever since.

People would run to the mountains to escape the warplanes and found asylum within their chestnut forests…

This book is the result. Laboriously tapped out on a mobile phone and translated from the Farsi. It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.

Do Kurds have any friends other than the mountains? 

WINNER OF THE NSW PREMIER’S AWARD 2019 

WINNER OF THE ABIA GENERAL FICTION BOOK OF THE YEAR 2019

PRAISE FOR NO FRIEND BUT THE MOUNTAINS

“Boochani has produced a literary, journalistic and philosophical tour de force. It may well stand as one of the most important books published in Australia in two decades…” The Saturday Paper

“A chant, a cry from the heart, a lament, fuelled by a fierce urgency, written with the lyricism of a poet, the literary skills of a novelist, and the profound insights of an astute observer of human behaviour and the ruthless politics of a cruel and unjust imprisonment.” Arnold Zable, author of the award-winning Jewels and Ashes and Cafe Scheherazade

“a shattering book every Australian should read” Benjamin Law (@mrbenjaminlaw 01/02/2019)

“In the absence of images, turn to this book to fathom what we have done, what we continue to do. It is, put simply, the most extraordinary and important book I have ever read.” Good Reading Magazine(starred review)

“Brilliant writing. Brilliant thinking. Brilliant courage.” Professor Marcia Langton AM (@marcialangton 01/02/2019)

“Not for the faint-hearted, it’s a powerful, devastating insight into a situation that’s so often seen through a political – not personal – lens.” GQ Australia

“It is an unforgettable account of man’s inhumanity to man that reads like something out of Orwell or Kafka, and is aptly described by Tofighian as ‘horrific surrealism’. It is clear from Boochani’s writing that he is a highly educated and philosophical man; he segues effortlessly between prose and poetry, both equally powerful.” –The Australian Financial Review Magazine

“Behrouz Boochani has written a book which is as powerful as it is poetic and moving. He describes his experience of living in a refugee prison with profound insight and intelligence.” Queensland Reviewers Collective

“In his book Boochani introduces us to different dimensions of his experience and thinking. Both a profound creative writing project and a strategic act of resistance, the book is part of a coherent theoretical project and critical approach.” Omid Tofighian, translator of No Friend But the Mountains

“It is a voice of witness, an act of survival. A lyric first-hand account. A cry of resistance. A vivid portrait through five years of incarceration and exile.” Readings

“Boochani has woven his own experiences in to a tale which is at once beautiful and harrowing, creating a valuable contribution to Australia’s literary canon.” Writing NSW

“it is a voice of witness and an act of survival” Law Society of NSW Journal

 

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Washington, D.C. for another great book discussion!

AALL 2018 Recap: Education Committee Meeting – Program Planning for DC

By: Loren Turner

The FCIL-SIS Education Committee met at the crack of dawn (7:00 am) on Tuesday, July 17^th to begin brainstorming and strategizing for the AALL 2019 conference in Washington, D.C.  We were joined by two members of the Annual Meeting Program Committee (AMPC), Sabrina Sondhi (our official FCIL liaison to the AMPC) and Alyson Drake.  Sabrina and Alyson shared the AMPC’s timeline for gathering program ideas and proposals.  Alyson will be writing a separate DipLawMatic blog post that covers the AMPC’s timeline and goals in more detail, but in a nutshell, there is a two-step process for us to get some FCIL-related programming into the DC conference: (1) submit and up-vote your undeveloped, wild and crazy ideas to the Ideascale platform (from now until August 17th) and (2) submit your developed, professional program proposals to the AMPC (Labor Day-ish until October 1).

We have an excellent location for the next conference and the Georgetown folks who joined our meeting are already on-the-ball with fab ideas on international taxation, international trade, and international human rights.  What about you?!  What programming do you want to see in D.C. for your professional development?

Dennis Sears (searsd@law.byu.edu) and I (lturner@umn.edu) would L.O.V.E. to hear from you!  Tell us what you want to learn.  Tell us what you want to teach. Tell us who you know and what they might offer.  We will do your cold-calls.  We will help craft your wild and crazy ideas into fully-developed programs (or pre-conference workshops). We need you to help us create substantive FCIL programming for the AALL 2019 conference.  Let’s do this.

FCIL-SIS Book Discussion Group to Meet Again in Baltimore This Summer

By Susan Gualtier

Over the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s fine company.

This year, the group will meet on Monday, July 16, at 12:30.  As in past years, we will meet in the Registration Area, and will find a table or small room from there.  The event will be BYO lunch or snacks.

This year’s book selection is In the Shadow of Korematsu: Democratic Liberties and National Security, by Eric K. Yamamoto.  Professor Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawai`i. He is nationally and internationally recognized for his legal work and scholarship on civil procedure, as well as national security and civil liberties, and civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice.  The following book description appears on the Oxford University Press website:

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America – an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of “pressing public necessity” as justification for curtailing fundamental liberties?

