Law School

Tambunan Statement, February 1995. Indigenous people of Asia met at Tambunan, Sabah, East Malaysia, to assert rights of self-determination, and to express concern about, and fear of, the threat unfamiliar 'western' intellectual property rights systems may pose to them. It was agreed, in the Tambunan Statement on the Protection and Conservation of Indigenous Knowledge: For the Indigenous peoples of Asia, the intellectual property rights system is not only a very new concept but it is also very western...with  intellectual property rights, alien laws will be devised to exploit the Indigenous knowledge and  resources of the Indigenous peoples. Suva Statement, April 1995. Participants from the independent countries and "nonautonomous colonized territories" of the Pacific region met in Suva, Fiji, to discuss internationally dominant intellectual property rights regimes, and at that meeting they resolved to support the Kari Oca, Mataatua, Julayinbul, Santa Cruz de la Sierra, and Tambunan initiatives(above). In their statement, the Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights, participants: Declare Indigenous peoples are willing to share our knowledge with humanity provided we determine when, where and how it is used: at present the international system does not recognise or respect our past, present and potential contribution... Seek repatriation of Indigenous peoples  resources already held in external collections, and seek compensation and royalties from commercial developments resulting from these resources… Strengthen the capacities of Indigenous peoples to maintain their oral traditions, and encourage initiatives by Indigenous peoples to record their knowledge... according to their customary access procedures. Kimberley Declaration, August 2002. Indigenous people from around the world attended an international Indigenous peoples' summit on sustainable development in Khoi-San Territory, Kimberley, South Africa, in August 2002, where they reaffirmed previous declarations and statements, and, among other matters, declared: Our traditional knowledge systems must be respected, promoted and protected; our collective intellectual property rights must be guaranteed and ensured. Our traditional knowledge is not in the public domain; it is collective, cultural and intellectual property protected under our customary law. Unauthorized use and misappropriation of traditional knowledge is theft.

Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by imprisonment with no definite period of time set during sentencing. It was imposed by certain nations in the past, before the drafting of the United Nations Convention against Torture (CAT). The length of an indefinite imprisonment was determined during imprisonment based on the inmate's conduct. The inmate could have been returned to society or be kept in prison for life. In theory, an indefinite prison sentence could be very short, or it could be a life sentence if no decision is made after sentencing to lift the term. In many cases, either a minimum term is imposed or the maximum that can be served is the maximum allowable by law in the jurisdiction for the particular offense. Rationale. The main reason for imposing indefinite (as opposed to fixed) sentences is to protect the community. An offender can then be kept behind bars until it is determined the offender would not pose any danger to society. In some places, indefinite sentences have been around for a long time. In other jurisdictions, they have been introduced more recently. United States. Some US states have various forms of indefinite sentencing, and many have effective indeterminate sentencing with evaluation-based parole. The US federal prison system does not allow parole for any crimes committed after 1987. Therefore, a sentence of life imprisonment means that the prisoner will be incarcerated for life without parole. Indeterminate sentencing existed in every U.S. state from the 1930s to the mid-1970s. The Model Penal Code, developed in the 1950s, focused on offenders' treatment needs rather than on retribution. Generous amounts of good conduct time could be awarded by prison officials. By the mid-1970s, indeterminate sentencing was under attack, as arguments were made that racial and other invidious biases influenced officials; that rehabilitative treatment programs were ineffective; and that broad, standardless discretion denied constitutional due process and permitted undue leniency that undermined the deterrent effects of sanctions. Federal supervised release is also sometimes cited as an example of indeterminate sentencing. Canada. In Canada, an inmate classified as a dangerous offender can be given an indefinite prison sentence. That means the offender is at risk for causing a "serious personal injury." United Kingdom. England and Wales. Imprisonment for public protection was a form of indefinite sentence that was used in England and Wales from 2005 until 2012, in addition to the traditional life sentence. The imprisonment for public protection sentence was abolished in 2012, but offenders already serving that sentence remained in prison.

