Leg Res Lecture 1-1

7/30/2019 Leg Res Lecture 1-1

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Atty. Laura C.H. del Rosario

Professor, Legal Research with Computer

Lyceum of the Philippines University

College of Law

Introduction to Legal Research


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Legal Research

The investigation for informationnecessary to support legal decision

making. A process that begins with analyzing thefacts of a problem and concludes with

applying and communicating the results

of the investigation.


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Definition of Legal Research

The process of finding the laws, rules and regulations thatgovern activities in human society.

Involves locating both the laws and rules enforced by theState, and the commentaries which explain or analyze the

rules.

The investigation for information necessary to support legaldecision making.

Includes each step of a process that begins with analyzing thefacts of a problem and concludes with applying and

communicating the results of the investigation.


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Legal Research is the search for authority that can beapplied to a given set of facts and issues.

Legal Research is the process of identifying andretrieving information necessary to support legal

decision making.


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Legal analysis is the process of determining how the lawapplies to the problem.

Legal Research and analysis involve determining howthe law applies to the facts of a case, which in turn

requires knowledge of what the law is, how to find it,

and the general principles that govern its application.


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Purposes of Legal Research

Good research makes good lawyering Gives the lawyer the knowledge with whichto build a successful case or to provide

accurate and insightful advice. Essential in legal practice to determine theimpact of past actions and the implicationsof contemplated actions.

Efficient research saves time for otheraspects of lawyering.


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PURPOSE OF LEGAL RESEARCH

To ascertain the legal consequences of a specific set ofactual or potential facts. The facts of any given situation suggest, even dictate,

issues of law that need to be researched.

The key to successful legal research is organization. As with any simple task, one needs a game plan that helps

you comprehend and complete the job as quickly, efficiently

and thoroughly as possible.

For legal research, the best game plan simplifies the researchprocess by breaking it down into basic steps so that it

becomes an easily comprehended process.


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The Importance of Legal

Research Skills They are necessary for solving legalproblems.

Every competent practitioner must possesslegal research skills.

To provide competent representation to aclient.

Competent representation requires legalknowledge, skill, thoroughness and preparation.


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Legal Researchers need to:

Develop an awareness of the types ofmaterials that constitute the lawand of

the relationships between thesematerials.

Gain a perspective on how suchsources may apply to a particular

subject matter and how they relate toeach other.


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Legal Researchers need to:

Learn how to consult multiple sourcesand use different techniques for eachtype of source.

(e.g., Primary sources: statutes/ legislativeenactments, cases/ opinions of thejudiciary, regulatory materials/administrative agency regulations and

decisions).


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What sets apart LEGAL Research

from research in other contexts: Need for comprehensiveness in primaryauthority researchWhich is binding in the applicable

jurisdiction?

Cases or statutory provisions which seemnot to favor a clients position cannot simplybe ignored; rather, they must be

discovered, thoroughly analyzed, anddistinguished.


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What sets apart legal research from

research in other contexts?

The need to analogize, for difficult to findauthority that is squarely on point, or factually

identical, based on reasoning process a rule of

law applied to one set of facts should logically beapplied to another set of factual circumstances

-- (Thurgood Marshall Law Library)


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What sets apart legalresearch

The law is organic; legal researcherneeds to update and verify everysource.

Statutes may be repealed or amendedCase law may interpret statutes and thus

apply or modify them.

Researcher must update carefully in orderto accurately assess the significance of anyauthority.


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Sources of Legal Authorities

Primary Sources of LawSecondary Sources of Law


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Sources of Law

Primary Sources the law itself, as expressed in constitutions,

statutes, Treaties, appellate court decisions,

administrative regulations and rulings. They are cited first and are mandatory

authorities

Those published by the issuing agency itself orthe official repository, the Official Gazette

Ex. Constitution/Statutes/Treaties/Highest Courtopinions/Administrative Regulations and Rulings


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Sources of Law

Secondary Sources These materials are not binding on courts.Can be used only as persuasive authoritySecondary sources vary widely in their

relative weight as persuasive authority.


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Primary Legal Authority

Recorded laws and rules enforced by the State Judicial Decisions SC and CA Administrative Law


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Hierarchy of Legal Authorities

Mandatory primary authority: Law created by the jurisdiction in which the law

operates like the Philippines

Know which law-making bodies issue legal authority for aparticular jurisdiction.

Mandatory statutory authority must be followed under theprinciple ofStare Decisis, unless the court decides thatchanged circumstances warrant a different outcome.


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Hierarchy of Legal Authorities

Persuasive mandatory authority: Law created byother jurisdictions but which have persuasive value to

our courts

e.g. Spanish and American laws and jurisprudence. Used when there are no Philippine authorities available

or when the Philippine statute or jurisprudence underinterpretation is based on either the Spanish or American

law.

