The Nine  Dont’s of writing a legal research paper

1.       NOT PROVABLE

Do not pick a topic which, by its very nature, cannot be proven, or researched using normal standards of evidence.

For example: Avoid such topics as: ESP; the existence of God; mystical events; “Gods from Outer Space;” “alien abduction”; miracles of any kind; whether there is “life after death;” etc.

It’s best to avoid any kind of religious topic except, possibly, an historical one.

2.       STRONG FEELINGS OR BIAS

Avoid any topic which you feel so strongly about that you could not have an open mind about it.

For example: If you passionately hate Fidel Castro, or Newt Gingrich, do not write on them.

If you choose such a topic, you will not be setting out to discover the truth.

Instead, you will be setting out to find examples or evidence to support preconceived ideas you already hold.

But research is the attempt to discover the truth. So you will not be doing research.

However, if you are interested in a topic, and at the same time feel you could have an open mind about it, then that would be a good topic for you. You will be more interested and motivated to spend the long hours of research, and will think more creatively and better about your topic, if you are interested in it.

3.       STATISTICS

Do not pick a topic where you will have to rely upon complex statistical information which you cannot understand.

If you do, you will be choosing to “believe” the source of your statistics. Believing authorities is not research, and can never lead you to discovering the truth.

Exception: you can use statistics  the United Nations, provided that you know how to use them, and look for critiques of them. But avoid statistics from private research organizations or foundations.

4.       TECHNICAL

In general, do not pick any technical topics. Only those who have technical skills can do research in technical areas. If you believe you have such technical skills in some area, please consult with me first.

5.       LEGAL

Avoid legal topics — any topic which involves determining whether something is, or might be, “legal” or “illegal.”

Legal research is not research in the sense in which we are studying and using it here. Legal research is concerned with finding precedents in previous law cases decided by various courts. This is a specialized skill. It is not concerned with discovering the truth.

6.       MORAL

Avoid choosing topics in which your “research” would mainly be deciding whether something is “right” or “wrong,” “good” or “bad.”

Moral judgments cannot be proven true or false in the same way that other statements can be.

7.       CONTEMPORARY

Do not pick a topic which involves events that are so recent that it would be difficult or impossible to find other research on them.

One of the most important ways of learning research methods is to study good research done by experienced researchers on the same topic you are interested in. This won’t be possible to do in the case of a very recent topic. Therefore, you should avoid such topics.

9.       CAN’T GET AT THE EVIDENCE

Don’t pick a topic where you obviously can’t gain access to the evidence, or to the object to be studied.

 

 


REMEMBER THE “X” RULE:

In order to come to correct conclusions about X, you must study X directly

where X is any object of study.

China’s Copyright Laws. A Very Useful Primer, With A Music Twist.

Undisputed Legal Inc.

By Dan Harris

The China Music Business Blog (who knew?) just did a post by University of Oregon Law School Professor Eric Priest. Priest’s bio notes that he previously “worked in the Chinese music industry as a consultant, entrepreneur, and producer.”

Priest’s post (paper) is entitled, Making Amends: China Music Copyright Law Primer, and it is broken out into the following sections:

  • The Development of PRC Copyright Law
  • Copyright Law Since China’s Entry into the WTO
  • Copyright Enforcement—Administrative and Judicial Enforcement Routes
  • Internet Enforcement

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Torture, Extrajudicial Killings and the Constitution

KenyaThere have been numerous cases of torture and extra-judicial killings in Kenya in the recent past. This is notwithstanding the constitutional guarantee of right to life in provision against torture, inhuman or degrading to treatment.
Members of the police and armed forces regularly beat up, kill or maim protesters, criminal suspects and, in some cases, innocent persons. In Kenya, gunshots and clubs are still instruments of compliance/obeisance employed by the security forces. The police on a regular basis employ torture as a means of extracting confessional statements from suspects.
According to the UN Special Rapporteur on extrajudicial executions, Mr. Philip Alston, killings by police in Kenya are systematic, widespread and carefully planned. They are committed at will and with utter impunity.

Torture and extra-judicial killing
Torture, according to the UN General Assembly, constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment. To the European Commission on Human Rights, the word ‘torture’ is often used to describe inhuman treatment, which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and is generally an aggregate form of inhuman treatment.
Article 25 of the Kenyan Constitution 2010 provides that:
“……. no person shall be subjected to torture or inhuman or degrading treatment”.

‘Extra-judicial’ means happening out of court; out of the jurisdiction of the proper court. Thus, extra-judicial killing means killing not sanctioned by a court of competent jurisdiction in the process of criminal trial.
Doing so violates fundamental international and constitutional laws.

