considered binding it it shares the same significant fact with the case at issue and does not differ

in any significant facts from the instant case. Furthermore, similar issues must be presented in the two cases and the resolution of those issues must have been necessary to the decision in the previous case (otherwise, the words of the court would be dictum). Courts can reject cases put forth as binding authority by distinguishing the cases on their facts or issues, thus finding that the previous cases are different from the instant case in some significant way. In some situations, a court can avoid being bound by a previous case by finding that the rule put forth in the previous case is no longer valid and overruling it. By the common law doctrine of precedent or principle of stare decisis, decided cases are usually considered to be the primary source of law and hence, past judicial decisions are generally binding for the disposition of factually similar present controversies. 6 Having been under the American rule, the Philippines although primarily a civil law country has adopted the doctrine of precedent or stare decisis. 8 As a matter of fact, Art. 8 of the New Civil Code specifically provides: Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines (n). Hence, judicial decisions or judicial precedents form part of the legal system of the Philippines. Decisions of the Supreme Court are treated as such. However, final decisions of the Court of Appeals which under the common law doctrine should be binding before lower courts, have not in practice been considered so not because of lack of regard to these decisions but primarily because these decisions are largely not reported or published 9 Policy considerations supporting the doctrine of precedent include the resulting fairness, as it encourages similar cases to be treated similarly; the predictability and stability it encourages within the legal system; and its efficiency in terms of time and energy as it enables decision-makers to take advantage of previous efforts and prior wisdom. Critics argue that a

reliance on precedent can result in a rigid and mechanical jurisprudence that can force us to treat unlike cases as if they were similar; that the doctrine of precedent can perpetuate outmoded rules; and that its inherently conservative nature can impede the law from being responsive to new social needs. Notwithstanding these criticisms, the doctrine of precedent remains the foundation upon which our models of legal research are constructed. The written opinions of courts, particularly appellate courts, are the stuff of legal argument and the major source of legal doctrine. Consequently, they are the primary, but certainly not the only, objects of legal research. Law libraries and legal electronic databases are filled with published court opinions, along with secondary sources and index tools to help researchers find, interpret, and update opinions that are relevant to particular fact patterns. 4. Legislation and the Interpretation of Statutes a. Legislation. A Statute, sometimes referred to as legislation, is an act of legislature as an organized body, expressed in the form, and passed according to the procedure, required to constitute it as part of the law of the land. Statutes enacted by the legislature are those passed by the Philippine Commission, the Philippine Legislature, the Batasang Pambansa, and the Congress of the Philippines. 7 In comparison, a constitution is the fundamental body of principles, most often written, by which a political body, such as a nation or state, governs itself. Because many of the basic concepts and techniques of statutory and constitutional research are similar, they can be discussed together at an introductory level. However, the Philippine Constitution, is a pervasive and specialized subject; including it in a general discussion of legislation should not obscure either its importance or its uniqueness. In English law, the king enacted the earliest statues with the concurrence of his council; later, the role of stature-maker was assumed by Parliament. In the Philippines, statues are enacted by the legislative branch and signed into law by the chief executive. The growth of statutory law has reflected the impact of the industrial revolution , as it became apparent that a jurisprudence based only on judicial decisions could not
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meet the needs of a growing dynamic society. Situations developed in which answers were needed that were not found in court reports, or the answers found in court reports either no longer met current needs, or resulted in actions that were considered unjust. Statutes, and collections of statutes arranged by subject called codes, have become very important in civil law systems; and American law combines both statutory and case law. Statutes are used to create new areas of law; to fill gaps in the law; and to change court-made rules. Like other civil law system countries, in the Philippine legal system it is pressumed that a stature will apply to every legal problem or that codes are comprehensive statements of the law. b. Statutory interpretation. Courts play predominant roles in interpreting and applying statues and in extending the law to subjects not expressly covered by statutes. The legislature may state a general legal rule in the form of a statute, but it is the judiciary that interprets the general rule and applies it to specific cases. Under the doctrine of precedent, it is the statute as interpreted by the courts that us applied in the next case. In theory, if the legislature disagrees with the way a court has interpreted a statue, the legislature should revise the statute. Statutory interpretation is an important part of legal research. Researchers must not find only the statutes applicable to a problem, but also must find information that will help determine what the statutes mean and how they should be applied. After looking for the plain meaning of the words of a statute, and applying traditional canons or principles of statutory interpretation to the text of the statute, researchers resort to a number of approaches to statutory interpretation. An important method of statutory interpretation is to look for judicial opinions that have construed the specific statute. The persuasiveness of interpretative opinions depends on the similarity of facts involved and on the courts issuing the opinions. Legislatures sometimes pass laws that are designed to reflect existing common law rules; in such situations judicial opinions that pre-date the statute are useful aids to interpretation. Researchers often attempt to identify the legislatures purpose in passing a statute and the legislatures intended meaning for specific statutory

