Guidelines for Research : Legal Practice Course

Legal Practice Course
RESEARCH : GUIDELINES AND REFERENCING

Guidelines for research : Legal Practice Course

PRESENTATION

Do:

• Word-process your research report using a standard font, such as Arial or Times New Roman. The font size should be at least 12 and no more than 14. (Footnotes may be set out in a smaller font than your main text, but should not be below font size 10.) Leave appropriate spacing for the margins of your page and for paragraphs.
• Identify case names by putting them in italics or in bold or by underlining them. (It does not matter which method you use but, having selected one, you must be consistent.)
• Identify quotations by putting them in quotation marks or in italics. Longer quotations should be indented as a block.
• Number your pages.

• Do not:
• Write your name on your work.
• Write on both sides of the paper

REFERENCING

It is vital that you acknowledge your sources. Using sources without acknowledgement is academic dishonesty and the penalties for this are severe. You also need to ensure that you reference your sources correctly and this is intended to be a brief guide on how to do this. For a more detailed discussion, you should consult OSCOLA. OSCOLA is the Oxford Standard Citation of Legal Authorities and is a nationally accepted guide to legal referencing. Little OSCOLA is the shorter version of this guide and is 32 pages long. Further detail is contained in Big OSCOLA, which is 103 pages long. Both guides can be found at:

Footnotes

You should use footnotes rather than endnotes. The numbering in the text for footnotes should appear after the relevant word (e.g. reference1) rather than before (e.g.1reference). You should number your footnotes continuously throughout your assignment and should not start the numbering afresh on each page. Full details of the source used should then be given in the footnote and details of all sources used should be set out in a bibliography at the end of your work.

Cases

The first time that you refer to a case, you should give its full name in the text and give its citation in a footnote. Where a case has a neutral citation this should be given first, followed by a Law Reports reference if available.[1] If there is no such report available, you should use a Weekly Law Reports reference; if this is not available, use an All England Reports reference. Depending on the area of law in which you are writing, you may give a reference to a specialist series of law reports, e.g. Simon’s Tax Cases or the Criminal Appeal Reports. A list of accepted abbreviations for series of law reports is contained in Appendix A of Little OSCOLA.

In subsequent references to the same case, you may use a shortened version of the case title if you wish. This should be the name of the defendant for criminal cases and should normally be the name of the claimant for civil cases. Bear in mind that there is no requirement to abbreviate case names on subsequent citations; if in doubt, use the full name.

If you are referring to a specific passage within a case, then you should pinpoint that reference. For cases with a neutral citation, you should give the paragraph number within square brackets; for cases without a neutral citation, you should give the page number.

Example

Text:

In R. v Johnstone1, the House of Lords considered the application of the Trade Marks Act 1994. In particular, Johnstone concerned the interpretation of s.92 of the 1994 Act. Lord Walker concluded that the law was in “something of a state of disarray”.2

Footnotes:

1 [2003] UKHL 28,[2003] 3 All ER 884

2 ibid [85]

In the example above, the first reference to the case did not pinpoint a passage, so the reference only gave the first page of the law report. If, when you first cite a case, you also pinpoint a specific passage, you should include the first page of the report as well as the pinpoint.

Example

In R. v Johnstone1, Lord Walker concluded that the law was in “something of a state of disarray”.

1 [2003] UKHL 28,[2003] 3 All ER 884 [85]

Note that the dates in the footnotes in the examples above are in square brackets; this is because the date is a key determinant in locating this case. Round brackets are used where it is possible to locate the source without knowing the date. This will be the case if there is a running volume number. This rule applies to periodicals as well as to law reports.

Compare the following citations:

(1993) 56 MLR 19

[1992] 3 WLR 806

In the former, it is possible to locate the article without knowing the date, by looking at p.19 of Volume 56 of the Modern Law Review; in the latter, it is necessary to know the date, since the case is to be found at p.806 of the third volume of the Weekly Law Reports for 1992.

Primary and secondary legislation

Acts of Parliament should be cited by their short title, e.g. the Income Tax (Earnings and Pensions) Act 2003. You should not highlight the title of an Act of Parliament. When referring to Acts of Parliament, you should always use a capital A for “Act”.

