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What laws prove tax protesters are wrong? Tax protesters are frequently penalized for raising the "frivolous" argument that the individual income tax is not mandatory but voluntary. Can anyone provide the specific provision of the tax codethat states that the income tax on individuals (not businesses) is mandatory and not voluntary? I have not found it myself, but I would like to have it to reference when I am approached with this topic in conversation. | The 16th Amendment to the Constitution says: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." Congress has exercised that power and the main controlling law is in the United States Code, Title 26, Subtitle A, Chapter 1, Subchapter A, Part I - Tax on Individuals. You can read it yourself at: US Tax Code There are multiple possibilities based on your situation, which you did not specify, but, for example there is this: As far as mandatory, vs. voluntary, the code also gives the Internal Revenue Service the power and authority to enforce the Internal Revenue Code: 26 U.S. Code § 7608 - Authority of internal revenue enforcement officers It also has numerous sections on the penalties for failing to obey the code, which I will not quote here, but which you can easily find for yourself. So in answer to your question: The US Constitution gives Congress the power to levy income taxes on individuals. The USC lists specific taxes and amounts levied. The USC gives the IRS the power to enforce the Internal Revenue Code. The USC provides for specific fines and other remedies for violaters. | If the space were owned by a charitable organization, the money left by each individual would be a charitable gift reduced by the fair market value of the food taken, and the proceeds would not be taxable income for the organization because it is tax exempt. As an individual, treating it as income subject to a deduction for cost of production (not including your labor), but with the loss not being deductible as there isn't an intention to profit, would probably be the correct treatment as that treatment is what is usually what is applied to a "pay what you can" arrangement that apart from the price, resembles a business transaction. If no money were collected, it would probably be characterized as a gift by you to the persons taking it, which if less than $16,000 per person per year for all gifts made to that person, would be exempt from gift taxation. You could argue for bargain sale treatment, with the value of the produce taken net of the money left as a gift, and that would be a potentially arguable position if the money left is less than the value of the produce taken. But this characterization would probably not hold up if the amount of money left exceeded the out of pocket cost of growing the produce, in which case treating it as a low value sole proprietorship would be much more defensible than treating the money left by people as a gift to you. Generally speaking, when one person makes a gift and another person makes a counter-gift in a related action, treating each donation in isolation as gifts is not an appropriate tax treatment. I'll see if I can find authority, but, of course, cases with such tiny amounts in controversy almost never result in formal appellate decisions or regulatory action, so any binding authority wouldn't be four square on point factually, which matters in the law where reasoning by analogy and logic often doesn't produce the legally correct result. | This is an important question that affects consumer advocacy, blog-based-journalism, political speech and spending, and probably other things. People disagree about what the answer is. This podcast episode features both sides of the argument. Professor Volokh holds the view that the freedom of the press is "freedom to print", "freedom to use the printing press". Freedom of the press is the freedom of everybody to use the printing press. Assessing the grammar of the clause, he argues that this points in the same direction. The text says "freedom of speech or of the press". He points out that speech is not a group of people. It would be odd to treat "speech" as an activity, but to treat "press" as a group of people given the parallel construction. This side of the argument is described more in this article by Prof. Volokh. Professor West argues that there is a defined group of people called "the press" that deserves protection under this clause. This article explains Prof. West's position in detail. The main point is that "An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause." If "press" means simply the right to publish speech, then it becomes redundant because courts have held the right to publish speech is given under that "speech" portion of the clause. Justice Stevens's concurrence in Citizens United also argued for "some kinds of identity-based distinctions" regarding whether a person is a member of the press. Each side can give examples of the term "the press" being used at the time of the First Amendment that is consistent with their favored interpretation. I think to get the best idea of the two sides to this question, you should read Citizens United (including all dissents and concurrences), read the two articles linked above, and listen to the podcast episode. | If you filled out the form, did not specify "Exempt" below 4(c), and did not specify high enough deductions that you would have nothing withheld, then the employer should follow the rules, withhold a specific amount of money, and pay it to the government, as reported on your W-2. If an employer willfully fails to withhold and pay the required taxes, they are liable for criminal and civil sanctions. This page from the IRS provides a phone number to complain about an employer not correctly withholding federal income and employment taxes. | One possible reading of this clause is: The tenant is required to pay for the preparation of a forfeiture notice, even if ("notwithstanding that") the forfeiture doesn't actually happen ("forfeiture is avoided")--but the tenant doesn't have to pay for the notice if the forfeiture doesn't happen for the following reason ("avoided otherwise than by"): because the court said so ("by relief granted by the court"). In other words: if the Court says the forfeiture notice is bogus, the tenant doesn't have to pay for it. Otherwise, he or she does. | A government can pass laws which cannot be fully enforced, or even widely enforced. Such laws are nonetheless legally valid, unless repealed by the legislature, or struck down by the courts in accord with the procedures in the particular country's laws. In common law countries, it is often a defense to a criminal charge that a law is impossible to comply with, but this only arises when there is an attempt to enforce the law, and it is in fact impossible for that defendant to comply with that law. If the defendant can comply, it is not relevant that other defendants might not be able to. If taxes were assessed that totaled more than all the legal money in circulation, the government might increase the money supply. Or it might not try to collect in all cases, or not collect the full amount. Otherwise many taxpayers might enter bankruptcy. In other cases of impossible laws, the results would depend on just how enforcement was attempted. The government cannot magically give people the ability to do things they cannot. A law requiring everyone to fly by flapping his or her arms would not secure compliance. It might put a lot of people in jail if people were arrested for not flying by hand. A law requiring everyone to register with a government agency before stepping outside would be foolish, and perhaps unenforceable under current conditions (but perhaps would be sensible in a Moon colony). Such a law would be legal (although it might fail a "rational basis test in the US) but an attempt to enforce it widely would lead to confusion or perhaps resistance. Most governments are not so foolish as to pass laws that cannot be complied with by large numbers of people, even if they have the legal power to pass such laws. A government that passed such a law might become unpopular, or even be overthrown. In some cases in history, laws that could not be complied with by particular groups were used as ways to persecute those groups. | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | Doesn't help, does hurt. Say you charge a discounted rate of $75. That adds $75 to your taxable income. Say you charge a full rate of $100 and take a $25 charity tax deduction. That nets out to adding $75 to your taxable income, same outcome, except the $25 is in peril, due to the complexities of the tax law. For instance: Charity deductions give no tax benefit at all until you achieve $12,000 of itemized deductions (from donations and mortgage interest, certain state taxes, certain medical expenses etc.) Deem that unfair (we at charities certainly do!) but the fact is, it's because you already get a $12,000 standard deduction as a 'gimme'.