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.

Being admitted to the Kenya school of Law by case law

Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others Civil Appeal No 121 of 2013

Brief Facts

The appellant (Eunice Cecilia Mwikali Maema) upon completion of her Bachelor of Laws (LLB) at Coventry University in England and Master of Laws (LLM) degree in University of Warwick in England in 2011 applied to be admitted to the Advocates Training Programme (ATP) for the 2013/2014 Academic Year. She however received a regret letter from the Kenya School of Law’s (KSL) Director on the basis that her LLB degree did not meet the threshold of the 16 core subjects as prescribed by law for purposes of admission to ATP.

Aggrieved by that decision she petitioned the High Court seeking declarations that she had complied with all requirements for admission to the ATP under Legal Notice 169 of 2009. She sought an order of certiorari to quash the decision contained in the letter rejecting her application for admission to the ATP; an order of mandamus to compel KSL and the Council to admit her to ATP. The High Court (Isaac Lenaola J) dismissed the appellant’s petition hence the appeal.

It was argued by the appellants counsel that when the appellant applied for admission the law did not require completion of the 16 core subjects; that the requirement only came with the enactment of the Legal Education Act of 2012, which could not apply retrospectively. They submitted that Legal Notice 170 of 2009 had nothing to do with admission with ATP but only dealt with accreditation of legal education institutions in Kenya. It only required universities to offer the 16 core subjects and there was no requirement that the students had to take those subjects. Further that if some subjects had not been covered at the university than they should be undertaken during the ATP at KSL.

The respondents however argued that Legal Notice 169 did not contain the councils prescribed examinations but they were set as core subjects in the Legal Notice 170 of 2009 to be offered by all accredited universities. That other applicants in a similar position as the applicants had taken the missing subjects at locally accredited universities

Issue

i. Whether it was a legal requirement for an applicant to have covered the 16 core subjects at the LLB degree Programme prior to application for admission to the Kenya School of Law.

Held

While the under graduate Programme offered by any accredited institution had to comprise core units, there was no express requirement that a student undertaking the Programme at such institution had to take those units.
Students enrolling for legal education Programmer at universities or other institutions did so for a variety of reasons. Some might or might not have wished to seek postgraduate admission to the ATP. However, for those who wished to gain admission to the ATP at KSL, the Council, under Regulation 5(2) (a) of the Council of Legal Education (KSL) Regulations, 2009 set relevant qualifying examinations.
The relevant qualifying examinations had to include the 16 core subjects prescribed for the universities under Paragraph 20 of Part III of the Third Schedule to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations.
The 16 identified subjects or units were so central and important that for purposes of regulating standards, an undergraduate Programme that did not include those units failed the test of accreditation. The Council could not on the one hand determine certain subjects to be core for purposes of accrediting an institution and at the same time not consider them as core for purposes of qualifying for admission to the advocates training Programme at the School.
The subsidiary legislation by the Council could have been better framed and structured to make it abundantly clear that a degree from any institution that did not include those units would not be recognized for purposes of admission to advocates training Programme.
Any ambiguity or lack of clarity however was removed with the enactment of the Legal Education Act, that commenced operation on 28th September 2012 and whose objective was to promote legal education and the maintenance of the highest possible standards in legal education. Section 23 of that Act expressly provided for core degree courses and stipulated that a legal education provider offering a course for the award of a degree in law was to in addition to any other courses offered, provide instruction and examination for each of the core courses set out in Part II of the Second Schedule to that Act.
While foreign universities and institutions outside Kenya were outside the accreditation jurisdiction of the Council, the requirement that a degree from a foreign university or institution had to contain the core units was not to extend the accreditation jurisdiction of the Council to foreign universities but to avoid different or double standards for local and foreign law degree holders.
Law degrees earned from foreign universities or institutions had to for purposes of admission to the advocates training Programme at the school, be held against the standards that the council had set out. All applications for admission to the School had to be considered against the same standards set by the Council.
To exclude the appellant from complying with the fulfillment of the requirement of core subjects was propagating the very discrimination the appellant complained about. She could not be admitted to KSL and be required to study the remaining core subjects there as the school no longer offered them.
Appeal dismissed with each party bearing their own costs of the appeal.

There are sixteen courses in total: Legal Research; Torts; Contracts; Constitutional Law; Legal Systems and Methods; Criminal Law; Family Law and Succession; Law of Evidence; Commercial Law (Including Sale of Goods, Hire Purchase and Agency); Law of Business Associations (including Insolvency); Administrative Law; Jurisprudence; Equity and Law of Trusts; Property Law; Public International Law; Labour Law. 2 Students who have advanced law degrees (master’s or doctorate degrees) or postgraduate diplomas in the mandatory course units may apply for exemption in writing.

see http://kenyalaw.org/caselaw/cases/view/92992/

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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Is Gareth Bale ‘selling out?’

Commentary on intellectual property, data privacy, social and digital media developments

The IPO has recently approved footballer Gareth Bale’s application to trademark his ‘Eleven of Hearts’ goal celebration (pictured below). This means that Bale will be able to put the trademark on clothes, shoes, and jewellery, commoditising his image in the same way other football stars have in the past, including David Beckham and Cristiano Renaldo. While this will undoubtedly generate huge profits for Bale (and consequently for Real Madrid, who’ve just bought him from Tottenham Hotspurs for £93m), it’s lost him a lot of respect among his fans and this will be difficult to regain.

bale heartA lot of footballers have identifiable goal celebration gestures, ranging from the fairly normal (hugging teammates, fist pumps) to the downright bizarre (dancing, simulated sex acts).  Peter Crouch performs the ‘Robocrouch’ after scoring, and Cristino Luciarelli famously started humping his jersey in a 2007 match, much to the crowd’s amusement. Francesco Totti, Luis Garcia, and…

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Can I trademark my last name?

Briskin, Cross & Sanford - Business Law Blog

The short answer is, “Generally, no.”  People try it all the time, and the United States Patent and Trademark Office politely rejects the applications and keeps the filing fees.  If you disagree with the Trademark Office’s rejection, or if you think someone else is trying to grab your surname for a trademark and you want to file an opposition to their application (or even seek to cancel their mark if it has already registered), you can take it up with the Trademark Trial and Appeal Board, or TTAB.  Trademark litigation is a specialized type of practice that runs a bit like a federal court trial, though most of it happens in writing rather than “live and in person.”  A good illustration of this is the recent (January 7, 2013) case that pitted Mitchell Miller d/b/a The Miller Law Group against Michelle Miller d/b/a, you guessed it, The Miller Law Group.

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Trademark for ‘App Store’?