Legal-research 2.docx

LEGAL RESEARCH NOTES 1

COMPETENT LAWYER -protects the ends of justice

INTRODUCTION LEGAL RESEARCH -search for an authority(law) that can be applied to a given set of facts. -identifying and retrieving information necessary to support legal decision making. -application of law to facts to be able to have conclusion LEGAL RESEARCH vs. OTHER -use of different technique for different kind of source. -requires comprehensiveness in primary authority research PURPOSE - Provide competent representation and advice

-does honor to the BAR -maintains the respect of the community ART III, SEC 1. Phil. Constitution -NO person shall be deprived of life, liberty and property without due process. LAWYER As a prosecutor, defense counsel, advocate, arbitrator, jurist QUALIFICATIONS FOR BAR -citizen of the Philippines - 21 years old - Of a Good Moral Character

*Facts and authorities- main basis in Law

-No charge involving moral turpitude

PLAN OF ATTACK

-Studied law

-process of legal research

- Completed in an authorized University a Bachelor’s Degree in Arts or Science CONTINUING REQUIREMENTS

INFLUENCES OF LEGAL ETHICS ON LEGAL RESEARCH -protects the ends of justice

Good Moral Character

vs.

-What a person really is

Good Reputation - Opinion of others

-does honor to the bar -maintains the respect of the community for the legal profession 1

CODE OF PROFESSIONAL RESPONSIBILITY 

MUST BE PREPARED

- A lawyer shall not handle any legal matter without adequate preparation. 

- A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

- Preparation of pleadings and appearance on courts 

CANON 13

-A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court. *Impropriety 

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includes extending extraordinary attention or hospitality to a judge.

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Seeking opportunity for cultivating familiarity

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Making statements in the media regarding a pending case tending to arouse public opinions for or against.

RULE 15.05 -A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.

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CANON 17 - a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

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CANON 18 - A lawyer serve his client with competence and diligence.

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RULE 18.02

RULE 18.03

*Inadequate Preparation- distracts administration of justice and discredits the BAR. - court may be and often misled into looking at the case in an uneven light. 

RULE 10.02 -A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

PRIMARY LEGAL AUTHORITIES *Laws emanates from the judiciary, sangunian, executive. *in order to be acceptable: Government activity must be legal and not arbitrary - it must have a basis. Must be legitimate and supported by the people. - By virtue of democracy - through voting the ones who implemented such law shows support of the people. *Need Stability in the legal system- law making process must be based on democracy and science in order to reflect and determine the department of the society. 2

PRINCIPLE OF RULE OF LAW- determines the activity of the governmental bodies for securing the human rights and justice.

LAW PURPOSE: 1.

To establish standard that allows the individuals to interact with the greatest efficiency wuth the least amount of conflict.

DIFFERENT FORMS OF ENACTIG LAWS

g. Labor Code on Holiday Pay

1.

Acts of Legislative

-100% salary: Did not report during holiday -200% salary: Reported for work during Holiday because it was required. 2.

Law prevents government activity from arbitrary action.

GENERAL RUE OF STEPS IN LAW MAKING 1)

- analysis of the consequence of the adoption of an act for the whole legal system

INHERENT POWERS OF THE GOVERNMENT: A. Police Power B. Power of Taxation C. Power of Eminent Domain

Prepared- referred to ponente to draft decision

2)

Scrutinized- given to other members of the Division

3)

Adopted- concurred to by the justice of the division En banc- 15 justices are deciding as one

PRINCIPLE IN THE PHILIPPINES IN ENACTING THE LAW(Based on Preamble) 

Build a just and humane society

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Establish a Government that shall embody our ideals and aspirations

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Promote common goal

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Conserve and develop our patrimony

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Secure the blessings of independence and democracy

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Rule of law and a regime.

