#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.

 

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

By: Charles Bjork

Session Six of IALL’s 35^rd 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.

A Snapshot of Indonesian Law (and Indonesia) & the FCIL-SIS Throws a Party

By Julienne Grant

Dr. Rheny Pulungan, recipient of the 2016 FCIL-SIS Schaffer Grant, gave a fascinating presentation on July 18 entitled “The Legal Landscape in Indonesia:  Limitations and Possibilities.”  This was actually Dr. Pulungan’s first time in the United States, and she admitted to being a little overwhelmed.  She was headed to NYC after her Chicago visit.

Dr Pulungan began her presentation with a quiz for audience members, “Fun Facts About Indonesia,” which tested us on our basic knowledge of the country, such as the number of islands (around 18,000);  population (about 250 million); and official religions (Islam, Hinduism, Buddhism, Protestantism, Catholicism, and Confucianism). Needless to say, the attendees were a bit stumped and surprised at the answers. The speaker also showed a slide of Indonesia embedded on a map of the United States, and many of us were astonished to see what a large geographic area the country spans.

Indonesia’s legal system is complex, with civil law attributes resulting from the archipelago’s time under Dutch rule.  One region, Aceh, applies Shariah law. Since 1945, Dr. Pulungan explained, Indonesia has been creating its own laws. Starting in the 1970s, efforts began to create a national legal information center that would make Indonesian laws more accessible, and beginning in 2004, laws and court opinions have been regularly posted on Indonesian government websites.

The speaker next turned to Indonesia’s judicial system. At the trial level are 250 district courts, appellate level high courts number 30, and the Indonesian Supreme Court is a court of cassation. There are also specialized courts, including religious courts and military courts, as well as a constitutional court.  The Supreme Court has a website where its decisions are posted, although none are translated into English. Dr. Pulungan described the search functionality of the site as being mediocre and indicated that the Supreme Court does publish a small number of its decisions in print.  In 2012, as part of USAID’s Changes for Justice Project, an electronic case tracking system (SIPP) was established that was designed to promote judicial transparency.  According to the speaker, it is possible to search by case number or party name to locate information.  Dr. Pulungan also noted that court decisions at all levels must be uploaded within three days of rendering.

Decisions of the Constitutional Court (established in 2001) are translated into English and available on the Court’s website.  The Constitutional Court is not an appellate court and its authority is vested in the third amendment to Indonesia’s Constitution.  The Court’s database can be searched by multiple variables, including case number, case name, applicant names, and keywords.  The Constitutional Court’s role is “The Guardian of the Constitution.”

According to Dr. Pulungan, Indonesian legislation is relatively easy to find online, but locating official English translations can be difficult. There are several databases of note that contain Indonesian legislation: the State Secretariat Database (updated daily); Lexadin; some UN agency websites (such as UNODC); and Hukum.  Hukum is the only commercial database available for Indonesian law in both English and Indonesian.

The speaker next turned to secondary sources.  She recommended Cornell University’s “Southeast Asia Program” website and a quarterly publication called Inside Indonesia. She also mentioned the English-language law journal, Indonesia Law Review , which is open access, and the Australian Journal of Asian Law that is hosted on SSRN. The Jakarta Post covers legal news and developments, and Dr. Pulungan also noted the “Indonesia at Melbourne” blog and the website of the University of Melbourne’s Centre for Indonesian Law, Islam and Society.

The speaker closed her talk by emphasizing that translating Indonesian legal materials into English is inherently difficult.  She provided an example of a phrase in Indonesian translated into English by Google Translate as “hiking education,” while a UNESCO document translated it as “educational streaming.” She advised attendees to search for more than one English translation. Dr. Pulungan has created a LibGuide on Indonesian law and told audience members that she was available via email for assistance.

A question from the audience was raised about religious courts, which she explained are unique and preside over family law matters. As an aside, the speaker mentioned that Indonesian couples who marry must be of the same faith; Dr. Pulungan’s husband is Australian, and he had to convert to Islam for a day in order for the marriage to be legal in Indonesia.  Another attendee asked whether any Indonesian court decisions are precedential. There is no precedent, she said, but Supreme Court decisions include practice notes that can influence lower courts.

