Sunday, December 6, 2009
¡ Laws enacted by the Philippine legislature [national or local], constitutive assemblies and other bodies with law-making power
¡ A formal written enactment of a legislative authority that governs a city, state or country
¡ It typically commands or prohibits certain conduct, or declares policy
¡ Before the passage of most statutes proper, the proposed statute is called a “bill”; after its passage, it is often referred to as an “act”
Types of Statute:
A. AS TO THE PERSONS TO WHOM THEY APPLY:
1) Private Statute
§ One which relates to a single person or to a particular class of persons, and does not apply to the whole community
§ An Act that is enacted by the Legislature on the application of an individual, a municipality or a corporation and which relates only to the interests of the applicant.
§ Ex. A law of Congress granting a pension to a particular person
2) Public Statute
¡ One which is applicable to the public in general
¡ a law or statute of a general character that applies to the people of a whole state or nation
¡ Ex. A law providing for the bestowal of pensions upon all who conform to certain conditions in public
B. AS TO THE TERRITORY TO WHICH THEY APPLY
1) National or General Statute
§ One which applies to the entire territory over which the legislature has authority
2) Local Statute
§ One which applies only to a limited portion of the territory over which the legislature has jurisdiction
[Local statute can also refer to municipal legislation]
C. AS TO THEIR OPERATION
1) Prospective Statute
§ One which applies only to acts which arise after its enactment
2) Retrospective Statute
¡ One which applies to acts which took place or rights which existed before its enactment
¡ Are seldom passed and some jurisdictions are prohibited by constitutional provisions
¡ Ex. Ex-post facto Law – such laws which make acts, innocent when done, crimes or increase the penalty attached to crimes already committed
Other Classes of Statutes:
A. Special Statutes
¡ Enacted for the purpose of providing sanctions for acts not provided for in the general statutes; Ex. R.A. 6538 or The Anti-Carnapping Act of 1972
B. Mandatory vs. Directory Statutes
¡ one which renders the acts to which it refers void or subject to penalty unless its provisions are complied with
¡ Ex. Republic Act No. 7394- The Consumer Act of the Philippines
¡ one which lays down certain rules relating to particular acts which acts may be valid, or would not attract the imposition of penalties, although such rules are not complied with
C. Personal vs. Real Statutes
¡ those which have principally for their object the person, and treat of property only incidentally; such are those which regard birth, legitimacy, freedom, the fight of instituting suits, majority as to age, incapacity to contract, to make a will, to plead in person, and the like.
¡ A personal statute is universal in its operation, and in force everywhere.
¡ Ex. Republic Act No. 6809 - An Act Lowering the Age of Majority From Twenty-One to Eighteen Years, Amending for the Purpose Executive Order Numbered Two Hundred Nine, And for Other Purposes
¡ Those which have principally for their object, property, and which do not speak of persons, except in relation to property; such are those which concern the disposition, which one may make of his property either alive or by testament.
¡ A real statute, unlike a personal one, is confined in its operation to the country of its origin.
D. Temporary vs. Perpetual Statutes
¡ one which is limited in its duration at the time of its enactment
¡ It continues in force until the time of its limitation has expired, unless sooner repealed.
¡ one for the continuance of which there is no limited time, although it be not expressly declared to be so.
¡ If, however, a statute which did not itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.
¡ Elementary Law, William Lawrence Clark
¡ The American Heritage Dictionary of the English Languce, Fourth Edition 2004
¡ Legal Research and Bibiliography – 2007 Edition, Peter P. Ng Philipp U. Po, Pepito P. Go
¡ Black, Henry Campbell (1990). Black's Law Dictionary, Sixth Edition
Wednesday, December 2, 2009
Legal bibliography principles classify authorities as primary and secondary. Again, using Moreno's tract:
1. An authority is considered primary when legislation (or statutes) or court decisions are involved.
Primary authorities are either mandatory or persuasive.
a. It is mandatory when "legislation is effective in the place where it has been enacted or promulgated or when a decision is rendered with finality by a superior court in the case or in another case with a similar set of facts, or by the same court in another case."
b. Any other type of legislation or court decision is considered persuasive.