4)

Published- published on the website and the Official Gazette. Purpose:- To make it known to the people -For due process

PRIMARY LEGAL AUTHORITIES Executive- implement the law Legislative- enact the statute (results from the acts of legislative) Judiciary- interprets the law *Branches of the government are co-equal. 3

*bills of Local application- bills by representatives from their local government unit Art VI Sec. 1. Congress- composed of the Senate and the House of Representative (Legislative)

*private bills- individuals

24- Senators 292- Representatives 61- Partylist 231- District PRIMARY LEGAL AUTHORITIES 1. Statutes- bills signed by the President becomes law 2. Joint Resolution- requires the approval of both chambers of Congress and signature of the President 3. Concurrent Resolutions- affect both houses but not pass to the President for signing 4. Simple Resolutions- not considerate by other chamber and not sent to the President. - express opinion of a single house on a single issue - call for Congressional action on the issue on national interest LEGISLATIVE PROCESS Art VI, Section 24, Consti -All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

HOW A BILL BECOMES A LAW PREPARATION OF THE BILL -the bill is proposed or drafted by congressman or a senator or by a staff or the proponent of the bill -the bill is assigned with a number -3 days after its filing, the bill is calendared for the first reading 1ST READING -On First Reading, the Secretary General reads the title and number of the bill -The Speaker refers the bill to the appropriate Committee/s (68 committees all in all) -The appropriate committee will conduct public hearings and submits report and recommendation for calendar for second reading 2nd READING -In the second reading, the bill is read in its entirety -The bill is set for open debates where members of the HOR may propose amendments and insertions to the proposed bill (PERIOD OF SPONSORSHIP & AMENDMENT) -Bill will be voted on -A bill approved shall be included in the calendar of bills for 3rd reading 3rd READING -On Third Reading, the Secretary General reads only the number and title of the bill -Bill approved on 2nd reading will be submitted for final vote by yeas and nays TRANSMITTAL OF THE APPROVED BILL TO THE SENATE Bill approved on the 3rd reading will be transmitted to the “Other House” for concurrence (same process as the first passage)  If the “Other House” approves without amendment it is passed to the President

*appropriation- budget BICAMERAL CONFERENCE COMMITTEE *revenue/tariff- import duties 4

-A Conference Committee is constituted and is composed of Members from each House of Congress to settle, reconcile or thresh out differences or disagreements on any provision of the bill. - The Conference Committee Report is submitted for consideration/approval of both Houses. No amendment is allowed TRANSMITTAL OF THE BILL TO THE PRESIDENT -Copies of the bill, signed by the Senate President and the Speaker of the House of Representatives and certified by both the Secretary of the Senate and the Secretary General of the House (ENROLLED BILL), are transmitted to the President

Periods 1900-1935

APPROVAL BY THE PRESIDENT -If the bill is signed by the President, it becomes a law -If president did not act on the bill within 30 days after receipt, bill becomes a law

1978-1985 1986-1987

DISAPPROVAL OF THE BILL BY THE PRESIDENT -If the bill is vetoed by the president, the bill is transmitted to the House where it originated -If vetoed bill is override by congress by 2/3 votes of all it members, each house voting separately, the vetoed bill becomes a law

1935-1946 1946-1972 1987-Presen t 1972-1986

Nomenclature

Commonwealth Act (CA)

Form of Government Philippine Government under Sovereignty Commonwealth Government

Republic Act (RA)

Republic of the Philippines

Presidential Decree (PD) & Presidential Proclamations (PP) Batas Pambansa (BP) Executive Order (EO)

Republic under Martial Law Modified Parliamentary Republic Republic under Provisional Government

Acts

US

EXECUTIVE DEPARTMENT EXECUTIVE POWER- power to enforce and administer the law - power to carry out the law VS

STATUTES ENACTED BY THE LEGISLATIVE BODY OF THE PHILIPPINES

JUDICIAL POWER- interpreting the law.

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Acts( Public Acts)

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Executive Orders (Family Code)

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Prosecutors

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Act No. 3815 (RPC)

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PAO- enforce law by defending the right of indigent

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Act no. 55

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Probation board- enforces probation laws

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Act No. 1851

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Commonwealth Acts

DIFFERENT NOMENCLATURE OF LAWS IN THE PHILIPPINES IN DIFFERENT PERIODS

OFFICERS WHO ENFORCES THE LAW:

* COURT SYSTEM ARE UNDER JUDICIARY E.g Judges

PRESIDENT- exclusively wields the power of the executive 5

suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Implication: Judiciary and Legislative cannot execute executive power Judiciary and Legislative cannot supervise.

