TEACHING BASIC RESEARCH SKILLS Contents :

14.1 What is the purpose of research? 14.2 Research using printed media 14.3 Computer-based research

Outcomes:

1. The ability to research in an efficient and structured manner 2. An understanding of online research resources.

14.1 What is the purpose of research?

Once a legal issue has been identified in the interviewing process, a clinical law student will have to research the law applicable to that issue.

14.2 Research using printed media

There is no single method that is used to research legal problems. Starting out, however, it is useful to follow this sequence:

1. Use a textbook

2. Find relevant legislation 3. Find applicable case law

4. Broaden your research

By applying these steps, the student will learn a set of research skills.

14.2.1 Use a textbook

Given the mass of materials available in any law library, students may start to research with a good textbook. That said, the following are important points to note:

1. Textbooks are not law, they are merely the authors opinion about the law

2. In general, you cannot rely on a textbook as legal authority in court, or when answering a problem question.

3. Different authors hold different views. For this reason, it is advisable to read as widely as possible.

4. Textbooks tend to become outdated very quickly. Invariably there will have been important legal developments since the textbook that you consult was updated.

For these reasons, a textbook is merely a starting point for research. A good textbook will point the student in the right direction. After consulting the textbook, you must get hold of the law itself. This will enable you to form your own opinion about what the law says and to take account of any important legal developments.

131

14.2.2 Find relevant legislation

Having made a start you must, as mentioned, find the law itself, beginning with the relevant statutes. Legislation can be found compiled in law reports in law libraries or online176.

14.2.3 Find applicable case law

As mentioned, having found the relevant legislation, your next step is to find court case reports (that is, law reports) that have considered this legislation. Bear in mind that the courts do not strictly speaking, make law. Rather, their job is to interpret and apply the law. Case law is important for the following reasons:

1) Courts interpret statutes when they apply those statutes. In so the courts give meaning to the statutes.

2) Cases are the best place to find the common law, for it is the courts that have developed the law that has not been codified.

3) In terms of the doctrine of precedent, a court's interpretation of a statute or common law will bind lower courts.

4) Courts are impressed by, and attach great importance to, cases, even when they are not bound by them. Much legal argument consists in using cases to support a particular interpretation of either the common law or a statute.

14.2.4 Broaden your research

Once you have located statutes and cases, you should be able to determine the law as it applies to the legal question. However, legal research is no longer simply about finding the relevant legal rules, and for most legal problems, you will have to consider whether there is any conflict with the constitution. If there is, a law may be struck down as unconstitutional according to a constitutional supremacy clause.

The difficulty is how to go about researching this 'constitutional dimension' of a problem. There might be no precedent available on a particular constitutional issue. Often such questions are raised and discussed in textbooks with which I advised you to commence your research. However, many textbooks tend to describe the law, instead of commenting on it. For this reason, it is also advisable to consult law journals. Law journals typically contain ‘articles’ (which are in-depth discussions of legal issues) and 'comments' (which are shorter opinions about recent cases or other legal issues). Articles contain useful research and discussions of particular areas of law.

14.2.5 Conclusion

Once you have gathered all the relevant law and other materials- that is, once you have located all the relevant legislation and cases, as well as relevant academic opinion- you are in a position to give an answer to the legal problem posed. In doing this, it is advisable to keep the hierarchy of laws and the hierarchy of courts in mind. If you encounter conflict between two laws, apply the hierarchy of laws and ask yourself which law should prevail. If on the other hand, you encounter conflicting case law, apply the hierarchy of courts and establish which precedent should prevail.

132

14.3 Internet-based research

14.3.1. Introduction

The internet is a useful tool in legal research. Online legal information can be updated quicker and be accessed more widely than print sources. When used correctly, this means that researchers from around the world have access to the most current law.

Note that when researching online, it is important that the researcher only use credible websites and sources of information. It is often difficult to verify the credentials of authors online and researchers need to be wary of information not obtained from recognised and credible legal websites. Remember to reference the author and website correctly.

Online databases are accessed via the Internet. To access the information, type the website address into the address bar of your web browser (e.g. Internet Explorer). This will open the home page of the database.

14.3.2. LexisNexis177, Jutastat Online178 and Sabinet Online179

In South Africa, there are many online legal databases including LexisNexis, Jutastat Online and Sabinet Online. These sites are not freely accessible and researchers need to have paid a subscription fee before access will be granted. In addition, these sites may not be workable elsewhere in Africa, however LexisNexis is busy expanding into many African countries and the programmes are accessible via the internet.

Researching using the internet will follow the same structure as researching in print media- researchers must first find the current law in legislation and court decisions before broadening the research to journal articles.

Jutastat Online and LexisNexis are useful in finding specific law reports and legislation or for searching generally on a legal topic.

LexisNexis and Jutastat Online databases have similar website layouts. This layout includes:

 The table of contents on the left of the screen, which is an expandable list that displays and provides links to the contents of the database;

 A horizontal navigation bar on the top of the screen that allows you to view the information gathered in various views;

 A document pane, that shows a complete view of the document in which you are working; and

 A choose search form window that allows you to perform quick searches for information

177 www.lexisnexis.co.za/ 178 www.jutalaw.co.za/ 179 www.sabinet.co.za/

133