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Legal Research and Law Profession

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					                   Legal Research and Law Profession

                                                            — Shreekrishna Mulmi
Research
        The role of judiciary is a very crucial to uphold rule of law in each
democratic country. Systematic study and investigation is a primary concern to
give authority and reliability of the subject, however, it is only possible by the
research. Research means a scientific and systematic re-examination of existing
facts or knowledge to ascertain whether the existing conclusion can be varied or
not. It is an endeavor to arrive at answers to intellectual and practical problems
through the application of scientific methods to the knowable universe. The
research involves scientific and systematic investigation, careful investigation,
critical inquiry or explanation in seeking facts or principles and diligent
investigation in order to ascertain in the subject area.
        Legal Research means that branch of knowledge which deals with the
principles of law and legal institutions. It may be dealt with legislation, precedent,
custom and other sources of laws. Since, it has been a research on the area of
law; this cannot be undertaken without having knowledge of social basis of law.


Area of Legal Research
       There may be a several areas to be undertaken for legal research in a
particular subject, moreover, legal research may undertake in different way in a
particular subject. Some of areas underlined as follows:
      Discover new facts and test and verify old facts
      Analyze the facts into new theoretical framework
      Analyze the consequence of new facts
      Develop new legal research tools
      Develop new legal concepts
      Explain nature and scope of law and evaluate law from historical
       perspective
      Analyze the effect of new legal system or law on society and functions of
       legal institutions
      Predict the consequence of new Act and interpret in critical way
      Collect the legal facts of particular area and test the concepts


Hypothesis in Legal Research



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        Hypothesis is a proposition, condition or principle which is assumed,
perhaps without belief, in order to draw out its logical consequences by this
method to test its accord with facts which are known or may be defined in a
research. The main important thing is the hypothesis should be capable of being
verified. It is further said that hypothesis should be such as can be put to
empirical text.


Research Design
       Research design is a plan of action, a plan for collecting and analyzing the
data in an economic, efficient and relevant manner. It mainly deals with collection
of data, analysis of data and interpretation of data. It is a plan that is a set of
decisions about how to do something in the future. It is a structure that the way
how the system are arranged. It is a strategy that a plan for achieving success in
a situations. However, the content of research design contains as follows:
      Title of the topic and determination of the scope
      Background knowledge and introduction of the problem
      Nature of the study descriptive, explanatory or experimental
      Description of short-term and long-term objectives
      Awareness regarding context
      Making of hypothesis and using of appropriate concepts and variables
      Appropriate time schedule for research
      Basis of data collection and appropriate tools for techniques
      Analysis and interpretation of data collected, along with decision regarding
       the problem of generality and validity, and
      Nature and amount of resources at once disposal


Lawyer and Legal Research
       Functions of Bench Officers are largely depending on to assist the bench
in deciding cases and are also required to do managerial functions such as
managing court rooms and maintaining friendly environments to the parties of the
cases. It is also said that Bench Officers are required to perform wide range of
tasks including legal research because they are the fresh and the bridge the gap
between law school and practice of law.
       Court regulations laid down as a function of the Bench Officers is,
however, to take the responsibility of case file and read out file for bench and
also assist the bench in preparing orders and verdicts. Though limited functions
have been stated in the statutes have enormous functions that are clerical as
well studious. Because of nature of job of bench officers demand that they should



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not limited to the clerical job rather should extend to be studious, competent,
knowledgeable, practicable, sensitive etc. They should have skills and
knowledge to analyze the case. They should also find out the facts and frame the
issue in a given case. Along with these responsibilities they should assist by
giving reasonable reasons behind the decision and conclude the decisions giving
particulars according to the decision. This, however, could not achieve going
mere without following the methodology needs for the study. They should go
thorough dispute related materials identifying problems with reviewing
information that they have. Even finding the facts and framing the issues in the
case needs to follow the scientific methodology to gain confidence and to reach
in a decision. Locating laws and precedents for the facts is also crucial in making
the decision. Therefore, verdict writing is also a kind of research report writing
where certain methodologies to be followed. With that reason, decision writing
process involves a systematic process of interpreting issues, facts, laws, legal
literatures and also precedents of apex court. In this juncture, the bench officers
are required to be organized, informed, systematic and scientific.
       Prior to writing the verdict, seven words for decision writing is essential
which are collect, collate, select, refine, rewrite, circulate, and issue. It is also
important to remember that your audience to whom you are writing for but not for
the winner but for the loser. Therefore, verdict writing is not subjective but
objective.