2. An authority is considered secondary, "when primary authority is commented on, criticized, explained or restated."
Here are the basic principles of Philippine legal bibliography:
I. Not all legal authorities are created equal.
II. Some authorities are considered primary, while others, only secondary.
III. The following is a practitioner's take on the Hierarchy of Authorities --
(i) The Constitution
(ii) Statutes proper, treaties
(iii) Municipal legislation
(iv) Administrative rules issued pursuant to law.
2. Decisions of the Supreme Court
3. Other types of administrative rules
4. Decisions of other courts and quasi-judicial bodies
5. Opinions of government agencies tasked with administering particular laws
6. Foreign laws and cases
B. Secondary Authorities
1. Local commentaries
2. Local textbooks
3. Local legal dictionaries
4. Local legal articles
5. Foreign secondary authorities [may rank higher in certain cases]
IV. This hierarchical order is a general concept. You need to test each possible authority for relevance and applicableness. If an authority is not relevant or applicable to your problem or case, it must fall away.
V. When considering a secondary authority, pay attention to the subject matter of the material, the year it was published, and the author. Certain commentaries, because of usage, time and the reputation of their authors are considered "repositories of law" and may carry greater weight than other commentaries.
VI. The Hierarchy of Authorities is your best friend.
Friday, November 27, 2009
Sunday, November 22, 2009
This is what I will look fo (with the corresponding weight):
1. Neatness, following instructions on format, lack of typographical errors, and timely submission -- 5%
2. Grammatical correctness -- 5%
3. Use of legal authorities, accuracy, correct citation form -- 30%
4. Analysis and soundness of conclusions - 30%
5. Organization and clarity -- 30%
Friday, November 20, 2009
Note that I use the term `issue' or `problem' and not just `question'. I do not want you to choose a topic that only requires you to recite particular laws or to go into exposition. I want you to choose a topic that will require you to be analytical, to engage in critical thinking.
During our first meeting, I asked you to write on this legal issue: Can Erap Run For President in 2010? To resolve this, you would need to read the relevant provisions of the Philippine Constitution as well as the related authorities, examine the deliberations of the Constitutional Commission, determine what other laws might come into play, read up on Erap's arguments, and evaluate and test those arguments. Thereafter, you would need to state your findings and organize your own arguments supporting these findings with legal authorities set out in a logical and coherent manner. This is the process that each of you must undergo.
Sunday, November 15, 2009
All papers must use Times New Roman, 11 font size, block format, 1 1/2 space. They should be at least 15 pages, but not more than 25 pages, long (using 8 1/2" x 11" sized paper). No colored paper, scented paper, borders, or emoticons. All authorities need to be quoted and cited correctly, and attributions properly made.
You must submit a hard copy of your paper by 5 p.m. of March 18, 2010. Submission by email will not be considered or accepted.
Please explain the following:
a) Public versus private statutes
b) General versus special statutes
c) National or general versus local statutes
d) Conventional versus subordinate statutes
What are the classes of statutes? Please give examples of each.
2. What is a Constitution? Provide a brief history of the Philippine Constitution.
What are treaties? What are executive agreements? Do these have the force of law? How are treaties entered into?
3. What are the parts of a statute and explain each part.
In Philippine legal bibliography you will find references to General Orders, Acts, Commonwealth Acts, Republic Acts, Batas Pambansa, Letters of Intent, Presidential Decrees and Executive Orders. Please explain what each reference pertains to.
How are statutes enacted? When do they take effect? How do statutes get amended? How do they lapse?
4. What are municipal legislation? What are ordinances? Please give examples.
5. What are administrative rules and regulations? When are administrative rules and orders considered subordinate legislation?
What are court rules and legislative rules? Please give examples.
6. What is case law? What is the structure of our court system? Please include other governmental bodies with quasi-judicial functions.
7. What are the parts of a case?
What does the phrase "ratio decidendi" mean? How about obiter dictum?
