Introduction to Legal Research

Atty. Laura C.H. del Rosario Professor, Legal Research with Computer Lyceum of the Philippines University College of Law

Legal Research
The investigation for information necessary to support legal decision making. A process that begins with analyzing the facts of a problem and concludes with applying and communicating the results of the investigation.

Definition of Legal Research

The process of finding the laws, rules and regulations that govern activities in human society. Involves locating both the laws and rules enforced by the State, and the commentaries which explain or analyze the rules. The investigation for information necessary to support legal decision making. Includes each step of a process that begins with analyzing the facts of a problem and concludes with applying and communicating the results of the investigation.

Definition of Legal Research

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

Legal Research is the process of identifying and retrieving information necessary to support legal decision making.

Definition of Legal Research

Legal analysis is the process of determining how the law applies to the problem.

Legal Research and analysis involve determining how the 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.

Purposes of Legal Research

Good research makes good lawyering Gives the lawyer the knowledge with which to build a successful case or to provide accurate and insightful advice. Essential in legal practice to determine the impact of past actions and the implications of contemplated actions. Efficient research saves time for other aspects of lawyering.

PURPOSE OF LEGAL RESEARCH

To ascertain the legal consequences of a specific set of actual 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 research process 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 legal problems. Every competent practitioner must possess legal research skills. To provide competent representation to a client.
Competent representation requires legal knowledge, skill, thoroughness and preparation.

Legal Researchers need to:

Develop an awareness of the types of materials that constitute the law and of the relationships between these materials. Gain a perspective on how such sources may apply to a particular subject matter and how they relate to each other.

Legal Researchers need to:

Learn how to consult multiple sources and use different techniques for each type of source.
(e.g., Primary sources: statutes/ legislative enactments, cases/ opinions of the judiciary, regulatory materials/ administrative agency regulations and decisions).

What sets apart LEGAL Research from research in other contexts:

Need for comprehensiveness in primary authority research
Which is binding in the applicable jurisdiction? Cases or statutory provisions which seem not to favor a clients position cannot simply be ignored; rather, they must be discovered, thoroughly analyzed, and distinguished.

What sets apart legal research from research in other contexts?

The need to analogize, for difficult to find authority that is squarely on point, or factually identical, based on reasoning process a rule of law applied to one set of facts should logically be applied to another set of factual circumstances

-- (Thurgood Marshall Law Library)

What sets apart legal research

The law is organic; legal researcher needs to update and verify every source.
Statutes may be repealed or amended Case law may interpret statutes and thus apply or modify them. Researcher must update carefully in order to accurately assess the significance of any authority.

Sources of Legal Authorities

Primary Sources of Law Secondary Sources of Law

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 or the official repository, the Official Gazette Ex. Constitution/Statutes/Treaties/Highest Court opinions/Administrative Regulations and Rulings

Sources of Law
Secondary Sources are the unofficial sources Generally refer to those commercially published or Those that are not published by government agencies or instrumentalities.
Descriptions of, or commentary on, the law

Sources of Law
Secondary Sources These materials are not binding on courts. Can be used only as persuasive authority Secondary sources vary widely in their relative weight as persuasive authority.

Primary Legal Authority

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

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 a particular jurisdiction. Mandatory statutory authority must be followed under the principle of Stare Decisis, unless the court decides that changed circumstances warrant a different outcome.

Hierarchy of Legal Authorities

Persuasive mandatory authority: Law created by other 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 under interpretation is based on either the Spanish or American law. Do not have to be followed but which may be used as examples of good reasoning Important if mandatory authority does not exist in a particular jurisdiction, or if the researcher wishes to look for arguments as to why existing precedents should be changed.

