Impacto del TLCAN en las relaciones bilaterales

The concept of chaining emerged in 1989 through the work of David Ellis. Ellis conducted a study of the ‘information seeking patterns’172 _{of social scientists and}

scientists and he developed a behavioural model of their research patterns.173 _One

of the processes he identified as ‘chaining’.174 _{Ellis defined ‘chaining’ as}

‘characteristics of patterns of searching for information which involve following citation connections between material’.175

Within this process, he identified a practice of ‘backward chaining’ which involved the researcher ‘following up references or footnotes’176 _{within a text. He identified}

that this was the predominate information seeking pattern adopted by social scientists. Ellis also identified a practice of ‘forward chaining’, which was widely used in the law, and involved checking to see ‘whether further work had been done which cited material already known’.177 _{These terms are very useful for describing}

the processes involved in legal research. 1. Legal Research Patterns of ‘Chaining’

Stuart Sutton has mapped Ellis’ behavioural models of research patterns to legal research.178 _{He found that in legal research ‘chaining’ is a ‘context sensitive}

exploration.’179 _{Sutton described the operation of chaining in the law as the lawyer}

‘armed with one or more seed cases’180 _{working both through a process of forward}

chaining and backward chaining until ‘satisfied that all cases useful to modelling

172 _{David Ellis, ‘A Behavioural Approach to Information Retrieval System Design’ (1989) 45(3) Journal}

of Documentation 171. 173 _Ibid. 174 _{Ibid 182.} 175 _{Ibid 183.} 176 _{Ibid 183.} 177 _{Ibid 183.}

178 _{See Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations:}

An Exploratory Analysis’ (1994) 45(3) Journal of the American Society for Information Science 186.

179 _{Ibid 193 (see Figure 8).}

180 _{Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An}

the subsector have been found.’181 _{Sutton offered the following figure (Figure 1) to}

illustrate the process of chaining in legal research: Figure 1: Citation Tracking

Source: Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An Exploratory Analysis’ (1994) 45(3) Journal of the American Society for Information Science 186, 195.

In Figure 1, Sutton has marked the forward chaining process as ‘shepardizing’. ‘Shepardizing’ is a term employed in the USA research literature to describe the use of a legal citation index (developed by Frank Shepard).182 _{‘Shepards citators’}

are employed by Lexis Nexis and Westlaw. Sutton explained that his figure (see Figure 1 above) represents:

…twenty-seven cases in a citation network. The passage of time is denoted by movement from the left to right. The numbering of the cases represents the chronological order in which they were decided and reported by the courts. The arrows represent the direction of the searcher’s chaining.183

The research process of shepardizing is not currently available on commercial legal databases for tracing family hardship as a sentencing factor.

2. A Research Process of ‘Exhaustive Shepardizing’

181 _Ibid.

182 _{Patti Ogden, ‘“Mastering the Lawless Science of Our Law”: A Story of Legal Citation Indexes’ (1993)}

85(1) Law Library Journal 1, 27-36.

183 _{Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An}

There is a research process called ‘exhaustive shepardizing’184_{. Stephen Marx has}

described this, in respect to legal research practices, as follows:

Exhaustive shepardizing is the process of (a) selecting a case relevant to the legal problem which faces the lawyer and designating that case as the root case; (b) selecting all cases which cite the root case; (c) selecting all cases which cite the cases in (b), etc. until no more citations can be found; (d) selecting all cases which are cited in the cases collected in steps (a), (b), and (c); and (e) repeating steps numbered (b), (c), and (d) until no more cases are found.185

He commented that,

the process…is so time-consuming that most lawyers do not follow it to its logical conclusion…a lawyer will often only do a partial shepardization rather than follow all of the possible cross-citations to their logical end.186

The study of the Australian case law on family hardship conducted for this dissertation used the process of ‘exhaustive shepardizing’.

For this study of family hardship, initially a ‘seed’ list of cases was identified for analysis based on researching the secondary research literature and general searches of legal databases: Casebase (LexisNexis)(‘Casebase’), Westlaw International (Thomson Reuters)(‘Westlaw’), Legal Online (Thomson Reuters)(‘Legal Online’) and the Australasian Legal Information Institute (‘AustLII’). This resulted in the compilation of an index of cases for each

jurisdiction. All the cases collated via this process were read and any further cases identified in the judgments as relevant to the principle of family hardship were located and included into the compilation of cases for each jurisdiction (backward chaining). ‘Note up’ processes available within the databases were also used to identify any new or previously unidentified case law (forward chaining). This process took several cycles and the end result was a body of case law where no gaps were identified by the researcher.

This process of exhaustive shepardizing was conducted to identify cases with a high juristic status on family hardship as a sentencing principle. ‘Juristic status’ is a term used by Sutton and explained in Figure 2 below.

Figure 2: Juristic Status

184 _{Stephen Marx, ‘Citation Networks in the Law’ (1970) 4 Jurimetrics Journal 121, 124.} 185 _Ibid.

Source: Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An Exploratory Analysis’ (1994) 45(3) Journal of the American Society for Information Science 186, 192.

Cases with a ‘high juristic status in the… jurisdiction…[are] more likely to influence the outcome…than would a case with a lesser juristic status’.187 _{This is useful}

terminology to adopt for this study of sentencing principles as it is not associated with the doctrine of stare decisis.188 _{The research process of shepardizing is not}

concerned with whether a ‘judge has erroneously cited a case’189 _{but is focused}

upon identifying highly cited cases (cases with high juristic status) and any cases which are irrelevant or which have little or no precedential value are removed from the research.190 _{Sutton has described cases with low juristic status which get}

dropped from the research process as ‘noise’ cases.191

In this study, the case analysis conducted for each jurisdiction examined cases on family hardship identified through the research process of exhaustive

shepardizing. Cases that significantly addressed the issue of family hardship as a sentencing factor, where the judicial officers expressly addressed the probable impact of the sentence upon the offender’s dependants in a meaningful way in their sentencing remarks or judgment, were included in the study. Cases that had been identified through the research process but that did not meaningfully engage at all with family hardship, such as those which simply noted that family hardship was taken into account but did not set out judicial reasons or any reference to sentencing principles, were classified as ‘noise’ cases and were dropped from the study.

C. The Study of the Australian Case Law

187 _{Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An}

Exploratory Analysis’ (1994) 45(3) Journal of the American Society for Information Science 186, 187.

188 _{As explained by Marx, see Stephen Marx, ‘Citation Networks in the Law’ (1970) 4 Jurimetrics}

Journal 121, 122.

189 _Ibid.

190 _{Stuart Sutton, ‘The Role of Attorney Mental Models of Law in Case Relevance Determinations: An}

Exploratory Analysis’ (1994) 45(3) Journal of the American Society for Information Science 186, 192.