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This is the School of Law Referencing Guide...

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USP School of Law Guidebooks

LEGAL REFERENCING Anita Jowitt (2006)

This guidebook is a draft version of a textbook that is to be published in 2006. All content is © Anita Jowitt. Students can print off copies for their own use. If you have any comment on the content, please let me know via email at [email protected]

CONTENTS Acknowledgements…………………………………………………………………….3 SECTION 1: INTRODUCTION TO LEGAL REFERENCING 1. Why is referencing important? ……………………………………………………….4 Reasons for referencing 2. Good sources ……………………………………………………………………….. 6 Primary sources and secondary sources Evaluating secondary sources: the CARS framework Using CARS to improve your own work 3. Footnotes, endnotes, style guides and bibliographies ………………………………. 12 In text referencing versus footnoting or endnoting Style guides Bibliographies 4. When and how to reference …………………………………………………………. 15 Quoting Examples of referencing quotes Noting academic support and putting comments in footnotes Using quotes well Cross referencing Examples of plagiarism and poor referencing 5. Typing an assignment on a computer ………………………………………………… 23 Inserting a reference Indenting text Italics, underlining and bold 6. Common “referencing crimes” ……………………………………………………….. 26 SECTION 2: THE STYLE GUIDE 7. Using the style guide …………………………………………………………………. 30 8. Books …………………………………………………………………………………. 31 Chapters in books 9. Journal Articles …………………………………………………………………………32 10. Online material ………………………………………………………………………. 33 Course notes Online Journal Articles Sources published both in hard copy and online Online Cases Other websites 11. Cases …………………………………………………………………………………. 34 Hard copy law reports PacLII and other LIIs Unreported judgments 12. Statutes ……………………………………………………………………………….. 36 APPENDIXES 1. 2. 3.

Quick reference, primary and secondary sources ……………………………………. 37 Pacific law report series ………………………………………………………………. 39 Law report abbreviations ……………………………………………………………… 40

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ACKNOWLEDGEMENTS I am grateful to the USP School of Law which provided research funding so that I could work with a team of law students to develop the content of this referencing guide. These students: Alisi Veretawatini; Danally Jones; Florence Joel; Frances Tasso; Gregory Takau; Jacob Kinai; James Kaboke; Jayson Robert; Kathleen Kohata; Kiata Tebau Kabure; Litiana Lomalagi; Livai Sovau; Lloyd Fikiasi; Louis Georges; Manen Hopa; Naomi Nawasaitoga; Natalie Kesaka; Philip Kanairara; Rau Clifton; and Stanley Jude Hanu put in a lot of hard work suggesting content, administering questionnaires and editing drafts of the manuscript. I owe a special debt of gratitude to this fantastic team of students. I would also like to thank my School of Law colleagues who provided feedback on different parts of the book.

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1: WHY IS REFERENCING IMPORTANT? Some people think that referencing is just a formality – it makes your work look good, but does not contribute to the content or substance of your work. This is not true. This chapter explains why good content needs good referencing.

WHAT IS REFERENCING? Whenever you write an essay or answer a legal problem you will have to do some research and reading. The sources that you read will help you to develop your own ideas. You may also want to borrow ideas directly from sources that you have read. In addition, you might get information or ideas from talking to people, listening to the radio or watching television. Referencing is the process of properly attributing the contributions that these sources have made to your work. In other words, referencing shows how you have used these sources in your own writing.

DEFINITIONS: Referencing and citation You might also hear the word citation. Don’t get confused – citation is just another word for referencing. When you are quoting from a source you can be said to be citing that source.

REASONS FOR REFERENCING There are several reasons for referencing, including: • • •

to avoid plagiarism; to allow the audience to find your sources; and to show the audience that your ideas have support.

Referencing stops plagiarism Plagiarism is theft. It is stealing other peoples’ words or ideas and presenting them as your own. All universities consider plagiarism to be a serious offence. For example, the University of the South Pacific (USP) regulations state: 1.1 Plagiarism and dishonest practice in course work and examination are serious offences for which offenders will be penalised. (a) Plagiarism is taking and using another person’s thoughts, writings, inventions, or other work as one’s own. Where a lecturer or coordinator is satisfied that a student has plagiarised he/she shall report the matter in writing to the Head of Department who may warn the student or authorise an appropriate reduction in the marks or if he/she