Do not have to be followed but which may be used asexamples of good reasoning

Important if mandatory authority does not exist in aparticular jurisdiction, or if the researcher wishes to look

for arguments as to why existing precedents should be

changed.


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Primary sources of law

For Republic Acts and other legislativeenactments or statutes,

the Official Gazette published by the NationalPrinting Office

the Laws and Resolutions published byCongress

Official Government Portal of the PHL(www.gov.ph) www.congress.gov.ph


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Primary sources of law

For Supreme Court decisions, the PhilippineReports, the individually mimeographedAdvance Supreme Court decisions, and theOfficial Gazette.

Publication of Supreme Court decisions in theOfficial Gazette is selective. Complete and official court reports for Supreme

Court decisions is the Philippine Report

http://sc.judiciary.gov.ph


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Secondary Legal Authority

Restatements of the Law Looseleaf Services Legal Encyclopedias Hornbooks Practice Manuals Form-Books Annotations Publications which analyze or discuss legal doctrine Treatises, commentaries, encyclopedias Law reviews, IBP Journal, Lawyers Review


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Secondary Materials

Textbooks Legal periodical articles Legal encyclopedias Annotations (SCRA/ALR annotations) Law dictionaries Continuing legal education publications Opinions of the Secretary of Justice and other

administrative agencies


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Finding Tools

non-persuasive means of locating primary sourcesSCRA Quick Index DigestPhiljurisLex LibrisDigestsLaw DictionariesCitatorsIndexesDirectoriesTablesLegal CitationsAnnexes

DISTINCTION b t


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DISTINCTION between

primary and secondary

sources Primary Sourcesconsists of the law itself, as expressed in

constitutions, statutes, Treaties, appellate court decisions,

administrative regulations and rulings. They are cited first and

are mandatory authorities

Primary sources are those published by the issuing agencyitself or the official repository, the Official Gazette

Ex. Constitution/Statutes/Treaties/Highest Court opinions/

Administrative Regulations and Rulings

DISTINCTION b t


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DISTINCTION between

primary and secondary

sources Secondary Sources are theunofficial sources and generally refer to those commercially published orthose that are not published by government agencies or instrumentalities.

Descriptions of, or commentary on, the law These materials are not binding on courts but they have persuasive effect and/or the

degree of persuasiveness. Aids in explaining what the law is or should be. With regard to commentaries or books, treatise, writings, journal articles, the

reputation or expertise of the author is a consideration. Can be used only aspersuasiveauthority Secondary sources vary widely in their relative weight as persuasive authority.

DISTINCTION b t


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DISTINCTION between

mandatory and persuasive

authority See answers to previous question. Mandatory primary authority is law created by the jurisdiction in which

the law operates like the Philippines;

Involves knowing which law-making bodies issue legal authority for a particularjurisdiction. Concept of jurisdiction initially involves a determination of whether anissue that arises in a particular geographic location is governed by national law.

Involves making judgments as to the similarity of facts and issues to thecircumstances in the problem that is being researched.

Mandatory statutory authority must be followed; mandatory judicial authority mustbe followed under the principle ofStare Decisis, unless he court decides that changedcircumstances warrant a different outcome.

Doctrine ofstare decisisencourages stability of the legal system and providesmechanisms for individuals to predict the outcome of their behavior. However, thereis a need to be responsive to change.


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DISTINCTION between mandatory

and persuasive authority

Persuasive mandatory authorityis law created by other jurisdictionsbut which have persuasive value to our courts e.g. Spanish andAmerican laws and jurisprudence. These sources as used speciallywhen there are no Philippine authorities available or when thePhilippine statute or jurisprudence under interpretation is based oneither the Spanish or American law.

Do not have to be followed but which may be used as examples ofgood reasoning

Important if mandatory authority does not exist in a particularjurisdiction, or if the researcher wishes to look for arguments as to whyexisting precedents should be changed.

See Legal Research and Bibliography by Ng Po Po, pp. 135-141


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Tools for Legal Research

Electronic Sources: Computer Databases Internet


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Tools for Legal Research

Printed Sources: Constitution Statutes Court Decisions Administrative Rules Scholarly Commentaries


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Tools for Searching

SCRA Quick Index Digest and other Digests Lex Libris Law Dictionaries Citators Indexes Directories Tables


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1973 Constitution- ConCon Archives in the U.P. Law Library

thru its indexes 1987 Constitution

- Records of the Philippine ConstitutionalCommission. 5 v.

STATUTE LAW


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Journal 5 v. Index (Computer, UPLL) One can also consult the following books: To know how certain provisions in the 1987

Constitution were interpreted by its framers, it is

best to consult the 5-volume Records of the

Philippine Constitutional Commission and its 3-volume journals.