These queries paint three pictures portrayed in this book. First, they portray the present-day significance of the Supreme Court’s partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration – a decision later found to be driven by the government’s presentation of “intentional falsehoods” and “willful historical inaccuracies” to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts’ legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers – realpolitik advocacy – at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Baltimore for another great book discussion!

Announcement: FCIL-SIS (Informal) Book Discussion Group at AALL Annual Meeting

By Dan Wade

The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff,  in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Cuban Law and Legal Research: A Snapshot During the Deshielo (Congelado?) – Monday, July 17, 2017, 9:45 a.m., Austin Convention Center, Room 18AB

By Julienne Grant

“The history of the United States and Cuba encompass[es] revolution and conflict, struggle and sacrifice, retribution and now reconciliation. It is time now for us to leave the past behind. It is time for us to look forward to the future together.”

-President Barack Obama, March 22, 2016, Havana, Cuba

 

“Therefore, effective immediately, I am canceling the last administration’s completely one-sided deal with Cuba.” 

-President Donald J. Trump, June 16, 2017, Miami, Florida

 

“Again, the United States Government resorts to coercive methods of the past, adopting measures to intensify the blockade, in force since February 1962, which not only causes damage and deprivation to the Cuban people and constitutes an undeniable obstacle to the development of our economy, but also affects the sovereignty and interests of other countries, inciting international rejection.” (Julienne E. Grant, translation)

-Declaration of the Revolutionary Government, June 16, 2017, Havana, Cuba

 

When I drafted a proposal last fall for an AALL program on Cuba, I envisioned a continuation of the dramatic deshielo (thaw) of relations between the U.S. and Cuba. Specifically, I assumed there would be a progression of the rapprochement that former President Obama alluded to in his speech in Havana on March 22, 2016.  What I didn’t foresee while crafting the program were the most recent proclamations by President Trump and the Cuban government.  Trump’s June 16^th announcement in Miami that backtracks some of the previous administration’s initiatives has halted the thaw a bit. As such, this program is perhaps more appropriately a snapshot during the deshielo congelado (frozen thaw). However U.S.-Cuba relations can now be characterized, though, Cuba is on the cusp of dramatic changes, and it’s a hot topic.

Please join Dr. Marisol Florén-Romero (Florida International University), Teresa Miguel-Stearns (Yale), and me (Loyola University Chicago) as we first explore this enigmatic jurisdiction from a law librarian’s perspective. Our program will include a brief overview of the somewhat unwieldly nomenclature of Cuban law, as well as a short assessment of English-language sources that can provide insight into Cuba’s legal landscape. In addition, Teresa will offer a quick summary of her experience purchasing legal materials in Havana last year.  Accompanying the program is a useful 26-page handout that will be available for download.

Our featured speaker, however, is Professor Jorge R. Piñon, whose talk is titled “Cuba Business Scenarios:  Challenges and Opportunities,” certainly a timely topic in what is an extremely fluid political and economic environment.   Professor Piñon is the Interim Director of The University of Texas at Austin, Center for International Energy & Environmental Policy, and the Director of its Latin America & Caribbean Energy Program.

Professor Piñon is also recognized as an expert on Cuba’s energy sector, as well as on the island’s future economic transitional challenges and opportunities.  He is an advisor and a member of the Cuba Task Force at The Brookings Institution and co-author of “Cuba’s Energy Future: Strategic Approaches to Cooperation,” Brookings Institution Press, 2010.

Hope to see you on Monday for what is sure to be a lively, engaging, and enlightening hour!

 

The Social Responsibilities Special Interest Section Carbon Offset Project: Making a Difference in Global Climate Change

By Erin Gow

As the AALL 2017 conference approaches and you mark your calendars for all the great FCIL related sessions and events taking place in Austin this year, why not take a moment to consider contributing to the Social Responsibilities Special Interest Section Carbon Offset Project? This is a great opportunity to come together with librarians from other sections across AALL to make an international difference.

Climate change is a truly global issue, with international laws and treaties addressing a range of environmental issues that must be tackled beyond the borders of any single nation. This year the SR-SIS is providing an opportunity for everyone to make a difference to the international crisis of climate change by making a donation of just $6 to offset the carbon impact of travelling to the 2017 AALL conference. In addition to making a difference by offsetting carbon emissions, this year’s project also has a direct impact on the lives of people in Uganda, by providing cook stoves that are safer and cleaner than the toxic fires many families currently have to rely on to cook their meals. Visit www.aallnet.org/sections/sr/projects/Travel-Offset-Project.html to find out more about the project and to make a donation.

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)

 

#IALL2016 Recap: Precedent and Authority: the Continental Dimension

By: Jim Hart

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

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

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

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

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

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

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

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

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

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

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

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

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

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