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The Skills They Need: International and Foreign Legal Research

2009; Taylor & Francis; Volume: 28; Issue: 1 Linguagem: Inglês

10.1080/02703190902961510

1540-949X

Mary Rumsey,

Discrimination and Equality Law

Abstract Law schools should offer classes in international and foreign legal research (IFLR) because the increasing globalization of law practice requires new skills of lawyers. Moreover, internationalized law school programs and curricula, including human rights clinics, exchange programs, and transnational law courses, require complementary research skills. Currently, few schools offer a stand-alone IFLR class. This article describes an ideal IFLR class, which would cover public and private international law, foreign law, and selected topics, and provide students with basic IFLR skills. The author notes that librarians are best suited to teach such a class because of their extensive knowledge of IFLR resources and usage. KEYWORDS: legal educationlaw librarianshipforeign legal researchinternational legal research I would like to dedicate this article to Marci Hoffman for her endless generosity in sharing her expertise with me and with many others. Notes 1. William D. Henderson, The Globalization of the Legal Profession, 14 Ind. J. Global Leg. Stud. 1, 2 (2007). 2. Convention on the Law Applicable to International Sale of Goods (signed 15 June 1955), 510 U.N.T.S. 147. 3. Convention on the Law Applicable to Contracts for the International Sale of Goods (signed 22 Dec. 1986), 24 I.L.M. 1575. 4. Harold Hongju Koh, Is There a 'New' New Haven School of International Law? 32 Yale J. Intl. L. 559, 568 n. 57 (2007). 5. Hague Convention on the Civil Aspects of International Child Abduction (signed 25 Oct. 1980), 1343 U.N.T.S. 89; Hague Convention on the International Recovery of Child Support and Other Forms of Family Support (signed 23 Nov. 2007), U.N.T.S., http://www.hcch.net/index_en.php?act=conventions.pdf&cid=131 (visited 14 May 2009); see also Barbara Handschu & Mary Kay Kisthardt, Family Law, International Disputes, Natl. L.J. 13, 13 (9 June 2008). 6. Christian Tietje, The WTO Sanctions Regime and International Constitutional Political Economy, 2008 U. Ill. L. Rev. 383, 386 (2008); Frank J. Garcia, Building a Just Trade Order for a New Millennium, 33 Geo. Wash. Intl. L. Rev. 1015, 1049 (2001) ("Trade law and trade institutions are impacting more and more areas of traditional domestic concern, such as environmental protection, labor, and employment standards, and cultural identity.") (footnotes omitted). 7. John Flynn Rooney, E-Discovery, Globalization Top List of Tests, Chi. Daily L. Bull., 1 (17 Dec. 2007) (stating that since 2000, "the 250 largest U.S.-based law firms have increased their attorney rosters in Europe by sixty percent and in Latin America by forty-two percent.") 8. Georgina Stanley, The British Are (Still) Coming, 10 Law Firm Inc. 14 (2007), available at Westlaw, Legal News, ALM New. Some British firms, such as Linklater's, have New York offices. Josh Berick & Jennifer Katz-Hickman, How to Offer Law Students the World: Entry-Level Recruiting Poses Unique Opportunities and Challenges for Global Law Firms, Fulton Co. Daily Rep., S9 (2 June 2008). 9. E-mail from Karen L. Tarrant, partner, Tarrant, Drummer & Liska, to Mary Rumsey (4 Sept. 2008, 4:08 p.m. CST) (copy on file with author). 10. E-mail from Erik W. Ibele, attorney, Neider & Boucher, to Mary Rumsey (19 Sept. 2008, 1:36 p.m. CST) (copy on file with author). 11. Judith W. Wegner, The Curriculum: Patterns and Possibilities, 51 J. Leg. Educ. 431, 433 (2001). 12. Janet Koven Levit, Sanchez-Llamas v. Oregon: The Glass Is Half Full, 11 Lewis & Clark L. Rev. 29, 35–36 (2007); Washington & Lee Becomes Eighth Law School to Require International or 'Transnational' Law, Am. Soc'y. Int'l. L. News 7, 7 (April/June, 2008). 13. Luke Bierman, The Administration of Justice a Century after Roscoe Pound: Future Directions and Emerging Trends, 48 S. Tex. L. Rev. 1051, 1061 (2007) (stating that Harvard's revision of its mandatory curriculum reflects impact of globalization). 