The Special Challenge of LL.M. Students

By Jim Hart

animated-question-mark-clip-art-Kijead5iqLL.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.

DipLawMatic Dialogues Is Heading to Berlin!

iall captureAs most of our readers are surely aware, this weekend marks the beginning of the International Association of Law Libraries 34th Annual Course on International Law and Legal Information!  This year’s conference takes place at the Staatsbibliothek zu Berlin (Berlin State Library), and the theme of the conference is “Within and in between: German Legal Tradition in Times of Internationalization and Beyond.”

The conference programming will “reflect Germany’s legal history and will characterize unique perspectives on international and domestic law issues as well as legal information items. Speakers at the sessions will include highly regarded German legal scholars, legal practitioners and law librarians.”  More information is available on the conference website.

If you are attending the conference and would like to contribute to our blog coverage, please contact Susan Gualtier at susan.gualtier@law.lsu.edu.

DipLawMatic Dialogues looks forward to bringing you conference coverage and photos throughout the next week!

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Book Review: Criminality and Criminal Justice in Contemporary Poland

ByCriminality and Criminal JusticeChristopher Galeczka

Konrad Buczkowski, et. al. Criminality and Criminal Justice in Contemporary Poland: Sociopolitical Perspectives (Ashgate Publishing, 2015). 208 p. Hardcover $112.46.

Criminality and Criminal Justice in Contemporary Poland is a collection of articles by professors, as well as one alumna, of the Institute for Law Studies at the Polish Academy of Sciences. The series of ten articles designated as chapters describe the philosophical views on crime and criminality of some of the authors, as well as other Polish authorities on the subject, and describe the historical and contemporary aspects of crime, the criminal justice system, and public perceptions of both in the country.

Poland is a country of significance to international and comparative legal scholars in being one of the largest countries in Central Europe, a region of nations characterized by long legacies of foreign rule, the more recent experience of a half-century of existence under Soviet-imposed Communism, and a still unfolding path of economic and political integration into pan-European institutions. As such, this work is of relevance not only to those interested in comparative criminal law, but also those interested in criminality across time and cultures, as well as the economic, social, political and cultural issues that arise in societies in transition from command to market economies and from authoritarian to liberal-democratic political systems.

Chapter 1, “Criminality Today and Tomorrow,” discusses historical and philosophical definitions of the concept of crime, as well as the ways in which crime is defined in the current Polish criminal code, with reference to defenses and mitigating circumstances (e.g., when certain acts are committed by juveniles or in self-defense), contained in the code.

Chapter 2, “The Status of Criminality in Poland since 1918”, narrates the history of Polish criminal legislation from independence through the communist era, to the present day, as well as describing rises and falls, and changed in criminal activity in the country with reference to available statistics, chiefly, the total number reported crimes and finalized convictions in a given period.

Chapter 3, “Social Change and Criminality: Mutual Relationships, Determinants, and Implications” treats the issue of social change and its effect on the level and nature of criminality. Kossowska describes the findings and conclusions of a number of criminologists concerning changes in criminal activity during several key periods of transition in 20th century Polish history, concluding with a discussion of the precipitous drop in ordinary criminal activity in many nations including in Poland, albeit delayed in comparison to elsewhere, and also with the advent of cybercrime and the unusual, un-marginalized nature of those who engage in it.

Chapter 4 examines the association between crime on one hand and socially excluded and economically marginalized groups on the other. Beginning with a discussion of the criminalization of the itinerant and unemployed in medieval Europe, the author examines how poverty and factors often accompanying poverty, such as feelings of alienation from society, alcoholism, family breakdown, living in marginalized areas often combine with opportunities to commit crime, leaving underprivileged people to be disproportionate perpetrators and victims of crime.  Chapter 5 continues by examining the difficulties faced by and failures of the Polish social welfare and public educational system in being able to effectively reduce social exclusion, and, by extension, criminal activity.

Chapter 6, “Justice and its Many Faces,” describes the views of many contemporary Polish writers on society’s proper response to those guilty of committing crimes.

Chapter 7 “Controlling Criminality” focuses on the Polish criminal justice system’s historical approaches to combating crime, with statistical data on numbers of crimes, convictions, and frequency with which various sanctions were imposed. Chapter 8 “Supervised Liberty,” focuses on one of the most frequently imposed of these sanctions, the suspended sentence, and comparing the philosophical justifications and practical success of this sanction with that of probation in the United States, United Kingdom, and similar systems elsewhere in Europe.

Chapters 9 “The Social Perception of Criminality,” and Chapter 10 “Criminality and the Media” combine to tell the story of public perception of crime and the role of the media in forming that perception, beginning with the late Communist era, typified by press censorship, and a relatively low level of certain criminal activity, and continuing on through the transition to democracy, characterized by a rise in criminal activity as well as the development of sensationalist media and a great rise in popular fear of crime. The story of a tabloid press fanning public fear of crime, as well as the sentiment of a criminal justice system that is ‘soft on crime’ despite its many punitive aspects would likely ring familiar to the ears of many American readers.

