ETHICAL CONSIDERATIONS IN LEGAL RESEARCH

Plagiarism Definition and its different forms Academic writing vs judicial writing (In re Del Castillo) Acad: Intent is not a defense. (Intent as an element) Judicial Writing: Intent is to carry out the purposes of justice (Professional responsibility) Other unethical conduct (Hipos, Allied Banking, COMELEC Cases) Imprecise/misleading attribution ( Misquoting decisions Controlling text: decision vs syllabus (commentary by publisher) Duties CPR: Rules 1.01, 10.01, 10.02

Sources of law Statutory - Constitution, Legislative Enactments, Treaties & International Agreements, Admin Rules & Regulations, Ordinances Case Law (Articles & Civil Code) - SC, Appellate Courts, Interior Courts, Substantive Decisions (Quasi-Judicial)

Classification by authority1. Primary Authority - Contain actual law and judicial decisions; exact copies of statutes, ordinances, and reports of judicial decisions2. Secondary Authority - Restatements, critiques, commentaries

Classification by SourcePRIMARYSECONDARY

Published by issuing agencyUnofficial sources, and generally refer to those commercially published

E.g. (Legislative Enactments) - Official Gazette - Published by the National Printing Office; Laws and Resolutions - Book compiled and published by CongressE.g. (Legislative Enactments) Public Laws Annotated; Commonwealth Law

STATUTORY SOURCES Common law v Civil Law Jurisdictions (Max Shoop) PH Legal system = civil law Historically, Applicability of common law principles: insofar as they are (1) founded on principles applicable t local conditions (2) not in conflict with existing laws (3) conformable to existing institutions CONSTITUTION Expression of sovereignty by the Filipino people (plebiscite) Supreme law of the land, against the validity of all other laws are measured Determine scope of mandate and authority of different branches of law (Angara; In re Cunanan/Bar Flunkers) Doctrine of Constitutional Supremacy (Tawang) How does a bill become law? (ART 6, SEC 27) Effectivity of Laws (ART 2, CC) Publication in official gazette is prima facie evidence of authority of the law or issue Ignorance of the law excuses no one Operation and Effect of Laws Prospectively as a general rule Express repeal - express revival Implied repeal - Implicit revival, unless otherwise provided

ORDINANCES/ADMINISTRATIVE ISSUANCES AS LAWOrdinances: Exercise of police power Purpose of the ordinance + means by which it is carried out Test for validity: (1) Not contravene const or statute; (2) No unfair or oppressive; (3) No partial or discriminatory (4) Not prohibit, but may regulate trade; (5) General and consistent with public policy (6) Not be unreasonable (White light corp) Standards of judicial review: (1) Strict Scrutiny

Administrative Issuances Effectivity - When is publication necessary? GR: Necessary in all cases Circular vs Order Different presidential issuances Legislative vs Administrative Rules (Commissioner of Customs, Victorias Milling, National Federation of Sugar Workers)LEGISLATIVE RULEADMINISTRATIVE RULE

Meant to be subordinate legislation; designed to implement the law by providing detailsMeant to provide guidelines for the administrative agency to enforce the law

Court cannot substitute its judgment - Can only look into authority, reasonableness, procedureInquiry is not validity but correctness of the rule

Must be publishedInternal use

TRAITS AND INTERNATIONAL AGREEMENTS AS LAW Validity, as to characterization as a source of law (Agustin v Edu, Bayan Muna) PHL: Doctrine of Incorporation (vs Doctrine of Transformation) Pasta Sunt Servanda Every treaty is binding upon the parties to it Must be performed in good faith Cannot invoke provisions of municipal law as justification for failure to perform Treaties - signed by the President; Ratified by Senate, usually involving political issues or changes in national policy; or permanent character Signatory - Obliged to refrain from acts which would defeat the object and purpose of a treaty State-Party - Legally obliged to follow all provisions of a treaty in good faith Validity, as to form (Bayan Muna) Executive agreements - (ex. exchange of diplomatic notes) no need for senate concurrence; less formal and deal with narrower range of subject matters than treaties; usually embody adjustments of detail carrying out national policies Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting parties, as long as the negotiating officials have remained within their powers

SECOND SOURCE OF LAW: CASE LAW/JURISPRUDENCE Reading a case Types of court opinion (dissenting, concurring) Ratio decidendi - Principle which the case establishes; binding on courts of lower jurisdiction through stare decisis Obiter dicta - judicial opinion of points of law not directly relevant to the case in question; not binding but can be persuasive Stare decisis (De castro v JBC) Common law principle; to adhere to precedent and not to unsettle things that are settled A principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority court may be guided but is Question of FACT v LAWQOFQOL

Doubt centers on the truth or falsity of the alleged factsDoubt centers on what the law is on a certain set of facts

Question as to whether evidence should be accorded probative value or rejected; whether proof is clear and convincingIssue raised is capable of being resolved without reviewing the probative value of the evidence

GR: Factual findings of the trial court are binding on the SC (Not reviewable); see exceptions

Minute resolutions judicial decision v minute resolution (Phil Health Care Providers)

JDMR

Must express clearly and distinctly the facts of law

WHAT IF THE LAW IS SILENT? ART 9, CC Silverio case Floresca v Philex Mining Reyes v Lim

Written exam: MCQ Modified T or F Essay Bonus (10 pts): What is the difference between academic legal writing and judicial writing?

MIDTERM PREPARATION WORKSHOP

Guidelines in analyzing a legal problem1. Read the problem. Take note of any ideas that occur to you the 1st time you read it. (Initially, take a look at the question following the narration of facts. Mark facts you think may be relevant in resolving the question)2. Read the problem a 2nd time, this time more carefully. Dont start writing until you have read the problem at least twice, making sure you have understood the true import of the question.

Thought Logic1. What is the question being asked? (Your mental outline of potential answer must be RESPONSIVE to the question)2. What are the issues relevant to the question being asked?3. What are the material facts? How do the issues relate to the facts?4. What are the applicable principles, rules, laws, jurisprudence? (ALWAYS CITE YOUR LEGAL BASIS)5. How do these apply to the facts?6. What is the answer to the question?

The IRAC ApproachISSUES - Precise legal question that must be answered in order to resolve the caseRULE - After identifying the issue, identify the applicable legal RULES, PRINCIPLES, AND JURISPRUDENCE. Start by explaining the controlling legal principles.If this is an issue of 1st impression: explain what rules applyIf several cases apply: Summarize the conflict APPLICATION OF RULE TO FACTSCONCLUSION

WRITING YOUR ANSWERPrepare an outline. Prepare an outline of what you intend t say, and take the time to review and refine it before proceeding to write. Write when you are confident enough with your answer. (Does it answer the question completely? Does it have basis in law or jurisprudence?)1st Par: Answer the issue posed (A one-line conclusion. YES/NO, short answer why.)2nd Par: State the rule of law (Statute, case, legal principle, or a combination)3rd Par: Apply the rule of law to the facts of the case4th Par: Restate your conclusion

Example:1st: YES/NO, (stand)2nd: Laws/Cases - Basis3rd: Application of facts4th: Therefore, (conclusion)