provisions. To do this, researchers look at the legislative history of the statuedocuments, such as the original bill and revisions thereto, revised versions of bills and legislative debates, hearings, reports and other materials, created by the legislature while the statue was under consideration-for evidence of legislative purpose and intent. Although controversy exists over their proper use, legislative histories are often consulted by lawyers and judges and are frequently used in legal argument. Researchers also search for cases from other jurisdictions that have interpreted similar statutes. Although these opinions are not binding authority, well-reasoned opinions from other courts can be very persuasive. This approach is consisted with the doctrine of precedent, under which the decisions of other common law courts may be considered, even if they are not binding. 5. Administrative law The third major institutional source of law is the executive Branch of government. The President of the Philippines and the provincial governors issue orders and create other documents with legal effect. Executive departments and offices, and administrative agencies, establishments, and corporations all create legal information. Administrative agencies, which exist on a national level, are created by the legislative branch of government and are usually part of the executive branch. A number of independent agencies, establishments, and corporations exist within the executive branch but are not considered to be executive departments. For the most part, local agencies handle matters of local law and national agencies handle matters of national law. but there is often interaction between local and national agencies. Administrative agencies conduct activities that are in nature both legislative and adjudicative, as well as executive. under the authority of a statute, these agencies often create and publish rules and regulations that further interpret a statute. Agencies may also make determinations of law and

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fact in controversies arising under the statue and, like courts, publish opinions. Administrative law can be a very complex area to research. Not only will researchers need to find, interpret, and update the rules, regulations, and decisions created by the administrative agency, but they will also need to find, interpret, and update the legislation the agency is administering and judicial opinions that interpret those rules, administrative adjudications, and legislation. SECTION B. THE MATERIALS OF LEGAL RESEARCH Published legal resources can be divided into three broad categories: (1) primary sources or authorities, (2) secondary sources; and (3) index search, or finding tools. All of these published legal resources can appear in more than one format, including printed books, electronic databases, digital images, microforms, compact disks (CD-ROMs and DVDs), videos, and audiocassettes. Many resources contain more than one type of information and serve more than one function. For example, some electronic resources and looseleaf services include both primary authority and secondary materials; they are, at the same time, designed to be finding tools. An understanding of how legal materials are structured and organized (regardless of the media in which they are published) is necessary to effective legal research. 1. Primary Sources As noted earlier in this chapter, primary sources are authoritative statements of legal rules by governmental bodies. They include Constitutions, statutes, court decisions, administrative rules and scholarly commentaries 11 . Because many primary sources are published in the order they are issued with little or no subject access, secondary sources and indexing tools are needed to identify and retrieve them. 2.

Secondary Sources Secondary sources are materials about the law that are used to explain, interpret, develop, locate, or update primary sources. These sources are published both in paper and electronic formats. The major types of secondary sources are treatises, restatements, looseleaf services, legislative histories, law reviews and other legal periodicals, legal encyclopedias, Supreme Court Reports Annotated, and legal dictionaries. Secondary sources can be interpretative and may contain textual analysis, doctrinal syntheses, and critical commentary of varying degrees of persuasiveness. Depending upon the reputation of the author or publisher, some secondary sources, such as restatements, scholarly treatises, and journal articles, are often persuasive to a court. In contrast, practice manuals and legal encyclopedias have little persuasive value but are useful for basic introductions to subjects, for concise or black letter statements of legal rules, and for practical advice. Secondary sources can be used as finding tools to locate other information. For example, cases cited in treatises, law review articles, and encyclopedias can lead to other cases. 3. Index, Search, and Finding Tools Index, search, and fining tools help locate or update primary and secondary sources. The major types of finding tools are digests (to locate cases discussing similar points of law), annotations in annotated statutes and codes, citators, and legal periodical indexes. Index, search, and finding tools are not authority and should never be cited as such. Looseleaf services and computer-assisted legal research (CALR) systems, such as Supreme Court E-library 2

Chan Robles Virtual Law Library 1 , Arellano Foundation 4 are among the most valuable finding tools. They must be distinguished from other finding tools because they contain the full text of primary authorities, as well as materials from secondary sources.