Misprision of felony is a form of misprision, and an offense under the common law of England that is no longer active in many common law countries. Where it was or is active, it is classified as a misdemeanor. It consists of failing to report knowledge of a felony to the appropriate authorities. Exceptions were made for close family members of the felon and where the disclosure would tend to incriminate him of that offense or another. With the development of modern law, this crime has been discarded in many jurisdictions, and is generally only applied against persons placed in a special position of authority or responsibility. In this case, the offense of misfeasance in public office or malfeasance in public office may be considered instead. For example, corrections officers who stand idly by while drug trafficking occurs within the prison may be prosecuted for this crime. It has been abolished in: England, Wales and Scotland, as part of the criminal law reforms that abolished the distinction between misdemeanor and felony—Criminal Law Act 1967, section 1, Northern Ireland, with the Criminal Law Act (Northern Ireland) 1967— section 1, Ireland, with the Criminal Law Act 1997, section 3, and New South Wales, Australia, with the Crimes Act 1900—section 341. In some cases, misprision has been replaced by a more tightly-defined statutory offense. For example, in England and Wales, the 1967 Act states that a person who has information which might lead to the prosecution of an arrestable offense—and who agrees to accept consideration in exchange for not disclosing it—is liable on conviction on indictment to imprisonment. United States federal law. Misprision of felony remains an offense under United States federal law having been enacted in 1790 and codified in 1909 under 18 U.S.C. § 4: Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. U.S. courts have held that misprision of a felony requires active concealment of a known felony rather than simple failure to report it. If one knows that one is a target of a federal investigation, it is illegal under the Sarbanes–Oxley Act to erase one's browser history intentionally. Khairullozhan Matanov was prosecuted for erasing computer records about his friends, Dzhokhar and Tamerlan Tsarnaev; he pleaded guilty to a lesser included offense in 2015. The federal misprision of felony statute is usually used only in prosecutions against defendants who have a special duty to report a crime, such as a government official.

Request for admission. A request for admission (sometimes also called a request to admit) is a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admission are part of the discovery process in a civil case. In the U.S. federal court system, they are governed by Rule 36 of the Federal Rules of Civil Procedure. Basic structure. A request for admission is a list of questions which are similar in some respects to interrogatories, but different in form and purpose. Each "question" is in the form of a declarative statement which the answering party must then either admit, deny, or state in detail why they can neither admit nor deny the truthfulness of the statement (for example for lack of knowledge, etcetera). This effectively puts the admissions in the form of true-false questions. For example, in a case involving an automobile accident, the plaintiff might include in their request a statement such as "Defendant Smith was driving a blue Dodge Caravan on the morning of the accident". Under Rule 36(a)(5) of the Federal Rules of Civil Procedure, the answering party may also object to the request, and state the reason for their objection, so long as the objection is not solely because the request would present a genuine issue of fact for trial. Rule 36(a)(1) limits the types of requests to be limited to (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. However, the rule places no limits on the number of requests which may be made of either litigant. State court rules, however, may be stricter than this. Notably, under Rule 36(a)(3), requests for admission are automatically deemed admitted in U.S. federal courts if the opponent fails to timely respond or object. The opponent bears the burden of moving for relief from its failure to respond and providing a legitimate excuse for why it did not respond earlier. Some U.S. states have reversed the burden as set forth in the federal rules, such that the party propounding the RFAs must follow up with a motion to have RFAs deemed admitted.

oint and several liability. Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be: jointly liable, or severally liable, or jointly and severally liable. Joint liability. If parties have joint liability, then they are each liable up to the full amount of the relevant obligation. So if a married couple takes a loan from a bank, the loan agreement will normally provide that they are to be "jointly liable" for the full amount. If one party dies, disappears, or is declared bankrupt, the other individual remains fully liable. Accordingly, the bank may sue all living co-promisors for the full amount. However, in suing, the creditor has only one cause of action; for example, the creditor can sue for each debt only once. If, for example, there are three partners, and the creditor sues all of them for the outstanding loan amount and one of them pays the liability, the creditor cannot recover further amounts from the partners who did not contribute to the liability. Several liability. The converse is several or proportionate liability, where the parties are liable for only their respective obligations. A common example of several liability is in syndicated loan agreements, which will normally provide that each bank is severely liable for its own part of the loan. If one bank fails to advance its agreed part of the loan to the borrower, then the borrower can sue only that bank, and the other banks in the syndicate have no liability. Joint and several liability. Under joint and several liability or all sums, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability. Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability. The rule is often applied in negligence cases, though it is sometimes invoked in other areas of law. In the United States, 46 of the 50 states have a rule of joint and several liability, although in response to tort reform efforts, some have limited the applicability of the rule. About two dozen have reformed the rule, with several (Alaska, Arizona, Kansas, Utah, Vermont, Oklahoma, and Wyoming) abolishing. In some instances it is abolished except where the defendants "act in concert".