After Dr. Pulungan’s excellent talk,[1] audience members headed to the FCIL-SIS reception for foreign visitors.  The reception was well attended, and I enjoyed chatting with FCIL colleagues there. Keith Ann Stiverson, 2015-2016 AALL President, welcomed the guests and announced the numbers of foreign attendees:  27 from Canada, 17 from the UK, 2 from Australia, 1 from Hong Kong, 1 from Ireland, 2 from South Korea, and 1 from Switzerland.  Ms. Stiverson’s remarks were followed by a few words from IALL President Jeroen Vervliet (Peace Palace Library). Mr. Vervliet related his adventures in Hyde Park at the University of Chicago’s Oriental Institute and Frank Lloyd Wright’s Robie House. He also announced that the International Journal of Legal Information has a new publisher (Cambridge) and a new look. Mr. Vervliet presented a copy of the new issue to editor Mark Engsberg (Emory U) who had not yet seen it. Overall, it was a great party, although I admit I could have used a few more coconut shrimp.

 

[1] I will also add that Dr. Pulungan made a fashion statement with her dress constructed with fabric covered with images of books. Loved it.

 

07/17/2016 Summary and a Word about DuSable

By Julienne Grant

I was walking home from the Hyatt after the conference ended and an AALL member stopped me on Michigan Ave. to tell me how much she loved Chicago. That made my day.  I sent colleagues all over the city during the conference—to the Chicago History Museum, Wicker Park, Old Town, the CAF boat tour dock, the West Loop, and to Eataly (they owe me a huge cut). Throughout all of this, I was supposed to be writing up reports of various programs/meetings, and I got a little behind.  The following are short summaries of several events from Sunday, July 17:

Latino Caucus:  My DePaul law school classmate, Matt Katz, gave a compelling and provocative presentation that focused on the precarious and truly abominable state of immigration law in this country, providing specific case examples from his firm (Katz Law).  Mateo also berated the increasing trend of prison privatization in the U.S., mentioning a 2013 article in The Guardian, “America’s Private Prison System is a National Disgrace.” To drive his points home, Matt drew upon a wide range of authors, including French philosopher Michel Foucault.  Matt distributed copies of a piece he recently penned, “Como Indocumentado, Que Debo Saber y Hacer en la Era del Trump y la Negación de DAPA por La Corte Suprema?” (As an undocumented immigrant, what should I know and do in the era of Trump and the Supreme Court’s rejection of DAPA?).

After Mateo’s talk, the Latino Caucus began its business meeting, led by Chair Marisol Florén-Romero (Florida International U). The Caucus discussed a number of proposed projects, including one called “Latino Voices.” The goal of this initiative would be to compile information on selected members of the Hispanic legal community, including law librarians.  These personal profiles would be featured on the Caucus’ web page.

Matt Katz

Asian Legal Information in English: Availability, Accessibility, and Quality Control:   This was a very interesting and useful program; kudos to all the presenters who covered China (Alex Zhang, U of Michigan), Hong Kong/Macao (Anne Mostad-Jensen, U of North Dakota), South Korea (Juice Lee, Northeastern), and Japan (Mike McArthur, U of Michigan). The presenters did an excellent job of explaining the complexities involved in translating the law from these jurisdictions and the inherent pitfalls of English-language translations. Free websites and commercial databases were presented, and in some instances demoed live.  Juice Lee’s PowerPoint slides are posted on AALL’s website.

Foreign Law Selectors Interest Group:  The meeting drew about 30 attendees, and was led by Marci Hoffman (UC Berkeley).  Schaffer Grant recipient Rheny Pulungan of the University of Melbourne’s Law School Library offered a brief overview of her library’s print and electronic resources, which she described in more detail during her presentation on Monday, July 18 (summary forthcoming). Representatives from the Law Library of Congress, Yale, Harvard, NEFLLCG, and LLMC Digital provided updates. The LA Law Library was not represented, as Neel Agrawal has left his position there. Marci also brought the group up to date on recent developments related to the Foreign Law Guide (FLG) and Index to Foreign Legal Periodicals (IFLP). Regarding the former, there are newly-updated entries for Azerbaijan, China, France, Japan, and Mexico.  Updates for Germany, South Korea, and Switzerland have been completed and will be loaded soon; revisions for Argentina, Chile, Italy, and Spain are in the works. She also indicated that the IFLP will soon have a multilingual subject thesaurus and that the database will be adding 10 new Japanese journals.  Marci will post the full minutes of the meeting on the Foreign Law Selectors Interest Group web page.