Citation
        In Nepalese context, while doing research and writing papers, citation has
not been given as it important as to the text. However, citation is also equally
important as to the text. The following are the importance and reasons for giving
citation.
      Citation help readers find the sources you are referring
      Allow reader to find and verify sources
      Show weight and persuasiveness
      Show type and degree of support
      Show paper is well-researched
      Give attribution


Citation Rules
      There are several rules for the citation developed by the Universities and
academics institutions. The Bluebook: A Uniform System of Citation is a style
guide and a widely used legal citation system in the United States. The Bluebook
is compiled by the Harvard Law Review Association along with the Columbia Law
Review, the University of Pennsylvania Law Review, and the Yale Law Journal.



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Currently, it is in its 18th edition. They revise every 5 years. It is so named
because its cover is blue.
        Association of Legal Writing Directors (ALWD), an organization of more
than 200 members representing approximately 150 law schools, undertook the
ambitious project of developing and publishing a new legal citation manual about
six years ago. In early 2000 the years of work came to fruition when the ALWD
Citation Manual was published by Aspen Law & Business, a leading publisher of
legal writing texts. One of the guiding ideas for the new manual was that it would
be, for the most part, a restatement of the rules of citation based on the citation
form actually used by experts. As a result of this conservative approach, citation
done in the ALWD format will be familiar to practitioners and scholars alike. Now,
it is second edition (2003).
        As the Bluebook is widely used citation book, it is so widely followed in
Nepal in comparison with other citation manuals. It is, therefore, has been rule for
the citation from the Bluebook.


Case Citation
The simplified general format of a case is:
       Name of the case, Published source(s), Cited page(s) (Court and
       jurisdiction, Year or date of the decision).
       such as:
       Reena Bajracharya and Others v. Secretariat of Council of Ministers and
       Others, Nep. Law Rep. 367, (SC. 2057 BS).
Constitution Ciation
To cite the Article 1, Clause 2 of the Constitution:
       NEP. CONSTI. (1990), art. 1, cl. 2.
To cite the Preamble to the Constitution:
       NEP. CONSTI. (1990), pmbl.
If the constitutional provision has been repealed, you may simply cite the year of
the repeal, or include the repealing provision in full.
Amendments use the same format for repeals:
       NEP. CONSTI. (1990), art. I, cl. 1 (repealed …….).
Statutes Citation
To cite the provision of the Codes:
       Code (Date of code edition cited) § Specific section.
       such as:
       Judicial Administration Act, 1992 § 12.



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Books Ciation
         AUTHOR'S FULL NAME, BOOK'S TITLE cited page (editor's full name
         ed., publisher year of the edition) (original publication date)
         such as:
         DR. SHANKAR KUMAR SHRESTHA, A STEP TOWARDS VICTIM JUSTICE
         SYSTEM: NEPALESE PERSPECTIVE 50 (Pairavi Prakashan 2001).
Periodicals Ciation
Consecutively paginated journals
The simplified general format is:
         Author's full name, Article's title, Volume number JOURNAL TITLE Start
         page, Cited page, (Published year).
The author's name of a journal article must not be set in small caps.
         Dr. Ramkrishna Timalsena, An Overview of the Prisoners' Rights and
         Prison Condition in Nepal, III ANNUAL SURVEY OF NEP. LAW. 33, 40
         (2002).
If the cited journal lacks a volume number, use the published year as a
substitute:
         Thomas R. McCoy & Barry Friedman, Conditional                    Spending:
         Federalism's Trojan Horse, 1988 SUP. CT. REV. 85, 100.
Notes:
        The year 1988 now moves to the volume number's place.
Nonconsecutively paginated journals
The simplified general format is:
         Author's full name, Article's title, Journal's title, Date of issue, at First
         page, Cited page.
         such as:
         Barbara Ward, Progress for a Small Planet, HARV. BUS. REV., Sept.-
         Oct. 1979, at 89, 90.
If the article is not signed, the author's name must be omitted:
         Damages for a Deadly Cloud: The Bhopal Tragedy Will Cost Union
         Carbide $470 Million, TIME, Feb. 27, 1989, at 53.
Newspapers
The simplified general format is:
         Author's full name, Article's title, Journal's title, Date of issue, Cited
         section.
         such as:


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        Ari L. Goldman, O'Connor Warns Politicians Risk Excommunication
        over Abortion, N.Y. TIMES, June 15, 1990, at A1.
Internet Resources
       http://en.wikipedia.org/wiki/[article] [(optional other parenthetical)] (as of
        [date], [time] GMT).
Here is an example:
       See http://en.wikipedia.org/wiki/Bluebook (describing history             and
        application of the Bluebook) (as of Mar. 21, 2006, 20:50 GMT).


Citing Case Laws

AIR Citation
Reporter / Year / Court / Page
Such as: AIR1998 SC 616


Supreme Court Cases Citation
Year / Volume / Reporter / Page
Such as: 2003 (3) SCC 560


Company Law Journal
(1996) 4 Comp LJ 416


Criminal Law Journal
(1965) 2 Cri LJ 431

Repetition
Ibid.
Ibid, p. 34.
Supra note 2, p. 45.
Footnote 2, p. 23.
Jain op. cit., p. 45.
Infra


What is Internet?


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       Internet is a network composed of thousands of computer network, the
largest ever created. Many computers join together to comprise the internet
which then provides the means for many computers to share information and
communicate with each other. The computers all over the world are connected to
the internet via www. The benefit of internet could be taken as importance of
internet in legal research.
      Large Number of data
      Data of any subject matter
      Recent Data
      Easy/Quick Access
      No need of Library
      No weight
      No need of particular place
      Quick response (E-mail)
      Internet is the door to the information superhighway
       However, internet is an easy way in finding the resource material, some
resources are free and some require payment. Internet is a tool of legal research.
It can be used from anywhere in the world having internet connectivity. Some
Useful Search Engines are as follows:
      Google Search
      MSN Search
      Yahoo Search
      Alta vista Search
      Infoseek Search
      HotBot Search
Other Search Engines Relating to Law
Lexis Nexis — www.lexisnexis.com. It is a computerized law library lunch by
Butterworth (Telepublishing) Ltd. since May 1980.
West Law — www.westlaw.com (Both are US based paid websites and complete
resource is available)
FindLaw — www.findlaw.com. It has been touted as being the best site to find
other legal resources. If you are looking for a site on a law subject and do not
know the website address, it is often easier to find the site on findlaw than do a
search on your own. Some link available to findlaw includes:
      Consumer Law
      US Supreme Court Cases


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         State Cases and Laws
         Law Schools
         Legal Subject Indexes
         State Law Resources
         Foreign and International resources
         Law Firms
         Legal Organizations
         Government Directories
         Legal Practice Materials


Some Organizations' Websites:
World Bank — www.wordbank.org
         Banking Law
         Environmental and Natural Resources Law
         Insolvency and Creditors Rights
         Intellectual Property Rights
         International law
         Internet & Communication Technology Law
         Land Law
         Privatization and Law
International Trade Law — www.wto.org
Intellectual Property Law — www.wipo.org
Revenue Law — www.imf.org/www.itd.org
International law and human rights — www.un.org
International Humanitarian Law — www.icrc.org


Some English Websites
Judgments   of Court of Appeal &QBD http://www.smithbernal.com
http://www.open.uk/lcd
Judgments     of House of Lords http://www.parliament.uk
–Updated    within two hours of judgment delivery
Full   test of Public General Acts http://www.hmso.gov.uk/acts.htm



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Full   text of Statutory Instruments http://www.hmso.gov.uk/stat.htm
Some Indian Websites
A   Gateway to Government of India: http://indiaimage.nic.in/
Indian   Supreme Court Judgments: http://judis.nic.in/supremecourt/chejudis.asp
Census2001:     www.censusindia.net/results/resultsmain.html
National   Human Rights Commission: http://nhrc.nic.in/
National   Commission For Women: www.ncw.nic.in


Summing Up
Legal Research is widely applicable for bench officers and in law profession.
Legal Research is still need in law and justice sector. Methodology is vital
important in scientific research. Use of internet is significant in doing legal
research. Citation is main thing to know in doing research.




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