-President who is a civilian

It is not the duty of the judiciary to discipline, supervise or in anyway exercise administration over the members of the executive branch.

BASIS: Art. II

In the converse: President cannot delegate his executive powers to any person and entity outside the executive department except by authority of the Constitution or the law.

Civilian authority is, at all times, supreme over the military Thus: Civilian president is the ceremonial, legal and administrative head of the Armed Forces of the Philippines

THE PRESIDENT AS: 1.

- ultimate power to command the Armed Forces of the Philippines - authorizes to direct the movement of the naval and military forces placed by law at his command

Head of the state- highest representative of the sovereign state. - symbol of unity in the Philippines - influences political and economic policies

3.

- Country’s mouthpiece with respect to international affairs

E.g Decide whether or not to have battle with China 2.

- the agent vested with the authority to represent the Philippines interest to other sovereign States

Commander in Chief -Art VII, Sec. 18- The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or

Head of the Government- Chief Architect of Foreign Policy

- Official channel of communication to which other Government will listen to ascertain -extend or withhold recognition, maintain diplomatic relations. - it can only entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. NOTE: The President duty to execute the laws and protect the Philippines is in extricably interwoven with his foreign affairs powers. 4.

Head of the Government- The President is the person responsible for running the government. 6

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Guidance of subordinate

*POWER RELATED TO LEGAL RESEARCH

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For the people to know what to do

CONTROL POWER- authority to order the doing of an act by a subordinate or to undo such act or to assume a power directly vested in him by law.

* Ordinance power is enacted as a part and parcel of the executive power

*HIM AND HIS ALTER EGO- The President selects and has full control of the Actions of his cabinet.

PRIMARY LEGAL ACTIVITIES

DOCTRINE OF ALTER EGO- the doctrine that treats a corporation and those who own its stock to be identical. It is applied with no regard to the corporate entity in order to further justice.

1. Implementing Rules and regulations (IRR)- means and methods on how the Executive will execute the law after the Legislative enacted the law. 2 Fold Purpose of IRR’s:

ORDINANCE POWER

1. Guide executive officials

BASIS: Art VII, Sec. 17 (SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.)

2. Guide the public how to comply with the law. NOTE: not law-making but law execution

- executive’s rule-making authority in implementing or executing constitutional or statutory powers.

*If there is a Statute enacted- obligation to duly execute it regardless of questions of its validity. ORDINACE POWER MAY BE: 1)

Delegated Based- power is inherently a legislative power

2)

Inherent- implementation or execution of self-executory laws.

PURPOSE OF THESE EXECUTIVE ISSUANCES:

2. Executive Order- Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. EXECUTIVE ORDER Signed by the President

IMPLEMENTING RULES Just a matter of implementation Comes from different departments

3. Administrative Order- Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. 4. Proclamation- Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation 7

is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. 5. Memorandum Order- Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. 6. Memorandum Circulars- Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. 7. General or Special Orders- Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders. 8. Treaties- an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

TREATY MAKING

Affect political issues May conflict with or change established national policy

MONISM Integrate directly into the legal system Prevail even if it is inconsistent with the municipal law Promote supremacy, effectiveness and respect for international law.

EXECUTIVE AGREEMENT Do not require concurrence by Senate after ratification Involving arrangements of a more or less temporary nature. Embody adjustment of details carrying out well-established Implement only

DUALIST Separate from municipal law Need an act for the transformation to be valid as a municipal law. Support ideas of the State’s sovereignty

DUALIST- needs law for an international law to be implemented

PROPOSAL REFERAL TO DFA ISSUANCES OF FULL POWER OR SPECIAL AUTHORITY RATIFICATION BY THE PRESIDENT SIGNING OF AGREEMENT NEGOTIATION CONCURRENCE OF THE SENATE ENTRY INTO FORCE

TREATIES Requires legislative concurrence after executive ratification Arrangement of permanent character