* If you're a huge donor (I am on certain years, thanks DAF), you can only deduct 50% of income (with carryforwards, yay). Your donation-back reduces that. Doing it direct adds $75 to AGI ($37.50 to deduction limit), so you can deduct donations of $37.50 to other charities. The donation-back adds $100 to AGI (adding $50 to donation limit) except $25 of that is spoken for by the donation-back, leaving only $25 left. So I consider the maneuver to be a "lose lose" unless you have some bizarre tax reason for wanting to do that. Further, such an arrangement is likely to draw scrutiny from the IRS. By the way, here's an origin concept. IRS waives taxes on value which you create by your own DIY labor*. Say you mow your own lawn at an annualized cost of $100/year (lawnmower depreciaton and fuel) instead of $1100/year to hire it done. You created $1000 of value "from the sweat of your brow". IRS's policy is not to treat that as income, and thus, not to tax that. Thus, when you are a craftsman, IRS views the sale of service as the taxable event, not the crafting itself. Similarly, when you do volunteer work for a charity, "the sweat of your brow" does not create a cash value of interest to the IRS in either direction. Really, when you are a craftsman offering services, and you do services for a charity, that is considered volunteer labor. * This used to only be about $5000, but Trump was keen on a postcard-sized tax form, so they folded the adult "personal exemption" into the standard deduction, removing 2 lines on the 1040 form. Meaning most Americans who itemized before, no longer itemized - they didn't have $12,000 of deductions! Schedule A goes away for them (so mission accomplished there)... but so does the tax deductibility of charitable contributions, which was a knife in the heart of charities. |
Can AI-generated text be considered defamation? This question is inspired by recent news about some of the strange, out-of-control behavior from Microsoft's new Bing chat AI, but I am asking hypothetically here. If an AI chatbot such as Bing Chat or ChatGPT said factually untrue things that did measurable harm to a real person's reputation, would that person have a case against the company that owns the chatbot for defamation? If not defamation, maybe something else? My understanding is that a key part of defamation is malicious intent, which does not really apply to a non-sentient piece of software. However, if the AI says something that does real harm to a persons reputation, couldn't the company be held responsible for this? What if the company was aware of the harm being done but chose not to take action? This seems similar to the situation where a company is held responsible for the words or actions of an employee. | If an AI chatbot such as Bing Chat or ChatGPT said factually untrue things that did measurable harm to a real person's reputation, would that person have a case against the company that owns the chatbot for defamation? There can be liability for defamation, although the circumstances would determine who the liable party is. For instance, an owner's warning to the user about a risk of inaccuracies may have the effect of shifting to the user the issue of requisite degree of fault. See In re Lipsky, 460 S.W.3d 579, 593 (2015). The user ought to be judicious as to whether to publish the chatbot's output. Ordinarily, negligence suffices for liability in a scenario that involves special damages, i.e., concrete, ascertainable harm. My understanding is that a key part of defamation is malicious intent, which does not really apply to a non-sentient piece of software. Under defamation law, malice is not about feelings or emotional state. The term refers to reckless disregard for the truth or falsity or the statement or to publication despite publisher's awareness of the falsity of the satement. Id at 593. Regardless, malice needs to be proved only if the plaintiff is a public figure or in claims of defamaton per se, where damage to a person's reputation is presumed (and hence the damage does not need to be proved). What if the company was aware of the harm being done but chose not to take action? The terms of use might protect the company against liability. Absent any such protections, the company might be liable because its awareness and inaction are tantamount to the aforementioned reckless disregard for the truth of its product's publications. | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | A creative prosecutor could probably come up with a raft of charges. But you could start with the federal wiretapping statute, 18 USC 2511, and the anti-hacking statute, 18 USC 1030. Here is an indictment brought in 2012 under the anti-hacking statute against someone who distributed and used this kind of software. Depending on the facts and the jurisdiction, this may also constitute the tort of intrusion on privacy or seclusion, a tort recognized by the Restatement (Second) and actionable in many jurisdictions. The most common test is whether the invasion would be "offensive to a reasonable person." And no, contrary to the commenter's view, a "click to accept" license is not a get out of (literal) jail free card here. Courts interpret adhesion contracts liberally to favor the signer, and outrageous terms hidden in small print are not guaranteed to be enforceable, especially if the software is clearly designed to trick people into installing it. The license terms might even hurt you, by providing evidence of your intent to use the software for perving rather than its ostensible use. This is not an exhaustive list, and there may be additional state-level statutes that apply. Bottom line: yes, this is clearly illegal, and the courts will be reluctant to let you trick people into getting away with it. | Defamation is a suit that can be brought by anyone, however, there are extra hurdles if the plaintiff is an official. Following New York Times Co v Sullivan, the plaintiff must prove actual malice: that the defendant knew the information was untrue or acted with reckless disregard for its truth. | In the general case, it seems unlikely, based on the wording (which is convoluted). In certain cases, if the president of Russia posts "My name is Vladimir Putin", that post is personal data. On the other hand, you might, based on my writing, conclude that I am from the US, and you might even conclude that I'm in Washington state, but that doesn't distinguish me from 7.5 million others, so on those grounds that is not personal data. Eventually, though, you might identify me specifically from other things that I may have said on SE. The definition depends on two parts. First, personal data is "information relating to an identified or identifiable natural person". Any "information" provided by a natural person is "related to" that person (as is any "information" that is about such a person). The second part defines "identifiable natural person", that is, who is an "identifiable person"? Every person can, in principle, be identified by reference to some label or description of fact about them, so every person is an identifiable person, under this definition. This means that every piece of text that refers to an individual (not even text which can identify the person) is "personal data". Obviously, any individual can be uniquely identified by some collection of identifiers; the problem is that the wording of the law does not explicitly say "using that supposed personal data". If I mention that I have a relative named Knudt, that would technically be personal data: I've given information that relates to a person, though you have no idea (and could not possibly figure out) who that person is. Another term that the regulation defines and uses in a few places is "pseudonymization", which is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person The point of interest here is that this says that "personal data" which cannot be attributed to an individual is, nevertheless, still personal data. I think the most important part of the regulation is art. 6, which defines lawfulness of processing, especially para 4., which allows consideration to be given to safeguards such as pseudonymization. | Possibly, but probably not. Personal data is any information relating to an identifiable person. The statement “Alice is sick” is information, and relates to Alice who is identifiable. Processing personal data is not inherently illegal, but does require a legal basis per Art 6 GDPR, such as a legitimate interest. Here, the information is data concerning health, processing of which is prohibited unless one of the explicit exceptions applies (such as explicit consent, or legal obligations). So it is legitimate to have concerns on whether disclosure of this information would be legal. If these rules were breached, that would be on the data controller. Here, the company would be the data controller, not Bob (unless Bob acted against training and instructions and processed the personal data for his own purposes). However, GDPR probably doesn't apply to this specific interaction. In Art 2(1), the GDPR says that This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. A