Legal Research and Legal Writing
Legal Research 3. Unquoted but verabtim phrase or passage
4. Uncited structure or organizing strategy
• the process of identifying and retrieving the
• Plagiarism may be done through negligence or
law-related information necessary to support
recklessness without intent to deceive
legal decision making
• All lawyers are supposed to be knowledgeable
• the process of getting answers to a LEGAL
on the standard of ethical practice, if they took
QUERY/PROBLEM
their legal research courses in law school and
The Basic Process of Conducting Legal Research their undergraduate research courses seriously.
1. Identify and analyze the significant facts Types of Legal Authorities
• Know the facts
1. Primary Sources
2. Formulate the legal issues to be researched
• Official issuances of the State and its
• Delve into the elements of the contract
instrumentalities
3. Research the issues presented
• Good lawyers are expected to go to primary
4. Update
sources and use only relevant citations
• Law is always changing
• General Classification
• Interpretation gets changed
1. Statutory Law
• Ie. Amendment of the corporation 2. Jurisprudence: Judicial Decisions
• What’s the latest jurisprudence? 3. Administrative Rules and Regulations
The Importance of Legal Research • Hierarchy of Primary Sources
a. The 1987 Constitution
• Lawyer’s oath b. Legislative Acts | Judicial Decision |
o Will do no falsehood Treaties
o Not wittingly or willingly promote or c. Administrative Orders, Rules, and
sue any groundless, false or unlawful Regulations (created by law and only
suit, or give aid nor consent to the same enforces the law)
o With all good fidelity as well to the 2. Secondary Sources
courts as to my clients • Discuss or analyze legal doctrine
• Code of Professional Responsibility
o 1.01 – not engage in unlawful, Difference of the Sources
dishonest, immoral or deceitful conduct • Primary sources are binding
o 10.01 – do no falsehood, nor consent to
• Secondary sources are merely persuasive,
the doing of any in court; nor shall he
explanatory
mislead, or allow the Court to be misled
by any artifice Constitutional Law
o 10.02 – shall not knowingly misquote or
• Primary authority
misrepresent
• First thing you cite
Charges of Plagiarism, etc. Against Associate Justice • Mother law
Mariano C. del Castillo • Written instrument by which the fundamental
powers of the government are established,
• “plagiarism presupposes intent and a
limited and defined, and by which these powers
deliberate, conscious effort to steal another’s
are distributed among the several departments
work and pass it off as one’s own
or branches for their safe and useful exercise
Dissenting Opinion (Sereno, C.J.) for the benefit of the people
o Limited – bill of rights
• Four forms of plagiarism
• State – people, sovereignty, government,
1. Uncited data
territory
2. Uncited idea
Legal Research and Legal Writing
• Sovereignty – power of self determination o Except Section 16 – it does not follow
that it is less important than any of the
Brief History of Philippine Constitutional Law
civil and political rights enumerated in
1. Malolos Constitution of 1899 the latter (Oposa v. Factoran Jr.)
2. Philippine Autonomy Act of 1916 or “Jones o Spouses Imbong c. Ochoa, Jr.
Law” o Unless the provisions clearly express
3. 1935 Constitution the contrary the provisions of the
4. 1943 Constitution – two simultaneous Constitution should be considered self-
constitution executory. There is no need for
5. 1973 Constitution legislation to implement these self-
6. The Freedom Constitution – transitory executing provisions.
constitution ▪ Article II, Section 26: Political dynasties
7. 1987 Constitution are prohibited as may be defined by
• They were by-products of martial law and law
people power revolution • Reading and Intepreting the Constitution
• Supreme law of the land o Verba Legis Rule – from the words of a
• Binding on all citizens and organs of statute there should be no departure
government (verbal egis non est recedendum)
• Test of legality of all government action o The words of the Constitution should be
• Establishes basic principles of government understood in the sense they have in
• Establishes the basic fundamental rights of common use
citizens o Must be given their ordinary meaning
o Chavez v. Judicial and Bar Council
• Article 7, Civil Code: If a law is inconsistent with
▪ Article 8, Section 8 – a Judicial and Bar
the Constitution, the former shall be void and
Council is hereby created under the
the latter shall govern
supervision of the Supreme Court
• Constitution of Government (Except Art. 3 and
composed of the Chief Justice as ex
Art. 17)
officio Chairman, the Secretary of
• Constitution of Liberty (Art. 3) – why we call
Justice, and a representative of the
ourselves democracy
Congress
• Constitution of Sovereignty (Art. 17)
▪ Senator Francis Escudero and
• Preamble
Congressman Niel Tupas, Jr.
o Not a source of rights/ obligations
simultaneously sat in the JBS as
o Sets down the origin, scope, and
representative of Congress
purpose of the Constitution
o Where the words of a statute are clear,
o Useful as an aid in ascertain the
plain, and free from ambiguity, it must
meaning of ambiguous provisions in the
be given its literal meaning and applied
body of the Constitution
without attempted interpretation
o A “source of light”
o Intent of the Framers of The
• Article II: Declaration of Principles and State
Constitution (When should we resort
Policies
to the intent of the Framers of the
o Are they the sources of enforceable
Constitution?)
rights?
▪ Where a literal meaning would lead to
o Pamatong v. Commission on Elections
absurdity, contradiction, injustice, or
▪ Article 2, Section 26 – equal access to
defeat the clear purpose of the
opportunities for public service
lawmakers
o Not self-executing
o Merely provides a guideline for
legislative or executive action
Legal Research and Legal Writing
o De Castro v. Judicial Bar Council
▪ Article 8, Section 9 – The Members of
the Supreme Court and judges of lower
courts shall be appointed by the
President from a list of at least three
nominees prepared by the Judicial and
Bar Council for every vacancy. Such
appointments need no confirmation
▪ Article 8, Section 4(1) – The Supreme
Court shall be composed of a Chief
Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in
divisions of three, five, or seven
Members. Any vacancy shall be filed
within 90 days from the occurrence
thereof
▪ Article 7, Section 15 – Ban on midnight
appointments – Two months
immediately before the next
presidential elections and up to the
end of his term, a President or Acting
President shall not make appointments
▪ Does the incumbent President GMA
have the power and authority to
appoint during the election ban the
successor of Chief Justice Puno when
he vacates the position of Chief Justice
on his retirement on May 17, 2010?
▪ The ban on midnight appointees does
not include appointments by the
President of Justices of the Supreme
Court
▪ GMA was allowed to appoint the Chief
Justice even after the May 10, 2010
presidential elections
• Non-establishment Clause – no law shall be
passed for religion