Law in Its Broadest Sociological Sense - Essay Example

Appendix 3: Research Records FACULTY OF LAW LWB 143: LEGAL RESEARCH & WRITING RESEARCH RECORD Clifford Hii NO: N4653645 TUTOR'S NAME: Eola Barnett TUTORIAL TIME: Friday (1.00pm - 2.30pm) INTRODUCTION AND OBJECTIVES This Research Record is to be brought to tutorials as it provides the framework for the tutorial work. Tutorials will generally involve a discussion of the methodology and processes of legal research and an opportunity to practice those skills to enable you to complete this Research Record. It will be necessary for you to complete this outside of tutorials. We strongly encourage you to bring a copy of the Research Record on disc to tutorials to enable you to easily update your work and "cut and paste" from electronic sources as you proceed. The problems to be used to complete the Research Records will be released on the LWB143 online teaching site. The pages of this research record are for you to document your learning of legal research. The amount of "blank space" on each page gives you an indication of the length of answer required to address each question. Remember it is "quality not quantity" that is important. An answer with three or four relevant textbooks is better that an answer with fifteen out of date and only minorly relevant text books. Attendance at tutorials is compulsory and will be considered in allocating your mark for the Research Records. Collaboration amongst students in class is encouraged so that you can help each other learn. However, the Research Records are an individual assessment item so be wary of excessive collaboration. I would like to acknowledge the various members of staff who have contributed to earlier versions of this document and the earlier formulations of this unit. The unit today is an accumulation of collective experience. Good luck and enjoy learning how to conduct rigorous legal research! It can be frustrating at times but learning how to find the law by appropriate legal research will be one of the most important learning experiences for you at Law School. Natalie Cuffe Unit Coordinator June 2005 WEEK 1 INTRODUCTORY QUESTIONS QUESTION: What is the study and practice of law all about What skills are involved Law in its broadest sociological sense is a field of experience shaped and structured by problems of government, social control, and social order. Lawyers and others whose work is directly concerned with the operation of the state legal system are much concerned with a specific professional experience of law. This is an experience of interpreting, reformulating, systematizing, supplementing, and applying an accumulation of officially recognized practices, recedents, and prescriptions, which relate to problems of government and of maintaining social order and control. In other words, lawyers and legal officials experience law, professionally, as doctrine: established rules, regulations, procedures, guiding principles, and normative concepts, together with specialized modes of reasoning with these various legal ideas. QUESTION: What do you think is the relevance of this unit What do you hope to achieve and what will be the long term outcome of these tutorials Thus unit is about Legal Research which can lead us in many directions. The long term outcomes will that we may illustrate legal research in all types of law by investigating the legal dimensions. . QUESTION: Reflect upon the Legal Information Skills Audit (over the page) and Learning Styles Inventory (on the OLT site) you completed this week. What does this tell you about the way you will need to approach learning in this unit Legal Information Skills Audit enables us to conduct legal research. Many of the legal information skills guides produced locally by law librarians and law teachers that we found through our research were guides to such services. Sources of legal information, traditionally located in bound books, are gradually being displaced into an electronic network consisting of both electronic "documents" and humans. The Learning Styles Inventory (LSI) was originally developed by David Kolb in 1981 and is marketed through the Hay McBer Training Resources Group. The LSI consists of twelve questions that are designed to help you evaluate the way you learn. Although you may already know that you prefer to experiment with something new rather than have someone lecture you on its use, the LSI will help you under- stand exactly how you learn and what you might do to improve your learning abilities. The questions ask you to rank your preferences for four different choices in several different learning situations. For example, one of the questions asks: Your response is to rank the four choices from most like you (a 4 ranking) to least like you (a 1 ranking). The inventory is self-administered and self-scored. Following an algorithm that is explained in the inventory, the rankings are tabulated and presented in four dimensions: abstract conceptualization, active experimentation, concrete experience, and reflective