#IALL2016 Recap: Law Reporting in England 1550-1650

512 The_bookkeeper_by_van_Dijk

By: Jim Hart

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

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

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

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

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

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

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

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

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

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

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

#IALL2016 Recap: Humans as Service? Regulating Work in the Sharing Economy

Employment in the Shring Economy

By: Charles Bjork

Session Six of IALL’s 35rd annual course on international law and legal information in Oxford featured a talk by Associate Professor Jeremias Prassl of the Oxford University Law Faculty on the following topic: Humans as a Service?  Regulating Work in the Sharing Economy.

Professor Prassl began by describing the phenomenon known as the “collaborative,” “sharing,” or “gig” economy.  This phenomenon relies on crowdsourcing, a term coined by Jeff Howe of Wired magazine in 2006 to describe a business model in which online providers (platforms) outsource everything from project financing to the performance of specific tasks to large groups of individuals (crowds).  Examples of crowdsourcing platforms disrupting established business models include Uber and Lyft (taxi services) and airbnb (hotels).  Jeff Bezos, the CEO of Amazon.com, has stated that it is his ambition to use the provision of “humans as a service,” his term for crowdsourcing, to disrupt all types of conventional industries.

From the consumer’s perspective, the sharing economy offers several advantages, notably more providers of services at a lower cost, and the opportunity to incentivize better service through rating systems.  From the service provider’s perspective, the sharing economy also offers concrete benefits, such as the possibility of earning extra income, greater flexibility in the scheduling of work, and the opportunity to be one’s own boss by becoming a “micro-entrepreneur.”  However, as Prof. Prassl noted, the sharing economy is analogous to an iceberg.  The benefits are readily apparent on the surface, but hidden dangers lurk below the waterline.

The biggest downside of the sharing economy for service providers is that there is no guarantee that steady work will be available when needed.  Even when work is available, competition may drive down the price that providers can charge.  Thus micro-entrepreneurs may find themselves working long hours for low, unpredictable pay.  Micro-entrepreneurs also face legal uncertainties.  Will they be eligible for workers’ compensation if they are injured while performing a gig?  Not if they are classified as independent contractors, rather than employees.  What about liability insurance for negligent acts?  Most individual auto insurance policies don’t provide coverage when an Uber driver uses her vehicle to carry passengers for hire.

Consumers also face hidden downsides.  Rating systems are subject to manipulation and don’t guarantee good service.  In addition, platform owners, such as Uber, almost always require users to not to hold them liable for the negligence or fraudulent conduct of service providers as a condition of downloading the platform owner’s app.  Few users bother to read this fine print before downloading.  Consequently, a platform user who is injured or defrauded by a service provider may have no recourse other than to sue the service provider as an individual, rather than the platform owner with the deeper pockets.  If the service provider isn’t covered by liability insurance, there is a real danger that he may turn out to be judgment-proof.

Platform owners insist that they should not be subject to conventional employment laws because their new technologies are transformative.  Uber, for example, is actively lobbying to exempt itself from being subject to minimum wage and unemployment insurance laws.  Professor Prassl contends that, from a legal perspective, “gigs,” “tasks,” and “orders” are indistinguishable from conventional employment.  The technology may be novel, but the issues that it raises are not new.

The sharing economy can be seen as the continuation of longstanding trend among employers to shift more and more risks on to workers.  Individuals may find themselves working almost non-stop during periods of high demand, or risk being dropped by platform owners if they fail to make themselves available, and then go for long stretches with little or no work when demand is low.  Thus fluctuations in the business cycle are now born by workers rather than employers.  These practices undermines the conventional social contract whereby employers make long-term commitments to employees, providing them with a steady income and benefits, in return for a stable, better trained, and more highly motivated workforce.

Moving forward, the challenge will be to bring the new employment opportunities created by the sharing economy within the legal framework of conventional employment law.  Platform owners need not be required to provide the same level of legal protections and benefits to service providers that would be expected of a conventional employer, but some baseline level of protections and benefits should be required in order to create a more level playing field among conventional businesses and novel service providers.