Article 3 of the Universal Declaration of Human Rights states: Everyone has the right to life, liberty and security of person.
Article 6 of the International Covenant on Civil and Political Rights states: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Common Article 3 of the four Geneva Conventions states: The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are prohibited at all times under all circumstances with no exceptions.
The 2010 Constitution, in Article 26(1) guarantees the right to life in the following terms:
Every person has a right to life
No one should be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty.

The only permissible limitations on the right to life are contained in Article 26 (3) of the Constitution, which provides that a person shall not be regarded as having been deprived of his life, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law.
It must be noted that the general omnibus derogation and limitation clause in Article 26 of the Kenyan Constitution does not apply to the right to life. Thus, any killing not within the context of Article 26 above will be unlawful and illegal.
The pertinent question is whether the limitation clauses allow intentional killing in the circumstances enumerated in Article 26. It is respectfully submitted that the killing permitted under Article 26 should have the objective of achieving one of the specified aims and the killing is merely a consequence of using an absolutely necessary amount of force in doing so.
The European Commission on Human Rights, in construing a similar provision, ruled that if disproportionate force is used and death results, then the Convention is violated, even if death was unintentional. While the use of force may sometimes be necessary, conduct resulting in death, whether intentional, negligent or accidental, should always have to be justified.

The duty of the state is to secure life
Though the Kenyan Constitution made no express provision on this matter, it can be implied from the spirit and some other provisions of the Constitution, that there is a duty on the State to act to secure life. extra judicialFurthermore, though article 26 of the Constitution, which guarantees the right to life, appears to have merely imposed a negative obligation on the State not to take life, when that article is read together with Article 29, it will be clear that the State has a duty to act to save life. Article 29 enacts that the security and welfare of the people shall be an obligation of government.
The European Commission on Human Rights, while interpreting a provision under the European Convention maintained that right to life imposes obligations on states to take appropriate steps to safeguard life. This will, for instance, entail taking appropriate steps to promote security and to prevent murder and other crimes threatening life.
The United Nations Human Rights Committee has equally noted that the right to life includes a duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.
In conclusion, failures in the criminal justice system, and in internal and external police accountability mechanisms, encourage the commission of unlawful killings by police. This can however be corrected by implementing the doctrine of the rule of law, which ensures that governmental power is exercised in accordance with pre-determined rules as opposed to the exercise of a arbitrary power.

World of Internet and Social Change it brought

Ubaid H Zahidani

Image

Internet is a world of things in this age and era of informational hype. It has brought a joyous change to our lives, perceptibly the way our ancestors have lived feels obscure to new generation. All luxuries are joys of internet which opened gates to collection of galaxies of information within itself. Accessible information provided vast research approaches and hence the technological change in a common man’s life. This era has brought such a change in our lives that each endeavor humans undertake involves a mandatory facet of intelligent technology to be embedded. The common notion of today’s web presence is admired to sought changes in social lives, as authors of book Doing Internet Research credit it with being engine of new ages change in different spheres of life. Bewildering is to notice how each sector is covered by wonderful virtual world of internet  (Jones, 1998).

Having taken…

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State immunity upheld against human rights challenges in Strasbourg

UK Human Rights Blog

Saudi_mapJones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement

The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention.  The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law”  and that there had been no violation of  Article 6 (right of access to court).

The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of…

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Will a denial of broadcasting service to digitally non-compliant households constitute a violation of the constitutional right to receive information and ideas?

 

Digital broadcasting has emerged as a globally accepted standard for next-generation mass media. It presents a method of relaying radio and television signals with various advantages from analogue broadcasting. It enables a more efficient use of bandwidth and the bundling of multiple channels in one frequency. Moreover, digitally broadcast images, video and audio have a higher quality than their analogue counterparts. The transition from digital to signal broadcasting is arguably the most significant technological cross-over for television and is only closely rivaled, if not slightly surpassed, by the invention of colour television.

 

At the stroke of midnight at the end of 17th June 2015, all nations will cease all analogue broadcasts of radio and television signals and switch over to the transmission of digital-only signals with the exception of

digital migration
digital migration

some developing countries for which the transition period will end on 17 June 2020. On that date, all analogue television sets for which the owners will not have installed a digital signal converter will go black.

In Kenya however, the communications Commission of Kenya (CCK) have new self-imposed datelines. They will carry out the analogue switch-off exercise in 3 phases to wit; Nairobi on 13th December, 2013; Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kisii, Nakuru and Eldoret on 30th March, 2014 and the rest of the country on 30th June, 2014.