observation. Legal Information Skills Audit LWB143 Legal Research and Writing Semester 2, 2005 Learning legal research is quite different to learning other subjects in your law degree. It is different because the focus is on learning the process of legal research which is transferable to different contexts, such as other subjects and your future practice as a lawyer. In contrast, most of your other subjects concentrate on learning the content of the rules of law and applying them to factual scenarios to come to a correct legal answer. To succeed in your studies at law school and in legal practice you need to have both a knowledge of the law and the ability to research the law. The way you approach learning legal research will be different to the way you study the rules of contract law or torts. The purpose of this Legal Information Skills Audit is to prompt you to consider at the beginning of the semester your current capabilities and the process nature of learning legal research. Please complete this audit in class in Week1. Your tutor will then discuss with the class your level of understanding so that you can collectively set the standards for your class. Reflect upon what you have learnt in your Research Record for Week1. The following questions reflect the process of legal research and link directly to the unit objectives detailed in the study guide. Please answer the following questions by ticking the response which best represents your current ability: In undertaking legal research I can: Never tried OK Good Define the need for information by restating the topic or problem in my own words, identifying relevant facts, issues and areas of law, with guidance List subject areas and keywords, synonyms and related search terms with assistance Recognise a variety of legal information sources and select most appropriate for research from suggested sources, using given criteria Use given criteria to evaluate information for usefulness (eg date, jurisdiction) Analyse quality and quantity of information with assistance Revise search and locate additional information as needed Understand the nature, format and citation of legislation, and locate historical and current information about legislation and legislation on a topic Understand the nature, format and citation of case law, and locate case citations, judicial consideration of cases and cases on a topic Use the library catalogue to locate secondary materials (eg textbooks) Locate, cite and extract appropriate information from secondary materials such as textbooks and journals Use library catalogue to locate reference materials (eg dictionaries) Locate, cite and extract appropriate information from reference materials such as dictionaries and encyclopaedias Identify relevant jurisdictions for current research, with guidance Use research sources from Queensland and Commonwealth of Australia jurisdictions and international level, with guidance Appreciate the range of electronic legal databases available and the appropriateness of each for particular information needs Demonstrate a familiarity with the content of and an ability to effectively search (eg by using Boolean, truncation, etc) full text and bibliographic databases and the Internet Appropriately cite sources in written and oral work complying with legal citation, footnoting and bibliography conventions WEEK 1: LEGAL RESEARCH METHODOLOGY and TOPIC ANALYSIS EXERCISE 1.1: Read and analyse the research problem and identify the broad areas of law and the issues. Identify keywords for research and use Statsky's "cartwheel" to help think of alternative keywords. IDENTIFY THE GENERAL AREAS OF LAW Aspects of the ISP have advanced dramatically over the past few years to the agenda-setting and negotiations stages of regime formation, and international adoption of widely used protocols and standards has resulted in operationalization of the embryonic regime that exists at present. When one goes beyond the technical and commercial components of ISP's, however, one encounters a number of elements that are not yet fully within the scope of even rudimentary international regime arrangements. Most of these still rather inchoate aspects of Internet development are closely associated with the concerns of public law, international private law and the legal systems. the most significant of these areas, involving questions of jurisdiction in cyberspace, issues related to varying arrangements designed to regulate Internet content, and concerns for the protection of privacy when using computer networks. Although these three issue areas by no means exhaust all of the law-related subjects that might eventually be encompassed in a global Internet regime. Discussion of these three areas is intended to promote understanding of the nature of the difficulties involved in creating regime principles and norms for Internet activity where embedded traditions in both national and international legal systems already exist. IDENTIFY THE ISSUES INVOLVED IN THE PROBLEM Try to frame the issues as questions that need to