Many of the chapters of the book are written in a somewhat dense scholarly style. Citations are in APA format. The reader should note that citations to many of the graphical figures provided in the work are not provided with the figure, but rather are indicated within the text, where the particular figure is first mentioned. Sometimes chapters focus on providing numerous summaries of the opinions and findings of various other authors rather than rigorously promoting and supporting the authors own thesis.  The strength of these chapters, however, lie in providing a reader a good outline of Polish scholarship on crime and penology, and for this reason the book would fit well in an academic law library’s criminal law or comparative law collection.

Book Review: Emerging Challenges in Privacy Law, Comparative Perspectives

By Christina GlonEmerging Challenges - cover page

Emerging Challenges in Privacy Law, Comparative Perspectives (Norman Witzleb, et al., eds, Cambridge University Press 2014). 477p. incl. index.  Hardcover $165.00

Emerging Challenges in Privacy Law, Comparative Perspectives is a collection of essays adapted from programs presented at the “Emerging Challenges to Privacy Law: Australasian and EU Perspectives” conference held in February 2012 at Monash University in Melbourne, Australia.  To accommodate for the fast-moving development of privacy issues, a few essays have also been specifically commissioned for inclusion in this collection to provide broader coverage of the big issues developing since early 2012.  While there is a decidedly heavier focus on European fundamentals, Australian history and/or advances in privacy protections are also discussed in several of the essays.

The collection is organized in six parts and provides a little bit of something for anyone interested in privacy and data protection around the globe.  Some topics covered are quite broad (Privacy and the Internet), while others are very narrow in focus (protecting the anonymity of young people in Anti-Social Behaviour Orders).  Additionally, the collection offers a nice balance of discussions on theory and the abstract (“[Convention 108] is the only global data protection treaty we are ever likely to see”) as well as detailed discussions about the nuances contained in some privacy arenas (the five categories of “intrusion on seclusion” violations).  Finally, several of the essays provide much-needed historical context for the development of privacy frameworks in many different areas of privacy law because it is truly impossible to understand where we are and where we should go with privacy law without first exploring where we have been and how we got to where we are today.

Part I of the collection provides an overview of both the Australian and European Union data protection frameworks from three different perspectives – that of Australian Privacy Commissioner (Timothy Pilgram), of the European Data Protection Supervisor (Peter Hustinx), and finally of an Australian privacy advocate (Nigel Waters, Principal, Pacific Privacy Consulting).  All three “agree on the challenges facing data privacy law reform” and the importance of enforcement of data protection laws, however, there is significant disagreement on successful expansion of those laws and enforcements over territorial / jurisdictional boundaries and consistently defining and protecting these rights on a global scale.

Part II provides the much needed fundamentals of the primary documents that have shaped privacy protections in the European Union.  Specifically, Chapter 5 examines the architecture of privacy protection in EU through the exploration of current privacy rights and the documents that granted and guarantee those rights (pre-2012 reform proposals).  Documents discussed include the well-known European Convention of Human Rights (ECHR) as well as the formal adoption of the more recent Charter of Fundamental Rights (2009).  Discussions also touch on “data protection” in conjunction with Convention 108 (1981), Directive 95/46/EC (1995), and continue up to the proposed reforms offered in January 2012.

Chapter 6 focuses on one particular document (Convention 108) and provides food-for-thought about how far privacy protections can really evolve globally.  Renowned author and scholar, Professor Graham Greenleaf proffers, “[Convention 108] is the only global data protection treaty we are ever likely to see” because no other organization (save the UN) has the capability nor the desire to draft such a global document and current efforts to update and globalize Convention 108 could eliminate the need for an additional global document.

Part III of this collection gets into the real nitty-gritty of some very specific privacy violations.  First, Chapter 7 addresses privacy beyond the unwanted dissemination of private information to that of “physical privacy.”  Professor Moreham explores the patchwork of legislative, criminal, and common law measures in England to prevent this “intrusion on seclusion” (including several “slippery slope” examples of each of the five categories of intrusion – unwanted listening and audio recordings; unwanted watching, following, photographing and/or filming; unwanted access to personal documents or files (hardcopy or electronic); unwanted access to home and personal belongings; and harassment).  In Chapter 8, Professor Michael Tilbury explores several alternative modes of protection from intrusion based in tort law and weighs the pros and cons of creating new causes of action in tort law and/or implementation of a “privacy rights-based model” to specifically enumerate privacy “wrongs.”