Indigenous intellectual property is a term used in national and international forums to describe intellectual property that is "collectively owned" by various Indigenous peoples, and by extension, their legal rights to protect specific such property. This property includes cultural knowledge of their groups and many aspects of their cultural heritage and knowledge, including that held in oral history. In Australia, the term Indigenous cultural and intellectual property, abbreviated as ICIP, is commonly used. There have been various efforts made since the late 20th century towards providing some kind of legal protection for indigenous intellectual property in colonized countries, including a number of declarations made by various conventions of Indigenous peoples. The World Intellectual Property Organization (WIPO) was created in 1970 to promote and protect intellectual property across the world by cooperating with countries as well as international organizations. The UN's Declaration on the Rights of Indigenous Peoples (UNDRIP), signed by 144 countries in 2007, includes several clauses relating specifically to the protection of intellectual property of Indigenous peoples. Disputes around indigenous property include several cases involving the Māori people of New Zealand. Background. Indigenous intellectual property is a concept that has developed as an analog to predominantly western concepts of intellectual property law, and has been promoted by the World Intellectual Property Organization (WIPO), as part of a broader effort by the United Nations (UN) to see the world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing mistreatment, as they are not adequately covered by western law. Indigenous intellectual property rights relate to the legal rights to protect specific such property, which includes cultural knowledge of their groups, aspects of their cultural heritage in the visual arts, literature, and performing arts, as well as science and traditional medicines. It may include knowledge held in oral history. International bodies such as the UN have become involved in the issue, making more specific declarations that intellectual property also includes cultural property such as historical sites, artifacts, designs, language, ceremonies, and performing arts in addition to artwork and literature. Nation states across the world have experienced difficulties reconciling local indigenous laws and cultural norms with a predominantly western legal system, in many cases leaving Indigenous peoples' individual and communal intellectual property rights largely unprotected. The Native American Rights Fund (NARF) has set out several goals around treaty law and intellectual property, with board member Professor Rebecca Tsosie stressing the importance of these property rights being held collectively, not by individuals: The long-term goal is to actually have a legal system, and certainly a treaty could do that, that acknowledges two things. Number one, it acknowledges that Indigenous peoples are peoples with a right to self-determination that includes governance rights over all property belonging to the Indigenous people. And, number two, it acknowledges that Indigenous cultural expressions are a form of intellectual property and that traditional knowledge is a form of intellectual property, but they are collective resources – so not any one individual can give away the rights to those resources. The tribal nations actually own them collectively.

An execution warrant (also called death warrant or black warrant) is a writ that authorizes the execution of a condemned person. An execution warrant is not to be confused with a "license to kill", which operates like an arrest warrant but with deadly force instead of arrest as the end goal. United States. In the United States either a judicial or executive official designated by law issues an execution warrant. This is done when a person, in trial court proceedings, has been sentenced to death, after trial and conviction, and usually after appeals are exhausted. Normally when a death warrant is signed and an execution date is set, the condemned person is moved from his or her death row cell to a death watch cell, which is typically located adjacent to the execution chamber. Usually, the government agency charged with carrying out an execution, normally the state's Department of Corrections or the Federal Bureau of Prisons in federal cases, has a limited time frame, normally about 60 days, from the date the warrant is signed, to complete the execution process, or the warrant expires and the condemned person is returned to the death row cell, awaiting another execution date. Stays of execution can be ordered in state cases by the Governor of the State, a trial court, a state appeals court or state Supreme Court or a court in the federal judiciary (including the United States Supreme Court). In federal death penalty cases the trial court, appeals courts, the United States Supreme Court and President may grant a stay of execution. In all cases, the stay may be issued at any time, even when the condemned is being prepared for execution. … Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, overly severe compared to the crime, or not generally accepted in society. History. The words cruel and unusual punishment were first used in the English Bill of Rights 1689. They were later also adopted in the United States by the Eighth Amendment to the United States Constitution (ratified 1791) and in the British Leeward Islands (1798). Very similar words, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment", appear in Article 5 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The right under a different formulation is also found in Article 3 of the European Convention on Human Rights (1950) and in Article 7 of the International Covenant on Civil and Political Rights (1966). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found in Article 4 (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and in Article 40 of the Constitution of Poland (1997). The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights (Article 2), prohibits "cruel and unusual punishment", which it defines as: the death penalty; torture; "inhuman and degrading treatment"; and "excessive fines or deprivations".