be answered. Include in the issues the parties and the specific events in the facts being considered. This will assist in formulating headings for writing up the answer to the problem. ISPs could face breach of contract liability from Web site operators or other ISP customers harmed by the attack. As Max in this case. That liability would be present between the ISP and the site operator that requisite a level of security not met by the ISP. If found accountable for a breach of contract as to security, an ISP can be forced to pay the injured party an amount established by the court as reimbursement for the harm caused by the ISP's failure to perform its contract obligations fully. If an ISP makes a contract commitment for security or service quality and if that commitment is not met, the ISP may face breach of contract liability for damages suffered by the customer as a result of the attack. Identifying that breach of contract claims can be raised even if there is no formal written contract. If, for instance, an ISP makes promises as to security in marketing or promotional material, although fails to convene those promises, customers who rationally relied on those assurances might have a valid and enforceable legal claim for breach of contract. The most effectual way for ISPs to lessen their risk of contract law liability pop ups attacks is to be cautious concerning the security and service quality promises they make to their customers. No security declarations that exceed the ISPs capability to perform must ever be presented to customers. The preeminent rule of thumb is to treat your agreements and promotions as pledges that should be fully performed. IDENTIFY KEY WORDS FOR RESEARCH Note: You may need two levels of key words: Broad ones (like the names of the units in a law degree) for searching for texts Narrower ones for finding the relevant chapter in a text, and for searching for articles, cases, etc Don't forget to add new keywords that arise as your research develops. For example, names of cases and sections of legislation. Broad key words Intellectual property, Copyright Infringement, Copyright Liability, Online Services Act, Broadcasting Services Act 1992, Narrower keywords System security, security measures, encryption USE STATSKY'S CARTWHEEL TO IDENTIFY FURTHER KEYWORDS Armed with your keywords you can now commence research. Yes, I believe now I can commence my search. EXERCISE 1.2: At this point you need to think about the range of legal research sources available to you and decide which to use to begin your research. This research record will guide you through a range of resources. However, to get you thinking holistically, outline below the types of sources available, indicate the order in which you think you will use them and explain why. There are diffent types of books, journal and websites are available. I would definitely use some primary legal sources fall into two basic types of publications: 1) chronological series that compile the full text of statutes, regulations, court decisions, or treaties in the order in which they were adopted; and 2) codes that collect or arrange the law according to topics or subjects. The major chronological series and codes useful for research into federal and international law. WEEK 2: INTRODUCTION TO SECONDARY SOURCES EXERCISE 2.1: Using the Library catalogue, locate any relevant and recent textbooks and loose-leaf services on the problem given. What keywords did you use to search the library catalogue Breach law music ISP intellectual property What search options did you use on the library catalogue and why I have chosen "all words" search options on the library catalogue. List some relevant textbooks and loose-leafs found: AUTHOR/S TITLE PLACE OF PUBLICATION PUBLISHER YEAR CALL NO. What criteria are you using to evaluate the usefulness of the information you are finding What is the relevance of the textbooks and loose-leafs you are locating My Criteria is to evaluate the usefulness of the information through Relevancy and accuracy. Now find them on the Library shelves, find the pages that seem relevant to the problem, and (either now or later) summarise the relevant commentary on the law (this may have to be finished outside tutorial hours). (Space for your summaries is provided overleaf.) TEXTBOOK CITATION DETAILS: (ie Author, Title and publication details) SUMMARY OF RELEVANT CONTENT (including chapter headings and subheadings, names of the most relevant cases and sections of Acts): TEXTBOOK/LOOSE-LEAF CITATION DETAILS: (ie Author, Title and publication details) SUMMARY OF RELEVANT CONTENT (including chapter headings and subheadings, names of the most relevant cases and sections of Acts): Briefly outline the process and/or tools you used to extract the relevant information from the textbooks and loose-leaf service. Did you find them easy to use Explain. Firstly I have cleared goal in my mind about information as connecting goals and their associated information needs are their relationships which contribute to extracting the