THE LAW LIBRARY:REVISITING TRADITIONAL

LEGAL RESEARCH METHODSLegal Research:

PURPOSE: to ascertain the legal consequences of a specific set of actual or potential facts

KEY: Organization; how to find, access, and apply materials

Characteristics of Legal MaterialsLegal Authority any published source of law setting forth legal rules, legal doctrine or legal reasoning that can be used as bases for legal decisions

Authority refers to both the types of legal information and to the degree of persuasiveness of legal information

THREE GENERAL CATEGORIES

(1) Primary Sources

- recorded authoritative statements of legal rules by governmental institutions

- to be enforced by the State

SubdivisionDefinitionExamples

Mandatory AuthorityAuthority that a given court is bound to followConstitutional provisions, statutes, etc.

Persuasive AuthorityThat law or reasoning which a given court may, but is not bound to followOpinions of the secretary of justice, administrative agencies

(2) Secondary Sources

- not primary but annotate, discuss, or analyze legal doctrines; vary in purpose and quality

- persuasive value depending on the prestige of author

SubdivisionDefinition

Restatements of the LawSeries of important commentaries on American Law which attempts to organize and articulate the rules of American common law; project of the American Law Institute (ALI)

Looseleaf ServicesFrequently supplemented research tools which focus on specific subject areas and contain primary legal sources, finding aids, and secondary materials

Legal EncyclopediasMulti-volume sets systematically describing the entire body of law; alphabetically and topically arranged; non-critical in approach and provide supporting reference to cases

HornbooksPopular reference to a series of treatises published by the West Publishing Group which reviews a certain field of law in summary textual form

Practice MaterialsManuals that provide good understanding of the procedural and substantive law as well as hands on instructions; cover specialized area of practice

Form-BooksAids in drafting legal documents and include sample instruments

AnnotationsExplanations or commentaries or extensive notes based on the issues within an opinion of a court usually appended after a reprinted case in a compilation

KINDS

(a) Statutory brief history of the law and facts of cases interpreting statutes

(b) Textual expository essays

(3) Finding Tools

- helps the lawyer ascertain the state of the law on a particular issue

SubdivisionDefinition

DigestsIndexes to reported cases, providing brief, unconnected statements of court holdings on points of law which are arranged by subject

Law DictionariesDictionaries that collect the definitions of legal terms in alphabetical order

CitatorsResearch aids providing notational information on the status of a statute; purpose is to give history and treatment of a decision or statute by means of symbolsShepardize process of checking the status of cases or statutes in the Shepards Citations

IndexesAlphabetical lists of important words and concepts in a book; assists the researcher in locating the primary or secondary sources

DirectoriesInformation about lawyers, law firms, law schools, law libraries, courts or administrative agencies

TablesAlphabetical listings of case names or statutes with reference to the law reports or publications where the cases or laws can be located

(4) Other Sources

SubdivisionDefinition

Opinions of Legal ExpertsExpert opinions on legal doctrines

Other State and Foreign SourcesCan only be utilized if the Philippine Law was patterned after a foreign law

PRELIMINARY STEPS- critical fact-related steps

(1) 5W-1H = Who did it and to whom; What, When, Where, Why and How was it done

(2) Analyze the Facts = TARP RuleT Thing or Subject Matter

- without which the problem would have not arisen

A Cause of Action or Ground of Defense

- Cause of Action claim asserted

- Ground of Defense position of one against asserter

R Relief or Object Sought

- purpose of bringing the suit; remedy

P Parties, Persons, Or Places

- relationship of parties involved

- for purposes of venue

Some Likely Sources of Information

(1) People

(2) Tangible Evidence

(3) Books, Periodicals, Reports

(4) Expert Witnesses

(3) Identification of Issues

- how the law relates to the facts of the case

(4) Arranging the Legal Issues in a Logical Order

- issues ordered logically according to certain rules or organizing principles

- either chronologically or in order of presentation

- address issues in the order that allows one to avoid most redundancies and do the least double-back in reasoning(5) Classifying the Problem

- classification into major subject fields

- then use an authoritative or trustworthy source

Approaches in Searching for Authority(1) Law Finding Techniques

TechniqueDescription

Descriptive Word/Index or Fact MethodUse of the subject index to a book after the analysis of the facts in the problem using the TARP Rule

Table of Contents, Topic or Analytic MethodClassifying problem as to what the subject field belongs; researcher can go to a particular book on the subject and search

Known Authority, Statute, or Case MethodApplicable case or citation of a law is known, then proceed to table of cases found in a digest, an annotated report, or compilation of statutes

