Does This Case Really Exist? – Foreign Law Edition

While reading Susannah Tredwell’s post, Does this case really exist? from last October, I realized how much this question is at the heart of my work. As the Associate Librarian for International and Comparative Law, I joke with my students and colleagues, most people think they don’t need my expertise until they desperately need me. Despite the fact that they come to my office last minute, with multiple deadlines upon them and at the cusp of a nervous breakdown, I do tend to help them with a simple yet existential question: Does this even exist?

When it comes to legal research or legal information, we take many things for granted. Whether you are in Canada or the United States, you are immersed in a legal system which you understand and know how to navigate. You are one of the “insiders” in your respective legal systems. Nothing helps you realize how much of your expertise on your own legal system you just assume as an insider more than when you are confronted with a citation or any legal information from a different legal system. Searching for foreign cases forces you to become an “outsider” and being aware of this transformation is the first step in your journey.

As Tredwell explained, searching for caselaw in online legal databases and legal reporters is absolutely spot-on and something I usually tend to do for some jurisdictions. However, online legal databases are not widely used nor updated in the vast majority of countries in the world. Several different countries have no online legal database whatsoever and they tend to rely on heavily fractured legal information infrastructures. Furthermore, legal reporters are found mostly (if not exclusively!) in common law jurisdictions. Theoretically speaking, you should not expect to find legal reporters in countries following the most predominant legal system in the world: civil law. However, you do sometimes find them for their respective courts of last resort or in hybrid legal systems. If you do find them, it’s always important to keep in mind how similar and different they are from those we are familiar with in common law systems.

I’m glad Tredwell also mentions the increasing prevalence of so-called “hallucinations” in these instances. Judging by the amount of talk on the subject in slaw and on other legal platforms, we are just in the midst of a perfect storm which keeps growing with no end in sight. Cases from foreign legal systems are not immune to these new challenges. However, they do exhibit another conundrum. As I mentioned before in my previous post, The Limits of AI for Your Foreign and Comparative Legal Research Needs, data sets for a significant number of jurisdictions simply do not exist, and even when they do, sometimes they are not updated or are not in any intelligible format for machine learning purposes. Therefore, if an artificial intelligence (AI) tool is fabricating legal information from an incomplete or nonexistent source, it seems to be filling gaps with fabricated information which as some have explained before, it should be called “confabulation1”.

After some initial assessment and chat with whomever is looking for this legal information, my next question becomes even more important: Where did you find this citation?

Context is everything when researching any legal information from other countries or jurisdictions. However, it’s important to see this idea of “context” as different layers operating simultaneously. These are some ideas which come to mind regarding different levels of context when trying to find a relevant research strategy.

1. Text of the citation. Does it have any dates or numbers? What language is it written in? Is it using a non-Latin script? Can you transliterate it? Does it mention a city, specifically a capital city?
2. Location of the text. Where did the user find the text? A footnote or citation to what? Was it located in a court decision, newspaper, legal article, etc.?
3. Court. Is it possible to identify the court that issued the case? Judicial structures are incredibly different from jurisdiction to jurisdiction, even in countries belonging to the same legal system. Does the court still exist? Has it been transformed in any way?
4. Government. The country’s type of government may provide some clues as to the relationship with its judicial structure. Has the country’s government changed from your case’s time of publication? Is your case from a subnational administrative unit: province, territory, indigenous nation, etc.?
5. Country. Different chapters in a country’s history may have a tremendous impact on legal information and how it gets published.

These layers are simply a way to provide as much contextual information as possible in the research process. It’s important to look at all clues which might help elucidate the puzzle at hand. There is no one solution and the layers may look different depending on the case and jurisdiction you are interested in. Depending on how much time they have available, I might end the conversation with another question: Did you find what you were looking for?

________

1. Beware of Artificial Intelligence hallucinations or should we call confabulation? – PMC