8. Please explain the principles of res judicata, “law of the case” and stare decisis.
9. What are secondary authorities? Please give examples.
10. When is it appropriate to refer to, or cite, foreign legal materials? What is their impact?
Thursday, November 12, 2009
An introduction to legal writing techniques. It involves applied legal bibliography, case digesting and reporting analysis, legal reasoning and preparation of legal opinions or memoranda.
At the end of the course –
1. The student must be familiar with the nature of legal writing and know the principal rules of good legal writing.
2. The student must be aware of the most common examples of legal writing, and has had experience in case digesting, preparation of replies to queries, and preparation of research memoranda.
3. The student must be familiar with basic techniques to improve his or her legal writing skills.
4. The student must know basic aspects of legal bibliography and can apply them.
5. The student must be aware of the importance of reasoning, and reasoning techniques, to legal writing, and must be familiar with those techniques.
6. The student must know how to answer legal questions and can build an argument.
7. The student must know how to produce a good research memorandum.
NOTE: The course will not cover contract drafting or legal writing. You will be taking a separate course on legal research and citation, although we will look into their role and importance in the legal writing process.
Requirements and Basis of Grades
i. Class attendance and participation
ii. Legal bibliography report and test
iii. Submission of writing exercises
iv. Submission of research paper
We will not have a prescribed textbook but you may consult the books on legal bibliography in the law school library, particularly Legal Research and Bibliography by Peter Ng et al. From time to time, you will be required to look at particular laws and jurisprudence, copies of which should also be available at the library. You should already read the laws and cases identified in the course outline.
I. Introduction to Legal Writing
1. Writing as a skill required of every lawyer.
2. The “Inescapability” of English
- E.O. No. 292, as amended, Secs. 17 and 20
3. What makes writing “legal”?
4. What are the kinds/examples of legal writing?
5. What are the roles of legal bibliography and legal research in the writing process?
6. What makes legal writing, good? What makes it bad?
- Leonor v. Court of Appeals, 256 SCRA 69 (1996)
7. How do you prepare to be a good writer?
II. Legal Bibliography: An Overview
1. What is legal bibliography?
2. Key principles of legal bibliography
3. Kinds of primary authorities
· Statute law
a. Classes of statute law
b. Effectivity of statutes
- Civil Code, Art. 2
- E.O. No. 292, as amended, Sec 18
- Tanada v. Tuvera, 146 SCRA 446 (1986)
- E.O. No. 292, as amended, Sec 19.
d. Lapse of laws
- Civil Code, Art. 7
-E.O. No. 292, as amended, Secs. 21 and 22
e. Public versus Private
f. General versus Special
g. National or General versus Local
h. Conventional versus Subordinate
i. Parts of a statute
· Case law
a. Civil Code, Art. 8
b. Parts of a Case
- Allied Banking Corp. v. Court of Appeals, 416 SCRA 65 (2003)
c. Impact of decided cases
- Res judicata
- Stare decisis
- "Law of the Case"
d. Ratio decidendi versus Obiter dictum
5. Kinds of secondary authorities
6. In general: citation
III. Legal Research Techniques
1. What is legal research?
2. In general: How to prepare for a research assignment
3. What if there is no law?
IV. Core of Legal Writing
2. Learning how to “read closely”
3. A Law Student's Version of the Four-Way Test
- Do you know or understand all the relevant facts?
- Do I know what the issue to be resolved, or what the problem or question is?
- Do I know what laws or materials might be relevant to the inquiry and have I read all those laws and materials closely?
- Do I know the work product (form, audience) and my deadline?
4. Building an argument
- What is an argument?
- Outlining your reasons as a tool to analyze the problem
--- Evaluating and verifying arguments with the rules of logic
V. Legal Writing Techniques
1. Techniques for effective legal writing
2. (Possibly) The Only Outline Format You Will Ever Need
VI. Ethics of Legal Writing
1. Code of Professional Responsibility, Rule 8.01, Rule 10.01, Rule 10.02, Canon 11, Rule 11.03