Legal Research ResourcesSeneca CollegeJanuary 7 2011

John Bolan, Reference LibrarianBora Laskin Law Library

AGENDA

• Legal Research Process• Secondary Sources

• Textbooks/legal encyclopedias/articles

• Primary Sources• Legislation• Case law

• What it is & where you can find it• Noting up• Citation / neutral citation / abbreviations

Primary v Secondary Sources

PRIMARY SOURCES

Constitution

Legislation: Statutes and Regulations

Case law : court cases & administrative tribunal decisions

Many, but not all, are available in print or online

Binding legal effect

Actual laws that govern us

SECONDARY SOURCES

Books , articles, legal encyclopedias, law reform commission reports etc.

Reference tools: Canadian Abridgement, dictionaries, Words & Phrases, ICLL

All are available in print or online

Persuasive value

Aids in interpretation of the laws

The Legal Research and Writing Process

Review of Facts

IssueIdentification

AnalysisWritten Product

SecondarySources

PrimarySources

Update

Research

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Research Process: Secondary Sources

Always start with SECONDARY SOURCESSecondary sources are commentaries which explain, analyze, synthesize, describe and discuss the law

It is especially important to refer to secondary sources if you are researching and area of law that is not familiar. Secondary sources will refer you to primary sources (cases and legislation) which are the law and which have binding authority in the courts.

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Books

Step 1: Search for Books on the TopicWhy?Written by experts and provide a good overview of the law.Provide commentary on the lawRefererences primary sources: cases and legislation Will also include a "Table of Cases" or "Table of Legislation“

which is useful if you are looking for commentary on a particular case or statute

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Books

Tools for finding Books / Treatises on Canadian lawLegal Research & Writing by Ted Tjaden

Chapter 8: Legal Research by Topic KE250 .T53 2004 Newnham

The Practical Guide to Canadian Legal Research by McCormack, N. et al.

KE250.M26 2010 Newnham Appendix “Selective Topical Bibliography”

The Practical Guide is also very useful when in doubt as to research procedure!

ham General CollectionCall Number: KE250 .T53 2004

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Legal Encyclopedias

Legal encyclopediasEncyclopedias provide brief overview of the law and often and are typically written by subject experts.

-cover wide range of topics, arranged alphabetically-fairly general info-good for a quick overview-available online-include references to primary sources

Canadian Encyclopedic DigestAvailable on Westlaw Canada and in print in Newnham reference

Articles

Journal ArticlesAre important to researchers because:

They are written by legal scholarsThey concern current/developing/controversial issuesThey may be persuasive in courtBut : they tend to be very in-depth, narrowly focues and advanced

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Articles cont’d

Journal IndexesNot full text, so why search them?

Only 50% of journal articles are available in full textMore comprehensive than full text databasesCan use assigned subject headings to focus your researchButElectronic Indexes only cover from the 1980’s onward.

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Articles cont’d

Name of Journal Index

Jurisdiction / Notes

ICLL (on Westlaw Canada)

CanadaSpecial Features: Case / Legislation Search Boxes

LegalTrac (through Seneca database collection)

United States, with some Canada, United Kingdom, AustraliaBrowse subjects field useful

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Articles cont’d

Full Text Journals Database

Jurisdiction / How to Get There?

Publisher

Law Reports Articles and Journals

Canada / Link on Law Source home page

World-JLR ?? United States and International /LawSource home page ->Westlaw Tab –> Search Database Box -> enter ‘WORLD-JLR’

Canadian Law Journals Canada / LNA home page -> International Legal

Social Sciences Research Network (SSRN)

United States and Canada /www.ssrn.com/lsn/index.html

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Court CasesCourt Cases:Case law = reported record of a written

judgmentNot every case results in a judgementNot every judgement is reported (published in

print)No interestMost do not make new lawToo many judgementsMarket too smallUnreported judgements are in courthouse

and ONLINE

How cases are published

Cases published either in:case reporter (hard copy)online (database or website)REPORTERS

Official (published by the Queen’s printer)Semi-official (published under the auspices

of a bar association)Unofficial

Primary Sources: Case Law

To find cases…Use citations from secondary source researchUse digests (short case summaries organized

by subject)The Canadian Abridgment (in Law

Source)Fulltext online db’s: Lexis, Law Source

BestCase, Canlii Note up to find other cases on point & update

Primary Sources: Case Law

Finding case law online via:LawSource on Westlaw Canada

-Canadian Abridgment Digests!LexisNexis Academic – International Legal – Canadian

cases

Best CaseCanlii.org – free online, case law &

legislation

What is “Noting-Up”?

Noting Up (Canada) or Sheppardizing (US):Complete history of a caseSubsequent judicial treatment

Both are necessary to determine if a case is still good law

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Why Note Up?

Three Good Reasons:Judicial History (same case)

Is there a lower court decision?Has it been appealed to a higher court?

Judicial Treatment (subsequent cases)What have other courts said about the case? Used as a precedent, or criticized?

ResearchOften leads to cases dealing with similar issues or facts

Methods of Noting Up

Online: From within a case in LNA or Westlaw, or Starting from LawSource (Westlaw Canada) Keycite

with a case name or citationCan also use BestCase and Canlii

In Print: Using the Canadian Abridgment’s Canadian Case

Citations (CCC)

Solution to Limitations: Full-text Searching

Search Party A / 10 of Party B e.g. Miranda v Arizona 384 U.S. 436 (1966)

Miranda /10 Arizona

In print, Canadian Case Citations lists US and UK decisions cited by Canadian courts

Legislation – Current Online Sources

Annotated Statutes

BooksAnnotated Statutes

Example: Annotated Construction Lien Act

REF KE 308.3.A13 G57 (Newnham)

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Noting Up Legislation

Use the same tools that we used for cases, with similar options:Online: From within a piece of legislation, or Starting from Keycite with a statue name or citation, or Via full-text searching In Print:

Canadian Statute Citations

Citation

In Canada rules are in the Canadian Guide to Uniform Legal Citation (7th ed)

More commonly known as the “McGill Guide”

Queen’s Law School Library web resources on legal citation are a good online resource for students

Hierarchy of Sources

Neutral Citation

Official reporter (SCR, FC or Ex CR)

Semi-official reporter

Other sources (electronic, unofficial reporters etc.)

Neutral Citation

Year of Decision Court Ordinal Number

2009 SCC 61

Supreme Court of Canada

61st case decided by this court in 2000

Legal Abbreviations

Deciphering Abbreviations

Appendix at the back of the McGill Guide

Cardiff Index to Legal Abbreviationswww.legalabbrevs.cardiff.ac.uk

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Chapter 1 of the Mcgill Guide

General rules on : • Writing bibliographies• Footnoting• In-text references for facta and memos

Sources - electronic

Per McGill Guide, electronic services are still a last resort. Always prefer print sources.

So in practice, you will find yourself using electronic databases to find a case, then obtaining print citations from the electronic version to cite!

Which sources to use when citing?

Consult table in section 3.1 of the McGill Guide

Research Guides

Fitzgerald, Maureen F. Legal Problem Solving: Reasoning, Research and WritingKE250 .F57 2001 Newnham

McCormack, N. et al. The Practical Guide to Canadian Legal Research KE250.M26 2010 Newnham

Tjaden, Ted. Legal Research and WritingKE 250 .T53 2004 Newnham