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Lecture: WK1 Legal Research: 7 stages etc. Research Methodologies  žDoctrinal – solving legal problems (MOST COMMON) o Systematic exposition, analysis and critical evaluation of legal rules and their interrelationships  žTheoretical (theory) o The conceptual basis of legal rules and principles  žLaw reform and policy (out of law school) o Recommendations for change, based on critical examination  žSocial science/ empirical research Legal Problem solving (IRAC) 1) Identifying legal issues from facts 2) Identifying legal rules/authorities, relevant to issues 3) Applying legal authorities to facts/issues 4) Reaching conclusion 7 Steps of Research Method (not linear but cynical) 1) Fact identification 2) Background reading 3) Issue identification 4) Search term 5) Plan your research 6) Perform research 7) Communicate research results Fact identification (how parties relate)  žIdentify key facts in your problem  žDo some background reading with 2) Issue identification  Frame issues as questions  Make the questions party specific and fact specific  Sub issues (kind of like the elements) 3) Generate search terms  Identify key words, phrases, legal subject areas, case titles and legislative provisions.  žUse a tool – eg: Statskys cartwheel 5 – 6) Plan and perform research 3 way searching – Subject, Legislation, Cases. 3. Subject or topic searching  Useful where you know little about area of law  Finds background reading in secondary sources such as loose leafs, journal articles, textbooks. 2. Legislation searching  Used to locate the relevant legislation and to use the annotations to check if up to date  To see if there is any material explaining how the Act is meant to operate eg finding the Explanatory Memorandum or Hansard, or if there are any cases adjudicating on its meaning 3. Case searching  Here, you already know a key case in the area.  The aim is to locate other cases on the topic e.g. using a digest; or  To see if the case you know about has been discussed or referred to by a later case (i.e. has it been judicially considered) – for this task, use case citator‘s. Communicating results S – subject matter H – Harm A – Actors involved R – Remedy/ relief P – Policy considerations I – Issue R – Rule A – Application C – Conclusion I – Issue S – State law A – Authority A – Apply C – Conclude WK1: Tute: Article summary Journal Article: Is Plagiarism Indicative of Prospective Legal Practice, by Lillian Corbin and Justin Carter The article by Lillian Corbin and Justin Carter focused on the increasingly pervasive issue of plagiarism and how it affects law students in Australia today. The authors used one case in particular, Re Humzy-Hancock, which they continually referred back to. It involved the Honourable Justice Philip McMurdo and an applicant for admission as a legal practitioner who had been questioned about his academic misconduct during his law degree. McMurdo found the applicant to have not ―deliberately‖ presented the work of another but ―carelessly‖ done so. Thus according to the Griffith Law School definition of plagiarism, which McMurdo used, the applicant was not found guilty. The authors however suggest that this decision was wrong and instead the Supreme Court should have exercised its inherent jurisdiction over the legal profession to disallow admission. Why? For a number of reasons, as will be discussed below. 1. Plagiarism is a matter of legal ethics The authors put forward a number of arguments why the courts should be stricter in their decisions. Plagiarism really is a matter of morals and is a sign of poor behaviour firstly. Secondly it can also destroy the reputation of institutions if their students are found guilty. Furthermore they argued someone who cheats will most likely continue to cheat and will also not pertain the knowledge necessary to be a competent Australian legal practitioner. 2. Definition of plagiarism One factor they thought was a cause of the growing problem is that there is no definitive definition of plagiarism. Law schools have different definitions of which some include the need for there to be ―intent‖. They put forward sources of some courts taking an objective approach to aid in their decision of acquitting a student of plagiarism and others who took a subjective one. The objective was what they believed to be the more fairer. It clearly shows students they are entering a culture where integrity is valued. 3. Plagiarism in legal practice The authors concluded by discussing the difference between students plagiarising and senior lawyers using ghost writers, but tackled this argument by saying legal problems do not need attribution. With this they finished by putting forward the statement that by plagiarising students are showing disregard for the legal and ethical norms of the academic community and it should not be tolerated. Footnote: Lillian Corbin and Justin Carter, ‗Is Plagiarism Indicative of Prospective Legal Practice?‘ (2008) 17 Legal Education Review 15. Bibliography: Corbin, Lillian and Carter, Justin ‗Is Plagiarism Indicative of Prospective Legal Practice?