Part IV continues this in-depth analysis by examining surveillance frameworks in the United Kingdom, Australia, and the United States (Chapter 10) and the creation of Anti-Social Behaviour Orders (UK) and Prohibited Behaviour Orders (Australia) (Chapter 11) to prohibit “publication of anything that could identify that a young person has been involved in criminal proceedings” (page 229) in order to uphold the longstanding tradition of protecting the anonymity of young people.

Part V deals extensively with privacy issues and the Internet.  Chapter 12 dives deep into development of the Internet, “privacy-invasive and privacy-enhancing features” of the Internet, and the effects (if any) the proposed Data Protection Regulation may have on the future of the Internet.  Chapter 13 deals explicitly with the “right to be forgotten” in the EU data protection framework.  Chapter 14 compares and contrasts privacy models in the European Union, Australia, the United States, Malaysia, Singapore, and finally, Chapter 15 explores cloud computing in the European Union generally and in Germany, specifically.

Part VI circles back to the media and how the courts in the United Kingdom and Australia should balance the rights of the media and free speech with the rights of the public and witnesses to privacy.  It is unfortunate that these two chapters were moved to the end of the collection as they provide the perfect complement to Parts III and IV.  Chapter 16 explores the use of anonymity orders to protect (from media disclosure) those involved in judicial proceedings, while Chapter 17 deals explicitly with interlocutory orders in defamation actions.

This collection of essays offers a robust dialog of past, present and future successes and challenges of privacy protections around the globe.  It is an excellent collection for gaining a well-rounded understanding of the trailblazing European Union privacy frameworks and offers a mix of hope and cautionary tales to help us move forward in our united and global quest to find balance in privacy rights frameworks.

Film Review: Invoking Justice

c834By Susan Gualtier

In my spring 2014 FCIL research seminar, I explored the idea of using documentaries to provide a visual representation of unfamiliar legal systems. One of the films that I chose to screen was Deepa Dhanraj’s 2011 documentary, Invoking Justice. The film was very well received by the students and led to several interesting group discussions, both during class time and on the course website. Student feedback strongly suggested that they found the film enjoyable, that it helped them to understand how religious (and, to an extent, customary and mixed) legal systems work, and that it encouraged them to think about how one might research legal issues or handle cases arising under these systems.

Invoking Justice focuses on a specific type of legal tribunal in Southern India, where family disputes are settled by local tribunals called Jamaats. These tribunals, which apply Islamic Sharia law, are made up entirely of men. Not only are their cases decided by men, but women are not permitted to be present at the Jamaat meetings and therefore have no opportunity to defend themselves or to present their side of the dispute. Invoking Justice follows a group of women who, recognizing the discriminatory nature of the all-male Jamaats, formed a women’s Jamaat in 2004 where local women could settle their family disputes or report discriminatory treatment by the traditional male Jamaats. By the time the film was made, the women’s Jamaat had already settled more than 8000 cases, “ranging from divorce to wife beating to brutal murders and more.”

The film suggests, though not overtly, that the women’s Jamaat functions not only as a tribunal, but also as an enforcement mechanism and advocacy organization. Its members are shown approaching male Jamaat members to questions their tribunals’ decisions and processes, and using the police force to compel male defendants to attend women’s Jamaat sessions when they do not take the tribunal seriously. Dhanraj follows several of the Jamaat’s cases from beginning to end, which helps to unify the film and provides a narrative element. The film also portrays the power that comes with open communication; the women’s Jamaat has been a galvanizing force for women in the region, and groups of women are shown in animated discussions of topics that would previously have been considered taboo in a public forum.

Invoking Justice is entertaining and visually appealing, and provides an excellent insight into how one form of local tribunal might operate. It also illuminates substantive issues relating to family law and women’s human rights under religious and customary law systems, and addresses issues of discrimination not only in the law itself, but in the procedural practices of the tribunals, the application of the law, and the enforcement of the tribunals’ judgments. Because there is no prerequisite to my FCIL research seminar, I have found that, by necessity, it must serve as a crash course in international law and world legal systems in addition to developing the students’ research skills. Having searched for a film that would entertain the students while at the same time illustrating the issues surrounding religious law, customary law, and informal tribunals, I found that Invoking Justice was an excellent choice. Invoking Justice is distributed by Women Make Movies and can be purchased from their website. My study guide for the film is available online through SlideShare.

The Louisiana Civil Code Translation Project: Enhancing Visibility and Promoting the Civil Law In English

by Susan Gualtier

In my role as FCIL librarian at the Louisiana State University Law Center, one of the most interesting aspects of my job has been the work that I’ve done with the Center of Civil Law Studies based at LSU:

The Center of Civil Law Studies (CCLS) was established in 1965 to promote and encourage the scientific study of the civil law system, its history, structure, principles, and actualities. Its purpose or mission is to facilitate a better understanding and further development of the private law of the State of Louisiana and other civil law jurisdictions, particularly those of continental Europe and Latin America, through theoretical and practical activities, such as publications, translations, sponsorship of faculty and student exchanges, visiting scholars, seminars, and lectures. The Center of Civil Law Studies promotes legal education by sponsoring foreign students who wish to avail themselves of the opportunity of studying a mixed legal system and American students who wish to expose themselves to other legal systems. Such programs take advantage of Louisiana’s natural position as an education center for international and comparative legal studies.

