Legal Research

July 25, 2017 | Author: Janine Ismael | Category: Precedent, Case Law, Judiciaries, Technology, World Wide Web
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Legal Research...



1. Cross-reference accuracy

What is Legal Research? “The process of identifying and retrieving information necessary to support legal decisionmaking. In its broadest sense, it includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.” - J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed.



2. Ensure materials are up-to-date

Communicate results 1. Present answers or results clearly and concisely 2. Cite sources accurately



(Foundation Press, 2002) p. 1

Purpose of Legal Research

Steps in Legal Research

To find authority that will aid in finding a solution to a legal problem. - Cornell University Legal Information Institute, Legal Research: An Overview

Three Basic Steps 1. Problem identification and analysis 2. Information search and retrieval

Types of Authority PRIMARY AUTHORITY

3. Communication of results Identify & analyze the problem

Rules of law that are binding upon the courts, government and individuals

Consists of the law itself, as expressed in the verbatim texts of the statute or case law

1. Collect the facts 2. Classify the facts 3. Determine legal issue/s 4. Identify the jurisdiction


The Constitution

Search & retrieve information

1. Find materials relevant to your subject

3. Statutes or statutory law

1. Use “finding tools”

4. Legislative enactments

2. Secondary, primary, rules 3. Traditional sources Cases, jurisprud ence Encyclop edia, dictionar y

Comprehe nsive Legal Research

Law Review s, Journal s



Statutes , codes, rules & regulatio ns

Congres sional debates

The fundamental law of the land

5. Executive issuances 3.


Administrative or agency law 

Issued by agencies charged with regulating an area of conduct

Rules and regulations

Case law 


Decided or written opinions by courts

Muslim or Shari’a law 

Islamic law customary law


Embraces legal, social, political and civil relations

Sources of Primary Authority

Materials that analyze, explain, or criticize the law or that help find legal authority (finding tools)

Resources about the law and not the law itself

The Legislative Branch The Congress of the Philippines 

Secondary Authority 1. Legal encyclopedias

Bicameral o The Senate o The House of Representatives

2. Legal dictionaries 3. Restatements

Legislative Enactments 

Acts (1900-1935, 4,275)

Commonwealth Acts (1935-1945, 733)

Republic Acts (1946-1972; 1987-2013, 10,606)

Mga Batas Pambansa (1979-1985, 884) [issued by the unicameral Batasang Pambansa]

4. Treatises 5. Legal periodicals 6. Practice materials Hierarchy

The Executive Branch Office of the President

Treaties and international agreements

Administrative Agencies: Orders, Rules, Rulings, Memorandum Orders and Circulars

Local government units: ordinances

The Judiciary The Supreme Court 

Rules of Court: Civil Procedure, Special Proceedings, Criminal Procedure, Evidence, Summary Procedure, Small Claims Cases, Environmental Cases Jurisprudence or case law: Decisions and Resolutions (1901 to the present, over 70,000)


International secondary

Presidential Decrees (Marcos 19721985, 2,034), Executive Orders (Aquino, E.O. No. 136), Proclamations

Commentaries on the law that do not have binding effect but aid in explaining what the law is or should be

International Primary Local Secondary Local Primary

*To jumpstart your research, you can start with International secondary or Local secondary Classification of Law BY APPLICATION   

 

Mandatory Primary authorities: considered in making a determination in a legal matter Statutes, presidential issuances, international treaties and conventions, administrative rules and regulations, local ordinances, case law Must be followed and must be cited first In case law, the principle of stare decisis et non quieta movere (to adhere to precedents and not to unsettle things that are established) is applied

Art. 8 of the Civil Code: “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.” Adherence to judicial precedents o



 Persuasive 

Considered when there is no mandatory authority on a subject matter •

Laws and decisions of other jurisdictions

Opinions of government agencies (BIR, DOJ) 

• 

Executive interpretation of legislative enactments is accorded weight by the judiciary

Treatises, law review articles

Persuasive cited




BY SOURCE Primary  Official records of the statute or case law as published by the issuing agencies Secondary  Published by private or commercial entities Primary Sources 1.


Statutory law ▪

Congressional records

Official Gazette (O.G.)

Pursuant to E.O. No. 200 (1987): newspapers of general circulation

Case law ▪

Philippine Reports

Official Gazette

Advanced Sheets

Secondary Sources

Statutory law a. Vital Legal Documents b. Commentaries, textbooks c. Lex Libris Laws, Philippine Law Encyclopedia, Lawphil, Chan Robles Case law a. Supreme Court Reports Annotated (SCRA) b. Supreme Court Advanced Decisions (SCAD) c. Lex Libris Jurisprudence

Harnessing Technology for Legal Research In the old days… “…the common practice was that … the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up…” “…He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter…” Researchers relied only on books, periodicals, catalogues, looseleaf & other printed publications There was no single repository of complete legislative enactments, executive issuances, or jurisprudence It took time and effort to have access to lawrelated issuances The Advent of Technology “…With the advent of computers, however... most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles…” In Re Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010 Electronic Legal Research 

The use of available technology, electronic devices and electronic media for legal research Used to be referred to as computer-aided legal research

Gaining much ground in an increasingly technology-driven legal profession o

Advantages of ELR 

  

Access to a large amount of legal information o Millions of pages of legal information, with thousands added every day Portable o Device or media can be carried around easily Space-saving o Device or media can be as small as the palm of one’s hand Time-saving o Search engines and customized search templates can produce focused search results, in seconds o If you know how to search, you save even more time Information in electronic format is flexible and more easily manipulated o Can be copied, edited and printed more easily Information is easier to update and can be more current o Files are easily processed and uploaded Cost-effective o Cheaper in the long run; contains considerably larger volume of materials

Choosing an Electronic Tool/Resource  Currentness  Is the database up-to-date? Is the information up-todate? When was the site last updated?  Accuracy  What are the sources of the information?  Are the materials faithful to the originals? Choosing an Electronic Tool/Resource o

Reliability/Credibility  Who is the publisher/administrator?

