FLB 400 RESEARCH PAPER: THE FUNDAMENTALS OF CHOOSING A TOPIC M.

Oduor (Adapted in large measure from Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers (2003)) (For use by Moi University School of Law 4th year students only.) 1. Look for a problem Tips for getting a problem: -cases you read that left certain questions unanswered -class discussions that raised but never settled issues -questions raised in legal texts identifying interesting unsolved problems -recent cases that may leave open major issues or create ambiguities -Ask a lecturer about an area of law they think may be the subject of study -ask a practicing lawyer about important practical problems they face in their area of practice The key: the problem should be big enough to be important and interesting but small enough to be manageable (a). Check viability of the problem as a research matter Verify with the research advisor-is the area over-saturated already? Will you get sufficient material in the time available? etc (b). Devise the basic thesis/argument/point/claim The point of the research is to suggest a solution to the identified problem. This is the basic argument/thesis/claim in your research. It is the thin red line/thread running through the research (i). There are 2 types Descriptive-a claim about the past or present state of affairs (such as a historical assertion, a claim about the effect of a law or a statement about how courts are interpreting the constitution etc) Prescriptive-a statement as to what should be done-i.e. prescribing a solution (e.g. how a law or constitutional provision should be interpreted, what new amendment should be made, what new law should be passed etc (ii). Examples: what type of claims are these? Section y of z statute is unconstitutional because of x Parliament should repeal X Act because it unfairly burdens citizens of a particular type Properly interpreted Y Act means illegal aliens are entitled to citizenship on application Z Act will likely have a negative effect on bar-owners The best claim would be both descriptive (stating a given problem) and prescriptive (suggesting a solution to the problem. E.g. X Act is likely to burden taxpayers and should therefore be
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amended to raise the income tax bracket; or Courts have stated that the right to bail is available in all offenses and so the Criminal Procedure Code should be amended allow bail in all offenses The key point is that you should capture your claim/thesis/argument/point in one sentence. This guides the progression of the research since the materials gathered and the arguments made subsequently go to supporting the claim-it is the thin red line threading through the entire research 2. Elements of the basic thesis/claim A good claim should be: Novel; Non-obvious; Useful; sound (a). Novelty Your research must be saying something that has not been said by others before-a previously un-tackled area of law or an insufficiently addressed area of law-the idea is that it should be valuable NB: You are not reinventing the wheel!!! (i). How does one ensure novelty? Adding something to the already existing body of expert knowledge in the field Nuancing/adding a twist to an already made argument It is also possible to tackle an entirely new area of law

(ii). Exercise: assess the novelty of the following claims The death penalty should be abolished in Kenya Implementation of the Sexual Offences Act is faced with many challenges The statehood and sovereignty of Southern Sudan in International Law Theory, law and practice of consumer protection in Kenya is inadequate Banks are not following the law on interest rates in Kenya Capital punishment is an infringement of human rights The constitution provides for the right to bail Cyber-laws are inadequate in Kenya The constitution outlaws abortion except under certain conditions Etc ad nauseum ad infinitum (b). Non-obviousness A thesis/argument/point may be novel but pretty obvious A thesis/argument/point/argument that simply applies settled law or well established arguments to a new set of facts would be obvious If the response to your claim is likely to be: Well, anyone could have said that without having to research on it then it is likely an obvious one (i). Examples of rather obvious claims
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The death penalty is an infringement of the right to life Abortion is illegal unless done under the conditions set out in the constitution The TJRC process has been faced with many challenges White collar crime as a distinct branch of criminal law Mandatory death sentence is unconstitutional Mobile banking should be regulated

(c). Utility Your research must be useful-after all youll spend significant resources (time and money) on it-readers should come away from it with something that is professionally valuable (i). Utility: how to make your research useful Focus on unresolved issues Avoid matters that have been beaten to death Avoid purely descriptive research-incorporate prescriptions/solutions Avoid solutions that are too radical as they are likely to alienate your audience Make your solution as appealing as possible to as many readers as possible e.g. use neutral language when dealing with an issue that seems to evoke visceral emotional reaction, avoid jargon