conversation itself would not be subject to GDPR rules – there is no filing system or similar structured data involved. What GDPR would prevent is to keep records on Alice's health status, but doesn't necessarily prevent talking about it informally. For example, the EUR 35.3M fine against H&M in Germany was imposed not because managers talked with employees about personal matters, but because they then maintained detailed files about those personal matters. Data controllers are responsible though for ensuring security and compliance through appropriate technical and organizational measures (TOMs). TOMs can include things such as non-disclosure agreements and training for staff. If Bob acts against such training, there could be repercussions along the Bob–Company employment relationship. But that would mostly be an employment law thing, not so much a GDPR thing. | In the united-states, there is no general right for a person to control or approve a biography or other account of that person's life. Many biographies are "unauthorized", which simply means that the subject, or in some cases the subject's heirs or family, did not cooperate with the biographer. Sometimes this is even considered to be a point in favor of such a work, on the assumption that an "authorized" biography would tend to slant or even censor things to meet the approval of the subject or the subject's family. There are some restrictions on an unauthorized biography. The first and most obvious is the law of defamation. A biography that includes statements that are both false and defamatory about a living subject could be the subject of a winning lawsuit. Damages in such cases can sometimes be sizable. However, the person suing must show false facts in the work. In many cases damage to reputation must also be shown, although there are some categories of statement that are considered defamation per se, where injury to reputation is assumed and need not be proved. These include a false statement that a person committed a crime, and a statement that a person was guilty of professional misconduct. It used to be considered defamation per se to allege that a woman had had sex outside of marriage, but I doubt that a court would so hold today. Beyond that, in the US, if the subject is a public official or public figure, s/he must show actual malice, that is that the false statement was made knowing that it was false, or with reckless disregard for its possible falsity. This can be hard to prove. In most jurisdictions only the person defamed can sue for defamation. Once that person is dead, no such suit can be brought. Moreover, in the very rare case where a person's reputation is so bad that a court finds that it can suffer no meaningful further injury for certain allegations, even if these were found to be false, the court may dismiss such a suit. See Dykstra v St. Martin's Press New York Superior Court, New York County, Docket Number 153676 for an example. However this would only be relevant in the very unusual case of a "libel-proof" plaintiff, and even then if the conduct of the author or publisher was egregious, the court might hold that punitive damages were possible. The defenses of truth, lack of actual malice, and newsworthiness are far more common. Indeed defamation suits in general are hard to win and expensive to bring. In some US states there is available the tort of publication of private facts. This is different from defamation in that it can still be brought when the facts published were true, while truth is a total defense against a defamation suit. However a private facts suit must establish that the facts were in fact private, or at least not widely known, and that they were published in a way that would be grossly offensive to a reasonable person. Facts that are considered of "legitimate public interest" or "newsworthy" are also not generally protected. Moreover, not every US state allows such suits at all. See Diaz vs Oakland Tribune, Inc 188 Cal Rpt 762 (1982) for a case in which a Private Facts case was sustained, and the steps taken by the subject to keep a sex transition private were a significant issue in the case. In Hawkins vs Multimedia inc 344 SE 2nd 145 (1986) a South Carolina court held that a news story identifying a teenage boy by name as the father of an "illegitimate" child was not newsworthy and a private facts judgement including punitive damages was upheld. In the US, First Amendment protections have been taken to indicate that the courts will not suppress or punish speech or writing without good reason. This makes it harder to win suits over biographies. There have been cases of magazine articles about a particular person who is in no way famous but who was considered "typical". Such stories have in several cases been upheld against challenges as of "legitimate public interest". See Arrington vs New York Times Company 434 N.E. 2nd 1319 (1982) In that case the objection was to the use of a person's photo on the cover of the New York Times Magazine who was not actually mentioned in the story, and who alleged that he was not similar to those who were mentioned. The use was upheld. | I know of no cause of action related to "misrepresentation of intellectual property" (I believe it may be a phrase used colloquially in the context of academic integrity). If such a cause of action exists, I'll leave it to another answer to discuss. This answer approaches your question through the lens of copyright infringement and moral rights. A reproduction is an infringement if it substantially reproduces the original. Short quotes, properly attributed, will often be fair use, even if exactly reproduced. If an exact reproduction is not an infringement (e.g. because it copied too short a phrase) or if it is fair use, then a slightly altered reproduction a fortiori would also not be an infringement or would be fair use. In jurisdictions that recognize moral rights, there may be circumstances where an alteration, even to spelling, would be a violation of an author's moral rights. But to make out a violation of an author's moral rights based only on a spelling alteration, the spelling would have to be critical to the integrity of the work (e.g. perhaps the choice of dialect) and the alteration would have to be prejudicial to the author's honour or reputation. |
Can courts consider hansard transcripts in interpreting statutes? When a court is trying to decide the meaning of a law, can it consider the discussions which begot it? | united-kingdom Yes. The landmark case in the UK is Pepper (Inspector of Taxes) v Hart, where the House of Lords*: established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege *Strictly speaking, the Appellate Committee of the House of Lords, which functioned as the UK's highest court before the creation of the Supreme Court. | The language "I therefore place you on notice that" in your proposed missive is superfluous and adds nothing that is legally relevant. Flourishes like that are common among former paralegals, court clerks, common law country notaries, and other non-lawyers who want to sound legalistic but don't really have the relevant legal knowledge. It is common to say "I put so and so on notice that" in a legal opinion or a summary of a case, but mildly uncommon and not necessary to put those magic words in the notice itself in a situation like this where there is no prescribed statutory language that must be used on a specific legal form. In this situation the important thing is that the person is actually made aware of the situation, not that you conform to a statutory form. Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? If they complain of a lack of an opportunity to inspect in a later court case, it allows you to say, "I told you so and I gave you a chance to do something about it" which might be fairly convincing to a judge and would probably overcome any arguments that you engaged in spoliation of evidence. | What makes something a take-it or leave-it contract? The lack --be it essential or literal lack-- of opportunity to negotiate the terms of a contract. That is also known as adhesion contract. And (if I am the one taking it), are unclear clauses categorically interpreted in my favor? Rather than "categorically [interpreted]", a more accurate characterization is to say "reasonably [interpreted]". Among the reasonable interpretations of a contract, the adopted one is that which favors the party who was not the draftsman of the contract. This is known as the doctrine of contra proferentem and is cognizable in jurisdictions of the U.S. and in many others world-wide. The doctrine of contra proferentem is sought to compensate for the gap of parties' bargaining power. In an adhesion contract, the fact that one party may only accept the contract "as is" (or reject, which would render this a moot issue) evidences that the draftsman of that contract has significantly more bargaining power. A contract need not be one of adhesion in order to trigger the doctrine of contra proferentem, though. In the case of negotiated contracts, the doctrine may apply selectively so as to interpret ambiguous clauses against the party who ultimately caused the ambiguity in those clauses. Some jurisdictions are more emphatic about this aspect of contract law, which at first glance may seem a departure from the principle of interpretation [literally] against the draftsman. There could be scenarios where a party (the non-draftsman) suggests a clause, and the draftsman incorporates that clause but devises some wording to render the contract unclear in that regard. The doctrine would apply not merely by virtue of the latter party being the draftsman, but because he in his capacity of draftsman tweaked the clause arguably in an attempt to frustrate the other party's interest in --or purpose for-- that clause. | Clarity is always better than ambiguity in drafting a contract. Conflicts about contracts are always easier to resolve when they are formed then when they are on foot. If you are concerned that the clause can be interpreted in the way you suggest (and it is not a groundless concern) raise it now and have the clause redrafted to remove the ambiguity. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. | if these questions and answers are found to be legally binding ... They aren’t. Therefore the premise of your question is flawed. It’s like asking “If my dog was a cat ...”. Well, since your dog isn’t a cat we don’t need to hear the rest of the question. | I did a lot of digging through case law and statutes, but I don't see a definition for "biological sex" anywhere in federal law, though after looking through those cases, it seems pretty clear that courts think of "biological sex" as a definition of "sex," and that they take it to mean the sex listed on your birth certificate. Even if we could find a straightforward statutory definition, it probably wouldn't do much to inform the interpretation of this memorandum, as it would only apply to the specific section of law in which the definition was included. | I do not know whether anyone has ever tried it, but it would not take much for a judge to conclude that the only reasonable interpretation of a speed limit sign is that the speed is to be measured relative to the surface of the road or to any other object that is stationary in that frame of reference. Does there exist provisions in any legal system to fix this legal loophole? Most rules for interpreting legal texts fix "loopholes" of this sort by providing for the consideration only of interpretations that are reasonably likely to have been intended, or that a reasonable person might arrive at. The interpretation that the speed limit could be measured against any frame of reference (or indeed any one other than that of the Earth's surface) is not reasonable. |
UK - Can a company ask employees to attend meetings on their own personal time, during normal work hours? The meetings are training sessions for software that we use in our day to day, discussions about best practices, talking about learnings from a project etc. So not directly chargeable to a customer. Previously, the meetings were charged to an "overhead" - but due to the company not meeting its financial targets, we can no longer do so. Because the time can't be charged to a customer, we are being asked to attend the meetings in our own time. However, the meetings are during normal work hours. Is this legal in the UK? | Yes, they can ask Provided you attendance is voluntary and there are no negative repercussions (other than missing the learning opportunity) for not attending. If you have to go, they have to pay you. | As the comment by Ron Beyer mentions when a company wants to impose such restrictions they are normally done through non-compete, non-solicitation, and non-disclosure agreements, as well as via trade secret law. Note the word "agreements". "Restrictions on working in the field" are simply a form of non-compete agreements. A company cannot, legally, simply impose such agreements on its employees. It can require an employee to sign such an agreement as a condition of employment, and it can often require such an agreement from a departing employee as a condition of a severance payment. Exactly what is covered by such an agreement depends on its terms, and those vary widely. In most US states there are limits on the scope and duration of such an agreement. In some states the restrictions can be broad and of fairly long duration, in others they must be narrow and of fairly short duration. An agreement that goes beyond a given state's limits will not be enforceable in court, if the defendant brings that fact up. Trade secret law can prevent an employee from disclosing the trade secrets of a former employer to a new employer, or indeed to anyone else. But that does not prevent a former employee from getting a new job in the field, as long as the employee does not disclose any trade secrets. If an employee has signed, or is asked to sign, such an agreement, it is a good idea to consult a lawyer with employment law experience. If the state is known, I could edit this answer to include the limits, if any, on such agreements in that state. | Not legal advice - you should consult an attorney who knows your local jurisdiction. That's a general statement, but especially true here because the GDPR does not include personal liability for directors (or others) in the event of a data breach, but domestic laws may indeed do just that. The UK is one example where certain circumstances can lead to criminal liability for directors of a firm in the event of a breach. That said, your company should care. The fines for knowingly allowing a breach or not reporting it properly in a timely manner have been made more significant than the prior Directive. There are things you could do to potentially mitigate consequences in the event of a breach and a fine being levied on the company, such as aligning with best practices and getting certifications. In sum, the actual punishments for noncompliance will vary by jurisdiction, but any business that handles data in the EU should undoubtedly be ensuring it is aware of what, if any, obligations it has and taking steps to comply before May's deadline. | There is a reason these are commonly called "TRAP"s (Training Repayment Agreement Provision). These agreements don't just protect the employer from paying for training that an employee can use elsewhere. These agreements frequently act to "trap" the employee in difficult employment circumstances where the employer can demand long hours and excessive dedication in difficult jobs for little pay, knowing that if the employee tries to leave, they could face a substantial financial burden. These agreements are generally legal, provided they are executed in good faith. However, certain circumstances have been used to void the agreements. In particular: If the cost or value of the the training is vastly overstated, so the training actually provides minimal value to the employee, but has a disproportionately large repayment cost that only benefit the employer. If the term of the agreement is excessively long (typically, more than 1 year). Training is unlikely to be so valuable and specialized that the employee would need years to repay the benefits. (Certain exceptions apply, such as for advanced engineering work or specialized skills like airline pilots) If the "training" doesn't actually have much value; if the training is just company propaganda and policies, rather than job specific skills, repayment costs are unlikely to hold up in a dispute. If the employee already has demonstrated skills before the training, then forcing them into unnecessary training just for a TRAP contract is unlikely to be supported. For example, someone with years of skilled electrical design work probably cannot be forced to repay thousands of dollars of "training" for a few weeks of basic electrical refresher courses. Basically, if the training isn't valuable to the employee and the cost isn't reasonable for the training, the TRAP line can frequently be voided. Yet doing so almost always requires mediation or a suit, which are also expensive, time consuming, and have uncertain outcomes. Its best for a prospective employee to call out a TRAP provision as a red flag before accepting an offer, and avoid it if at all possible unless they truly believe they'll benefit from the training, intend to stay the full term, and understand the employer might use the cost as a way to expect more from them or hold back their professional advancement. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | Not for normal correspondence There are laws that require a specified channel of communication for specific purposes such as a physical address for the service of legal notices, but there is no general requirement. How, or if, a company communicates with its customers about complaints will either be specified in the contract or up to the company to determine and advertise. For example, this site specifies “ will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service” - any other method of delivery (Whatsapp, Facebook, even their own chatrooms etc.) is not a valid method of service, if you use those methods, then legally, you have not communicated. So, if the company requires complaints to deal with by online chat, they can safely ignore any letter or email you might send them. | Normally, you call, briefly discuss what you want, and schedule a meeting for paid consultation. The charge for a one hour consultation would vary greatly but would typically be $100-$500. You may need to sign a fee agreement and provide a retainer for the fees to be paid in advance, but different lawyers have different policies. | Offices are normally rented by businesses, so for the tax appraiser, your situation would be quite out of the ordinary. They appear to be stone deaf to the idea that an office may be rented not for business purposes, and so they lump all office renters together. If they do not want to hear you, all you can do is to keep evidence that: You are an employee; You attempted to tell them that you are not liable for the tax because you are not a business — and present that should they ever attempt to prosecute you for tax evasion or similar. Specifically, do: Keep your employment contract, communication with your bosses telling you what to do and records of them paying your taxes; Send a formal letter (not an appeal) to the tax appraiser explaining the situation Should the issue ever be escalated, they will not be able to prove that you were a contractor/business (let alone beyond reasonable doubt), and you will be able to recover costs associated with this headache. |
Why must claims against the police for human rights act breaches be brought within 1 year? The standard limiation period is 6 years. So why are human rights act breaches - supposedly more serious than other matters - confined to one year? | Because HRA1998 says so, but it's not an absolute limit and is subject to discretion by the court: (1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act. (5)Proceedings under subsection (1)(a) must be brought before the end of— (a)the period of one year beginning with the date on which the act complained of took place; or (b)such longer period as the court or tribunal considers equitable having regard to all the circumstances,but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. | I assume this is "Managed Payment to Landlord" (MPTL) for the tenant's Universal Credit and/or Discretionary Housing Payment, as opposed to for "Housing Benefit" per se, since most people are now on UC instead of HB. But in any case the period of imprisonment is long enough to affect Bob's eligibility. Under the Universal Credit Regulations 2013, Schedule 3, Bob is no longer occupying the property since their absence is expected to be for more than six months; in fact, they lose UC entirely and are meant to reapply when they get out. If this is Housing Benefit then the entitlement ends for being expected to be in prison for 13 weeks or more; see the Housing Benefit Regulations 2006, regulation 7. That's a generic rule for absence, whereas there's a 52-week allowance for pre-trial custody, and some variations for release on probation. DHP top-ups from the local authority follow the same rules. In any event, 2.5 years, even taking into account the anticipated release at the halfway point, is more than any of those thresholds. The claimant is meant to report changes of this kind, but since Alice are receiving the money directly, she is also responsible for informing the government of any relevant changes. See guidance at 10.2, Whilst a MPTL is in place the landlord must notify the department of any changes which a landlord can be reasonably expected to know which might affect the claimant’s entitlement to Universal Credit and the amount awarded. For example, the claimant changes address. When a claimant changes address the MPTL APA will cease from the end of the assessment period before the claimant changed address. If your tenant moves home and you need to end a MPTL, please contact the service centre immediately on 0800 328 5644. As noted below, and following the Social Security Administration Act 1992, sections 71 and 75, If the MPTL is overpaid due to a change that has not been reported by either the claimant or the landlord, the landlord may be asked to repay the overpaid benefit. Universal Credit payments are made every calendar month and take account of changes during that month. It may be that Bob has already done their side of things but the system hasn't caught up yet. In any case, Alice is not entitled to continuing payments and the government has various means to get the money back. Sections 111A and 112 of the 1992 Act (which applies to UC as well) make it a criminal offence for Alice to fail to notify the government about a change of circumstances that affects her right to receive payments. (Simplifying the statutory language a little - Alice is "the recipient" in the context of the full text and Bob is "the claimant", and there are various other conditions about your state of knowledge and intention.) This is not to say that it would necessarily be pursued as a criminal matter, but that possibility exists in principle. | Indirectly, no the wording of the caution is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is illegal to question someone if they have asked for legal advice. so if you ask for a solicitor they are not allowed to question you, and you cannot (by definition) fail to answer their questions if they're not allowed to ask them. Reference from https://www.gov.uk/arrested-your-rights/legal-advice-at-the-police-station "Once you’ve asked for legal advice, the police can’t question you until you’ve got it - with some exceptions." | It's illegal if the intent is to deceive. Under S50(1) of the Police Act 1996: Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. Their intent would need to be proven. It will be fact-specific; in some cases far easier to prove than in others. The criminal justice system is overburdened and underfunded so it is no surprise that these trolling videos are given no priority whatsoever. Further complicating the matter is the need to correctly identify the individual to prosecute. Doing so would require a fair amount of police time, time that could perhaps be spent on more urgent priorities given the relative lack of harm these videos are doing compared to more serious crimes. However, in this video (Would You Help a Police Officer Having An Asthma Attack?) an S50(2) offence would seem to have been committed by the actor wearing the police clothing: Any person who, not being a constable, wears any article of police uniform in circumstances where it gives him an appearance so nearly resembling that of a member of a police force as to be calculated to deceive shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. It does appear that both offences are being committed in these various videos, and the only reason people aren't being prosecuted is practical: there are more serious crimes to focus on, and the police would need to identify who exactly committed this crime--given these all happened at least two years ago, it would be challenging to say the least. They also seem to commit the separate crime of wasting police time, for example by approaching cops in the street and falsely confessing to crimes. Under S5(2) of the Criminal Law Act 1967, wasting police time is a criminal offence. Bringing proceedings in court requires the consent of the Director of Public Prosecutions (DPP) since those proceedings could have a chilling effect on the propensity of the public to report genuine matters to the police in the future. It is likely that while "wasteful employment" of police time was caused by these people, so committing the offence, it is likely viewed simply as "part and parcel" of the job and the officer likely didn't spend any time at all investigating the confessions (depending on their nature). Of course, even if the officer did spend time investigating the false confessions, the DPP would need to give their consent so unless the person has a demonstrated history of doing this (that would stand up in court) or the time wasted was of a particularly serious nature (e.g. the man who falsely claimed to be the Yorkshire Ripper), it seems unlikely consent would be granted. | Your boss is totally wrong. Legally, there is no such thing as a "probation period" in the UK. You have the right to your holiday payment, according to the days that you worked. What can happen: The legal minimum is I think 28 days per year including bank holidays, but most companies give 23 or 24 days PLUS eight days bank holiday. Your contract may say that the first three months are called probation period, and during that time you only get the legal minimum, and after that the much more common higher amount. That would be legal. But even so, you would be entitled to seven days, minus any bank holidays where you didn't work. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | No Besides this being clearly unworkable, the requirements for the state providing public defense attorneys include being in need (you will need to provide an affadavit or similar to the effect) and when the defendant is at risk of significant time of confinement. The 5 to 15 minutes of the traffic or Terry stop are not considered significant. Nor are the processing times of arresting you and taking you in. Trying to make the officer provide you with an attorney (or declaring you aren't doing anything without one) before complying with their orders may well result in your incarceration and subsequent assignment of a public defender. | The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue. If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent. Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well. |
