The Legal Research Process: A Recursive Approach

Last updated: July 5, 2012

Index by Week: 01 02 03 04 05 06 07 08 09 10 11 12 13 14
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LEGAL PIGEONHOLES FOR THE ISSUES
1. Where to find them:
  1. Fact-oriented access tools, e.g.:
    1. Free internet research
    2. Commercial internet research
  2. IN THE AUTHORITIES
  3. Starting from other subject headings, e.g., in:
    1. Dictionaries, thesauri, etc.
    2. Cross-referenced indices and classification schemes
  4. "Exhaustive" lists of sub-divided subject headings, e.g., in:
    1. Canadian Encyclopedic Digest
    2. Halsbury's Laws of Canada
    3. Canadian Abridgment
    4. The Canada Digest
    5. The Digest [formerly England and Empire Digest]
  5. Ask someone.
2. What to do with them:
  1. Use them for legal-subject-oriented approaches in electronic, as well as print, editions of:
    1. Bibliographies of Bibliographies
    2. Bibliographies and Catalogues
    3. Periodical Indices
    4. Encyclopedic Works
    5. Texts and Journals (Index, Table of Contents)
    6. Indices to Legislation
    7. Legislation
    8. Digests, Abridgments, Current Case Summaries and Law Report Indices
    9. Case Reports
  2. Use them in conversation with other people.
  3. Use them to organize what you retrieve.
WHAT TO DO WITH A HUMAN BEING
1. Ask about other human beings with expertise or information concerning the subject being researched.
2. Ask about relevant legislation, cases and secondary literature.
3. Discuss how the information retrieved ought to be organized.
WHAT TO DO WITH A CITATION
1. LOCATE AND READ THE DOCUMENT CITED.
2. If the citation contains an unfamiliar abbreviation, expand the abbreviation.
3. If the citation contains a URL, link to it, considering who is responsible for the domain name and the IP address.
4. In your own writing, ensure that the citation conforms to generally accepted citation standards.
WHAT TO DO WITH SECONDARY LITERATURE
1. READ IT, THINK ABOUT IT, AND MAKE NOTES.
2. Find citations of primary and other secondary authorities.
3. Find out about specialized law reports, digests, statute reprints, journals and newsletters.
4. Use it as an access key in "Authorities Judicially Considered" portions of some indices.
5. Find out more about the authors, and what they know that has not yet been written or published.
6. Find out more about the publishers and their reputations.
WHAT TO DO WITH LEGISLATION
1. READ IT, THINK ABOUT IT, AND MAKE NOTES.
2. Review relevant constitutional, statute and common law relating to the making or enactment, revision, coming into force, and interpretation of legislation of the sort under consideration.
3. Check for special provisions relating to the coming into force or expiry of the particular legislation, and for proclamations or orders-in-council made under any such provision.
4. Check for recent or pending amendments, repeals and revisions.
5. Find subordinate legislation, if any.
6. Find out which government departments have responsibility for the administration of the legislation, whether there are internal policy and procedures manuals, what changes to the legislation are being considered, and who is lobbying for change.
7. Examine the cases in which the legislation has been judicially considered, or in which it has been administered.
8. Examine the law as it was prior to the enactment of the legislation, to see what was the "mischief".
9. Look for law reform commission reports, uniform law conference proceedings, white papers, legislative debates, and other government documents concerning the legislation.
10. Trace the history of its enactment (or making), amendment, and revision.
11. Examine any discussion of the Act in the C.E.D.(West., 3rd), leading texts, periodical articles, etc.
12. Examine cases which have considered other legislation which contains the same key words and phrases used in the legislation.
13. Examine other legislation of the jurisdiction which contains similar language, or is in pari materia.
14. Examine comparable legislation in other jurisdictions.
WHAT TO DO WITH A CASE.
1. READ IT, THINK ABOUT IT, AND MAKE NOTES.
2. Review the constitution, jurisdiction and rules of procedure of the court or tribunal, including the law and custom relating to stare decisis in the tribunal.
3. Check for parallel citations, and important variations in the reporting of the case.
4. Check for appeals and other types of review.
5. Examine any decision appealed from, and reports of other prior proceedings in the case, if any.
6. Examine the cases, legislation, and secondary authorities considered in the case.
7. Examine the later cases in which the case has been judicially considered.
8. Examine comments on the case appearing in periodical articles, encyclopedias, leading texts, etc.
9. Examine other cases which have been classified under the same headings in the various digests, abridgments, indices, etc.
10. Examine news reports of the case, the pleadings, appeal books, etc.
11. Find out more about the parties, counsel, judges, etc. involved in the case.
WHAT TO DO IN OTHER RESEARCH SITUATIONS
1. Find published sources of information on legal research and writing in Canada and elsewhere.
2. Find information on the ethics of legal research in practice.
3. For information about lawyers and law firms, consult directories, and Law Society discipline cases, etc.
4. Find forms and precedents for legal drafting.
5. Find government information in archives, and through freedom of information and privacy legislation.
6. Find international treaties.
7. Find information about how databases and search engines work.
8. Find information about how the internet works.
9. Find information on library and bibliographic standards.
10. For information on non-legal subjects generally, consult basic reference sources.