#IALL2016 Recap: Guy Goodwin-Gill on Refugee Law

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By: Amy Flick

Our program on Wednesday, August 3 included a program on “International Refugee Law: Where it Comes From, and Where It’s Going.” This was a timely topic this year, and our speaker was an expert on the subject.  Guy Goodwin-Gill practices as a barrister from Blackstone Chambers in London and has served as Legal Adviser in the Office of the United Nations High Commissioner for Refugees, as an advisor to United Kingdom Parliament Committees on asylum and immigration control, as Professor of asylum law at the University of Amsterdam, as Professor of international refugee law at All Souls’ College of Oxford University, and as founding editor and Editor-in-Chief of the International Journal of Refugee Law.

Goodwin-Gill noted that refugee law developed along with international organizations, so he began with historical background as important to understanding refugee law. The first High Commissioner for Refugees, Fridtjof Nansen, was appointed when the International Committee of the Red Cross wrote to the League of Nations in 1921 about Russian refugees needing attention in the displacements that followed World War I and the Russian Revolution. Nansen identified identification documents as a primary need to allow refugees to travel and find work, so he persuaded states to issue “Nansen passports.” Rather than returning refugees to dangerous environments, he concentrated on allowing states to allow resettlement and employment. The earliest refugee law focused on Russian refugees, but there were three million refugees in need of resettlement after World War I. Aid was provided in a piecemeal fashion as individual groups in need were identified.

In 1933, the League appointed James Grover McDonald as High Commissioner for Refugees to work with the growing number of Jewish refugees from Germany. He found that governments were unwilling to deal with the causes of the refugee crisis and resigned in 1935, with a famous letter of resignation, noting that “conditions in Germany which create refugees have developed so catastrophically that a reconsideration by the League of Nations of the entire situation is essential.”  Goodwin-Gill asserted that the challenges of earlier decades in refugee law are still those of today, where governments need to lead the way and do not.

In 1946, at the first session of the United Nations General Assembly (at the Central Hall Westminster in London), the refugee problem was the second most debated issue, after peace and security. Refugee law “took off” in 1948 with the Universal Declaration of Human Rights and its recognition of the right of persons to seek asylum. Politics are always involved in refugee law, and early refugee law was informed by Cold War politics, with United States policy important in setting the direction of the law. The 1951 Convention on the Status of Refugees was adopted by a United Nations conference and was signed in July 1951. Goodwin-Gill pointed out that the convention is on the status of refugees, concentrating on how refugees are treated, not on the bigger picture of the conditions creating refugees. States sought to limit their obligations, and definitions of who is a refugee were limited to those outside their own country, with a well-founded fear of persecution.

Goodwin-Gill began work with High Commissioner Sadruddin Aga Khan in 1976, and he recommends Aga Khan’s lectures on refugee law at the Hague Academy of International Law as reading for law students. Under Sadruddin Aga Khan, the UNHCR expanded its jurisdiction beyond Europe, encouraged self-sufficiency, and encouraged repatriation and aid to refugees who do return. States were still reluctant to recognize the reasons for refugees to remain, and Aga Khan encouraged mediation of international disputes and recognized that underdevelopment is as much of an issue as conflict. As co-chairman of the Independent Commission on International Humanitarian Issues in 1986, Aga Khan pushed for a new international humanitarian order, with a report on international cooperation to avert new flows of refugees that Goodwin-Gill recommends.

Before the 1980s, there was little writing on “aliens” and the movement between states, but in the 1980s there was an explosion in the literature on refugee law, including Goodwin-Gill’s own book, a fourth edition of which is in the works now.  There was also an explosion of jurisprudence on refugee law that hadn’t existed before, but states wanted procedures for determining refugee status.