Compensation for wrongful conviction Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR) states that when a miscarriage of justice has occurred and the defendant's conviction has been reversed or they have been pardoned, "the person who has suffered punishment as a result of such conviction shall be compensated according to law". The right to compensation is also authorized by Article 3 of Protocol Number 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 10 of the American Convention on Human Rights. Four broad approaches allow for the payment of compensation following a miscarriage of justice: tort liability in common law; claims for a breach of constitutional or human rights; statutory relief where specific legislation exists to compensate individuals who are wrongfully convicted; and non-statutory relief by way of ex-gratia schemes based on the largesse of the government. In a study of different approaches to the payment of compensation in the United States, the United Kingdom, Canada, Australia and New Zealand, only the US and the UK have statutory schemes in place. In the United States, the federal government, the District of Columbia, and 38 states have such legislation on their statutes. Twelve states have no laws requiring compensation to be paid. However, each state differs widely in regard to eligibility requirements, maximum payments, issues concerning factual innocence, the burden of proof, the behavior of the claimant which contributed to the (now overturned) conviction, and the claimant's prior criminal history. In some states, statutes of limitations also apply. The significant benefits of statutory schemes is that they provide money and services in compensation to individuals who have been wrongfully convicted without regard to fault or blame; they do not require claimants to prove how the prosecution or police committed their mistakes.  Implications. The concept of miscarriage of justice has important implications for standard of review, in that an appellate court will often only exercise its discretion to correct a plain error when a miscarriage of justice (or "manifest injustice") would otherwise occur. In recent years, DNA evidence has been used to clear many people falsely convicted. The risk of miscarriages of justice is often cited as a cause to eliminate the death penalty. When condemned persons are executed before they are determined to have been wrongly convicted, the effect of that miscarriage of justice is irreversible. Wrongly executed people nevertheless occasionally receive posthumous pardons—which essentially void the conviction—or have their convictions quashed. Even when a wrongly convicted person is not executed, years in prison can have a substantial, irreversible effect on the person and their family. The risk of miscarriage of justice is therefore also an argument against long sentences, like a life sentence, and cruel prison conditions.

Conduct of depositions Depositions usually take place at the office of the court reporter or in the office of one of the law firms involved in a case. However, depositions are also sometimes taken at a witness's workplace or home, or in a nearby hotel's conference room. Generally, the deposition is attended by the person who is to be deposed, their attorney, court reporter, and other parties in the case who can appear personally or be represented by their counsels. Any party to the action and their attorneys have the right to be present and to ask questions. Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim digital or stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. Some jurisdictions allow stenomask technology in lieu of traditional stenographic equipment, although many jurisdictions still prohibit stenomask because of its disconcerting effect on some lawyers and witnesses. Attorneys for the deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning of the deponent (this is referred to as "direct examination" or "direct" for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance have an opportunity to cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross. During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. Since the judge is not present, all other objections, in particular those involving the rules of evidence, are generally preserved until trial. They still can be made sometime at the deposition to indicate the serious problem to judge and witness, but the witness must answer the question despite these objections. If the form objection is made, the opposite party still has the right to re-phrase the same question and ask it again. Indeed, in Texas, lawyers were so aggressively using objections to indirectly coach their witnesses on the record that all objections outside four narrow categories are now prohibited and making such prohibited objections waives all objections to the question or answer at issue. California is the major "outlier" on deposition objections; under the California Civil Discovery Act as enacted in 1957 and heavily revised in 1986, most objections must be given on the record at the deposition (and must be specific as to the objectionable nature of the question or response) or they are permanently waived.

Trespassers. The Occupiers' Liability Act 1984 (and in Scotland the Occupiers' Liability (Scotland) Act 1960) requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a risk on the premises. However, the doctrine of volenti has been applied to cases where a trespasser exposed themselves deliberately to risk: Titchener v British Railways Board, Ratcliff v McConnell, and Tomlinson v Congleton Borough Council. In the first case (decided before the Occupier's Liability Act was passed), a girl who had trespassed on the railway was hit by a train. The House of Lords ruled that the fencing around the railway was adequate, and the girl had voluntarily accepted the risk by breaking through it. In the second case, a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. The third case involved a man who dived into a shallow lake, despite the presence of "No Swimming" signs; the signs were held to be an adequate warning. Drunk drivers. The defense of volenti is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver. However, in a well-known case of Morris v Murray (Court of Appeal), volenti was held to apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot died in the resulting crash and the passenger who was injured, sued his estate. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio, he argued that he did not freely and voluntarily consent to the risk involved in flying. The Court of Appeal held that there was consent: the passenger was not so drunk as to fail to realize the risks of taking a lift from a drunk pilot, and his actions leading up to the flight demonstrated that he voluntarily accepted those risks. Rescuers. For reasons of policy, the courts are reluctant to criticize the behavior of rescuers. A rescuer would not be considered volens if: He was acting to rescue persons or property endangered by the defendant’s negligence; He was acting under a compelling legal, social or moral duty; and His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.