On April 10 and 11, I had the privilege of attending a conference organized by the CCLS entitled The Louisiana Civil Code Translation Project: Enhancing Visibility and Promoting the Civil Law in English. The conference, which brought together civil law scholars, translators, and jurilinguists from around the world, shed light on some recent translation projects and forthcoming publications that are sure to be of interest to law librarians, and explored the many issues surrounding the translation of law generally and with specific reference to the translation of civil law into English.

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Professor Olivier Moréteau, Director of the CCLS and holder of the Russell B. Long Eminent Scholars Academic Chair, kicked off the conference with a discussion of the Louisiana Civil Code Translation Project and the history of the Louisiana Civil Code’s various French and English iterations. Once published in both French and English out of deference to Louisiana’s bilingual culture, the Civil Code ceased being published in French after the end of the Civil War. Professor Moréteau explained that Louisiana has had a long history of creating its own unique “language” to express civil law concepts in English, and that the terminology can be quite close to that used in previous French language codes, both in Louisiana and in Europe. Over the past several years, the CCLS has worked on translating the code back into French, focusing on maintaining the unique tone of the Louisiana civil code and on demonstrating to French-speaking legal scholars that a civil code can indeed be written in English and made compatible with the common law while at the same time maintaining the distinct terminology and tone of the civil law tradition.

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Building upon these introductory themes, the conference speakers discussed a range of topics relating to legal translation, legal and linguistic equivalence, historical works of translation in the area of the civil law, and specific translation projects on which they have been working. The Hon. Nicholas Kasirer, of the Cour d’appel du Québec, delivered the annual Tucker Lecture, a keynote address entitled That Montreal Sound: The Influence of French Legal Ideas and the French Language on the Civil Law Expressed in English, during which he shared fascinating examples of the essential “Frenchness” of the English language Québec Civil Code. Agustin Parise, of Maastricht University, spoke on the first Spanish translation of the Louisiana Civil Code, and its influence on the civil codes of Latin America. Professors Alain Levasseur and John Randall Trahan of LSU, and Professor David Gruning of Loyola University in New Orleans, discussed their work on a new translation of the French Civil Code into English for Legifrance, while Michel Séjean of the University of Southern Brittany discussed his English translation of the French Code de commerce, and Serban Vacarelu, also of Maastricht University, mentioned his work in coordinating a forthcoming English translation of the Romanian Civil Code. In nearly all of the talks, emphasis was placed on preserving the tone and terminology of the civil law without falling back on similar-sounding common law terminology, and on the difficulties in reconciling the differences in the drafting traditions of the common law system, whose scholarship exists primarily in English, and of the civil law systems of Europe and Latin America.

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Perhaps the most fascinating portion of the conference, for me, was Professor Levasseur’s presentation of his experience in translating Gérard Cornu’s Vocabulaire juridique into English, with a specific focus on defining and translating those provisions most relevant to the Louisiana Civil Code. Having assisted Professor Levasseur with this project in my capacity as a librarian, I was excited to hear him discuss the final product and the approach that he had taken to the translation. Avoiding a word for word translation that might mislead readers accustomed to working exclusively in English or with common law concepts, Professor Levasseur decided to provide a descriptive explanation of the French term in English before providing suggested English terms (as well as terms to avoid.) In this way, the translation is constructed in a way that forces the reader to understand fully the nuance and meaning of the civil law term before choosing a word to express the concept English. The Vocabulaire juridique translation is now complete and will be available from LexisNexis in July 2014.

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Although a few of the lectures in this conference were admittedly a bit beyond my full understanding (both because they delved into the technical aspects of jurilinguistics, and because about half of them were delivered en Français), it was incredible to witness the group’s excitement and dedication to an area of study that is probably largely unfamiliar to most of us who have trained and are working in the United States legal profession. All of the presentations were recorded, and videos will be available on the CCLS website sometime during the next few weeks. In the meantime, those interested in the civil law tradition, and particularly in how it has developed in the Americas, should keep an eye on the CCLS website for further news about their very interesting work.  The Louisiana Civil Code translation is available on the LSU Law Center’s website, and individual segments are published in the Journal of Civil Law Studies on LSU’s Digital Commons as the translations are completed.  The Preliminary Title, as well as sections on the Law of Obligations and Suretyship and Mandate, are complete and available from both sources.