‘ (2008) 17 Legal Education Review 15. Lecture: WK 2 Principles of Electronic Research Advantages  Speed  Updated  Ability to cross reference via hypertext  Ability to browse and search Disadvantages  Historical coverage may be better with paper source Databases A collection of information  Record: one item in a database. o i.e. Case  Field: A specific piece of information for a record o i.e. judgment date, court and judges  Some databases are parts of a mega-database! Mega-database  Lexis Nexis. o Database: Sources i.e. Halsburys Laws of Australia  Legal Online o Database: Laws of Australia Search techniques  Boolean operators  connect search terms o ―AND‖ finds both horse and dog o ―OR‖ finds horse or dog o ―NOT‖ Finds will find horse but not dog  Proximity operators o W/P within paragraph o W/15 within 15 words  Stop words  words that are not searched o A, Butm Within, At,  Plurals and capitals o Ignore capitals o Boy finds boys, boy‘s, boy  Wildcard/truncation  Symbols substitutes o #,!,*  Literal string/phrase search  Words as written o ―power of attorney‖  Field searching o Very useful  ORDER o Generally left to right Lecture: WK 3 Secondary Sources Secondary Sources  Dictionaries  Textbooks  Legal encyclopaedias  through mega databases  Journal Articles  Loose-leaf services  Law reform commission report  Parliamentary documents  Internet websites i.e. govt websites with govt reports  Seminar papers When?  At the beginning of research cycles, to get legislation and cases  Later to understand primary sources in broader context Loose-leaf services/commentaries  Practitioners guide. Summary of area of law o CCH online o Commentaries via Legal online & LexisNexis AU o Access through databases Legal Encyclopaedias  Concise statements of law on areas o Give reference to cases o Organise material by subject, A  Z  Laws of Australia  By Thomson Reutors on Legal Online o [16.17.15] o 16 is title ―evidence‖, 17 subtitle, 15 para.  Halsbury‘s Laws of Australia  By Lexis Nexis Butterworth via LexisNexis AU o [280-500] o Title 280: Medicine, paragraph 500 dealing with surgery Journal Indexes  AGIS plus text – Attorney generals information services o BEST AUS & NZ COVERAGE  ILP – index to legal periodicals o UK, US, some AUS  Legal Trac o US, some UK and AUS, good international Mega Databases for journals  Informat  for AGIS plus  Legal online o 22 full text law journals  LexisNexis AU o More than 100 overseas and Australian journals. Including Torts Law Journal  Austlii o Mega database and free Evaluating Secondary Sources  Reliability, Relevance, Authority, Objectivity (a) Relevance - Some suggestions (but not limited to):  What is the secondary source about?  What aspect of the problem does this source of law address? (b) Reliability - Some suggestions (but not limited to):  Is the information provided in the secondary source accurate?  Is the secondary source up to date?  Is the secondary source up to date;  Is the journal being used a ‘refereed’ journal (that is, one which is reviewed by other academics)? (c) Authority - Some suggestions (but not limited to):  What qualifications does the author have?  Is the author acknowledged by other authors in this area?  Does the content discuss the law in Australia or some other jurisdiction? (d) Objectivity - Some suggestions (but not limited to):  Was the secondary source being relied upon objective and unbiased?  Does the secondary source appear to reflect different points of view? Or does it merely provide one side of the argument?  Does the discussion refer to work of other authors in this field? Lecture: WK 4 Legislation Life of an act Types of Legislation  Principle Act  Amending Act  Legislation that amends the principle act  A Code  Brings together statute and case law  Delegated or subordinate legislation Extrinsic material (wk 6 tute)  S 14B AIA 1954 o Don‘t form part of the act but may be used for interpretation.  Includes o Explanatory memoranda/notes (mndt common) o Parliamentary consideration (2 reading speeches) (most common) o Reports of law reform commissions o Parliamentary committee reports Locating Legislation  Official sites o OQPC o COMLAW  Other sites o AustLII Searching Legislation  OQPC  use search tab  COMLAW  browse by categories or advanced search To locate full text  OQPC  Act  SL in force tab  COMLAW  Acts  Current compilations Commencement  If state, starts at beginning of da: 15B AIA  If silent, date of assent of that fixed by proclamation: 15A AIA Citing  Do not use ibid, or above. Hansard nd  2 reading speeches Sites Wicks Subject Index to Commonwealth Legislation indexes Commonwealth Acts, but is only available in print form. LawLex is a useful database to use for searching legislation by subject, particularly when you are unsure if state or Commonwealth legislation applies to a problem. It includes links to the official legislation sites. AustLII can also be used as another database for searching legislation by subject. However, once you have located relevant legislation on AustLII, use the official legislation websites to check legislation currency as AustLII is not always up to date. Reprints etc. A reprint is a version of legislation which combines the original legislation and all amendments to that legislation that have commenced on or before the day specified in the reprint. In Queensland, the updating of legislation by reprints is governed by the Reprints Act 1992 (Qld). A consolidation (or compilation as it is sometimes referred to) is similar, in that the legislation and all subsequent amendments are combined to show the law as it is, but it lacks the ‗official‘ nature of the reprint. So the Consolidated Acts, as found in AustLII, are not reprints. However, for updating legislation the concept is the same. Basically, when looking at legislation, you need to be aware of the currency of the legislation. Importantly, any amending legislation that was enacted past the reprint or consolidation date will not be included in the version you are looking at. This can have significant consequences for your rese
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