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 authority
1. Primary Authority - Contain actual law and judicial decisions; exact copies of statutes,
ordinances, and reports of judicial decisions
2. Secondary Authority - Restatements, critiques, commentaries
Classification by Source
PRIMARY

SECONDARY

Published by issuing agency

Unofficial 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
Congress

E.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 LAW

Ordinances:
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 RULE

ADMINISTRATIVE RULE

Meant to be subordinate legislation; designed to

implement the law by providing details

Meant to provide guidelines for the administrative

agency to enforce the law

Court cannot substitute its judgment - Can only look

into authority, reasonableness, procedure

Inquiry is not validity but correctness of the rule

Must be published

Internal 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 LAW
QOF

QOL

Doubt centers on the truth or falsity of the alleged

facts

Doubt 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 convincing

Issue 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)
JD

MR

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 problem
1. 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 Logic
1. 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 Approach
ISSUES - Precise legal question that must be answered in order to resolve the case

RULE - 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 apply
If several cases apply: Summarize the conflict
APPLICATION OF RULE TO FACTS
CONCLUSION
WRITING YOUR ANSWER
Prepare 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 case
4th Par: Restate your conclusion
Example:
1st: YES/NO, (stand)
2nd: Laws/Cases - Basis
3rd: Application of facts
4th: Therefore, (conclusion)