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Legal Research Notes Prelims

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Legal Research Notes Prelims
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  Legal Research GOALS: ã Determine the objectives  of the lawyer or client; ã Identify and analyze factual material ; ã Identify the legal context in which factual issues arise; ã Identify sources  for investigating relevant facts; ã Analyse a client’s instructions and be able to identify the legal, factualand other issues presented; ã Present the result of research in a clear, useful and reliable form. ã Students should be able to demonstrate an understanding of ã  !he use of primary and secondary texts ; ã  !he methods of locating cases and statutes; ã  !he use of treatises periodicals digests and standardpractitioner texts ; ã  !he use of indexes and citators ; ã  !he use of computeri!ed research tools . e#nition: ã Process of #nding the laws, rules and regulations that govern activities inhuman society. ã $nvestigation for information necessary to support legal decision ma ing. ã Process begins with analyzing the facts of a problem and concludes withapplying and communicating the results of the investigation. P%&POS': ã  !o ascertain the legal conse#uence of a speci$c set of actual or potentialfacts. ã  !o provide competent representation. SO%&('S: ã %rinted and electronic sources )he )hree*Stage +odel for Legal &esearch,-&esearch Planning a.&act collection;b.Legal nowledgec.%roblem identi$cation;d.Legal analysis;e.&act analysis;f.&urther fact collection;g.Identi$cation of avenues of research;h.'eneration of ey search words .-&esearch $mplementation a.Identi$cation of problem(s) resolution;b.Identi$cation of relevant source materials;c.Location of source materials;d.*+ective use of source materials;e.nalysis of research $ndings;f.pplication of $ndings to problem(s);g.Identi$cation of further problems /-&esearch Presentation a.Identi$cation of the recipient-s needs or re#uirements;b.Selection of appropriate format, for eample, letter, memorandum, report,brief;c./se of clear and succinct language;d./se of appropriate language style, for eample, informatory, advisory,recommendatory, demanding. (haracteristics of Legal +aterial ã Primary Sources   – Recorded authoritative statements of legal rules by governmentalinstitutions to be enforced by the State. 0ost can be found in statutespassed by the legislature, regulations and rulings of administrativeagencies and decisions of appellate court.  – )hey are subdivided into: ã +andatory Authority and ã uthority that a given court is bound to follow. ã 1onstitutional %rovisions, statutes, internationalconventions and treaties, 2udicial decisions, administrativerules and regulations, ordinances and court rules. ã Persuasive Authority ã Law or reasoning which a given court may, but is notbound to follow. ã 1ase containing ecellent analysis and may provideguidance for the court. ã 0aybe because of cogency of its reasoning, the highstanding of the court deciding it, or the eminence of itsauthor. ã Li e opinions of heads of administrative agencies, otherforeign 2udicial opinions having a signi$cant e+ect on our 2urisprudence. ã Secondary +aterials  – 0aterials which are not primary but annotate, discuss or analyze legaldoctrines.  – 3arying in purpose and #uality depending on the prestige of theirauthors or the #uality of their scholarship.  – 1an assist in analyzing a problem and their footnotes providereferences to primary sources and other secondary materials.  – Restatements of Law, Looseleaf Services, Legal *ncyclopedias,4ornboo s, %ractice 0anuals, &orm56oo s, nnotations, 1ase Digests, !reatises and !etboo s, 6ar Reviewers, Legal %eriodicals, LegalDictionaries. 0inding )ools ã 0eans to locate primary sources. ã 7ecessary because of the growing mass of information available. ã $G'S)S ã Indees to reported cases, provides brief unconnected statements of court holdings on points of law which are arranged by sub2ect. ã Reprint of headnotes found in the case reports. ã LA1 $()$O2A&$'S ã ($)A)O&S ã Research aids which provide notational information on the status of aparticular case law or the current status of a statute. ã 1an be used to $nd other decisions similar to or dependent upon thecase under consideration. ã $2 '3'S ã lphabetical lists of important words and concepts covered in a boo , aset of boo s or research sources that assists the researcher in locatingthe primary or secondary sources. ã $&'()O&$'S ã Information about lawyers, law $rms, etc8 ã )A4L'S ã lphabetical listings of case names or statutes with references to thelaw reports or publications where the cases or law can be located. ã O)5'& SO%&('S ã 9pinions of Legal *perts and 9ther State and &oreign Sources. &'S'A&(5 +A)'&$ALS: S)A)%)O&6 LA1 and (AS' LA1S)A)%)O&6 LA1 ã (onstitution  ã )reaties and $nternational Agreements ã Statutes 'nacted by the Legislature ã Administrative &ules and &egulations ã Ordinances ã &ules of (ourt ã 0ormer constitutions of the Philippines: ã  !he :<= &reedom 1onstitution promulgated by %residential %roclamation,0arch >?, :<=. ã  !he :@A 1onstitution as mended in 9ctober :=5:@, :@=, on Banuary AC,:<C, and