Definition MethodUsed when the solution to a problem depends on the meaning of a legal or non-legal term or phrase

(2) Sources to Obtain Background Information- books such as code commentaries, treatises, and legal periodical articles wherein one can elicit background info

SourceWhere to Obtain

Spanish Laws and Royal DecreesBoletin Oficial

Gaceta de Manila

Early issuances of US Mil GovernorGeneral Orders, 1900

US Phil Comm IssuancesMinutes of Public Sessions 1901-1904

Executive Journal 1909-1913

EOs and Proclamation 1901-1941

History of an article in the Civil Code or Revised Penal Code

- examine the end of each provision

IF: Enclosed in Parenthesis search the cited article in Spanish Civil or Penal codeIF: (a) = former provision amended

IF: (n) = new provision

Research in Philippine Statute Law

(1) Constitution

1935History:

- Tydings-Mcduffie Law made Phil. Legislature enact a law calling for a Constitutional Convention of 202 delegates

- Constitution ratified by plebiscite on May 1935

- Plebiscite on Bicameral System, establishment of COMELEC, reduced Presidential term from 8 to 6 years on June 1940

Discussion on 1935 Constitution Provisions:

(1) Philippine Constitutional Convention Record

(2) S. Laurel, Records of Philippine Constitutional Convention

(3) The Framing of the Philippine Constitution, Aruego

Aids in Interpretation of 1935 Constitution

(1) Philippine Constitutional Law, Malcolm

(2) Philippine Political Law, Sinco

(3) Constitution of the Philippines Annotated, Tanada & Fernando

1973History

- RA6132 Calling for the Convention

- Proclamation 1081, Martial Law

-Proclamation 1102, announced ratification

- 1102 questioned in Javellana v. Exec. Sec.

Discussion on 1973 Constitution

- no records of the convention

- UP Law Lib has the Con-Con Archives which are collected papers of 20 ConCon delegates

- collection divided into committees: (1) alphabetical arrangement of Organic committees, (2) Administrative, Ad-Hoc committees, (3) Councils

Some books on the 1973 Constitution

(1) 1973 Constitution Notes and Cases, Bernas

(2) The Constitution of the Philippines, Fernando

(3) Political Law of the Philippines, Tanada & Carreon

1987History

- EDSA Revolution lead to Freedom Constitution

- called for a Constitutional Convention

Records and Discussion of the 1987 Constitution

(1) Records of the Constitutional Commission (5vol)

(2) Journal (3vol)

(3) Index of the Journal of the Constitutional Convention (in the House of Representatives)

Some books and commentaries:

(1) The 1987 Constitution of the Republic of the Philippines, A Commentary, Bernas

(2) Constitutional Law, Cruz

(3) Philippine Constitutional Law, De Leon

(2) Treaties and International Agreements

- treaties are pacts between two or more sovereign nations

- treaty between 2 nations = bilateral agreement

- treaty between three or more nations = multilateral

SourcesDescription

Official GazetteOfficial texts of treaties entered into by the Philippines are published here

DFA Treaty SeriesBegan publication Aug 1947, discontinued 1965

Philippine Treaty SeriesPublished by the UP Law Center, now on its 5th volume

Philippine Treaties Index1946-1982; published by Foreign Service Institute of DFA; divided into (1) Bilateral Index; alphabetical by country; (2) Multilateral Index; arranged by subject

United Nations Treaty SeriesTreaties entered by Philippines registered here with the UN SecGen; most comprehensive; treaties registered by member-nations; chronological listings

Multilateral Treaties Deposited with the Secretary GeneralPublished by the UN; bi-annually revised listing of multilateral conventions arranged by subject

(3) Statutes Proper- term to designate legislation enacted by national legislatures in the ordinary course of law making

- found in the various enactments of the Philippine Legislature

- There has been a total of 17, 755 statutes since 1900

SourceDescription

Official GazetteText of statues published; also in a newspaper of general circulation

Laws and ResolutionsLaws published since 1946; by the National Printing Office now the Government Printing Office; now in 5 CDs by the Congress

Philippine Permanent and General StudiesPublished by UP Law Center; 7 volumes; subject index found in each volume; Disposition Table gives status of each law

Vital Legal DocumentsSecondary source by Central Lawbook Company; CDROMs are also available

Legislative History

- to determine intent, look at the history

SourceDescription

Congressional Record or JournalUtilize the index to these which have subject approaches

History of Bills and ResolutionsUse this if the index is not available; either of the House or of the Senate