DECLARATION OR RESERVATION NOTIFICATION OF RATIFICATION

* If there is a conflict between the Philippine and International law, international law shall prevail. PHILIPPINES APPLIES BOTH THE MONISM AND DUALIST Incorporation Principle - just for purpose of generally accepted principle of international law even if they do not derive from treaty. And

9. Executive Agreement- executive act of the President

Transformation Principle- Art. VII, Sec 21 ( No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.) 8

As put by one author (this time acknowledged by the Court), Joyce C. George from her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party’s brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. Further, as found by the Supreme Court, the omission of the acknowledgment by Justice del Castillo of the three foreign authors arose from a clerical error. It was shown before the Supreme Court that the researcher who finalized the draft written by Justice del Castillo accidentally deleted the citations/acknowledgements; that in all, there is still an intent to acknowledge and not take such passages as that of Justice del Castillo’s own. IN RE: PLAGIARISM CHARGES AGAINST JUSTICE MARIANO DEL CASTILLO (2011) The Malaya Lolas received an adverse decision in the case Vinuya vs Romulo decided by the Supreme Court on April 28, 2010. The Malaya Lolas sought the annulment of said decision due to the alleged irregularity in the writing of the text of the decision. Allegedly, the ponente of said case, Justice Mariano del Castillo copied verbatim portions of the decision laid down in said case from three works by three foreign authors without acknowledging said authors hence an overt act of plagiarism which is highly reprehensible.

FACTS: On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books to support the assailed decision. These books were:

Plagiarism as defined by Black’s Law Dictionary is the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.”

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009);

ISSUE: Whether or not plagiarism is applicable to decisions promulgated by the Supreme Court.

b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and

HELD: No. It has been a long standing practice in this jurisdiction not to cite or acknowledge the originators of passages and views found in the Supreme Court’s decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciary’s more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism.

c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005). As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence. Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed decision is different from what their works advocated. ISSUE: Whether or not there is plagiarism in the case at bar. 9

HELD: No. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for Reconsiderationfiled by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial bodies. No Plagiarism According to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.” This cannot be the case here because as proved by evidence, in the original drafts of the assailed decision, there was attribution to the three authors but due to errors made by Justice del Castillo’s researcher, the attributions were inadvertently deleted. There is therefore no intent by Justice del Castillo to take these foreign works as his own. But in plagiarism, intent is immaterial. On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313 SCRA 404), the Supreme Court never indicated that intent is not material in plagiarism. To adopt a strict rule in applying plagiarism in all cases leaves no room for errors. This would be very disadvantageous in cases, like this, where there are reasonable and logical explanations. On the foreign authors’ claim that their works were used inappropriately According to the Supreme Court, the passages lifted from their works were merely used as background facts in establishing the state on international law at various stages of its development. The Supreme Court went on to state that the foreign authors’ works can support conflicting theories. The Supreme Court also stated that since the attributions to said authors were accidentally deleted, it is impossible to conclude that Justice del Castillo twisted the advocacies that the works espouse.

gross negligence nor can it be said that Justice del Castillo was grossly negligent when he assigned the case to her. Further, assigning cases to researchers has been a long standing practice to assist justices in drafting decisions. It must be emphasized though that prior to assignment, the justice has already spelled out his position to the researcher and in every sense, the justice is in control in the writing of the draft. In Re del Castillo, A.M. No. 10-7-17-SC, October 12, 2010 (Sereno Dissenting Opinion) DISSENTING OPINION [I am posting here a digest of the rather lengthy Dissenting Opinion of Justice Maria Lourdes Sereno in A.M. No. 10-7-17-SC promulgated last October 12, 2010. Taken together with her subsequent Dissenting Opinion from the Per Curiam Resolution promulgated on February 8, 2011, this opinion will enable you, dear readers, to compare the reasoning of the majority and the minority in this administrative matter. It is hoped that in being able to do so, you will get a glimpse of how the gods at Padre Faura can sometimes use sophism to justify a pre-ordained result in a controversy. To my mind, Justice Sereno’s dissent enunciates the correct analysis and conclusions on the issue of whether Justice del Castillo plagiarized (and twisted) the works of three foreign legal scholars in the Vinuya decision. I have read and analyzed (more than once) the conflicting opinions of the High Tribunal, and I am convinced beyond cavil that the majority erred in relying too much on the reason (accidental deletion of the attributions) given by the researcher of Justice del Castillo. Indeed, the explanation offered, which the majority readily swallowed – hook, line, and sinker – might have been plausible if the non-attribution occurred only once or twice. But as shown by the painstaking analysis of Justice Sereno given below, this is not so in this case.