Primary sources of law

For Republic Acts and other legislative enactments or statutes,
the Official Gazette published by the National Printing Office the Laws and Resolutions published by Congress Official Government Portal of the PHL (www.gov.ph) www.congress.gov.ph

Primary sources of law

For Supreme Court decisions, the Philippine Reports, the individually mimeographed Advance Supreme Court decisions, and the Official Gazette.
Publication of Supreme Court decisions in the Official Gazette is selective. Complete and official court reports for Supreme Court decisions is the Philippine Report http://sc.judiciary.gov.ph

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

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

Finding Tools
non-persuasive means of locating primary sources SCRA Quick Index Digest Philjuris Lex Libris Digests Law Dictionaries Citators Indexes Directories Tables Legal Citations Annexes

 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 agency itself or the official repository, the Official Gazette Ex. Constitution/Statutes/Treaties/Highest Court opinions/ Administrative Regulations and Rulings

DISTINCTION between primary and secondary sources

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

DISTINCTION between primary and secondary sources

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 as persuasive authority Secondary sources vary widely in their relative weight as persuasive authority.

 See answers to previous question.

DISTINCTION between mandatory and persuasive authority

Involves knowing which law-making bodies issue legal authority for a particular jurisdiction. Concept of jurisdiction initially involves a determination of whether an issue that arises in a particular geographic location is governed by national law. Involves making judgments as to the similarity of facts and issues to the circumstances in the problem that is being researched. Mandatory statutory authority must be followed; mandatory judicial authority must be followed under the principle of Stare Decisis, unless he court decides that changed circumstances warrant a different outcome. Doctrine of stare decisis encourages stability of the legal system and provides mechanisms for individuals to predict the outcome of their behavior. However, there is a need to be responsive to change.

Mandatory primary authority is law created by the jurisdiction in which the law operates like the Philippines;

DISTINCTION between mandatory and persuasive authority

Persuasive mandatory authority is law created by other jurisdictions but which have persuasive value to our courts e.g. Spanish and American laws and jurisprudence. These sources as used specially when there are no Philippine authorities available or when the Philippine statute or jurisprudence under interpretation is based on either the Spanish or American law.
Do not have to be followed but which may be used as examples of good reasoning Important if mandatory authority does not exist in a particular jurisdiction, or if the researcher wishes to look for arguments as to why existing precedents should be changed. See Legal Research and Bibliography by Ng Po Po, pp. 135-141

Tools for Legal Research

Electronic Sources: Computer Databases Internet

Tools for Legal Research

Printed Sources: Constitution Statutes Court Decisions Administrative Rules Scholarly Commentaries

Tools for Searching

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

STATUTE LAW

1973 Constitution - ConCon Archives in the U.P. Law Library thru its indexes 1987 Constitution - Records of the Philippine Constitutional Commission. 5 v.

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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 3volume 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 Affairs Treaty 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 SECRETARYGENERAL, 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 Republic Acts, July 27, 1987 to August 24, 2007 302 laws

(R.A. 6636 - R.A. 9494 (Declaring Mibilisan Watershed, Misamis Oriental as a protected Landscape area, providing for its management) - 2,858 laws

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STATUTE LAW
17,729

17,466 2858

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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 of the law is made.
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ADMINISTRATIVE REGULATIONS AND RULES

Official Gazette
The 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. 43
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 Comprehensive Agrarian Reform Program and Presidential Issuances Department of Justice, U.P. Law Center 2003. Insurance Reporter

ORDINANCES COURT RULES MILITARY RULES

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STATUTE LAW
PRIMARY SOURCES 1. Constitution SECONDARY SOURCES FINDING TOOLS

2. Treaties and International Agreement 3. U.N. Treaty Series

UPLL COMPUTER INDEX 1987 Records of the Philippine to records of the Philippine Constitutional Commission 5 v. Constitutional Commission Journal of the Philippine Constitutional Commission Index found in the Book J. BERNAS, The 1987 Constitutional of the Republic of the Philippines 1988 A.Padilla Ambrosio, the 1987 Constitution, with comments and cases, 1987, 2v. Other commentaries TIARA (Treaties and International -Philippine Treaties Index, Agreements Researchers Archives 1946-1982 -CD ROM -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

Case law divided into:
Conventional decisions - all rulings made by regularly or specially Constituted Courts Subordinate decisions - all rulings made in accordance with law by administrative and legislative tribunals

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Supreme Court Decisions

Court decisions are collected chronologically in volumes 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

SCRA v. 1, 1961 Official Gazette, v.1, 1901 - Prewar issues available on microfilm at the U.P. Main Library

Supreme Court Unpublished Decisions, 1946-1960, compiled by David Nitafan 2v.

March

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CASE LAW

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The End