14. Anita Bernstein, On Nourishing the Curriculum with a Transnational Law Lagniappe, 56 J. Leg. Educ. 578, 578–579 (2006) ("Admissions officers in law schools have told me that 'international law' is consistently one of the top two curricular interests that prospective students check off on survey forms …"). 15. Joan Mahoney, The Future of Legal Education, 33 U. Toledo L. Rev. 113, 116 (2001) ("The number of summer study abroad programs has increased exponentially, as have semester abroad and foreign exchange programs."); Julie M. Spanbauer, Lost in Translation in the Law School Classroom: Assessing Required Coursework in LL.M. Programs for International Students, 35 Intl. J. Leg. Info. 396 (2007) (stating that "[a]s of 2007, 114 law schools admitted foreign students to a total of 179 LL.M. programs.") 16. Teresa C. Stanton, Foreign and International Law Librarians—One and All, 16 Austrl. L. Lib. 124, 125 (2008) (stating that in October 2008, Georgetown will open the Center for Transnational Legal Studies in London); Richard Lloyd, Letter from London, World Class Georgetown University Law Center Unveils Its Take on Global Expansion, Am. Law. 77 (April 2008) (stating that Yale is considering similar ventures). 17. E.g. Northwestern Law School, Executive LL.M. in Seoul, available at http://www.law.northwestern.edu/graduate/llmkorea (last accessed 3 Dec. 2008). 18. Scott L. Cummings, The Internationalization of Public Interest Law, 57 Duke L.J. 891, 911 (2008) (noting the emergence of asylum-oriented law school clinical programs); Oona A. Hathaway, The Continuing Influence of the New Haven School, 32 Yale J. Intl. L. 553, 558 (2007) (stating that "[l]aw school clinics focusing on issues of international law have proliferated during the last several decades.") 19. Deena R. Hurwitz, Lawyering for Justice and the Inevitability of International Human Rights Clinics, 28 Yale J. Intl. L. 505, 527 (2003). 20. Martha F. Davis, Essay, The Pendulum Swings Back: Poverty Law in the Old and New Curriculum, 34 Fordham Urb. L.J. 1391, 1407 (2007). 21. For example, the Conservation Clinic at the University of Florida Levin College of Law advises international and nongovernmental organizations on international and foreign conservation projects. Jon Mills & Timothy McLendon, Law Schools as Agents of Change and Justice Reform in the Americas, 20 Fla. J. Intl. L. 5, 18 (2008). 22. Carole Silver, Studying Singapore: Internationalizing the U.S. Law School Curriculum, 51 J. Leg. Educ. 75, 77–78 (2001). 23. A more recent count of foreign/international law journals from John Doyle's Web site at Washington & Lee University School of Law puts the total at 112. Washington & Lee University School of Law, Law Journals: Submissions and Ranking, available at http://lawlib.wlu.edu/LJ/index.aspx (last accessed 5 Jan. 2009). 24. Donna E. Arzt, From Soviets to Saddam: Introduction to the Thirtieth Anniversary Symposium, 30 Syracuse J. Intl. L. & Com. 181, 185 (2003) (footnote omitted). 25. Catherine Valcke, Global Law Teaching, 54 J. Leg. Educ. 160, 160 (2004). 26. Lee Peoples, Strategies and Sources for International Legal Research, 60 Consumer Fin. L.Q. Rep. 412, 413 (2006) ("Some research tools familiar to the U.S. law researcher are missing in FCIL research. There is no huge database of every treaty or decision of international tribunals that may be quickly searched on LexisNexis or Westlaw. There are some digests in FCIL research but no West key number system organizing the entire corpus of FCIL into a massive subject outline. Shepard's is another research tool that is not always found in FCIL research. Jurisdictions that share the common law tradition of stare decisis will usually have some tool for verifying the status of case law and other sources of legal authority. In the United Kingdom, the equivalent of Shepard's is called the Noter Up. Most civil law jurisdictions do not formally recognize the concept of stare decisis and have no Shepard's citator equivalent. There is also no Shepard's citator equivalent for verifying and updating the decisions of international courts and tribunals.") 