(ii). Utility: some examples from you-how useful are these topics? A critical evaluation of the problems occasioned by a multiplicity of family laws-why is this not a useful topic? What new argument is it adding to what we already know? A critical analysis of art 26 of the constitution and possible benefits and disadvantages thereof-whats this topic about? Embracing information technology for evidence admissibility in Kenyan courts. (unclear, ambiguous and a non-issue) Violation of prisoners rights in Kenya and the necessary reforms (nothing new here) The concept of recognition of states under international law (this attempts to re-invent the wheel, it is purely descriptive) Affirmative action in the new constitution: was it necessary (why bother with its necessity and not its implementation?) (d). Soundness Your prescription must be logical, clear, unambiguous, conceptually accurate, and make sense to different situations it might apply to For example suggesting only that the law should be amended without identifying the law and describing the amendment is vague and of no use 2. Topics/research to avoid Research that shows theres a problem but offers no solution Case commentaries
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Research that just explains what the law is Subjects that are likely to be legislated on shortly and be decided upon by the courts, especially the supreme court and the court of appeal

3. Issues arising out of the proposed dissertation topics Lack of clarity/ambiguousness Vagueness Non-issues Repetitions (re-invention of the wheel) Impractical topics a. Lack of clarity-examples Human rights in developing countries: assessing the rights of prisoners in Kenya. Child maintenance: have the concerned statutes in Kenya unfairly burdened men? Should Kenya adopt prenuptial/post nuptial arrangements as a form of distribution of property during and after marriage? b. Vagueness A critical analysis of art 49 under the current constitution of Kenya The judiciary under the new constitutional dispensation and its future implications Sovereignty with responsibility: analysis of state sovereignty in line with international humanitarian intervention in internal conflicts Analysis of the legal status of women in Kenya and the success thereof under the constitution Legal pluralism: the experience of the Kenyan woman in a globalised world c. Repetitions An assessment of police powers on search, arrest and detention on Kenya Marital rape in Kenya: do we need a comprehensive legislation governing and regulating the same? (What possible new argument will be made here?) Criminal theoretical analysis: the concept of crime and place of morality in criminal law (the debate about the place of morals in law is not new) d. Non-issues Regulation of insurance institutions and how they affect insurance companies (probably vague as well) Sovereignty with responsibility: analysis of state sovereignty in line with international humanitarian intervention in internal conflicts Prosecution of criminal cases in Kenya: is it a setback in the administration of justice? The LSA: the impact on ACL Jury trials vis--vis assessor based trials: a safer route for Kenya (really???) Criminal trials in Kenya: a study of the criminal justice system In-depth analysis of Kenyas criminal justice system; is it a means to an end?
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e. Conceptual fallacies Reviewing changes brought about by law of succession and its internal conflicts???? Marital rape in Kenya: do we need a comprehensive legislation governing and regulating the same? (how does anyone govern and regulate a criminal act?) The impact of the war on terror on international criminal law (is there a nexus?) The utilitarian interstice (???): an interface of individual rights and private interests (???) Assessment of the Interim Independent Electoral Commission A comprehensive analysis of East African Federation: vis--vis actual political economic cooperation (EA Federation is non-existent!!) An in-depth analysis of international child labour (whats the legal issue?)

f. Impracticality Does Kenyan Constitution 2010 liberate women? A critical analysis from independent Kenya to present law (is a book being written here?) Human rights inside and outside the Kenyan constitution A comprehensive analysis of East African Federation: vis--vis actual political economic cooperation Scope, relevance, and violation of human rights in developing countries g. the simply outrageous Discuss devolution in the constitution of Kenya in relation to other constitutions In view of the centrality of child rights discuss whether in your view Kenya needs legislation (WHAAAT!!!???) Towords (sic) a new leadership in Kenya: taming leviathan through the derrent and detergentn (sic) chapter. (Ehh!!!??)

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