Foreign Domestic Legal Research Requires a Strategy

In my current and previous positions, I have worked closely with numerous researchers searching for any type of legal information from foreign countries or other domestic jurisdictions. Despite their different requests, one thing is a constant: legal research on a foreign/domestic jurisdiction requires a research strategy. Even if you believe that you are “just” looking for a case, piece of legislation, policy, regulation, historical information, etc., once your legal research includes another domestic jurisdiction, you need to spend some extra time thinking about a series of questions which go beyond the “document” you are interested in. Those questions include, not exclusively the following ones: Which court or government agency issued the document you are looking for? Where does that court or government agency sit in the judicial system or government structure? Are there any previous iterations of the document you’re looking for? If you need a translation, is it realistic to think that you will find one? Would your document be considered “historic information” in the domestic jurisdiction? Depending on what you’re seeking, you should be able to come up with a list of relevant questions, steps and keywords as part of your research strategy before you embark upon your research. Ignoring this crucial step is the perfect way to find yourself wasting a significant amount of time and resources, and eventually frustrated of not being able to find what you’re looking for or just obtaining an incomplete picture.

In this post, I will focus on two important aspects of building that research strategy for foreign/domestic legal research: bias and deconstruction. Bias in conducting legal research becomes crucial when working with national jurisdictions from other countries and cultures outside of ours. The savvy researcher needs to be aware of this pitfall. Deconstructing themselves and the question they are interested in is a major first step in ensuring they are on the right path and their biases are not clouding their research strategies.

[Photo credit: Arpit Rastogi on Unsplash]

What is foreign or domestic legal research?

Before we jump into my notes on building a research strategy, please allow me to give you a working definition of what we’re talking about in this post. Foreign or domestic legal research is looking for any sources, information, data, analysis and the interconnections in between related to a legal system from a particular country or jurisdiction outside of the country or jurisdiction in which you reside. Some experts prefer to use the term domestic as opposed to foreign, given some of the pejorative connotations in the usage of the word foreign in several languages.

One important thing to remember for researchers is that foreign or domestic legal research tends to appear “out of nowhere” and as part of some other or larger pursued research. This is a message I try to convey to my students in my class, Foreign, Comparative and International Legal Research at the University of Arizona College of Law. For researchers, the need to find information in another domestic legal system may stem from the fact that they are interested in comparing it to a “similar” situation in their own or a group of countries as part of their comparative legal research. Another reason to engage in this type of research may come from the need to understand and analyze a particular phenomenon developing at the international law level.

Bias

We all have biases which we carry with us while conducting any type of research. The goal is to reduce the impact of our biases in research by attempting to be as fully aware as we can of them and the impact they have. In my experience, biases in legal research come to the surface especially when conducting foreign legal research. Let me give you a quick example. Do you think that all countries have constitutions? Do you think that constitutions are short or long in terms of text? Do you think that all constitutions are very difficult or easy to amend? These are examples of salient questions which every researcher should ask themselves when working with other domestic jurisdictions. The answers to these questions will shed some light on the steps and sources which you should be consulting and where you should be able to find an answer.

Furthermore, some of the answers to my previous questions will also shed some light on your biases, how they permeate throughout the research process and how to be aware of them. Let me continue with the example. Once you realize that not all countries have constitutions, do you assume that those countries are “less developed” judicially speaking? Do you think that jurisdictions with long constitutions are more complicated and cumbersome? Alternatively, do you think that these same countries are more explicit and easy to find information on because their constitutional texts are long, in terms of word count? Asking yourself questions about the assumptions you make before you begin your research is to challenge your preconceptions and be open to finding the information where it is and not where you think it should be. This is all a process that I call, deconstruction.

Deconstructing

Spending a few minutes deconstructing yourself as a researcher and the knowledge and assumptions you bring to the research strategy will make a major difference between finding what you’re looking for in a few hours or wasting days on it or understanding the full picture or having a myopic and biased view on your research. Engaging in this type of exercise before and even during your research process is not an easy task, especially if it’s the first time you’re engaging in it. If you have access to librarians and law librarians, I’d highly recommend you to reach out to them. They should be well versed in these concepts and able to help you craft a research strategy that works for you.

Unfortunately, conversations around biases, critical thinking, and critical research are sometimes considered too political or philosophical. I can assure you that the intention behind my post is not to fulfill a political, philosophical or cultural agenda. If you don’t include these concepts in your research strategy, or worse still, if you don’t even have a strategy when pursuing foreign or domestic legal research, you simply won’t be able to find what you actually need for your research. It is as simple as that. Therefore, it’s your choice!