Monday, October 18, 2010

A Few Thoughts on the Oregon Constitution

The second chapter of the Rowe text discusses the Oregon Constitution, which is published in the Oregon Revised Statutes. I was not surprised to read that much of it parallels the U.S. Constitution. I was surprised to learn that some of what is covered in the Constitution is very similar to statutory law, and that some later articles cover what seem to me to be rather odd and arbitrary topics - like "Seismic Rehabilitation of Public Education Buildings." I am wondering if this is a result of Oregon's unique initative process whereby Oregon voters can amend the Constitution directly, or if this is common in many states by historical quirks.

I found the section on how the Oregon Supreme Court goes about interpreting the original provisions of the Constitution using "the Priest framework" to be interesting. It hadn't occurred to me before that anything outside the text wording itself could be considered in interpretation, but this does allow for a more nuanced understanding by the courts, especially where the wording might be otherwise vague or confusing. Having done an internship at the Oregon Historical Society, I was also interested to learn about the the three part article written by Professior Claudia Burton about a set of complete documents for each Constitutional article she found there. It just goes to show how present research - or even serendipitous browsing - can dramatically recast our understanding of historical events and documents. It also shows how law and history are intrinsically connected and demonstrates another reason why interpretations of existing law necessarily change over time. In that vein, Rowe also mentions how Oregon courts may look even to the Magna Carta and English law commentary, and how the Oregon Constitution is modeled on Indiana Constitution's Bill of Rights, which may then also be looked to for interpretation. Obviously law is not created in a historical vacuum, and so it makes sense that interpreting it with care may involve that important historical context, even further back than one might at first expect.

Interpreting amendments after 1859 is a bit of a different matter, but still involves careful reading of text, and then historical context, which includes ballot titles, arguments for and against from the voter's pamphlet, and even news articles and editorials of the time of the initiative. It is the intent of the voter that the courts will try to discover. Rowe includes a beginning discussion of the initiative and referenda process in Oregon here, which allows voters to amend the Constitution on their own, bypassing the legislature. She notes that some feel this process allows too much ease in amending the Constitution. More information about the initiative and referendum process can be found the the Oregon Secretary of State's State Initiative and Referendum Manual, as well as the Oregon Blue Book.

While I knew the Oregon Constitution could be found in the Oregon Revised Statutes (as well as WORSA), I did not know that the United States Constitution could be found there as well, and indeed, in every state's published codes. It is, of course, in the United States Code Annotated and in the United States Code Service, but I can imagine research situations covering both state and federal material where having the federal constitution in the state code is quite useful.

Thursday, October 14, 2010

Introduction to Oregon Legal Research and Preliminary Analysis Exercise

I have completed the first chapter of Suzanne Rowe's Oregon Legal Research 2d. The chapter covers the basics of types of legal resources, detailing the differences between primary and secondary sources, and mandatory versus persuasive authority. A primary source is a source originating directly from a source of law itself, such as legislation, administrative rules, judicial opinions, and so forth. A secondary source is one that provides commentary on or guides to primary law, including materials such as digests, annotations, treatises, and law journals. Sources that originate directly from the jurisdiction in which a legal issue exists are deemed to have mandatory authority; sources that originate from either neighboring jurisdictions or very similar topics and circumstances are considered to have persuasive authority.

It gives a brief overview of the two major online legal research database providers, LexisNexis and Westlaw, including an introduction to their organization and various search modes, such as searching with terms and connectors, natural language searching, and topic searching. Topic searching and natural language searching have the strength of returning results that can generate a greater number of terms under which your research question might be pursued, and therefore may be useful as a starting point. Terms and connectors, on the other hand, may be more useful once the researcher has generated an exhaustive term list, and has the advantage of being more likely to return a comprehensive and more consistently relevant list of hits. Boolean connectors are also given in a chart. The organization of both databases is touched upon briefly, including how to find and select databases and using search tabs. Finally, this chapter gives an outline for the organization of the rest of the text and appendices.

