New FCIL Librarian Series: Supporting the International Team Project Program

By Sarah Reis

This is the second post in a series of posts over the next year about adjusting to my new position as a foreign and international law librarian. I started my position at the Pritzker Legal Research Center at Northwestern Pritzker School of Law in February 2018.

At the start of this academic year, I took over as director of the International Team Project (ITP) program at Northwestern Law. In this program, students spend a semester studying the legal system, culture, and political system of another country and then travel to that country to conduct interviews with in-country contacts. Since the program started in 1999, students have conducted research in more than 40 countries.

During this initial first year of taking over this program, my goal is to provide a research guide and an in-class research presentation for each class. The countries of study differ from year to year and are typically not repeated in consecutive years, which is both a challenge and a great learning experience for a new FCIL librarian because it means that I need to quickly familiarize myself with researching the law of various foreign countries.

ITP courses are student driven: students are responsible for developing the syllabus with the approval of a faculty advisor, leading class discussions, setting up interviews with in-country contacts, and arranging travel. Generally, the law school offers one ITP course in the fall with travel occurring over winter break and four or five ITP courses in the spring with travel occurring over spring break.

Students in the fall ITP course will be traveling to Tanzania in a few weeks. Earlier this semester, I created a research guide on researching Tanzanian law and also visited their class to give a research presentation. This presentation provided the students with a basic introduction to international legal research as well as an overview of how to research the law of Tanzania and keep up with current events in that country. I customized the presentation to include hands-on exercises geared toward their research topics.

I have also been brainstorming methods to support the ITP classes beyond a research guide and in-class presentation. Students in an ITP class form small research groups of 3-4 students who work together on a research topic and write a paper together. I am eager to explore possible opportunities for students to publish these papers (as long as their interviewees give consent). Countries of study are selected in the spring prior to the academic year when the courses will be offered. The countries of study for the ITP courses being offered this academic year were set prior to my taking over this role, but I am looking forward to assisting students and faculty advisors with selecting countries and providing resources to help generate research topic ideas for next academic year’s course offerings.

So far, this role has been a helpful way for me to get to know students outside of the classroom and beyond the reference desk because approximately a hundred students participate in the program each year. I held a few trainings for the student team leaders earlier this year and frequently communicate with them on an ongoing basis about logistics pertaining to travel, curriculum, and finance. The program has also been a great way for me to get to know faculty members who I may not otherwise work with often because our library has a liaison system. Additionally, this role has provided me with the opportunity to work with other law school and university departments, including the Registrar, Office of Financial Aid, Alumni Relations, and the Office of Global Safety & Security.

Students in our five spring ITP classes will be traveling to Morocco, Switzerland, Iceland, South Africa, and Argentina. If other law schools have a similar program to this one or offer comparative law classes that require presentations or trainings by FCIL librarians on researching the law of particular foreign countries, I would love to be able to share materials, ideas, and exercises.

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

By Erin Gow

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

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

Cuba 101: It’s Complicated

By: Julienne E. Grant

I spent the week of May 21 in Cuba. Right now, the U.S. government forbids its citizens to visit Cuba as tourists per se, but we can travel there within the scope of 12 permitted categories. I joined an organized tour that included some fascinating “person-to-person” exchanges, as well as the opportunity to stay for a few nights in a casa particular (private home, like a B & B) in Cienfuegos. Our group also made side trips to Santa Clara, Trinidad, and Hemingway’s house, Finca Vigía.

Before embarking on this adventure, I had spent a great deal of time reading about Cuba, but I truly did not know what to expect on the ground.  I knew that I was in for a wild ride, however, when the power went out twice while waiting for my luggage at the Havana airport.  I learned quickly that Cuba is a complicated place, and it’s a complicated destination to visit. None of the challenges, however, bothered me too much; I just had to make some adjustments, stay alert, and be flexible. Here are some of my initial observations:

The Economy:  There seem to be three economies operating in Cuba. First, there is a thriving black market.  I think you can get about anything you want through it, if you have the right amount of money. Secondly, there is a flourishing tourism economy, as evidenced by the recent influx of high-end retailers like Gucci.  Tourists actually use a different currency (CUCs—pronounced “kooks”) than locals who spend money with the Cuban peso. The government runs much of the tourism industry through a military unit (Gaviota), and interesting that the most affluent Havana neighborhood I saw is purportedly filled with high-ranking military.  The third economy is the actual domestic one that involves everyday Cubans.  This economy is not in great shape, and there is evidence of it everywhere.  Buildings are crumbling, there is both urban and rural poverty, and there are shortages of basic consumer goods, including food.

El Bloqueo:  We repeatedly heard from Cubans that the U.S. Embargo is responsible for their struggling economy, and it is, for a good part. The Embargo has certainly been punishing on the Cuban people, and I think it needs to be lifted.  The Embargo, however, is not the only root of Cuba’s problems.

Transportation:  Riding around Havana in an almendrón (vintage car) is a blast, but the almendrones are primarily for tourists. The transportation infrastructure overall is in terrible condition, as buses are packed and limited in number, and trains apparently haven’t been upgraded much since the 1959 Revolution. We actually saw a lot of people hitchhiking and simply standing on roadsides with money clutched in their hands as an offer for a ride.  There is definitely a kind of makeshift ride-sharing system in place, but again, you have to have money to use it.  Just as an aside, our tour bus was exceptionally nice.