Laws and ResolutionsSearch for intent should begin here; also in the Official Gazette; original number of House or Senate Bill given in left-side margin before the title

Then turn to the History of Bills and Resolutions indicating the session of Congress; history of bill under bill number with page references to Congressional Record

Always locate the 2nd reading of the bill where the debate or discussion is made

(4) Administrative Rules and RegulationsAdministrative Regulation subsidiary law designed to explain or carry out the details of statutes that govern an administrative agency

Effectivity 15 days from the date of filing with the UP Law Center unless a different date is fixed by law (Sec. 4, Book VII, Admin Code of 1987)

Rules and Regulations to be filed with the UP Law Center

(1) statements of general applicability which implements, interprets law

(2) statements of general applicability which fix and describe procedure in or requirements of an agency

(3) amendments or repeal of any prior rule

(4) Regulations affecting private rights, privilege, occupation, or business

(5) administrative disciplinary action and the governing rules of procedure

Rules and Regulations that need not be filed

(1) interpretative regulations; those internal in nature

(2) instructions on case studies made in petitions for adoption

(3) on assignments or workload of personnel

(4) affecting only a particular or specific sector

(5) instructions by supervisors concerning their subordinates(6) memoranda internal; not affecting public

(7) memoranda disseminating any law of other agencies

Sets published by the UP Law Center

SourceDescription

National Administrative RegistrarQuarterly bulletin beginning 1990; text or rules duly filed together with a complete index and tables

DOJ Rules and RegulationsPublished in 2003

Rules of Procedure of Administrative Agencies4 volume, published 2003-2006

(5) Local Legislation or Ordinances- ordinances shall take effect after 10 days from the date of a copy thereof is posted in a bulletin board at the entrance or the provincial capitol, city, municipality, or barangay hall in at least 2 other conspicuous places- text disseminated and posted in English or Filipino and in a language or dialect understood by people of that LGU

- gist of ordinances with penal sanctions published in a newspaper of general circulation

(6) Court RulesRules of Court govern the pleading, practice, and procedure before all courts

FIVE MAJOR PARTS:

(a) civil actions(d) evidence

(b) special proceedings(e) legal ethics

(c) criminal procedure

Rules Promulgated by the SC pursuant to Sec. 13, Family Courts Act:

(1) Rule on Examination of a Child Witness

(2) Rule on Juveniles in Conflict with the Law

(3) Rule on Declaration of Absolute Nullity of Void Marriages and Annulment for Voidable Marriages

(4) Rule on Legal Separation

(5) Rule on Provisional Orders

(6) Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (7) Rule on Guardianship of Minors

(8) Rule on Adoption

(9) Rule on Commitment of Children

(10) Rule on Violence Against Women and Their Children

Research in Case LawCase Law = court opinionsTwo categories:

(a) Conventional Decisions

- enforce all rulings rendered by regularly or specially constituted courts of justice

(b) subordinate decisions

- include all the rulings made by administrative and legislative tribunals

(1) Supreme Court Decisions

SourceDescription

General RegistryOfficial text of decisions are printed initially as advance decisions; available at the Office of the Clerk of Court

Philippine ReportsDecisions are published here since 1901 to date

Official GazettePublishes decisions on a selective basis

Supreme Court Rulings Annotated (SCRA)Unofficial secondary source; published by the Central Lawbook Company since 1961

Lawyers Review and SC Advanced DecisionsPublished by Rex Printing; other important decisions are reproduced here

Supreme Court Unpublished DecisionsUnpublished decisions since 1946; compiled by Judge Nifatan; 2-volume; from March 1946-1960

CD ROMsSupreme Court Decisions 1996-2008 and updated every 6 months; Lex Libris-Jurisprudence by CD Asia Tech; PhilJuris;

Finding ToolDescription

Philippine DigestSubject approach; covers 1901-1945

Volume 6 Desk-Book; contain full list of titles and cross-references; EN-SP glossaries; complete table of cases of Phil Reports from 1901-1924

Vol.9,11,13 continuing Table of Cases in subsequent volumes of Phil Reports

Vol.11,13 Phil Citator appears; arranged by volume and page

Republic of the Philippines DigestContinued the Philippine Digest; covers July 4, 1946 to September 1958; including unpublished cases; 8 volumes

Vol. 7 contains Phil Citator

Vol 8 contains Table of Cases

Vol. 9-17 supplements covering digests of SC decisions from Oct 1958 Dec 1966

Quick-Index DigestIndex to the SCRA; 4 volumesVol 1-2 covers Vol.1-36

Vol. 3 covers Vol. 37-101

Compendium of Philippine Jurisprudence1945-1980; authored by Celso L. Magsino in 9 volumes and 1989 Supplements in 2 volumes