I also completed my first exercise in preliminary analysis last week. The hypothetical case presented concerned a Portland, Oregon homeowner whose dog bites an intruder into the back yard. Generating all the different possible search terms using the who, what, where, when, and why questions was an exercise that revealed the subjective nature of the research. I used a thesaurus to trigger any terms that weren't forthcoming off the top of my head; and there were definitely a handful of potentially appropriate terms that I would not have generated on my own. Yet I noted that many listed synonyms for a given term were equally inappropriate in their connotation or common usage, and so I made many judgment calls about which terms to select while still being as exhaustive as possible. I noticed that later in the exercise when performing searches on these terms, ultimately only a handful seemed to generate many relevant results. However, some of those in the handful would not have come up if I had not gone through the step of synonym generation; I can see why it is an important step to take.

Looking up the legal term trespass was also eye-opening. Not only were there many specific - and some very obscure - definitions of the word trespass alone, many versions of the term incorporated other terms (some in English, some in Latin!) as well, including the mouthful term that most closely resembled the exercise's research problem: trespass quare clausum fregit. This seems like quite a sophisticated and lengthy term for a relatively commonly understood conception of the word trepass in non-legal terms. When using legal terms, it is obviously very important to make sure the word you are using indicates precisely what you mean from a legal terminology point of view, not just common held (and often imprecisely used) terms.

Objectives and the Activities that Support Them

I have gotten my feet a bit wet with an exercise in preliminary analysis of a legal research problem and reading the introduction to Suzanne Rowe's Oregon Legal Research 2d. Before I discuss the reading and exercise, which I will do in a separate and subsequent post, I want to outline a little more fully the objectives of my independent study, what the coursework will entail, and how the coursework, including this blog, will contribute to those objectives.

In my independent study proposal, five objectives are listed as follows:

a. Identify, categorize, and respond to legal research questions

b. Gain familiarity with and ability to use various legal resources, especially in a reference interview context

c. Gain understanding of and ability to utilize legal research methods

d. Demonstrate ability to teach acquired legal research skills

e. Explore issues surrounding the evaluation of legal reference services; develop potential evaluative methods

I intend to accomplish these objectives through various activities, the first of which is the reading resources relevant to the coursework. The primary text I will use is, as noted above, Suzanne Rowe's Oregon Legal Research 2d. In addition, I will read other resources as relevant and necessary, such as various primary and secondary legal resources or articles covering legal research methods.

Another course activity will be completing research exercises provided by my professor. These exercises are designed both to explore ideas surrounding and practice using legal resources and research methods.

Along with this coursework, I will create and implement a legal research workshop for public librarians, submitting for evaluation a workshop outline, materials, and description. This will strengthen my own understanding of legal research skills while giving me a chance to practice instructional skills that are necessary to law librarianship.

Finally, I have created and will use this blog to document and reflect on my activities and progress. I will make a minimum of one entry per week, and towards the end of my study, I will use these posts to write a summarizing reflection paper that demonstrates knowledge and skills gained and integrates various concepts from course activities.

One activity discussed in the proposal was the writing of a paper that would fulfill objective e.: a paper about evaluating the effectiveness of legal reference. While my instructor and I have agreed that that was too big a project for the scope of this class, I am hoping to still at least find time to conduct a literature review on the subject, should such literature exist. Since I currently work in a law library where I have ample opportunity to practice legal reference skills, exploring potential ways, if any, to evaluate the effectiveness of that reference is a topic of great interest to both me and my work supervisor. I will continue to report here on any progress made in this vein.

Tuesday, October 5, 2010

Gathering Educational Technology Together

As a student in the University of Washington's Master's of Library Science program, I am embarking on an independent study into legal research from a librarianship perspective.

As one of the evaluative segments of the course design required by the independent study proposal guidelines, creating and updating this blog will serve as a record of my reflections about the various course activities in which I engage in addition to the concepts, knowledge, and methods or processes I encounter and/or use. I will write more about the course activities, and objectives outlined by the independent study course proposal in my next post.

No reflections yet, however; just getting started by testing out the blogging apparatus to see that all is working and well.

So far, so good.