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consider the matter to be serious, refer it to the Chairman of the Discipline Committee of the Senate.1 At USP you can lose marks for plagiarism. You may also end up in front of the Discipline Committee, which has the power to fine students or even suspend them. Law students should be particularly aware of the ethical considerations of plagiarising. If a law student is willing to break the law about plagiarism, then questions must be asked about whether this student is honest enough to practice law. It is possible to be barred from admission to practice as a lawyer because of a record of plagiarism whilst at university.2 DEFINITIONS: Plagiarising vs plagiarism Plagiarism is a noun, or naming word. Plagiarising is a verb, or doing word. Plagiarising is the act of stealing other people’s ideas. Plagiarism is the name given to work containing stolen ideas. Many students think that the main reason for referencing is to avoid plagiarising, or to avoid breaking the law on stealing other peoples’ work. Avoiding plagiarism is important. However, it is not the only reason for referencing. The rest of this chapter explains how good referencing makes your work better and more useful for readers. Referencing allows your audience to find your sources When you are doing legal research the easiest place to begin is often to read a textbook on the subject, then read cases that have been referred to in the textbook. When used this way, references are a research device for other readers. A reader who is interested in the topic you have written about may want to read further on the subject. Your references provide the reader with a place to start his or her own research on the subject. They also allow a reader to check your sources to see if they really do support your work. Referencing shows your audience that your ideas have support When you are solving a legal problem you will need to identify the relevant laws. It is not enough for you to be able to state what the law is and how it should be interpreted and applied. You must be able to demonstrate where the law came from, and identify other cases or instances that support your interpretation of the law and its application. In

But your Honour, I do have support. My authority is my torts lecture notes.

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Excerpt from the plagiarism and dishonest practice regulations of the University of the South Pacific. University of the South Pacific, 2004 Calendar (2004) 527. 2 For example, in Queensland ‘Chief Justice Paul de Jersey banned a graduate from being admitted as a solicitor for six months because the student confessed to plagiarising a significant part of an assignment from a fellow student at Griffith University.’ Tess Livingston ‘Plagiarism Rife in state universities’ The Courier Mail, (Austrlia) 17 March 2004 http://www.couriermail.news.com.au/ .

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other words, you need to be able to provide references to good sources. If you do not do this then your solution to the legal problem is of little value, as there is no way of telling if what you claim the law to be is actually real law. When you are writing essays or arguing your own opinion about the way things are or should be you also need to show that your ideas have good support. This is the basis of good academic work. Academic work is meant to build on the existing literature, or things that have already been written. In this way ideas and theories are developed and knowledge advances. By referencing you are demonstrating that your work is building on existing ideas and therefore has credibility.

2: GOOD SOURCES Showing the audience that your ideas have support assumes that you are finding “good sources” to support your work. But what makes a good source?

PRIMARY SOURCES AND SECONDARY SOURCES Law divides sources into two categories – primary and secondary sources. Primary sources are the actual laws themselves. Primary sources include cases and statutes. Secondary sources are sources that comment on the law. Secondary sources include textbooks, journal articles and legal encyclopaedias. When you are identifying what the law is you should always refer to primary sources for your authority. Secondary sources might help you with your research, and help you to understand the actual law. But secondary sources are not law, and do not provide legal authority for propositions. A lot of your study as a law student teaches you how to identify the applicable and appropriate primary sources of law. It is outside of the scope of this book to discuss how to select the correct primary sources to apply to any problem. But remember, when you are considering what makes a good source the basic rule is that primary sources are better than secondary sources. 6

EVALUATING SECONDARY SOURCES: THE CARS FRAMEWORK Weighing up authorities

You might have heard the phrase “weight of authority”. To weigh up an authority, or a source, you have to be able to critically analyse its content in order to decide how useful and reliable it is. There are various models to help you in critical analysis of a source. One that I like to use is called the CARS Checklist. CARS stands for: • • • •

Credibility, Accuracy, Reasonableness, and Support.

When deciding credibility you ask whether you can believe the source. When deciding accuracy you ask whether the content is correct. When deciding reasonableness you ask whether the content is fair or objective. When deciding whether the source has support you ask what references the source uses to back up its own content. The rest of this chapter discusses what each of these things means. The CARS framework was developed by Robert Harris specifically for the analysis of internet websites, but you can use it for any type of secondary source. The CARS Checklist provides a framework for evaluating sources, but as Harris notes, [s]ource evaluation—the determination of information quality—is something of an art. That is, there is no single perfect indicator of reliability, truthfulness, or value. Instead, you must make an inference from a collection of clues or indicators, based on the use you plan to make of your source.3 Use the CARS checklist to help develop your skills in the art of evaluating sources, but do not feel that you have to get answers to every single question in the checklist each time you evaluate a source. Credibility When you are examining credibility you are asking whether you can trust the source. In deciding whether something is credible I ask: • • • • •

Do I know this source is credible because of past use or knowledge? Who published it? Is the source checked by anyone before it is published? Who wrote it? How well is the content presented?

The main types of secondary sources that you will use as a law student are books, academic journal articles and internet sites. You might also use other popular media sources such as newspapers, magazines and television reports. In general, academic 3

Robert Harris, ‘Evaluating Internet Sources’ (1997) http://www.virtualsalt.com/evalu8it.htm (Accessed 10 January 2005).