Summary of Supreme Court RulingsAuthored by Atty. Daniel Martinez; to cater to students and bar reviewees; 2 volumes, annually from 1987-1996; arranged to the 8 bar subjects; gives detailed outline and analysis at the beginning of each chapter

Philippine Law ReportPublished monthly by UP Law Center since 1974; contains case digests of important cases as well as texts of important laws

Supreme Court Decisions Title IndexPublished also by UP Law Center; supplemented from 1976-1982 and 1982-1985

Case Digests of Supreme Court DecisionsMost current digest; prepared monthly by the Committee headed by Reynato Puno; each issue contains a title and subject indexes arranged alphabetically by subjects

(2) Court of Appeals Decisions

SourceDescription

Appellate Court ReportsDecisions of CA initially published here; only available volumes are Vol. 2 (Jan4-June30, 1937) and Vol.8 (Jan8-June30, 1947)

Court of Appeals2d series; Vol.1 came out with 1961 selected decisions; then came out annually until Vol.25 (1980 decisions)

Court of Appeals Reports AnnotatedContain selected decisions; published by Central Lawbook Publishing beginning with Vol1 up to 10

Velayos Digest of Philippine Supreme Court and Court of Appeals DecisionsSubject approach to CA decisions; 24 volumes containing decisions from 1942 1960; series supplemented from 1961-1971 annual volumes

(3) Sandiganbayan DecisionsJurisdiction of Sandiganbayan violations of the Anti-Graft and Corrupt Practices Act, RA 1379 (PD1606, as amended by RA 7975 and 8249) and Chapter II, Sec 2, Title VII, Book Two of the Revised Penal Code- only one volume of the Sandiganbayan Reports was published containing Dec 1979 Feb 1980 decisions

American Legal Sources- consult laws and decisions of US only if our laws were copied from them and its principles of law were adopted in the Philippines(1) Research in US Federal Statutory Law

SourceDescription

Federal Constitution

(1) US Code (USC)

(2) US Code Annotated (USCA)

(3) US Code Service (USCS)Found in several publications; found in beginning volumes of these codes

Constitution of the United States of America, Analysis and Interpretationone of the most extensive and authoritative; edited by John Killian; published by the Congressional Research Service

Federal Statutes

US Statutes at Large (Stat)Search for legislative intent begins here; original number of the law given in the upper left margin

Index of the Congressional RecordTurn to this when the bill number is acquired from the Stat. Legislative intent can be found in the section entitled History of Bills and Resolutions

US Code Congressional and Administrative News (USCCAN)Prints the text of the act and the abbreviated version of the committee reports pertaining to the act

US Law Weekly (USLW)Selected statutes are published here; looseleaf service published by the Bureau of Internal Affairs

US CodeDivided into 50 titles or subjects and contains notes to sources of the text and to previous laws; official code published by the US Government Printing Office; new updated code published every 5 years

Index of the US CodeComprehensive, carries a list of citations of the US Statutes at Large with parallel citations of titles and sections

US Code Annotated (USCA) and US Code Service (USCS)Unofficial publications of the West Publishing and Lexis Law Publishing; contain federal statutes, annotations, notes or commentaries of decisions

Treaties and International Agreements

US Statutes at LargeTexts of treaties published here until 1950

United States Treaties and Other International Agreements (UST)Took on the publishing of treaties after the 1950 US Statutes at Large; separate series

Treaties and Other International Acts Series (TIAS)Each treaty published in pamphlet form with a given series number

Treaties in ForceIssued annually by the Department of State; official index to the current US treaties and agreements; offers citations to all major treaty publications such as the UNTS (Treaty Series)

International Legal Materials

(ILM)Bi-monthly; published by the American Society of International Law; contain texts of treaties of major significance; selective, provides access to many recent documents reflecting US International Law developments

(3) Research in Case LawSourceDescription

US Federal Supreme Court

US ReportsOfficial publication of decisions; published by West Publishing Co.