Pieces of secondary legislation should be cited by their names, dates and serial numbers, e.g. the Civil Aviation (Working Time) Regulations 2004, SI 2004/756.

Books and articles

For books, you should give details of the author, title, publisher and date. You should give the place of publication where possible and the relevant edition where appropriate. The title should be in italics.

Examples

McColgan, A. Discrimination Law: Text and Materials (Hart Publishing Oxford 2000)

Padfield, M. Criminal Law (2nd ed. Butterworths London 2000)

For articles, you should give details of the author, title and journal reference. The title should be in inverted commas and not in italics. Where you are referring to or quoting a specific passage in an article, you should include a pinpoint in addition to the page number of the first page. Rules relating to square and round brackets apply to periodicals in the same way as to law reports.

Examples

Macdonald, E. “Unifying unfair terms legislation” (2004) 67(1) MLR 69

Warbrick, C. “Europe and Human Rights” [2001] 5 Web JCLI

A list of standard abbreviations for legal journals is contained in Appendix B of Little OSCOLA.

Webpages and electronic sources

You should distinguish here between databases, such as Westlaw and LEXIS/NEXIS, and websites which constitute sources in their own right.

a) Databases

If you are referring to an Act of Parliament or a piece of secondary legislation, there is no need to say that you obtained in from Westlaw. (See the section below on primary and secondary sources.)

If you have obtained a case from a database, then you should reference it in the ordinary way. (The online version should give you the case citation.) If the case is unreported, you should give the neutral citation if available, followed by the name of the database in brackets. You should not give the URL.

If you have obtained an article from a database, reference it in the usual way. It is not sufficient merely to footnote it to Westlaw or LEXIS/NEXIS. Many online versions of articles use star pagination. If you see, for example, *264 written in the text of an online article, this means that the material after this but before *265 is on p.264 of the paper version. This should enable you to pinpoint passages discussed.

You should not include databases in your bibliography. (This is equivalent to writing “the library.”)

b) Other websites

Some online journals, for example the Web Journal of Current Legal Issues, are cited in the same way as a paper journal. E.g. “[2003] 5 Web JCLI” refers to the fifth volume of this journal for 2003. Note that many online journals do not have page numbers.

If such a system is available, you should use it. If not, you should give the author, title, URL and put in brackets the last date on which you accessed the site.

Bear in mind that there is no editorial control of the web, so you should establish the credibility of a source before using it.

Use of primary and secondary sources

You should distinguish between primary and secondary sources and should avoid footnoting a primary source to a secondary source.

If you are referring to primary or secondary legislation, there is no need to state where you found it; refer to it as in the guidance above. Footnoting an Act of Parliament to a page in a textbook implies that the author of the textbook has written the Act of Parliament. Equally, when referring to a case, give the law report reference, as advised above. You should not refer to articles or textbooks as the sources of legislation or case law, but you should refer to them if you using them as sources of commentary on such materials.

On the other hand, you should be careful of using footnotes to imply that you have read primary sources when you have not in fact done so. Suppose that you are writing a comparative study and are referring to some foreign cases which have been discussed in a journal article. If you have not read the original cases, you should make it clear that your knowledge of them is derived from a secondary source, although you should still give the primary references as well. On a related point, you should beware of copying footnotes to secondary sources from articles or textbooks to give the impression that you have read material that you have not in fact read. At its worst, this practice could amount to academic dishonesty (see below).

Example

A student has read an article by A, which refers to articles written by B and C. The student has not read the articles by B and C, but refers to them as if s/he has read them and includes them in the bibliography. This is bordering on academic dishonesty. The student should either read the articles by B and C or, if this is not possible, should make it clear that the references to those articles are based on A’s discussion of them. In the former case, the articles should be listed in the bibliography; in the latter case, they should not.

Cross-referencing

You may sometimes need to make more than one reference to the same source in the course of your work. If this is the case, there is no need to give the full reference for the second and subsequent citations.

If you are referring to the same source in successive footnotes, you should use ibid. (This is Latin for “ibidem” meaning “in the same place”.) The use of ibid is illustrated in the first example above. Note that ibid can only used for successive footnotes. For example, it can only be used in note 20 if the source was referred to in note 19. If the source was referred to in an earlier footnote, you will need to refer to that note.