Computerized index in the U.P. Law Library.Access can be had through the number of the

Articles, subject, and name of sponsor/discussant.


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1986 CONCOM PROCEEDINGS

Available in CD Rom by CD Asia


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TREATIES AND INTERNATIONAL

AGREEMENTS

6.2.1. Texts: OFFICIAL GAZETTE

D.F.A.T.S. (Department of Foreign AffairsTreaty Series)

P.T.S. (Phil. Treaty Series) U.N.T.S. (U.N. Treaty Series)


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TREATIES AND INTERNATIONAL

AGREEMENTS

6.2.2. Indexes: PHILIPPINE TREATIES

INDEX 1946-1982 (Bilateral & Multilateral)

INDEX TO U.N.T.S. every 100 volumes U.N. MULTILATERAL TREATIES

DEPOSITED WITH THE SECRETARY-GENERAL, STATUS as of 3 December 1997.

3 V.


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PHILIPPINE TREATIES INDEX 1946-1982 SUBJECT APPROACH COUNTRY APPROACH

UN TREATIES INDEX SUBJECT APPROACH CHRONOLOGICAL APPROACH

UN INDEX TO MULTILATERAL TREATIES SUBJECT APPROACH


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STATUTES PROPER

Total no. of statutes _______ to date

TERMINOLOGY OF STATUTES- Acts or Public Acts 1900-1935 4,275 laws- Commonwealth Acts 1936-1946 733 laws


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TERMINOLOGY OF STATUTES

- Republic Acts 1946-Sept. 21, 1972 6,635 laws- Presidential Decrees 1972-Feb. 20, 1986 2,035 laws- Batas July 23, 1984 Feb. 1, 1986 891 laws- Executive Orders Feb. 23, 1986- July 26, 1987 302 laws- Republic Acts, July 27, 1987 to August 24, 2007(R.A. 6636 - R.A. 9494 (Declaring Mibilisan Watershed, Misamis Oriental

as a protected Landscape area, providing for its management) - 2,858laws


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STATUTE LAW

17,729

17,4662858


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6.3.4 To determine legislative intent - look at the Legislative

history of the laws

Approaches: Use the Index to Congressional Record or Journal b. Use History of Bills and Resolutions volume.

Arrange numerically bill no. - H. No. S. No. P.B. No. C.B. No

Locate the date of the Second reading as debate/discussion ofthe law is made.


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ADMINISTRATIVE REGULATIONS AND RULES

Official GazetteThe National Administrative Register, v. 1. 1990 -(Quarterly) Publication by UP Law Center

Publications of particular administrative agencies SEC Folio, 1946-1976. SEC Bulletin SEC Weekly Bulletin Civil Service Reporter Financial Journal Central Bank Annual Reports and Compilations Rules and Regulations Implementing the Labor Code Rules of procedure of Adm. Agencies

4V. U.P. Law Center, 2007.


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Comprehensive Agrarian Reform Program andPresidential Issuances

Department of Justice, U.P. Law Center 2003. Insurance Reporter

ORDINANCES COURT RULES MILITARY RULES


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STATUTE LAWPRIMARY SOURCES SECONDARY SOURCES FINDING TOOLS

1. Constitution1987 Records of the Philippine

Constitutional Commission 5 v.Journal of the Philippine Constitutional

CommissionJ. BERNAS, The 1987 Constitutional

of the Republic of the Philippines1988

A.Padilla Ambrosio, the 1987Constitution, with comments and

cases, 1987, 2v.Other commentaries

UPLL COMPUTER INDEX

to records of the Philippine

Constitutional Commission

Index found in the Book

2. Treaties andInternationalAgreement

3. U.N. Treaty Series

TIARA (Treaties and International

Agreements Researchers Archives

-CD ROM-Philippine Treaties Index,

1946-1982

-Index to U.N.T.S. (every

100 volumes)-TIARA (CD ROM)

Philippine Treaty Series

5V (UP Law Center)


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RESEARCH IN CASE LAW

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Case law divided into: Conventional decisions - all rulings made by regularly

or specially Constituted Courts

Subordinate decisions - all rulings made in accordancewith law by administrative and legislative tribunals


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Supreme Court Decisions

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Court decisions are collected chronologically involumes called case reports, and summarized by

subject matter in reference works.

Texts: Philippine Reports v. 1, 1901 Philippine Reports, v. 1, 1901 -


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Supreme Court Decisions

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SCRA v. 1, 1961 - Official Gazette, v.1, 1901 - Prewar issues available

on microfilm at the U.P. Main Library

Supreme Court Unpublished Decisions, March1946-1960, compiled by David Nitafan 2v.


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CASE LAW

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The End

Leg Res Lecture 1-1

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