No Misconduct Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud or corruption.

Do read on to determine for yourself what I am talking about.]

No Inexcusable Negligence The error of Justice del Castillo’s researcher is not reflective of his gross negligence. The researcher is a highly competent one. The researcher earned scholarly degrees here and abroad from reputable educational institutions. The researcher finished third in her class and 4th in the bar examinations. Her error was merely due to the fact that the software she used, Microsoft Word, lacked features to apprise her that certain important portions of her drafts are being deleted inadvertently. Such error on her part cannot be said to be constitutive of

SERENO, J.: “What is black can be called “white” but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a 10

finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element. xxx

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“[As regards the passage from Professor Tams, there was] [f]ailure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30 was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly insufficient because without the quotation marks, there is nothing to alert the reader that the paragraph was lifted verbatim from Tams. The footnote leaves the reader with the impression that the said paragraph is the author’s own analysis of erga omnes. “The “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” line in footnote 69 of the Vinuya decision does not clearly indicate that the statement on Simma’s observation was lifted directly from Tams’s work; it only directs the reader to Tams’s work should the reader wish to read further discussions on the matter. [As regards the passages from Professors Criddle and Descent that were used either in the body or in the discursive footnotes of the Vinuya decision, Justice Sereno noted and discussed on the seventeen (17) instances when Justice del Castillo failed to use quotation marks to indicate that the passages were not his but were lifted from Criddle & Fox-Decent’s work published in Yale Law Journal of International Law. Some of the passages were absolutely without any attribution to the authors.] “[As regards the passages from Ellis, there was] [f]ailure to use quotation marks and the right citations to indicate that half of the long discursive footnote 65 in the Vinuyadecision, including the sources cited therein, was actually comprised of the rearrangement, and in some parts, rephrasing of 18 sentences found on pages 227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of International Law. xxx

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The suspect portions of the majority [sic] decision start from the discursive footnotes of the first full paragraph of page 27. In that paragraph, the idea sought to be developed was that while rape and sexual slavery may be morally reprehensible and impermissible by international legal norms, petitioners have failed to make the logical leap to conclude that the Philippines is thus under international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the concept of rape as an international crime. The impression obtained by any reader is that the ponente has much to say about how this crime evolved in international law, and that he is an expert on this matter. There are two intervening paragraphs before the next suspect portion of the decision. The latter starts from the second paragraph on page 30 and continues all the way up to the first paragraph of page 32. The discussion on the erga omnes obligation of states almost cannot exist, or at the very least cannot be sustained, without the plagiarized works of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of this portion is significant. xxx

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“Contrary to the view of my esteemed colleagues, the [narration and explanation found in the majority decision are] not a fair presentation of what happens in electronically generated writings aided by electronic research. “First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the “keying-in” of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.

xxx

“The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal researcher to the family of the ponente and her acknowledgment of the gravity of the act of omitting attributions is an admission that something wrong was committed. Her admission that the correct attributions went missing in the process of her work is an admission of plagiarism. The evidence in the text of the Vinuya Decision and the acknowledgment by the legal researcher are sufficient for the determination of plagiarism.

“Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed. “Third, the [majority’s] explanation regarding the lines quoted [from the work of Professor Tams] may touch upon what happened in [this particular incident of non-attribution], but it does not relate to what happened in [all the other 23 incidents of non-attribution], which are wholesale lifting of excerpts from both the body and the 11

footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale. “Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.

if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.

“Fifth, the mention of Tams in “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency in “clarity of writing,” but a case of plagiarism under the rule prohibiting the use of misleading citations. “Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not fit into his carpentry work ─ is completely inappropriate. In the scheme of “cutting and pasting” that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution. “Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, 12