27. Thomas Keefe, Teaching Legal Research from the Inside Out, 97 L. Lib. J. 117, 118 (2005). 28. See e.g. Peoples, supra note 26; Mary Whisner, Practicing Reference, Researching Outside the Box, 95 L. Lib. J. 467, 470–471 (2003) (noting absence of Westlaw and LexisNexis databases for researching customary international law); Lyonette Louis-Jacques, Essay, Gaps in International Legal Literature, 1 Chi. J. Intl. L. 101, 104 (2000) (noting lack of foreign law databases on Westlaw and LexisNexis). 29. Peoples, supra n. 26 (footnote omitted). 30. Customary international law is "international law that derives from the practice of states and is accepted by them as legally binding." Black's Law Dictionary 835 (Bryan A. Garner ed., 8th ed., West 2004). 31. Most court decisions in civil law countries do not constitute primary law, because precedent does not have controlling effect in these systems (with certain exceptions). See John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 47 (3d ed. Stanford University Press 2007) (noting the lack of a formal rule of stare decisis in civil law systems, while recognizing the influence of previous decisions on courts); Ken Gormley, Judicial Review in the Americas: Comments on the United States and Mexico, 45 Duq. L. Rev. 393, 403 (2007) (stating that in "civil law countries, judicial precedent is not the driving force of the legal system.") 32. Liana Fiol Matta, Common Law and Civil Law in the Legal Method of Puerto Rico: The Transmission of Legal Discourse, 64 Rev. Juridica U. Inter. P.R. 501, 523 n.69 (1995) (reporting that a survey of Puerto Rican law professors revealed "substantial agreement [eighty-seven percent] on the proposition that civilian research sources are not as easy to use as Anglo-American sources.") 33. Survey conducted on the electronic discussion lists "law-lib" (open to any law librarians) and "fcil-sis" (the Foreign, Comparative & International Law Special Interest Section of the American Association of Law Libraries) during April 2008 (results on file with author). 34. Some of my statements about FCIL research instruction are based on yearly attendance at the FCIL Special Interest Section's Teaching Foreign & International Legal Research group meetings during the AALL's annual meetings. I have attended each yearly session for the past several years and am grateful for the information provided by other attendees. 35. Several of the respondents to the survey cited in supra n. 33 stated that their schools were just starting to offer a stand-alone class. 36. Stacey L. Gordon, Specialized Legal Research: My Experience in Developing Courses, Leg. Info. Alert 1, 4 (April 2007) (noting increase in specialized research courses and stating that IFLR courses are the most common). 37. Very few U.S. law schools require students to take advanced U.S. legal research. In Ann Hemmens' careful survey of law schools, she found only four that required ALR. Ann Hemmens, Advanced Legal Research Courses: A Survey of ABA-Accredited Law Schools, 94 L. Lib. J. 209, 226 (2004). 38. If the instructor is able and willing to provide extra help for such students, even the lack of first-year legal research training should be no barrier. As with most prerequisites, an instructor can choose to waive that requirement, and LL.M. students bring useful experience and education to the class. 39. See e.g. syllabi for FCIL research courses collected at the Web site of the Foreign, Comparative & International Law Special Interest Section of the AALL, available at http://www.aallnet.org/sis/fcilsis/syllabinewsite.html. 40. U.S. Department of State, Judicial Assistance: Country-Specific Information, available at http://travel.state.gov/law/info/judicial/judicial_2510.html. 41. For example, I always offer to teach international environmental research, and every year, to my chagrin, students express little interest. I then remove it from the syllabus. At a school with a stronger focus on environmental law, student preferences would probably differ. 