Consumers of analogue television services and members of the public in general through Consumers Federation of Kenya (COFEK) have opposed the move by CCK to switch off analogue television frequency signals by 13th December 2013 or any other date before June 2014. They contend that this notice is too short and inappropriate considering that December is a festive season, immediately after which school re-opening calendar together with prevalent economic challenges facing Kenyans puts financial pressure on poor households not to forget the need for Kenyans to follow important national developments which include devolution and constitutional implementation processes, among others.

CCK’s decision, in the event that it is sustained, will lock out millions of Kenyans from following important national matters such as legislations, government policies, and matters of national interest, among others as envisaged under Article 35 of the Constitution of Kenya. While they claim , that so far 500,000 set boxes have been sold in Nairobi, there is no similar evidence and goodwill to demonstrate that the over 3,500,000 remaining television owners will purchase the compulsory and prescribed gadgets

The consumers and general public right to information will be severely infringed because current free-to-air channels, some paid for by the taxpayer, are being forced into pay-TV bundles vide a set-top box which are not free of cost. The specific case in which consumers of television services cannot access NTV, Citizen TV and KTN on the StarTimes platform is one such discrimination, against Article 27(4) of the Constitution of Kenya, which is being perpetuated with untold impunity as CCK maintain their loud silence. It should be a requirement that all set-top boxes/integrated digital TVs must be able to receive all non-encrypted free to air TV. In Denmark, the Ministry of Research and Communication has determined (Danish Ministry of Research, departmental order no. 709 of 25 June 1996) that “Digital decoders must be constructed in a way that allows non-encrypted digital TV signals to pass transparently through them.”

Further, there has been no sufficient public information, education and communication campaign to raise awareness on digital migration to allow consumers the freedom of choice as envisaged in Article 46 of the Constitution of Kenya 2010 and the Consumer Protection Act, 2012.

digital 2
The foregoing concerns are not the bitter pill of new technology that a society must take at a certain time in its development. Rather, once resolved, they will be the relish with which the consumer will find the transition to digital broadcasting more appetizing. The national digital broadcasting switchover programme will need to anticipate and resolve these concerns.

Intellectual Property and Public Events: Rights of Organisers, Participants and Third Parties

IP Kenya

amateur photographer

I am hesitant to believe the Defendants’ argument on the issue of intellectual property rights to the event since the traditional common law view that has prevailed is that it is difficult to attach ‘any precise meaning to the phrase “property in a spectacle”. A spectacle in this case refers to an event. A “spectacle” cannot, therefore, be “owned” in any ordinary sense of that word. – Mabeya J. in AMCIL v Joseph Mathenge Mugo & ABMCIL HCCC 242 of 2013 at paragraph 29.

In the recent case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & Access Business Management Conferencing International Ltd. HCCC 242 of 2013 (hereafter the HR Symposium case), Justice Mabeya held that there are no intellectual property (IP) rights in a spectacle or event dubbed “Human Resource Symposium”. In holding that there is no IP in a spectacle, Justice Mabeya cited the Australian case…

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Yahoo Issues Its First-Ever Transparency Report Detailing Government Data Requests

Tech

Yahoo’s general counsel Ron Bell has a post on the company’s Tumblr page pointing to Yahoo’s first ever transparency report. The report “details governments requests for user data from January 1, 2013, through June 30, 2013.”

The report is broken down into 17 areas around the world: Argentina, Australia, Brazil, Canada, France, Germany, Hong Kong, India, Ireland, Italy, Mexico, New Zealand, Singapore, Spain, Taiwan, the U.K. and the U.S.

Each includes the number of requests made by the corresponding governments alongside how many of the requests resulted in disclosures of no data and how many requests resulted in the disclosure of some data.

Here’s a screengrab from Yahoo’s PDF:

Screen Shot 2013-09-06 at 1.07.09 PM

Yahoo

As for countries and regions that aren’t represented, Yahoo’s report says, “The countries listed are those in which Yahoo has a legal entity, and therefore, government agencies in those countries could potentially seek and obtain user data through compulsory legal process.”

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Standardized protection to entire IP

private investigator in Switzerland

Brunei being the great country in the Southeast Asia region in widely engaged in the progress of IP works and protections of IP rights in the country. This is because of superior activities involved in the progress and development of Brunei intellectual properties which are acting as the prime source boosts the economy and develops the infrastructure and other major resources in the country.

This is best achieved due to constant efforts put up by the investigators who have brought out the IP investigations in Brunei to protect the innovative works and creative ideas of innovators from the getting leaked in the duplicate products or services. This is well achieved by providing the solution of all the twisted issues by giving the wider protections in securing the best held rights of these innovators. The positive effects of these works resulted to the increased protections of legally approved rights.

IP investigators…

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