Foreign Legal Research IIForeign Legal Research II*Researching via Translation*Researching in a Civil Law Jurisdiction

September 17, 2003

Foreign Law Review…

In generalLearn about jurisdiction before starting researchStart with secondary sourcesContinue with legislation, cases, updatesGeneral online sources

Researching via Translation

Researching via Translation

The vernacular isn’t always English!Translation typically not an issue except when researching non-common law jurisdictions

Working with translations can be problematic…

Legal concepts may not translate“Notario” “notary public”

Often out of dateAND not often updated

Can be difficult to locateHide out as appendices to monographs, in periodicals, looseleaf pamphlets, etc.

Legislation is frequently translated; case law less frequently

BUT stare decisis only an issue in common law jurisdictions, which generally publish in English

Finding Translation SourcesReynolds & FloresCompilations of laws

“X” Laws of the WorldCommercial Laws of EuropeDoing Business in…Online

• Lexadin• Foreign Primary Law on the Web• WorldLII/WorldLaw• General web search

International Legal Materials (“ILM”)International Encyclopedia of Laws

Which is the best translation?

Official translationEven if it’s official, it’s not authoritative!

Legal translatorRespected publisherAlways note source and date of translation in your work!

Other options…

Bilingual law dictionaryHire a translatorGet local counsel

Researching in a Civil Law Jurisdiction

Common Law Review…

Common law jurisdiction“Precedent” is main source of lawAdheres to stare decisisStart with a recent edition of a major treatiseThen find supporting primary authorityUse digests and other finding aids

Sources of Civil LawLegislation

ConstitutionCodes

• Intended to set forth the complete primary substantive law in a relational format

• Basic: Civil, Civil Procedure, Criminal, Criminal Procedure, Commercial

• Civil Code trumps– Relationships among persons– Inheritance and succession– Property– Obligations

• Other: Labor, Intellectual Property, Judicial, etc.

Sources of Civil LawLaws or decrees

• Laws: enacted by legislature• Decrees: enacted by executive (president)

Regulations• “Delegated” or “subsidiary” legislation

Find legislation in one or more of…• Individually published codes or laws• Compilations or official codifications• Session law publications• Foreign official gazettes (FOGs)

– Foreign Government Gazettes Online

Sources of Civil LawJurisprudence

Case law (not legal philosophy)Judges apply, do not interpret, lawCases decided on individual basis, binding only as to partiesNo stare decisis

• Some jurisdictions have limited form of precedent, based on strict conditions

• In some jurisdictions, stare decisis prohibited by statute

Doesn’t mean jurisprudence is not importantPublished opinions usually look very different from typical common law opinions

Sources of Civil Law

DoctrineSecondary source, but not like common lawMay be cited to courtTreatises on broad subjects, monographs on specific subjects, journal articles“Old and respected” carries more weight than “new and untried”

Need to go further than the national level?

Depends…BlueBook can provide clues!

Civil Law Research Tips

Review a tertiary source before you begin researchStart with a “true” secondary source in English, if possible

Not all that manyDo subject search, limit to EnglishIf not, try Google (!)…anything to get an idea (in English) of what you’re looking forBut if you can’t find it, don’t stress

Civil Law Research Tips

Otherwise, go straight to the Codes/laws

Use R&F or a research guide to pinpoint which Code, etc. covers your subject Try to find an authoritative compilation, or separately published code. Use session laws, if necessary. Use the official gazette only as a last resort

Look for case law, but don’t stress

Research Problem A

Due Friday, September 26, before Library closes (midnight)Turn in research log and partial memoHand in assignments at the Reference Desk

Practice problems…

Let’s try it…Your client has business concerns in Spain. He is represented by local counsel in Madrid, who is overseeing a civil contracts case that is set to go to trial there. The local attorney keeps saying that additional counsel must be hired, as he cannot represent anyone before a Spanish court. You don’t quite understand this, so you need to research Spanish procedural law to find out if a solicitor/barrister arrangement exists in Spain.

Let’s try it…

Your client is an anthropology professor at X University. He is currently running a clinic in Namibia for students around the world to do field work in ethnological studies. One of his students from Belgium has recently learned that he is being investigated by Belgian authorities for statutory rape. The professor wants to help him, and so asks you what is the age limit for statutory rape in Belgium.

Let’s try it…Your client is an American businessman living in Rome. He is building a villa there, and contracted for extensive stonework with a local masonry company. He signed a contract for 53,000 euros (about $50,000). The masons are about half done with the work. The company representative now says that the clerk added wrong and so under-calculated the bid by 500 euros. Your client doesn’t want to pay the additional amount. Under Italian law, is there any way to avoid liability for the additional amount under the contract?

Let’s try it…

Your client’s parents are Danish, still living in Denmark. Her father recently passed away, leaving no will and no living beneficiaries. Your client wants to make sure that, under Danish law, her mother will inherit the entirety of his estate.

Let’s try it…Your client calls you from a jail cell in Canada. She says she was driving back to Michigan from a trip to Toronto she was stopped by police. The officers told her she was being stopped in connection with an armed robbery. They read her some rights from a card, then drove her to the police station and put her in a holding cell. She demanded to speak to an attorney. They told her that first they had some questions for her, and they began to interrogate her. She refused to answer until she could speak to you, her counsel.

Ready for Research Problem A…

Understand your research assignment before you startKeeping a research log

You must turn it in with your memo!Whatever format best suits your style

Writing a research memoSynthesisBrevityDon’t agonize