What is the publisher’s track record? Usability  Is the information properly arranged? Does it have a subject index?  How powerful is its search engine?  Does it come up with focused results? 

Types of Electronic Media Optical Media  A storage medium or device in which information, including sounds and/or images, or software code, has been stored, either by mastering and/or replication, which may be accessed and read using a lens scanning mechanism employing a high intensity light source such as a laser or any such other means as may be developed in the future. (Sec. 3 (i), Republic Act No. 9239, The Optical Media Act of 2003) Types of Optical Media 

 

CD-ROM (Compact Disc Read-OnlyMemory) o Stores up to 700 megabytes of data, up to 300,000 text pages o Made of plastic & aluminium, can last a long time with proper use o Once stamped, no additional information may be added DVD-ROM (Digital Versatile Disc Read-Only-Memory) Holds a minimum of 4.7 GB of data, enough for a full-length movie or app. 2 million text pages

The Internet 

A massive network of computers linked together and communicating with each other through a series of protocols A network of networks of computing devices

The World Wide Web (www)  

The information sharing model built on top of the Internet A collection of interconnected documents linked by hyperlinks and URLs (uniform resource locators)

Online Legal Resources


Free Sites Non-commercial; access is free

There are over 200,000 sites on the web with legal information

Free Sites 

Examples of foreign sites ▪

Cornell Legal Information Institute –

Findlaw –

Commercial Sites sites:

Password is required to access data

Contain features and tools that facilitate focused research

Subscription or, westlaw


Online Resources

The Philippine Encyclopedia Series


Official Sites (Primary Sources) o The Official Government Portal of Republic of the Philippines – o Senate of the Philippines – o House of Representatives – o Supreme Court website – Privately-maintained sites (Secondary) o Lawphil o Chan Robles Commercial Sites o CD Asia Online –  Contains Laws and Jurisprudence eSCRA

Online Resources Distinctions o o o o

Philippine Resources




COMMON FEATURES: Research Tools 

Resources on Optical Media PRIMARY SOURCES  

Case Law – Supreme Court e-library (distributed to courts) Treaties – Department of Foreign Affairs (Treaties of the Philippines)


Publications of private companies Agoo Institute – e-Library CD Asia publications o The Philippine Law Library o Legal Knowledge Titles

Search engine Content Organization of information Other features  Cross-referencing  Cited in

 



SUBJECT INDEX o A list of topics arranged in alphabetical order o Materials (i.e., legislation, court decisions, executive issuances) covering the topic are listed o The list items are usually linked to the complete text of the material HYPERLINKS An electronic link providing direct access from one distinctively marked place in a hypertext or hypermedia document to another in the same or a different document (Merriam-Webster Dictionary) Quick access to related or connected information


 

A computer software used to search data (as text or a database) for specified information; also: a site on the www that uses such software to locate key words in other sites (Merriam-Webster Dictionary) General or site-specific search engines Used together with search templates and indexed or tagged information

SEARCH METHODS AND TECHNIQUES 1. Boolean Method - Of, relating to, or being a logical combinatorial system that represents symbolically relationships (as those implied by the logical operators AND, OR, and NOT) between entities (as sets, propositions, or on-off computer circuit elements) (Merriam-Webster Dictionary) 2. Proximity Searching  Allows user to find terms that appear within a certain number of words of each other  User can specify the “distance” (number of words) between terms  Proximity symbols o ~: “death penalty”~5 o Finds documents containing the words “death” and “penalty” within five (5) words of each other o Ordered - /: “death penalty”/5 o Unordered - @: “death penalty”@5 3. Truncated or Wildcard Searching allows searching for documents containing variations on a search term  Truncation operators o = retrieves all entries containing the letters before the * (replaces multiple letters) o Constitut* Constitution, constitute, constitutional o ? = replaces any character in a search term o Wom?n – woman, women 4. Phrase Searching - use quotation marks (“ ”) to capture two or more words as an exact phrase

Example : “qualified theft”, “consummated felonies”, “national territory”, “breach of promise to marry”, “114 PHIL 77”

Other Techniques 1. Fuzzy Searching - finds search terms even if they are misspelled or do not match a search term exactly (close matches) 2. Concept/Synonym Searching Searches for related concepts or synonyms CONCLUSION 

There are many resources available for legal research. o Exercise discernment in choosing research resources and tools o Use only resources that are reliable, accurate and current o For electronic legal research, look for features that will help fine-tune your research (i.e., search engines, query templates, links) It is worthwhile to invest in good legal research resources. o These will be the tools of your trade. Choose the best. o Using these resources results in “exponential” increase in efficiency and productivity. o Be experts as early as now.

“Legal research has always been the unsung hero in the study and practice of law. Though it has often been relegated to a minor subject in most programs of legal studies, it remains of vital importance to all scholars of the law – from the highest of magistrates to the beginning law freshmen. It need not be emphasized that the outcome and integrity of any decision, pleading, or thesis largely depends upon the author’s knowledge and skill in legal research.” - Chief Justice Reynato S. Puno (Ret.) Milagros Santos-Ong, Philippine Legal Research (Central Book Supply, 2007)

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