You can do this in two ways. The traditional way is by use of the Latin op. cit.

This is short for opere citato, meaning “in the work cited”. This approach is gradually falling out of use, but you will still encounter it in a number of sources, so need to know what it means. The alternative approach is to give a brief reference to the author or title of the source and to give the number of the footnote in which it was first cited.

Example

Footnotes 6-9 in an assignment refer to two textbooks, with notes 6 and 9 referring to one textbook and notes 7 and 8 to the other. The footnotes should be set out as follows:

6 Craig and De Búrca, EU Law: Text, Cases and Materials (3rd ed. OUP 2002) at p.300

7 Tillotson and Foster, Text, Cases and Materials on European Union Law (4th ed. Cavendish 2003) at p.220

8 ibid p.221

9 Craig and De Búrca (note 6 above) at p.320

OR

op. cit. no 6 at p. 320.

Bibliography

Your bibliography should be an honest account of the material that you have used. You should avoid the temptation to make it appear more impressive by including sources that you have not used; the marker will be able to tell very easily whether your bibliography is genuine.

The format for each item in your bibliography should be the same as that used in your footnotes. If your bibliography is quite lengthy, it can be useful to give separate lists of books, articles and other sources used, rather than including everything in one list.

You should cite all sources on which you have drawn in writing your assignment. If you include material from a source and do not acknowledge it, then this is academic dishonesty. However, you should only draw on authoritative sources. It is taken for granted that you will use your lecture notes to help you to understand the subject before starting to write about it, but you should not cite them as authoritative sources. If you look at the generic marking criteria, you will see that the maximum mark available for an assignment with significant reliance on lecture notes is grade point 8. Equally, it is accepted that you may sometimes use concise texts, e.g. Nutshells and A-Level texts, for the same purpose, but you should not draw on these in writing your assignment. In the vast majority of cases, lecture notes and concise texts refer you to authoritative sources that you should read, use and cite.

If, despite advice to the contrary, you draw on and cite sources that are not authoritative, you may be penalised for poor research and inappropriate use of material. If you draw on such sources and do not cite them, you will be guilty of academic dishonesty. You should aim to submit an analytical, well-researched piece of work but, if you do not do so, it is better to be marked down for inappropriate use of sources than it is to be penalised for academic dishonesty.

Use of facts of cases

You do not need to give a summary of the facts for every case that you cite. You should focus on principles of law rather than facts, but you may need to set out material facts to the extent that they are relevant to your argument. When you do include facts, they should be directly related to the point that you are making. You should avoid including full paragraphs of factual summary.

Referencing and word limits

The word limit does not include the title, footnotes or bibliography. However, you should not use this as an excuse to put sections of explanatory text in your footnotes since such text will be included in the word limit.

Academic dishonesty

You should distinguish between incorrect referencing and failure to acknowledge your sources. The latter is academic dishonesty and the penalties for this are severe. Academic dishonesty has to be mentioned in any reference given by any member of staff in the LawSchool and this may mean that the professional bodies refuse to admit the student concerned. You should consult the University Regulations and your Student Handbook for more details on this issue. If you are still in any doubt, you should discuss the matter with your Personal Tutor or Module Leader.

Some suggestions for a research log

Legal research is a skill that has been highlighted by the Law Society as a crucial skill for any practicing lawyer, The skill is assessed within the Legal Practice Course.

Not only are you required to be able to undertake accurate, up to date research but you are also required to be able to assimilate the information you have gained from that research and use it to answer a problem or advise or reach a conclusion. Equally the person who is to receive the benefit of your research (or, as on the Legal Practice Course mark it!) needs to be able to evaluate the research you have undertaken and be confident of its conclusions.

Therefore your research log;

• Should probably be issue based
• Have fully and consistently referenced sources
• Comment on the effectiveness of the source. This should include the sources you looked at that were not or were less helpful
• It may be set out in a number of ways e.g. in tabular form, as a list, in sections. Any method used should have sections that include the issue being researched, the source – fully referenced (including if text form the text edition and page references) and a comment on the effectiveness of that source.

© Staffordshire University LPC

[1]For details on neutral citations, see Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194 at 195. This is also available online at