Supreme Court Reporter (SCt)Alternative text to US Reports; published by West Publishing Co; carries a key number system which is used for court decisions throughout the country

US Supreme Court Reports, Lawyers EdFirst and second editions published by Lexis Publishing Co; together with SCt, carries editorial summaries and headnotes of each case and access to headnotes is provided by Digests; contains legal analyses or annotations on issues

US DigestsCompanion sets to the Reporter

US Law Week (USLW)Looseleaf service published by the Bureau of National Affairs; prints important current decisions of the US Fed SC and digests of decisions of Fed App and district and state courts

Federal Appellate and District Court Decisions

US District Courts in 94 districts = general trial courts

US Court of Appeals in 13 circuits = intermediate appellate

Federal Reports,Federal Supplement,Decisions of the courts published unofficially here by West Publishing;

Federal Rules Decisioncontain a limited number of US District Court decisions not published in the Federal Supplement dealing with procedural rules under the Fed Rules of Civil and Criminal Procedure; contains articles, speeches, and conference reports on federal procedural issues

Decisions of State Courts

Published in 2 forms: (1) official reports, issued under the auspices of the courts and are authoritative; (2) unofficial reports by commercial publishers

National Reporter SystemMajor comprehensive unofficial reporting system; by the West Publishing Co; includes a series of regional reporters publishing the decisions of appellate courts; divides the US into 7 regions supplemented by separate reporters for the most litigious states (Ca, II, NY)

Wests Federal Court ReportTogether with the National System Reporter, creates a uniform system tied together by the key indexing and digesting scheme

Atlantic ReporterRegional reporter of NRS; Conn., Del., DC., Me; Md. NH., NJ., Pa., Rd., Vt.

Northeastern ReporterRegional reporter of NRS: Ill., Ind., Mass., NY., Ohio

Northwestern ReporterRegional reporter of NRS: Iowa, Mich., Minn., Neb,, ND., SD., Wis.

Pacific ReporterRegional reporter of NRS: Alaska, Ariz., Cal., Colo., Harv., Idaho, Kan., Mont., Nev., NM., Okla., Ore., Uta, Wash., Wyo

South Eastern ReporterRegional reporter of NRS: Ga., NC., SC., Va., W.Va.

Southern ReporterRegional reporter of NRS: Ala., Fla., La., Miss

South Western ReporterRegional reporter of NRS: Ark., Ky., Mo., Tenn., Tex

California ReporterFor the state of California; supplement reporter of NRS

Illinois DecisionsFor the state of Illinois, supplement reporter of NRS

New York SupplementFor the state of NY, supplement reporter of NRS

American Digest SystemIndex to all of the reporters; 3 digest sets that provide small-paragraph summaries of court opinions written by every federal and every state court that publishes its opinions using the West key-number system:

THREE DIGESTS:

(1) General Digests most recent summaries every month; cumulative tables in every 10th volume

(2) Decennial Digests summaries covering 10-year periods; recompiled from the Gen Dig

(3) Century Digests summaries written from 1658-1896

American Law Reports Published by Lawyers Cooperative Publishing Co.; contains complete text of selected court opinions with extensive commentaries

American Law Reports, 1st-5th seriesDevoted to general and state legal issues

American Law Reports, Federal SeriesDevoted to issues of federal law

Electronic Sources of Law- become more important to the practice of law

- stores a large amount of information in a small amount of space portability

(1) Media for Electronic Legal Research

- Soft magnetic disks, CD ROMs,

(2) CDs Available Local and in the UP Law Library

- CDs made by Lex Libris and produced by CD Asia

- Access to Law publishes the 2-vol Laws Annotated Series

- iLaw supreme court decisions from 1901 Feb 2005

- Supreme Court E-lib 1995-Oct 30,2008 decisions

- Philippine Legal Forms by Atty. Fernando Duque

- Everyones Legal Forms and Philippine Legal and Government Forms by Atty. Ralph Sarmiento

(3) Other CDs available in the UP Law Library

ILOLEX; UNDP Human Development Report; UN Sanctions and International Law; Proceedings of the Preparatory Commission on Constitutional Reforms; West Group Law School Solutions; International Humanitarian Law; No Peace Without Justice; World Development Sources; USSC; UNBIS CD ROM; Univ of Ottawa Faculty of Law; Refworld; Information; TIARA; WilsonDIsc

Reading and Updating the Law

- Locate the statute applicable, read its provisions and cite

- Read the cases and make an internal evaluation and external evaluation

- the researcher must make the final assessment in understanding the cases and statutes

Writing the Memorandum of Pleading- Good legal writing requires accuracy in legal research, legal analysis, and reasoning

- requires awareness of the purpose as well as the audience of the memorandum or pleading

- pay attention to grammar, substantive content, lucidity of arguments, development, preciseness of words, completeness of citations

- Philippine Manual of Legal Citations

Conclusion- no uniform rule as to how extensive a research should be

- influenced by extraneous factors

- Common Sense is neededLuciano |B2015 1