relevant information. In effective design for complex situations, everything must focus on providing effective answers to those real-world questions. For a providing support for these goals requires understanding both what the situation is and what it means to the person: How does the person view the situation, what previous knowledge do they bring, and what type of transitions might they want to accomplish Thus far, achieving a goal requires knowing what information is required, understanding the information, and how to manipulate the information to extract the required knowledge from it. EXERCISE 2.2: - CITATION OF TEXTBOOKS AND LOOSE-LEAFS Correct citation of legal sources is important both at university and in legal practice. Why do you think this is so Yes, correct citation of legal sources is really important as some time it is also needed for some further research. Choose an example of a textbook and a loose-leaf you have located and translate them into proper legal citation. I don't have access of these textbook. EXERCISE 2.3 LEGAL ENCYCLOPAEDIAS IN PAPER - In class we will discuss legal encyclopaedias in paper. Explain two characteristics of legal encyclopaedias in paper that are important to remember when searching them. The purpose of a legal encyclopaedia is to state in a systematic way the law applicable to various subject areas. The legal system is divided analytically into a large number of well-known titles or headings, such as Criminal Law, Landlord and Tenant, Patents etc. which are arranged alphabetically and each divided into subheadings with numbered cross-references. Legal encyclopaedias give case and statute references on a given subject. They may not always be the most up-to-date source but are a very good starting point. http://www.library.uq.edu.au/law/research/legal.html WEEK 3: SECONDARY RESEARCH continued EXERCISE 3.1: Using an Australian legal encyclopaedia in its electronic form, locate commentary on the problem given. Summarise relevant commentary (this may have to be finished outside tutorial hours). Note relevant legislation and recent cases mentioned in the commentary. I don't have access of any Australian legal encyclopaedia. ENCYCLOPAEDIA: TITLE/HEADING, SECTION OR PARAGRAPH NO(S): REFERENCES TO LEGISLATION: REFERENCES TO RECENT CASE LAW: SUMMARY OF CONTENT: How current is the title in the encyclopaedia you are looking at Do you need to update further How will you do this UPDATING RESULTS: Did you find the electronic version of the encyclopaedia easier or more difficult to search than the print textbook or loose-leaf or paper encyclopaedia Explain briefly. EXERCISE 3.2: Locating articles from concepts or keywords. Using your narrower-level keywords, search an electronic journal index for the names and citations of some relevant article(s). Then go to the journal collection in the Library, find the articles, skim them to identify the most relevant, and take photocopies. [And return the journals to the reshelving shelves - other students will be looking for them!] Remember that some journal articles will be available in full text online. What was the name of the journal index (or indexes) you choose to search the name of the journal index is "Murdoch University Electronic Journal of Law" Why did you choose this index (or indexes) I choose this index because it has wide range of journal which help me in getting idea of the case Detail examples of the keywords you searched on, the Boolean, etc you used and the more useful articles found: KEYWORDS AND BOOLEAN/ TRUNCATION/ FIELD SEARCHING CITATION OF ARTICLES FOUND Intellectual Property Law and the Protection Current copyright regimes fully accommodate. The deficiencies of copyright law in this regard are manifested in the requirements appertaining to ownership and authorship; material form; originality; duration; and rights in derivative works. Internet computer network law and legislation Australian copyright law, based as it is upon principles derived from the English legal tradition, has, since its inception, been under a constant pressure to effect a rapprochement with copyright principles derived from the Continental European copyright tradition. How current was this index How would you update these results Update these results if necessary and record the results below. These results are of 2002 - 2003 How useful did you find the electronic version of AGIS as a research tool Why What advantages are provided for by articles as opposed to textbooks Electronic version of AGIS is very useful as research tool. These articles are more specific which I find difficult in textbooks. EXERCISE 3.3: Research is not a linear process. You don't just look at one or two sources and think you have done it all. Research is a recursive process requiring constant re-evaluation and reflection. At this stage go back over your initial analysis of the topic and your secondary research and reflect. Were your initial keywords appropriate Are you confident that you are on the right track Why Explain. Do you need to look at more