Political Imagery:  I knew that Fidel Castro shunned statues of himself, and I didn’t see any of him, although his image is certainly not absent from the landscape. I didn’t see any images of Raúl, but I did see some of Hugo Chávez, including an almost life-size painting at the iconic Hotel Nacional.  (That hotel, incidentally, which is full of tourists and sometimes fab celebs, is owned and operated by the Cuban government.)

The legacy and image of Che Guevara actually seems to be ingrained most solidly in the Cuban psyche.  Images of Che are everywhere—on walls, clothes, jewelry, and in stone.  We went to Che’s mausoleum in Santa Clara, which was impressive in terms of size and aesthetics.

Other popular images in Cuba are those of José Martí and Camilo Cienfuegos.  Cienfuegos was a revolutionary in Fidel’s inner circle who presumably died when a flight he was on disappeared in October 1959.  Both Che and Camilo died young during the early years of the Revolution (before things got really bad economically during the “Special Period” in the 1990s); this may explain at least part of their continued appeal.

Education:  Universal healthcare and education are probably the Revolution’s greatest achievements.  Education is compulsory through the 9^th grade, and books and uniforms are all provided by the government.  Parents take the education requirement very seriously, and they get their kids to school.  Revolutionary principles are emphasized, but schools now focus on English-language training, instead of Russian. According to UNESCO, Cuba has a literacy rate of almost 100 percent, and it showed.

As far as higher ed, there seems to be an unfortunate phenomenon occurring in terms of financial compensation for professionals with degrees.  In general, Cubans can seemingly make more money in the tourism industry—as guides, innkeepers, restauranteurs, and taxi drivers, so there is not much of a financial incentive to attend university, even though it’s free.  Our Cuban tour guide had an engineering degree, and so did the señora running my casa particular.

 

The Arts:  Explosive and powerful.  These are the best words to describe the arts in Cuba.  Music is everywhere—in the streets, restaurants, clubs, and bars—covering all genres.  I was completely enamoured with the music and purchased a number of CDs.  The dancing was also fabulous—athletic, creative, and edgy.  We saw a modern dance troupe’s rehearsal and talked to the performers afterwards, as well as their Swiss manager (yes, un suizo). These young people are top-notch artists, akin to those in the Alvin Ailey American Dance Theater here.  The visual arts are also stunning, and there are lots of wonderful galleries—particularly in Old Havana and Trinidad—as well as the impressive Museo Nacional de Bellas Artes.  It is remarkable to me how terrific these artists are, given some very challenging conditions, including run-down equipment and practice space, limited or no A/C, and a lack of access to art supplies.

 

Rum:  Lots of it, Havana Club.  It was good, and so were the mojitos.  For an interesting overview of the legal battles over the Havana Club brand name, see “The Rum War” (60 Minutes, Jan. 1, 2017).

 

El Béisbol:   Baseball is HUGE in Cuba, and there are stadiums everywhere. Apparently some MLB games are now being shown on Cuban TV, although days after their actual completion, and without the participation of Cuban players who defected.  Videos of MLB games are available, however, loaded on various media and sold undergroud.  Telling Cubans I was a Chicagoan, and a fan of Los Cachorros (Cubs), resulted in a lot of smiles and nods.

Wi-Fi:  Wi-Fi is provided by the state-run telecommunications provider, ETESCA.  We had it available in the Hotel Nacional, but otherwise had to locate Wi-Fi “hotspots.”  It costs about $2 U.S. an hour to use Wi-Fi at these places (note that the average Cuban earns the equivalent of about $20-$30 U.S. per month).   University students are granted a monthly allotment of Wi-Fi megabytes, but access is highly restricted in terms of content.  (For an interesting read on how the student access works, plus some student commentary, see “Facebook ‘a la Cubana,’ la alternativa de los universitarios” (CUBANET, June 6, 2017)). Wi-Fi is supposedly now available in some private residences, but overall the island is not cyber friendly.

Pánfilo:  Almost everyone in Cuba is familiar with comedian Luís Silva and his popular Pánfilo character portrayed on the weekly TV program, Vivir del Cuento (roughly, Live by your Wits).   Pánfilo is a retired man who valiantly and humorously faces the challenges of daily life in Cuba, ranging from product shortages to the confusion of the infamous ration books. (Cubans are each provided with a small ration of food staples each month.) Before President Obama visited Cuba last year, he and Silva as Pánfilo taped a mock phone conversation between the two that was hilarious.  The President also made a cameo appearance on Vivir del Cuento that was a big hit with Cubans. In any event, the quirky Pánfilo provides an outlet for Cubans to vent about their daily frustrations with the regime through humor, and frankly I was surprised to see this type of programming on state-run TV.

Conclusion:  The Revolution is still very much alive, but seems to be fading into the past.  Raúl Castro turned 86 on June 3, and I think he and his inner circle are out of touch with what’s happening on the street. Cubans (or perhaps Cuban-Americans) on our Havana-Miami flight applauded when we took off (and again when we landed), and apparently this rather blatant display of dissatisfaction is not uncommon on the Havana-Miami routes. My overall impression, however, is that Cubans themselves are worn down, but are remarkably resilient, and are still incredibly proud of being Cuban.  Time will certainly tell.  Perhaps the long-term legacy of the Cuban Revolution will be its achievements in education and healthcare, but whether there will be a musical called “Castro” down the road is questionable…How does the son of an immigrant Spaniard born on a Caribbean island grow up to spark a revolution?….“The world’s gonna know your name.  What’s your name, man?.” (Where is Lin-Manuel Miranda when you need him?).

 

#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: Law Reporting in England 1550-1650

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: Guy Goodwin-Gill on Refugee Law

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

By: 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.

 

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.