In current refugee law, Goodwin-Gill finds that there has been an over-judicialization of refugee law, approached on a case-by-case basis. Human rights jurisprudence has contributed to more progressive thinking on refugees, with human rights law, international humanitarian law, and refugee law all cross-referenced.

The challenges of 2016 include the inability of the European Union states to develop a coherent response to the crisis, which is smaller than earlier crises like that of the 1930s. EU states have been reluctant to provide practical help, wanting someone else to be responsible.  Goodwin-Gill argues that there is need to focus on the practice of states. There should be collective action of the European Union, which has principles of cooperation in its treaties. Its failure to respond has left people in limbo and has been a major political failure. The European Union has promised migration agreements to developing countries but has failed to deliver. Forty years after his work with the UNHCR, the world is facing the same challenges. How Europe, and the world, work through the current issues will influence the future of refugee law.

#IALL2016 Recap: Diversities Among Common Law Countries

By: Julienne Grant

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

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

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

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

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

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

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

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

#IALL2016 Recap: The Role of Human Rights in Re-Shaping Investor-State Arbitration

IALL Oxford KebleBy: Herb Somers

On Wednesday afternoon, August 3 at 14.00, Susan Karamanian, Associate Dean for International and Comparative Legal Studies at the George Washington University Law School, began her lecture by describing the process of investor-state arbitration, which is a system under international law that provides an investor an avenue to adjudicate disputes (through international arbitration) against a foreign government. This alternate dispute resolution system exists outside the court systems of the home or host state. The adjudicating body is a panel of three arbitrators chosen by the parties according to the provisions of the investment agreement. Typically, one arbitrator is chosen by the investor, one by the host state, and a third by agreement of the parties.

Such dispute resolution procedures can be found in a multitude of bilateral investment treaties (BITs) between individual countries, as well as in some international trade agreements such as the North American Free Trade Agreement (NAFTA). These agreements typically authorize the investor  (the home state party) to request an arbitration  when there is a violation of the BIT by the nation in which the investment is located (the host state). A typical BIT will provide the investor protection against expropriation without due process, most favored nation status as well as other equal protection provisions and general guarantees of fair and equitable treatment. The investment treaty also allows the investor to choose from an array of arbitration rules such as those used by the International Centre for Settlement Dispute (ICSID), or the UN  Conference on Trade and Development UNCTAD).

The selected arbitrators in a specific case must decide all issues in accordance with the chosen arbitration rules and they must also adjudicate the dispute consistent with the treaty provisions at hand and  all applicable rules of international law. There are no explicit rules of precedent that are used by the panel, but a de facto system of precedent has emerged where arbitrators look to the decisions of previous bodies deciding on similar factual and legal issues. A common criticism of such arbitrations is that they are cloaked in secrecy due to the confidential nature of arbitration as a dispute mechanism.  Until recently, it was difficult, if not impossible, to obtain the award of an arbitral panel in a given case. However, later agreements have provided more transparency in the process of investor-state dispute resolution.  Critics have also argued that such arbitrations are not bound by rules of judicial fairness and have no mandate to follow prevailing international human rights and environmental norms. Critics of investor-state arbitration have also decried the decisions of panels that have allowed states to face liability when investors have attacked environmental and health laws of the host state.

Karamanian believes that international human rights law can re-shape the process and address many of the concerns about investor state arbitration voiced by critics.  She enumerated several reasons why this is true.

First, transparency issues have begun to be addressed. The secrecy surrounding earlier investor-state arbitration have given way to more open procedures. For example, the 2004 U.S. Model BIT allows for amicus curiae briefs and all documents relating to a particular investor-state dispute must be publicly available. Similarly, ICSID requires that all requests for arbitration must be made public. A majority of ICSID awards are disseminated publicly, and for those that are not, excerpts are provided.