 

Rheny Pulangan

 

Before closing, I want to say just a bit about the convention center’s DuSable room, which apparently piqued the interest of a few FCIL-SIS members. I’m quite sure the room is named for Jean Baptiste Point DuSable who is known as the founder of Chicago. DuSable was purportedly a Haitian of African and French descent who established the first permanent settlement here in the 1780s. Next time you’re in town, check out the DuSable Museum of African American History in Chicago’s Hyde Park neighborhood.

 

 

 

Recap: Asian Legal Information in English: Availability, Accessibility, and Quality Control

By Amy Flick

Because I frequently need to help students find primary authority of other countries, yet have no hope of finding materials published in Chinese, Korean, or Japanese, I was pleased to see a program on Asian Legal Information in English in the AALL Annual Meeting program. I was even more pleased to find the program interesting, useful, and supplemented with handouts.

Alex Zhang was the coordinator, moderator, and introductory speaker. She started by stressing the importance of good, reliable translations, but noted that even “official” translations by government entities are still for informational purposes only. In presenting the portion of the program on finding primary law of China, she included:

• The official site NPC (National People’s Congress) Database of Laws and Regulations. The search box is unreliable, so Alex recommended browsing by category, requiring some knowledge of the structure of Chinese law to find the appropriate category. She cautioned that the laws retrieved may not include the dates of coverage, making it unclear for the user if they have the most current version.
• State Council Laws & Regulations
• Commercial sources including Lawinfochina, Westlaw China, and Lexis China, all comparable, and expensive, but Alex is most familiar with Lawinfochina. She recommends it for comprehensive coverage and inclusion of the most recent laws, and for a citator link to amendments to laws.
• Although case law is not considered primary authority in China, a Stanford Law School project is translating Chinese Guiding Cases.

Alex wrapped up by noting that good translation is hard: “the question in legal translation isn’t which one is right, but which one is less wrong.” She suggests comparing and contrasting multiple translations and asking experts for help.

 

Anne Mostad-Jensen presented on law of Hong Kong and Macau. For these jurisdictions, she stressed that it is particularly important to understand their histories. Because of Hong Kong’s history as a British colony, it has a hybrid system of common and civil law, and English is one of its official languages for legal publication. Sources for Hong Kong legal information in English include:

• The Hong Kong Basic Law, which is equivalent to a constitution.
• The Hong Kong Special Administrative Region Gazette
• The Hong Kong Judiciary website
• The Department of Justice Bilingual Laws Information System, which has legislation and ordinances, a subject index to ordinances, and an English-Chinese glossary of legal terms.

Macao as a former Portuguese colony has a civil law system. English translation is available for only select legislation and some indexes, not for caselaw, and the translations are not official. Sources include:

• The Basic Law of the Macao Special Administrative Region
• The Macao Government Printing Bureau has some legislation and codes translated into English.
• The WTO’s requirements that legislation related to trade and intellectual property be made available in its official languages, including English, make the WTO website a good source for finding English translations for laws of most countries.

 

Jootaek “Juice” Lee demonstrated resources on law of the Republic of Korea in English. Although South Korea has a civil law system, it has been influenced by U.S. common law. English translations are not official, but English is widely used, and there are English language versions of most government websites. However, terminology can be an issue because of differences in civil and common law. Most primary sources are available in English, and government publishers try to provide accurate translations. Juice warned that Korean law changes rapidly, and English translations may not keep up. There are also issues with understanding the differences between public, private, and social law. He recommended sources including:

• The Korea Legislation Research Institute. There are search options including government body and an alphabetical list, and a legal terms glossary for finding official Korean terms for searching.
• The Ministry of Government Legislation, which Juice recommends searching by words in the title.
• The National Law Information Center. Because of the problem of lag time for translations, Juice suggested searching by title words (in English) in the Korean language version to find the most recent version of legislation.
• The Supreme Court of Korea and the Constitutional Court have some decisions translated into English.
• There are good research guides for finding South Korean law in English, including the Foreign Law Guide database, the Library of Congress’ Guide to Law Online, and Juice’s own guide on GlobaLex.