42. Globalex, available at http://www.nyulawglobal.org/globalex/index.html. 43. Comparative and Foreign Law, available at http://www.llrx.com/comparative_and_foreign_law.html; International Law guides, available at http://www.llrx.com/international_law.html. 44. UNCTAD database, available at http://www.unctadxi.org/templates/DocSearch____779.aspx. 45. Base Pacte, available at http://www.doc.diplomatie.gouv.fr/pacte. 46. Sources and techniques related to travaux préparatoires are ably described by Jonathan Pratter in the Globalex guide, [Agrave] la Recherche des Travaux Préparatoires: An Approach to Researching the Drafting History of International Agreements, available at http://www.nyulawglobal.org/Globalex/Travaux_Preparatoires1.htm (2008). 47. Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987). 48. An aptly titled feature of the journal Perspectives: Teaching Legal Research and Writing. 49. During the first few weeks of my class, I hand out a survey to find out what international or foreign legal experience students have, what foreign languages they read, and what their areas of topical interest are. 50. Thomas H. Reynolds & Arturo A. Flores, Foreign Law Guide: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, available by subscription at http://www.foreignlawguide.com. 51. Law Library of Congress Multinational Collections Database, available at http://www.loc.gov/mulp. After a hiatus, this database is once again being updated. E-mail from Shameema Rahman, Library of Congress Legal Reference Specialist, to Mary Rumsey (6 Jan. 2009, 2:12 p.m. CST) (copy on file with author). 52. "EUR-Lex provides direct free access to European Union law. Here you can consult the Official Journal of the European Union, as well as the treaties, legislation, case law, and legislative proposals." EUR-Lex, About This Web Site, available at http://eur-lex.europa.eu/en/tools/welcome.htm (last accessed 5 Jan. 2009). 53. Analytical Index: Guide to WTO Law and Practice, available at http://www.wto.org/english/res_e/booksp_e/analytic_index_e/analytic_index_e.htm. 54. Inside U.S. Trade is available on LexisNexis, via the path Area of Law - By Topic/International Trade/Search News/General News. 55. Case Law on UNCITRAL Texts (CLOUT), available at http://www.uncitral.org/uncitral/en/case_law.html. 56. Transnational Law Digest & Bibliography, available at http://www.tldb.net. 57. Peter Schanck, among others, has emphasized the need for students to complete enough exercises to "[assure] sufficient practice using the sources, [keep] the students involved in the class, and [maintain] a certain level of rigor." Peter C. Schanck, Mandatory Advanced Legal Research: A Viable Program for Law Schools? 92 L. Lib. J. 295, 299 (2000). 58. HUDOC is the free database of European human rights jurisprudence, available at http://cmiskp.echr.coe.int. 59. Syllabi and Course Materials, available at http://www.aallnet.org/sis/fcilsis/syllabinewsite.html. 60. Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: A Coursebook (Martinus Nijhoff Publishers 2007). 61. J. Paul Lomio & Henrik Spang-Hanssen, Legal Research Methods in the U.S. and Europe (DJOF Publishing 2007). 62. See e.g. Joyce Manna Janto & Lucinda D. Harrison-Cox, Teaching Legal Research, Past and Present, 84 L. Lib. J. 281, 281 (1992). See also Hillel Levin, PrawfsBlawg, Teaching Research: Next in an Ongoing Series on LRW, http://prawfsblawg.blogs.com/prawfsblawg/2008/10/teaching-resear.html (19 Oct. 2008) (noting that librarians "bring a huge amount of knowledge and information to the table, and … can introduce students to a whole range of resources"), and the further comment by Anonymous, PrawfsBlawg, Teaching Research: Next in an Ongoing Series on LRW, http://prawfsblawg.blogs.com/prawfsblawg/2008/10/teaching-resear.html, (20 Oct. 2008) ("Get the reference librarians in your law schools teaching legal research, because they are the people who know how to do legal research.") 63. Readers will notice that these skills translate well into U.S. research; many of my students have observed that their overall research skills improved greatly from the FCIL research course. 64. Student evaluations on file with author.