Is your child's name subject to copyright/trademark law? If I name my son "Nintendo", and my son goes on to make headlines doing bad things, I can imagine the company named "Nintendo" wouldn't be too happy. Similarly if I named my kid "Google" or "Microsoft" or "Sony", etc.. As such, would the name you give your child be subject to copyright/trademark law? As a follow-up, what about if I wanted to legally change my name to "Nintendo"? Lastly, what about the names of fictional characters? E.g. writing a story and having the main villain named "Nintendo"? | NO The Names of actual people can neither be trademarked nor can a name have a valid copyrighted. There is no valid market class for names of people, making it impossible to register a trademark in that category. As a result, neither copyright nor trademark will prevent someone from attempting to name a kid "Nintendo" or "Sony Music". While you could try to name your kid Nintendo, unless you are in the US, most countries like germany or japan do safeguard what you can name a child. Those countries will deny your name as endangering the (mental) health of the child or in other way making the child a target for mockery. Compare to names in all lowercase, line breaks, and infinitely long names. | If the "Pokeball" image is copyrighted and/or a trademark of Nintendo/whoever makes the Pokemon games, then whoever put that image out there under CC 3.0 BY is in violation and can be sued and will probably lose, and you would be in violation and can be sued and will probably lose. Your penalty would almost certainly be less since your violation was "innocent", that is, you had no way of knowing that the "Pokeball" imagery was somebody's protected intellectual property. ... Except you kind of maybe should know that, unless whoever made the Pokemon games (Nintendo or other) put the image out there and you can verify that, that maybe this license could be bogus and you should consult with who you imagine the owner of that IP may be or an impartial professional who could tell you for sure. I'm thinking if it were me I would do a little more research - and maybe get a paid opinion - if I was really thinking about using this for any but private purposes. | Copyright exists whether they make that statement or not. Giving such notice informs the public that the work is copyrighted, who owns it, and when it was published. If the work is infringed, the defendant will not be able to use an innocent infringement defense. There's nothing special about using the domain name, as it's probably the name or DBA of the business that owns the domain. | Can a system include such information? it is surely technically possible. Would it be a violation of copyright? That depends. First of all, any such information can be included if the copyright holder has granted permission, probably in the form of a license. But in that case this question would probably not have been asked. I therefore assume that no permission has been granted. (It doesn't matter if a request was made and the answer was "no", a request was made but ignored, or no request was ever made. No permission is still no permission.) The names of fictional locations are nor protected by copyright. Including, say, "Rivendell" or "Hobbiton" in the selection list for a timezone setting would not infringe the copyrights held by the Tolkien estate. But a map is a different thing. If the OS includes and can display a map of a fictional region, one that is copied from or based on a map published with the fiction, or by some third party, then that would almost surely be copyright infringement, and the copyright holder could choose to sue for infringement. S/he might choose not to sue, but that is a risky gamble to take. If this is in the US, statutory damages could be awarded, and could intheory go as high as $150,000, although they are not likely to be as high as that, that is just the maximum legal limit (per work infringed, not per copy). The standard is whatever amount the court thinks "just", up to the maximum. (If proof of willful infringement is not made, the upper limit is $30,000, still a sizable sum.) If the OS designer created the map independently, using names from the fiction, but not otherwise basing it on the fiction, and in particular not imitating any map created by anyone else, then it may well not be infringement, but it would still be wise to consult a copyright lawyer. The question would be more helpful if it made clear just what would be hypothetically included in the OS, and to what extent it would be based on someone else's work. There is also the question of why someone would want to include fictional places, but that really doesn't change the legal issue. | The game Five Nights at Freddy's and the other elements in the large media franchise of the same name are surely protected by copyright. In addition the name of the fictional restaurant in the game may well be protected as a trademark, and I would be astounded if "Five Nights at Freddy's" was not protected as a trademark. Other names and phrases may well be trademarked also. If the suggested actual restaurant was at all closely based on the images and descriptions from the games or the novels, it would be a derivative work. Unless one had permission from the copyright owner, creating such a restaurant would be an act of wilful copyright infringement. The owner could sue, and quite likely win. In the US the owner could get up to $150,000 in statutory damages for each work that was infringed, which in this case might well mean several of the games and novels, depending on just what images and descriptions were imitated or used. Or the owner could elect to receive damages and profits, meaning all damage provably done to the owner, plus all profits made by the infringer. In addition to either, the owner might well obtain an injunction against further operations of the restaurant. Beyond that, if the imitation used any of the trademarked names, slogans, or other protected trademarks, there could be a suit for trademark infringement. There could be no question that the marks were being used in commerce, and were not instances of nominative use. A restaurant is a very different thing from a video game, a novel, or a film, of course. No doubt it falls into a different trademark category. Normally trademark protection extends only to the category for which the mark is protected. But in the case of a "well-known" or "famous" mark, protection under US law is wider. Also, when the infringement might lead reasonable people to falsely belie that the infringing product or service has been endorsed, approved, or sponsored by the trademark owner, it may be a violation even in a significantly different category. This a successful suit for trademark infringement might well be possible also. Of course, if the new restaurant only vaguely resembled the one in the games and novels, and did not use the phrase "Five Nights at Freddy's" or the name "Freddy Fazbear’s" or any other distinctive names from the media franchise, That might not be copyright or trademark infringement. But that would not seem to achieve the effect suggested by the question. If the creator of the restaurant obtained permission from the copyright and trademark owner(s) then there would be no legal issue. But the owners might well not grant such permission, or might charge a high fee for it. I doubt that the idea is workable. As a side note, many years ago I regularly patronized a restaurant named "Bilbo's Pizza" It was decorated with murals obviously based on descriptions for The Hobbit and The Lord of the Rings. The intended reference was clear. They may have gotten permission from the Tolkien estate; I understand that Tolkien was rather free about granting such permissions. Or they may have just counted on word not coming to the copyright holder. But modern media franchise companies are probably much more watchful and much more quick to enforce IP rights. | united-states Trademark law varies somewhat from country to country, and the set of protected trademarks varies a lot from one country to another. In this answer I shall consider primarily US law, although I will try to make the answer as wide ranging as I can. What trademark law protects is the identification of a source of goods or services, and the associated reputation an good will. By using a trademark that is identical to or confusingly similar to an