 

Mike McArthur had the final presentation in the program on finding Japanese law in English. Japanese efforts to be more international led to a 2004 Japanese law requiring translation of Japanese laws. Laws are first made available in tentative translation before an “official” version is available. Of course, translations are still unofficial. Mike warned that the Japanese calendar has a different date system, so he provided a “cheat sheet” for Japanese dates.  Sources for Japanese law in English include:

• The Ministry of Justice’s Japanese Law Translation The database of laws and regulations is searchable with multiple options (title, number, category), and it has a dictionary for finding Japanese legal terms.
• The Supreme Court of Japan. Although Japan has a civil law system, Supreme Court decisions are relevant, and some are translated into English.
• An additional resource for Japanese legal research is ministry reports and white papers, which are translated into English, and which include detailed statistics.

Mike reminded the audience, as did the other speakers, that a legal researcher working with foreign languages and translations can get in over their head quickly, and that they should reach out to a specialist for help.

 

All of the presentations in the program were outstanding, and I appreciate the hard work by the speakers in putting them together!

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

By Loren Turner

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

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

Forthcoming: “Guide to Legal Research in Cuba,” By the Latin American Law Interest Group

The Latin American Law Interest Group is excited to announce its forthcoming publication, “Guide to Legal Research in Cuba” (edited by Julienne Grant, Sergio Stone, and Marisol Florén-Romero.)

The purpose of the Guide is to provide a snapshot of Cuban law and legal research as they exist in the political fluidity of the moment.  Historical context will also be included. Research for the project in general has been painstakingly difficult. Both Spanish and English-language resources will be covered.

Twelve authors have contributed to the project, which is currently in the editorial phase.  The IG expects to complete the guide by September 1, after which it will be submitted to a journal or published in open access.

Want to learn more? The Latin American Law Interest Group will give a brief presentation on the development of the research guide at the FCIL-SIS Jurisdictions IG Joint Meeting, to be held on Sunday, July 17, 2016, 12:30 PM – 2:00 PM, in the Hyatt-Water Tower Room. Presentation by Steven Alexandre da Costa (Boston University School of Law) and Juice Lee (Northeastern University School of Law.

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

By Marylin Raisch

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

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

 

FCIL-SIS Related Programming in Chicago, 2016

SATURDAY July 16, 2016

9:30 AM – 5:00 PM

Two Sides to the United Nations: Working with Public and Private International Law at the U.N. (IIT Chicago-Kent College of Law)

Coordinated by Thomas Mills, et al. and co-sponsored by the International Legal Research Interest Group (ILRIG) of ASIL and the FCIL-SIS. Two specialists, Susan Goard of the UN and Vikki Rogers, Director of the Institute for Int’l Commercial Law at Pace, will engage the audience in an intense full day workshop addressing the major functions of the UN, documentation of the main bodies and specialized agencies, the CISG and its application in international trade, and available UN related research platforms.

SUNDAY July 17, 2016

12:30 PM – 2:00 PM

FCIL-SIS Jurisdictions IG Joint Meeting (Africa, Asia, Latin America, Europe, Indigenous Peoples, Customary & Religious Law, Roman Law) (Hyatt-Water Tower)

Meeting Topics:

• Welcome and Intro (Susan Gualtier, Louisiana State University School of Law Library) – 5 minutes
• European Law: Recent Developments in German Law Related to Asylum and Refugees: A Brief Overview for Law Librarians (Jennifer Alison, Harvard Law School Library) – 20 minutes
• Latin America: Cuban Legal Research Guide (Julienne Grant, Loyola University Chicago Law Library, et al.) – 10 minutes
• Africa: Updates of the Digitization Case Law Project from South Western Nigeria (Yemisi Dina, Osgood Hall Law School Library) – 20 minutes
• Indigenous Peoples: Indigenous Peoples and DNA Testing: Friend or Foe? (Steven Perkins, Greenberg Traurig, LLP) – 20 minutes
• Individual Interest Groups business meetings – 15 minutes

4:00 PM – 5:00 PM

Asian Legal Information in English: Availability, Accessibility, and Quality Control (Hyatt-Columbus EF)

Coordinated by Alex Zhang, participants will learn about resources, tools, and tips for finding existing official ENG translations of primary legal materials in major Asian jurisdictions, the speakers will address the pros and cons of ENG translations and how to discern when ENG translation is not readily available.