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books and articles are credible sources. Websites, newspapers, magazines, radio and television are less credible. Academic books and articles Books are usually credible sources. University and commercial publishers want to be sure that their reputations are maintained, so they usually are careful to only select high quality books to publish. To check the credibility of a book start by checking who the publisher is. If it is a university press or a recognised commercial publisher the content is likely to be credible. The author’s credentials should also be checked. What are his or her qualifications and experience? Is there any information about the author that might indicate that he or she is biased? You might also check the presentation of the book. If it is full of mistakes in spelling and grammar then maybe the rest of the content is also careless. If a book has come from a reputable academic publisher then you can safely rely on the credibility of a book. Some commercial publishers of law books that you will come across as a law student include: • • • • •

Butterworths Law Book Company Cavendish Blackstone CCH

Academic journals are also usually very credible sources. To check the credibility of an academic journal article you first of all want to see who publishes it. Is it being published by a recognisable university or academic publisher? If the journal’s publisher has a good reputation, then its content is likely to be good. After all, the publisher wants to be sure that its reputation is maintained. The journal’s editors will also want to maintain the journal’s reputation as being academically sound. You will also want to check to see if the content is “refereed” or “peer reviewed”. Refereed articles are ones that are sent out to other academics who review the article to see if the content is academically sound, and good enough to be published. If there is a review process then it means that other academics in the field think that the reviewed article is good. You should also check the author’s qualifications and experience, although if he or she is published in a widely respected refereed journal then you can safely assume the material is academically credible. Websites There are no controls on what is published on the internet. Anybody can publish anything that they want to. These days with web-logs or “blogs”, free web sites and internet hosted journals and diaries there is a lot of unsubstantiated personal opinion on the internet that cannot be trusted to contain good information. You need to check the credibility of internet sources a lot more carefully than you would check the credibility of a book or journal article. Start by looking who controls the information being put onto the website or who is paying for the website to be maintained.

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It’s true! Aliens exist. And there are alien bases in the Solomon Islands. How do I know? I read it on the internet: http://www.thesolomongiants.com/ (Accessed 18 October 2005).

A website is more likely to be credible if it is being run by a recognised and reputable institution or organisation such as: • • • •

a university; a government agency; a UN agency; or an NGO that you know is reliable.

A website is less credible if: • • •

you cannot identify who is running the website; the author of the website or webpage has no qualifications or experience; or the organisation running the website provides no information about itself.

You should also consider how well the material is presented. If there are lots of spelling and grammar mistakes maybe the author has also been careless with other content. You may also be able to get clues from the uniform resource locator (URL) or website address. The first part of the URL gives you information about the sort of organisation. • • •

• •

.gov means that it is a government organisation .edu means that it is an educational institute .ac.fj; ac.uk et cetera means that it is an educational institute (.ac means academic and the last letters give the country: .fj = Fiji; .uk = United Kindom; .au = Australia) .org means that it is an NGO .com means that it is a commercial website

There is lots of information on the World Wide Web about how to decide whether a website is a good source. If you want to do more reading on this try a “google” search (http://www.google.com) on evaluating internet sources. DON’T PANIC! If checking credibility seems hard, do not worry. As your experience increases, you will become more familiar with different sources. This experience will help you to determine credibility. Before long your skill with evaluating sources will develop and you will do it automatically. If in doubt about a source, ask your lecturer for help. 9

Newspapers, magazines, radio and television Popular media publications are usually subject to more control than internet publications. However, popular media is well-known for being biased, and should also be treated with caution. News stories are often slanted to only show one side of the story, or to argue a particular point of view. In evaluating news stories you should try to answer as many of the questions for determining credibility as possible. As with internet sites, checking the identity of the publisher is a useful indicator of credibility and/or potential bias. Accuracy When you are examining accuracy you are asking whether the information is correct. In deciding whether something is accurate I ask: • • • •

Is the information up to date? Does the information appear to be complete? Is there enough detail in the content? What purpose has the source been written for?

The first thing to check is whether the information is current. Law is constantly changing. If you use a law textbook that is 20 years old it will be out of date and therefore will not be very helpful. However, just because something is old, it does not mean that the information is necessarily out of date. Writings about philosophy and the theory of law often remain current for a very long time. Once you have decided that the information is current you want to see if the information is comprehensive enough. In order to be accurate a source has to look at an argument from different perspectives. If it only looks at an argument from one perspective we do not know if the author has overlooked any important points. One thing that can be useful in deciding whether a source is accurate is looking at who the intended audience is. For example, the Community Law Centre at the University of the South Pacific provides brochures about various legal topics to the community. However, a brochure for non lawyers on house girls’ rights will be less detailed and accurate than information from a labour law textbook written for law students on the employment rights of domestic workers. The purpose that a source has been written for can also indicate bias, and affect reasonableness, as discussed below. Reasonableness When you are examining reasonableness you are asking whether the information is fair or objective. In deciding whether something is reasonable I ask: • • • •

Does the source balance different perspectives on the issue? Does the source use emotive reasoning to win support for its arguments? Does the content of the source make exaggerated claims? Is the content of the source internally consistent? 10

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Are there any indicators that the source might be biased?

Academic writing should always be balanced. It should not display bias, or argue from one perspective only. Instead the writer should try to consider the merits, or strengths and weaknesses, of different sides to the argument. If the writer does have a particular point of view, he or she should clearly lay out his or her potential bias at the beginning of the source. Arguments should also rely on reasoning to win support. Academic writing should not use “debating” techniques like exaggeration or emotive language to win support. The source should also be consistent the whole way through....