exiting mark, one may be relying to some extent on the reputation of the existing brand. Unless done with permission, this is unfair, and is generally not allowed. However, the protection of a trademark is normally limited to a product or service of the same kind as the existing mark. So suppose one firm registered "GreenCall" as the name of a smartphone service. Another firm wanting to use "Greencall" as the name of a wine would probably not be infringing on the first firm's trademark, and could not be successfully sued. (They might well be sued, however, and need to spend significant money defending their mark.) In some countries, only registered trademarks get any protection. In others, such as the US, use of a mark without registration will provide some protection, but not as much as registration does. In the US at least,a well-known or "famous" mark gets addition protection, even outside the category where it has been registered and used. What counts as "famous" is ultimately a decision fo the US Patent and Trademark office (USPTO) to make. A toy line set in a fantasy world would seem like a rather different category than an open-source project, unless the project was a game with similar elements. The farther and more obviously different the project might be from the toy line, the less likely the use of the same name would be to be held a trademark infringement. Since the Lego mark is used not only on toys, but on a successful TV series, a movie, a video game, and a theme park, it might be held to be a "well-known" mark, and be protected even in categories it is not used in. Actually the project being an open-source one would make no significant difference here. Open source project and commercial products follow the same trademark rules. However, even if the category is different enough that the use of the same name is ultimately held not to be trademark infringement, it is not unlikely that the trademark owner would take legal action, and the developer or development group would need to spend money on legal fees at n early stage of the project. It might be wiser to choose a more clearly distinctive name. It might also be wise to consult a lawyer with trademark expertise. As to the logo, if the logo in some way "looks similar" to an existing logo, it might be held to be a derivative work, and thus a copyright infringement. This is a highly fact-dependent judgement call. | A "similar brand", even a "knock off", does not infringe trademark protection (which is the issue here, not copyright) as long as reasonable consumers or purchasers will not be confused or mislead into thinking that the product is the same as the original product, or is made by, affiliated with, sponsored by, or authorized by the makers of the original product, or that the knockoff in some way shares the reputation of the original product. Obviously that is a fact-based judgement, but a name that alludes to another product but is obviously different is generally not considered an infringement. (I recall reading of a case in which the well-known "North Face" clothing brand tried to sue a new brad called "South butt". I believe that North Face lost. Apparently I was wrong and the case was settled.) | Games can be protected by patent. You get some protection through copyright, but only on things like artwork and the precise text of the rules; someone could copy the ideas of the game with different artwork and not violate your copyright. You would need a patent in each country you want to protect it in. In general patents are expensive and complicated. Here is some general guidance on the relevant law in the USA, and how it applies to video games. If you hire a developer you can do so with a non-disclosure agreement (NDA). This is a contract requiring them to keep your ideas secret. Here is an article about using NDAs when hiring a contractor, but its a complicated area of law and you might be better hiring a lawyer to draft one for you. |
What is "distress," as in "distress for rent"? There have been several distress for rent acts in the 17th and 18th centuries, which provide a right for distress. What is the nature of this right and the origin of its name? | Distress or distraint refers to a right to seize the personal property of a wrong-doer to satisfy a demand. The landlord might seize your horse for non-payment of rent, under this right. For example (1414) "Full power and autorite..the same tenantz and tenantdris til distreyn and hald, till all rerages and dettes..be assethid". This is an example of Law French, deriving from Old French destreindre "to strain, press, wring, vex extremely, straighten" and Old French destresser, destrecier, both ultimately derives from Latin distringere (distringo).. | I've retracted and replaced my previous answer. It is a citation to legal authority. It is probably a reference to the book "Hale, The History of the Pleas of the Crown Hale PC" (originally published 1736 with later editions also printed) (see 4.2.3) with Hale abbreviated "Hal.", "pl." being an abbreviation for "plea" (see 4.2.2) and "cr." being an abbreviation for "crown". Standard citation form is to spell it out, but if it is cited repeatedly later instances might be abbreviated. The link is to a scanned version of the out of copyright historical legal treatise on criminal procedure and substantive criminal law. Wikipedia also discusses it as does a law library Wiki. | The historical root is Old French sieute, sivre meaning "follow, pursue". You pursue your defendant in court. This is an ordinary legal term in post-Norman England. The root is also invoked every time the government prosecutes a person for a crime. The expression "law suit" is more modern, being a rearrangement of "suit at law". An early attestation in the legal sense is (1325) Statutes of Realm (Rawl. B.520) (2011) v. 6 Ant ȝif a ne cometh noȝt, þanne a sullen ben iiuged ase for ateint, ant sullen ȝelde duble, þoru þe siwte of þe king, to hoem þat habbeth ihaued þene harm. | Strictly speaking, are damages an element of breach of contract? There are inconsistent formulations of breach of contract. But that inconsistency is inconsequential. What matters is that damages --whether anticipated or actual-- are relevant for ascertaining the remedies for the breaching party's violation(s) of the terms. The wording in Restatement (Second) of Contracts at §355 implies that [punitive] damages are not breach of contract. Other sections reinforce that interpretation by referring to damages as the effect(s) of a breach, not an element of the breach itself. See §243. By contrast, some courts include damages in their formulation of prima facie elements of a breach. Examples are Sellers as Tr. of R&LD Trust II v. Felton, 626 S.W.3d 121, 125 (2021) (mentioning "resulting damages" among the allegations that "support the existence of [a] contract", brackets added), and CP3 BP Associates LLC v. CSL Plasma Inc., (Missouri CoA, Apr. 2022) ("To establish a prima facie case of breach of lease, a plaintiff must establish [...] that plaintiff was thereby damaged by the breach"). A defendant can be found in breach of contract. But the legal proceedings would be pointless unless the plaintiff sought declaratory relief or can prove damages. That being said, scenarios like the car rental example can entitle the non-breaching party to remedies even if the rented car is not involved in an incident. Primarily the non-breaching party might be entitled to void the contract, given this party's awareness of the counterparty's non-compliance with terms they willfully and knowingly entered. For instance, even in the absence of incidents, an insurer is entitled to rescind a policy if it realizes the insured indulges in recklessness or moral hazard. That is because the insured's conduct contravenes the basic assumption of insured's risk aversion as well as the agreed allocation of risks on which an insurance policy is premised. See Restatement at §§151, 153, and 154(a). In some contexts, the non-breaching party might also be entitled to a reasonable award if the formation of that contract is traceable to opportunity costs or, for instance, if voiding the contract [due to the counterparty's breach] causes the non-breaching party administrative expenses. | In a normal residential lease, the tenant is responsible for damage beyond ordinary wear and tear. Scuff marks may or may not be ordinary wear and tear depending on their severity and how they were caused. For example, scuff marks in a hall or stair caused by normal movement would be ordinary wear and tear and therefore the landlord's cost while a scrape caused by moving furniture in or out would be the tenant's cost. If these were tenant's issues they would have to be extensive and severe to justify a total repaint. | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | First, the clearly redundant phrase is “applicable laws” - these apply to everything. Second, some acts, particularly consumer protection or sale of goods acts imply provisions into a contract, create obligations that sit beside the contract or create equitable remedies. Many of these can be limited or excluded but this needs to be done explicitly. Third, in legal writing, clarity is preferred to brevity - nice if you can get both but if not, be clear rather than brief. Fourth, the contract is not the document. The document is a record of the “meeting of the minds” that formed the contract. In the event of a dispute, it may be useful to know that particular laws were specifically considered by the parties. Fifth, in legal writing, just as all writing, some people are better than others. | Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign? Yes: The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes.... |