5:15 PM – 6:00 PM

FCIL-SIS Foreign Law Selectors IG (Hyatt-Comiskey)

Coordinated by Marci Hoffman.

6:00 PM – 6:45 PM

FCIL-SIS Standing Committees Joint Meeting (Publicity Committee, Internships & Exchanges Committee, and Electronic Research IG) (Hyatt-Field)

Meeting Topics:

• Welcome and Introduction (Loren Turner) – 5 minutes
• ERIG: ICRC Customary International Humanitarian Law Database (CIHL database) (Mr. Ismael Raboud, ICRC) – 15 minutes
• ERIG: LOC Indigenous Law Portal (Steve Perkins, Library of Congress) – 15 minutes
• Individual Standing Committees business meetings – 10 minutes

7:00 PM – who knows?

AALL Annual Meeting FCIL-SIS Reading Group (place TBD – stay in touch with Dan Wade at Daniel.wade@yale.edu)

Coordinated and lead by Dan Wade, the group will discuss East West Street: On the Origin of Genocide and “Crimes Against Humanity”

MONDAY July 18, 2016

7:30 AM – 8:30 AM

FCIL-SIS Business Meeting and Breakfast (Sponsored by Bloomberg Law, LexisNexis, Thomson Reuters, and Wolters Kluwer) (Hyatt Wrigley)

3:30 PM – 4:15 PM

FCIL-SIS Teaching Foreign & International Legal Research IG (Hyatt-Michigan B)

Coordinated by Catherine Deane, this meeting will present three substantive presentations:

• Marilyn Raisch (Georgetown University Law Center) will share her experience creating short videos to search databases using Jing
• Alexis Fetzer (Richmond School of Law) will share her experience as a “non”-FCIL librarian proposing an FCIL research course
• Nina E. Scholtz (Cornell Law School) will share her thoughts on teaching an experiential research course for international LLM students.

4:30 PM – 5:30 PM

FCIL-SIS Schaffer Grant for Foreign Law Librarian Recipient’s Presentation – Rhenny Pulungan of Indonesia, currently at U. of Melbourne’s Law School Library will deliver a talk entitled The Legal Research Landscape in Indonesia: Limitations and Possibilities (Hyatt-Columbus GH)

5:45 PM – 6:45 PM

International Attendees Joint Reception (AALL/FCIL/IALL) (Hyatt-Crystal Ballroom C)

TUESDAY July 19, 2016

7:30 AM – 8:15 AM

FCIL-SIS Education Committee and 2017 Summit Task Force Joint Meeting (Hyatt-Skyway 265)

8:30 AM – 9:30 AM

Roman Law, Roman Order, and Restatements (Hyatt-Columbus EF)

Coordinated by Marylin J. Raisch, participants will learn about digitization of historical documentation, assess the role of Roman Law and codification’s impact on American legal taxonomies, explore the influence of Roman Law on Restatements.

9:45 AM – 10:45 AM

Poster #24: Are Self-Paced Pre-Recorded Modules Better than Live Instruction for Teaching Basic Legal research Concepts? (Exhibit Hall)

Created by Lucie Olejnikova and Jane Bahnson, this poster session will be on display starting Sunday, July 17, 2016 through Tuesday, July 19, 2016. During the scheduled TUE session, presenters will be available to answer questions. This poster features a study carried out in Duke’s LLM Legal Research and Writing Course intended to measure students’ information retention when subject material was delivered in traditional live in-class lecture as compared to when the same material is delivered via self-paced pre-recorded online module.

11:00 AM – 12:00 PM

Vanishing Online? Legal and Policy Implications for Libraries of the EU’s “Right to be Forgotten” (Hyatt-Columbus KL)

Coordinated by Michael G. Bernier, the attendees will be brought up to date on the status of data protection laws and their allocation outside the EU, understand the obligations under the “right to be forgotten” principle for libraries making personal info public, and consider the line between protection personal privacy against the public’s right to access data.

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

By Ning Han

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

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

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