Human rights principles may also be applicable to the dispute and can be raised by the parties in several ways. Based on the law and the arbitration rules in a particular dispute, international law may be controlling. In NAFTA Chapter 11 arbitration, the principles of the NAFTA agreement and international law explicitly apply to a particular dispute in that venue. Similarly, in ICSID arbitration, absent governing laws, international law applies as well, thus providing avenues for raising international human rights issues. Also, when national law applies, a monist state may raise international law as integral part of its domestic law.

Other international law principles also direct arbitrators to recognize human rights protections. For example jus cogens  (non-derogable norms of international law) are given precedence over the obligations present in an international investment agreement. This rule is derived from article 53 of the Vienna Convention on the Law of Treaties. Provisions of the United Nations Charter may also apply such as Article 103, which provides that in the event of a conflict between a state’s obligation under the Charter and that of a treaty, the conflict should be resolved in the favor of Charter obligations, which include the advancement of human rights principles by member states.

The Vienna Convention on the Law of Treaties can also be applied as an interpretative tool by arbitrators to divine the meaning of provisions in a given investment agreement. Article 31(1) of the Convention requires an arbitral body to interpret “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”  It is from this interpretive provision that the text of a given investment treaty can be read to infer international human rights protections despite not being explicitly mentioned within the document.

Finally, the investment treaties themselves have also begun to protect the prerogatives of states to regulate health, safety, and environmental concerns and limit their liability under a investment agreement. The 2012 U.S. Model BIT, for example, excludes “ non-discriminatory regulations that are tailored to protect public health, safety, and the environment.” Other provisions in concluded BITs also protect a state so that it may fulfill its duties to maintain or restore international peace and security.

While recent decisions of investor-state arbitral tribunals  have recognized a state’s legitimate right to protect the health and welfare of its citizens without liability to a foreign investor, much work needs to be done. Ultimately, this process of integrating human rights norms into investor-state arbitration will require arbitrators who are knowledgeable of the relevant law and willing to apply the norms of  international human rights and other international standards to the disputes before them. Law librarians will play a vital role in this process by making these materials readily accessible and by sharing their reference expertise with lawyers in the field.

 

Minding the Gap, Walking Law Books, & the U.K.’s own “Judge Judy”


By Julienne Grant

I spent a few days “minding the gap” in London before IALL started. Caught a show in the West End, walked  through the “Painters’ Paintings” exhibition (wonderful) at the National Gallery, and watched the RideLondon cycling race.  What I’m always drawn to in London, however, is Trafalgar Square. Trafalgar is unlike anywhere else in the world; it has a certain pulse that reflects the vibrancy and diversity that makes London such an incredible place. I could sit for hours and take it all in, from the sidewalk art, to the eclectic mix of rhythms booming from the electronic keyboards of street musicians.
While at Trafalgar, I stepped briefly into the Westminster Reference Library and chatted with the librarian on duty. She explained that the Reference Library has the strongest public collection of legal materials in Westminster (one of Inner London’s boroughs). The Library currently offers access to Westlaw UK, which includes a number of eBooks, such as Chitty on Contracts. She explained that the eBooks are extremely important because the print copies of the same titles tend to walk off.  At the same time, however, the librarian bemoaned the fact that the Library’s funding was being cut, and the Westlaw UK subscription might be discontinued.
While in London, I was also introduced to “Judge Rinder” on the telly.  “Judge Rinder” is a reality court TV show seemingly modeled after the U.S.’ “Judge Judy.” Judge Rinder himself is actually barrister Robert Michael Rinder who has been hearing disputes on this popular ITV series since 2014. According to  HuffPost Entertainment United Kingdom, these disputes “usually revolve around two mates fobbing each other out of money, and other issues with a vaguely legal undercurrent.” For those who are interested in such things, Judge Rinder wears an English barrister’s robe, rather than a judge’s.
More to come from Oxford where we are experiencing a bit of soggy weather, but are grateful for the foresight of the local organizers who provided us with our own Oxford rain ponchos.

 

#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.

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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.

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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.

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  • 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.