commentary on the topic I am confident about my current key words. This case is about breaching law by music and ISP as some unethical pop ups ruined claimer goodwill. EXERCISE 3.4: - Citation of encyclopaedias and journal articles. Select an example of each of these from your results above and translate them into proper legal citation. Copyright liability for Internet transmissions by examining first the international obligations imposed on the contracting parties to the Berne Convention and the two new WIPO Treaties. The next part of the paper focusses on the Australian proposals for the implementation of the WIPO Copyright Treaty. The potential copyright liability of operators of bulletin boards, Internet service providers (ISPs) - both carriage providers and content providers - and communications carriers are considered. Transmission right would apply to transmissions to the public in the traditional non interactive sense of "broadcasting", that is the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission. The person receiving a broadcast can only receive it at a time when the person making the broadcast chooses to make the transmission WEEK 4: INTERNET EXERCISE 4.1: In this tutorial we will be consolidating your knowledge of the Internet and introducing you to some Internet legal research techniques. [Note that you are not limited to just the one page in completing this exercise] General search engine used: Google.com, yahoo.com Keyword and search technique: ISP copyright Australia law breaching Example result (including title of site and address, date searched): Spamming and the law http://smallbusiness.ninemsn.com.au/article.aspxid=2039 The offender was charged under Section 76E of the Commonwealth Crimes Act 1914 (which carries a maximum penalty of 10 years imprisonment). The CAUBE campaigns to stop spamming and to tighten regulations and laws regarding the practice. Legal search engine used: www.findlaw.com Keyword and search technique: ISP and Email Law Example result (including title of site and address, date searched): How's Your Spam Today http://library.findlaw.com/2004/Apr/8/133375.html Internet service providers (ISPs) also have a right to bring civil lawsuits under the Act and can sue for damages, but they may do so only under limited circumstances. A few high-profile actions by ISPs could change the internet landscape. Law portal site searched: http://www.findlaw.com.au Keyword and search technique: ISP breaching Law Example result (including title of site and address, date searched): Copyright Regulation's Race Against Technology http://www.findlaw.com.au/news/default.asptask=read&id=20485&site=LE Internet services providers will need to gain immunity from monetary damages, including notice and take down systems. There will be a wider scope for the protection of rights management and the unauthorised receipt and use or distribution of encoded program carrying signals. new rights for performers in sound recordings will also be provided. This will allow australia to accede to the World Intellectual Property Organisations (WIPO) Performances and Phonograms Treaty. WEEK 5: CONSOLIDATION OF SECONDARY RESEARCH, TOPIC OUTLINES, LEGAL CITATION AND LEGAL LETTER WRITING EXERCISE 5.1: This tutorial gives you time to review and consolidate your search methodologies and secondary source research to date (perhaps time to catch up!). Think particularly about the role of secondary sources and evaluate their usefulness. Make sure you are ready to submit Research Record1 in your tutorial next week. Do not forget that you must attach a marking criteria sheet to the front of your completed research record before the commencement of the tutorial in Week6. EXERCISE 5.2: -In this tutorial we will discuss and practice how to plan an outline or map an answer to the problem given at this initial stage of completion of secondary source research. Map you approach to answering the problem given using the following headings: MATERIAL FACTS: Almost all material shows that issues related to varying arrangements designed to regulate Internet content, and concerns for the protection of privacy when using computer networks. ISSUE/S (framed in terms of the parties and materials facts): ISPs could face breach of contract liability from Web site operators or other ISP customers harmed by the attack. ISP makes a contract commitment for security or service quality and if that commitment is not met as a result of a pop ups attack, the ISP may face breach of contract liability for damages suffered by the customer as a result of the attack. KEY SECONDADRY SOURCES (which actually assist in answering the problem and the issue/s they relate to): Law search engines and portals help me a lot in answering problems. RELEVANT PRIMARY SOURCES located in secondary sources and the issue/s they relate to: They relate to Intellectual property, Copyright Infringement, Copyright Liability BRIEF ANSWER: Internet services providers need to gain protection so that it would not ruined the privacy of its user. Read More