Legal Research Resources Seneca College January John Bolan, Reference Librarian Bora 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 Issue Identification Analysis Written Product Secondary Sources Primary Sources Update Research 4

Research Process: Secondary Sources Always start with SECONDARY SOURCES Secondary 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. 5

Books Step 1: Search for Books on the Topic Why? Written by experts and provide a good overview of the law. Provide commentary on the law Refererences 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 6

Books Tools for finding Books / Treatises on Canadian law Legal Research & Writing by Ted Tjaden Chapter 8: Legal Research by Topic KE250.T Newnham The Practical Guide to Canadian Legal Research by McCormack, N. et al. KE250.M Newnham Appendix “Selective Topical Bibliography” The Practical Guide is also very useful when in doubt as to research procedure! ham General Collection Call Number: KE250.T

Legal Encyclopedias Legal encyclopedias Encyclopedias 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 Digest Available on Westlaw Canada and in print in Newnham reference

Articles Journal Articles Are important to researchers because: They are written by legal scholars They concern current/developing/controversial issues They may be persuasive in court But : they tend to be very in-depth, narrowly focues and advanced 9

Articles cont’d Journal Indexes Not full text, so why search them? Only 50% of journal articles are available in full text More comprehensive than full text databases Can use assigned subject headings to focus your research But Electronic Indexes only cover from the 1980’s onward. 10

Articles cont’d Name of Journal IndexJurisdiction / Notes ICLL (on Westlaw Canada) Canada Special Features: Case / Legislation Search Boxes LegalTrac (through Seneca database collection) United States, with some Canada, United Kingdom, Australia Browse subjects field useful 11

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 JournalsCanada / LNA home page -> International Legal Social Sciences Research Network (SSRN) United States and Canada / 12

Court Cases Court Cases: Case law = reported record of a written judgment Not every case results in a judgement Not every judgement is reported (published in print) No interest Most do not make new law Too many judgements Market too small Unreported 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 research Use 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 Case Canlii.org – free online, case law & legislation

What is “Noting-Up”? Noting Up (Canada) or Sheppardizing (US): Complete history of a case Subsequent judicial treatment Both are necessary to determine if a case is still good law 17

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? Research Often 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 citation Can 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 Books Annotated Statutes Example: Annotated Construction Lien Act REF KE A13 G57 (Newnham) 22

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 (7 th 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 DecisionCourtOrdinal Number 2009SCC61 Supreme Court of Canada61 st case decided by this court in 2000

Legal Abbreviations Deciphering Abbreviations Appendix at the back of the McGill Guide Cardiff Index to Legal Abbreviations 28

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 Writing KE250.F Newnham McCormack, N. et al. The Practical Guide to Canadian Legal Research KE250.M Newnham Tjaden, Ted. Legal Research and Writing KE 250.T Newnham