pril @, :<:. ã  !he :@A 1onstitution draft presented to %resident 0arcos by the :@:1onstitutional 1onvention on December :, :@>; deemed rati$ed by 1itizens-ssemblies held from Banuary :C to :?, :@A, proclaimed in force by%roclamation by %resident 0arcos, Banuary :@, :@A. ã  !he :A 1onstitution as approved by the %reparatory 1ommittee on%hilippine Independence, September , :A and rati$ed by the ELI6%I1onvention, September @, :A. ã  !he :A? 1onstitution as amended on Bune :<, :C, and on 0arch ::, :@. ã  !he :A? 1onstitution as approved by the :A 1onstitutional 1onvention on&ebruary <, :A?, certi$ed by the %resident of the /nited States on 0arch >?,:A?, and rati$ed by plebiscite on 0ay :, :A?. ã  !he Bones Law of ::= enacted into law by the /nited States 1ongress onugust >, ::=. ã  !he %hilippine 9rganic ct of :C> enacted into law by the /nited States1ongress on Buly :, :C> ã  !he :< 0alolos 1onstitution approved by the 0alolos 1ongress on7ovember >, :<<, draft returned by %resident guinaldo on December :,:<< for amendments, which the 1ongress refused; approved by %residentguinaldo on December >A, :<<; formally adopted by the 0alolos 1ongresson Banuary >C, :<, promulgated by %resident *milio guinaldo on Banuary>:, :<. &'S'A&(5 $2 P5$L$PP$2' S)A)%)' LA1 ã (O2S)$)%)$O2 ã ,7/8 (onstitution-  !he discussions of the provisions of :A? 1onstitution can be located in thefollowing sources - %4ILI%%I7* 197S!I!/!I97 1973*7!I97 R*19RD, Buly AC, :A to&eb. <, :A?. :: 3. ( 4ouse of Representative, :=?) - S. L/R*L (*D.), R*19RDS 9& !4* %4ILI%%I7* 197S!I!/!I97L1973*7!I97. @3 (:==) - .0. ruego, !4* &R0I7' 9& !4* %4ILI%%I7* 197S!I!/!I97, >v.(:A=5A@) - 3. &rancisco (ed.). Bournal of the 1onstitutional 1onvention of the%hilippines. ?v. (:=:5=?). - %hilippine Lawyers ssociation. !4* %4ILI%%I7* 197S!I!/!I97;9RI'I7S, 0EI7', 0*7I7' 7D %%LI1!I97. v. - *F1*LL*7! IDS I7 !4* S!/DG 7D I7!*R%R*!!I97 9& !4* :A?197S!I!/!I97 R* - '.. 0alcolm, %hilippine 1onstitutional Law (:=) - 3.'. Sinco, %hilippine %olitical Law (:: th  *d., :=>) - L.0. !anada H *.0. &ernando, 1onstitution of the %hilippines nnotated.:@. > v. ã ,79/ (onstitution  –  !here are no records of the :@: 1onstitutional 1onvention because of the imposition of martial law.   – 4owever, the /niversity of %hilippines Law Library collected the papersof twenty 1onstitutional 1onvention delegates, the most completepapers of which belong to Dr. ugusto 1aesar *spiritu.  – Enown as 1on51on rchivesJmong the notable boo s on the :@A 1onstitution ã  B.'. 6ernas, S.B. , !he :@A 1onstitution 7otes and 1ases >v. (:<A). ã *.0. &ernando, !he 1onstitution of the %hilippines, >d. *d. (:@@). ã L.0. !aKada H 1arreon, %olitical Law of the %hilippines. >v. ã 4.S. De Leon and *.0.S. Lugue, !etboo on the 7ew 1onstitution (:<>). o ,79 (onstitution ã Discussions on the %rovisions of the :<@ 1onstitution are found in the $ve5volume Records of the 1onstitutional 1ommission and its three volume Bournal. ã 4ouse of Representatives, Inde of the Bournal of the 1onstitutional1ommission, prepared by the 9ce of the Secretary M'eneral Special !as &orce published in pril >CCA. ã 6ac ground information !he 1onstitution of the Republic of the %hilippines,Draft proposal of the :<= /.%. Law 1onstitutional %ro2ect submitted to theconstitutional 1ommission on Bune ?, :<= in > volumes.1ommentaries and interpretations on the :<@ 1onstitution are o  Boa#uin 6ernas, commentary on :<@ 1onstitution o Isagani 1ruz. 1onstitutional law (>CCA) o 4ector de Leon. %hilippine 1onstitutional Law (>CCA5>CC) >v. o mbrosio 6. %adilla, !he :<@ 1onstitution, Nith 1omments and 1ases. >v.(:<@). o 3icente 3. 0endoza, Budicial Review of 1onstitutional Ouestions; 1ases and0aterials. A=Cp. (>CC>) )&'A)$'S A2 $2)'&2A)$O2AL AG&''+'2)S ã  !reaties5 are pacts between two or more sovereign nations. ã If the treaty is between two nations, it is called a bilateral agreement. ã Nhile a treaty between three or more nations is a multilateral agreement. ã  !he ocial tet of treaties entered into by the %hilippines is published in the9cial 'azette (9.'.). ã  !reaties entered into by the %hilippines are registered with the /.7. Secretaryand %ublished in the /nited 7ations !reaty Series. S)A)%)'S P&OP'& ã Statutes proper is a term to designate legislation enacted by nationallegislature in the ordinary course of law5ma ing.  – ,>@? Laws5 the %hil. 1ommission and the %hil. Legislature (:CC5:A?).  – @AA Statutes5 1ommonwealth %eriod.  – ==A? R..s M Buly , :=5Sept. >:, :@>.  – >CA? %.D.s M %resident from :@>5&eb >, :<=.  – <: batas M %atasang %ambansa from Buly >A, :<5&eb. :, :<=.  – AC> *.9.s M %resident #uino under the &reedom 1onstitution.  – PA?:C more R. M by 1ongress to date.  – :<,A<: statute since :CC. ã %ublished in the 9cial 'azette or in a newspaper of general circulation. ã Laws are also published since := by the 'overnment %rinting 9ce in themulti5volume set, Laws and Resolution. ã nother ocial Source is the %hilippine %ermanent and 'eneral Statutespublished by the /% law 1enter in seven (@) volumes. ã Secondary Sources  – 3ital Legal Documents published by 1entral Lawboo 1ompany  – 1D5R90S of Le Libris  – %hil2uris  – ccess law ã Legislative 4istory
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