Notes regarding concept of Case Law Research from exam perspective (cursory notes).
CASE LAW RESEARCH
Generally, case law research is understood as searching, analyzing the case laws which have been decided and adjudicated by the courts. Firstly, case law refers to the collection of reputed case which forms a body of law under the given jurisdiction of a state and case law is the law found in decisions issued by court and the law that is based on judicial decisions rather than law based on constitutions, statutes.
It is the central component to understand and interpret the law within a common law system following countries. It has high gravity in the countries following common legal system rather than civil law system.
Precedent is one of the core principles in case law, the relevant principles are: -
- Stare Decisis: -
- Ratio Decidendi: -
- Obiter Dictum: -
Case law research refers to collection, analyzing, and identifying of the case laws formulation by the court to understand and interpret the law. The importance of case law research are:-
- Stability.
- Fairness.
- Predictability.
- Fixing the gap.
- Finding authority to support the argument.
Development and Behavioral approach.
- In the development of case law research, there is the contribution of common law tradition. The common legal system is deemed as one of the major legal systems. During the 13th century the compilation of judgement and case digest has helped in the contribution and development of case law research.
- Growth of legal scholarship and case digest along with the digitalization and availability of case law in online resources has contributed to the development of case research at present.
- The behavioral approach explains why a particular judgement has come in that way. Along with this it seeks to understand different sorts of behavioral approaches to reach a decision by a court, which may be either societal aspect, religious aspects, psychological aspect, life cycle or own philosophy of the court’s judges.
There are basically two types of authority in case Law research: -
- Primary Authority includes law itself constitutions case laws and statutes.
- Secondary Authority, it includes the other authority apart from primary sources law books articles journals. However, in research one must focus on primary authority.
Case Law Organization
It includes the various ways regarding the organization of case law.
There are two version of case law organizations: -
I. Official version: - it means the organization of case published by authentic agency. In Nepal Supreme Court publishes Official ones. For example, Nepal kanoon Patrika, Supreme Court bulletin, Supreme Court judgement collection.
ii. Unofficial version: - it includes the materials published by others is here then the authentic ones. In Nepal the Supreme Court judgement on unofficial issues, Najir kosha/ Sangrah are examples of unofficial versions of case law organization.
Furthermore, the organization of reported case is on in different basis like
- By jurisdiction.
- By geography (not in Nepal).
- By subject matter (e.g. Civil/criminal / constitutional law related case law reports).
Case Law Location Method
Generally, case law is located in three different ways, periodically, subjective or court wise basis.
- Periodically: - in this the case law is located as per the time of Publication example Nepal Kanoon Patrika (NKP) public age the case laws as per monthly basis.
- Subjective: - in this the case laws are published on the basis of subject matter, for example banking law issues and others.
- Court wise: - in this the case laws are published as per the court wise for example in India USA decision of High Court and Supreme Court are published accordingly.
Additionally, there are certain processes for case law location methods. They are: -
- Table of case method
- The case laws can be searched and located alphabetically by the name of plaintiff.
- Defendant Plaintiff table
- The case laws can be located by the name of dependent plaintiff as per the alphabetical order.
- Words, phrase, volume
- Descriptive word method
- Topic method
- Location method in Nepal Kanoon Patrika
Nepal Kanoon Patrika publishes the case law every month which are decided by Supreme Court of Nepal. Here the month is denoted by अङ्क। There are altogether 64 volumes as per 2079. The website to locate the case in Nepal Kanoon Patrika is www.nkp.gov.np.
The case laws can be in Nepal Patrika by assessing through brihat khoj column.
In addition, the case laws are located in United States of America as below: -
- Digest's table of case method.
- Shepard's Act and Cases by popular name.
- Digest's topic method.
- Descriptive word method.
Digest’s defendant plaintiff table of case method.
Prepared and Edited By: Manish Rajak & Madhu Dahal