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4. Philippine Law Publishing

titles. It is doing business through ten branches strategically located in Manila, Eastern and Western Visayas, and in Mindanao 16 5.

a.Proliferation of Materials. Practically no distinctive Philippine legal bibliography was written during the Spanish era. Only folios of royal decrees and orders plus a few codes were recorded. The reason behind this is that the legal profession did not exert much influence at that time as did the priestly vocation. It was only during the advent of the Americans that a new field of literature came into being- forensic literature. In 1903, Pedro Paterno published in Madrid, El Regimen Municipal de las Islas and Gobierno Civil de las Islas Filipinas, manual del ciudadano Filipino, in 1910. The earliest digest of Supreme Court decisions entitled Manua de Jurisprudencia was published in 1915 by the National Press with a prologue Emiliano Tria Tirona. Philippine Supreme court justice George A. Malcolm, dean of the University of the Philippines College of Law, came out with a tome, the Government of the Philippine Islands, a lawyers cooperative publication in 1916. Jorge C. Bacobo succeeded Malcolm as the U.P. law dean and became the Chairman of the Code Commission that produced for the Philippines a new civil code in 1950. He was also known as the Father of the First Brown Race Civil Code. Justice J. B. L. Reyes, a noted expert in civil law, wrote a four-volume book entitled Outline in Civil Law with Justice Ricardo C. Puno as co-author. Notable compilations and indices were published by government bureaus like the Bureau of Lands, Bureau of Justice, Bureau of Posts and Bureau of Buildings 1 b. Official and Unofficial Publications. Legal publishers in the Philippines are institutional like the National Printing Office, Supreme Court and UP law Center. Commercial publishers are Anvil Publications, Central Books Supply and National bookstore but from a small store in 1950, Rex Book Store has grown into the country's largest publisher of local legal book

Evaluating Legal Resources When inspecting and evaluating legal resources, it is important to determine and understand the purposes the resources were designed to serve. An awareness of the functions, features, interrelationships, strengths, and weaknesses of resources, whether they are traditional paper resources or electronic resources, is valuable for effectively conducting legal research. Is the resource part of a set, or is it designed to be used with other resources? Does it have finding tools or special features, such as indexes and tables? Is the text searchable electronically? How is the resource updated, and when was it last updated? The credibility of the author, editor, publisher, ort producer should be considered, together with the types of authority (primary and secondary) included and the potential persuasiveness of the authority. With the expansion of resources available on the World Wibe Web, evaluating the resources for accuracy, credibility, and currency is increasingly important. SECTION C. AN ESSENTIAL SKILL In 1992, a special task force of the American Bar Association on law schools and the legal profession issued a report that stated that [i]t can hardly be doubted that the ability to do legal research is one of the skills that any competent practitioner must possess.| That report also stated that [i]n order to conduct legal research effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the fundamental tools of legal research, and the process of devising and implementing a coherent and effective research design.| Furthermore, the ABA's Model Rules of Professional Conduct provide: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

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Clearly, a lawyer must be able to research the law to provide competent representation. In addition to issues of professional responsibility, questions relating to competency in legal research may arise in legal malpractice actions in which an attorney is sued for failing to know those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover the additional rules which, although not commonly known, may readily be found by standard research techniques. Issues relating to an attorney's competence in legal research also have been raised in claims for malicious prosecutions, and in claimed violations of the Constitutiona 8right to effective assistance of counsel. The ability to use fundamental legal research tools and to implement an effective and efficient research plan must become part of every lawyer's training if she or he is to provide competent representation and uphold the standards of the legal profession.
1 2

Art. II, Sec. 1 of the 1987 Constitution of the Republic of the Philippines Taken from http:// www.remburssi.org/projects/philippines/legal.htm (last visited on July 21, 2011 3 G.R. No. L-4504. December 15, 190 4 Art VIII, Sec. 1 of the 1987 Constitution of the Republic of the Philippine 5 Taken from http://www.nationsencyclopedia.com/asia-andoceania/philippine-judicial-system.html (last visited on July 21, 2011) 5 G.R. No. L-4316. May 28, 195 6 Rufus B. Rodriguez, Legal Research, Chapter 5: The Doctrine of Precedent 8 Ibid. 7 Ruben E. Agpalo, Statutory Construction, Chapter 1: Statutes 8 The 1987 Constitution of the Republic of the Philippine

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