Is there a Legal Requirement for Computer Companies to Include an Operating System when Selling a PC? I asked a company if they could sell me a PC without an installed Operating System, as I plan to install my own. Their response was that "We have to legally include a OS with all of our systems. So we include Windows 10." It surprised me that this would be a legal issue rather than a company policy. The company is based in Utah. Is this an actual legal requirement by law? Why? Could it be to protect consumers? Would it protect the company from liability? Is it likely part of a contract they are in? Or is this a misunderstanding by customer service? I didn't find anything with a cursory web search. (I am a new poster, so any critiques of my question are welcome.) | No AFAIK there is no such legal requirement. Why this company told you there was I can’t speculate. But I will. There may be under contract with MicroSoft to put their OS on every box they sell - that would be a legal requirement. Or the just don’t sell boxes without this and they employee told you it was a legal obligation to get out of the conversation. | No They will list the price they are charging you. This will normally be greater than what they paid because that’s how business works. The amount they are allowed to charge is what you agreed in your contract with them (which may incorporate a price list) or, if the contract is silent, a reasonable amount. What is reasonable will be related to what the market in your geographical area charges. While this is indirectly related to the input cost of a given item, business can and do charge what the market allows. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. | Is it illegal to ask a company for money in exchange for information on a bug in their software/website? That in itself is legal. Indeed, the company would incur unjust enrichment if it coerced you to disclose your discovery for free. Only if you threatened the company to divulge to others your discovery unless the company pays you, it would be illegal and trigger charges such as extortion (likewise, legislations outlaw the unjustified delivery of programs or instructions for hacking a software/network/etc., although this goes beyond your actual question). Can the company take legal action against me? That seems doubtful, futile, and it could backfire (please note I have not done any research on legal precedents about this). Although the terms and conditions of the website or the End User License Agreement (EULA) of software might prohibit you to reverse engineer (RE)/decompile/etc. the application, anti-RE clauses are unenforceable and the remedies therefor are indeterminate because the sole act of conducting reverse engineering does not subject the company (or third parties) to any losses. The company's decision to take legal action for your discovery could backfire from two standpoints. First, it calls attention to the fact that the software at issue is defective and unsafe. And second, the bug is likely to be detected by someone else anyway, thereby potentially compromising customers' systems. | The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this. Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement. If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that. It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony. | The title of your question suggests that a patent is involved, but it isn't clear from the rest of your question if that is really the case. Simply seeing a product on the internet does not mean that there are any patent rights attached to it. If a patent does exist, then that patent's protection is defined by its claims. In the US, if you make or use an object that includes all the elements of the claims of a granted patent, then you are infringing that patent. It does not matter whether you share the object or attempt to make money from it—simply making or using it is enough to qualify as infringement. That said, based on your intended use, the patent owner is highly unlikely to ever find out about your infringement. Further, even if they did, enforcing patent rights in court is incredibly expensive (typically involving multi-million dollar legal budgets), and they wouldn't stand to recover much from you, so it is even less likely that they would sue you for the infringement. | Similar to this question and this one, the Uniform Commercial Code requires that exclusion of warranty be conspicuous. While it does not specify the manner in which text should be made conspicuous, putting it in all caps certainly has that effect if the surrounding text is in sentence case. The meaning is that all products come with implied warranties of merchantability (it is good enough to be sold to you) and fitness for purpose (it will do what it's meant to, and what you've been told it will do). This text excludes this product from those warranties (that is, those warranties do not apply). It also disclaims liability for claims and damages, which means that if this software causes you harm or damage, you can't file a suit to recover any loss. Whether this is enforceable would be decided by a court. |
Who owns copyright of a photo taken by a camera after the timer is set to 10 seconds? Who owns copyright of a photo taken by a camera after the timer is set to 10 seconds? Is it the person who set the timer? But he/she didn't take any picture. A machine did. | To the extent that the photograph is an expression of the operator's originality (e.g. framing, subject, angles, camera settings, etc.) it is the operator who has the best claim to copyright. Whether it was "made by a machine" misses the issue: what matters is the degree to which the purported author contributed originality. In your hypothetical, the operator is the person responsible for fixation of the work and the person who contributed original expression to the work. It is the "the product of [that person's] exercise of skill and judgment" (the Canadian standard) and an expression of a "modicum of creativity" (the U.S. standard). See generally, CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13; Feist Publications, Inc. v. Rural Telephone Service Co. Inc., 499 U.S. 340 (1990). But the Copyright Office has stated that: [it] will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” Copyright Compendium, s. 313.2 I am comfortable predicting that a mere 10-second delay will almost always fall on the side of the line where the operator would be considered to be an author.1 1. At the other end of the spectrum are pre-positioned cameras that record continuously or when triggered by motion. Who (if anyone) holds the copyright in that circumstance has not been answered, with opinions differing across jurisdictions and academics: some arguing that the device owner would hold copyright, some arguing that no one would, others arguing that it would be fact-based inquiry about who might have contributed sufficient originality. | Simply admitting that the images are not yours does not give you the right to use them. The fact that you are not profitting from them does not change this. There is no magical statement or disclaimer that will change this. If your use of the images constitutes Fair Use (since you're not mentioning how you're using them, it probably doesn't), you can include a fair use disclaimer. Sample dislaimers can be found online. A disclaimer should include the following: A statement that the work in question is not yours That the use falls under Fair Use and why Section 107 of the copyright act | "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work." Copyright in Derivative Works and Compilations http://www.copyright.gov/circs/circ14.pdf So if you have not been granted authorization, you are violating the right of the owner. It's always recommended that you get permission. Practically speaking, if the owner does not give you permission, there is probably someone else with a similar photo who will! Pretty famous recent case: Barack Obama "Hope" poster | It depends. Wikipedia is quite strict on its policies, and it only allows uploading images (and other media) that either are in the public domain or with a licence that allows to be reproduced (often, Creative Commons, CC). If you go to the details of the image it claims that the picture is licenced under CC, with attribution to Saffron Blaze. So most probably Saffron Blaze got permision to take the picture, and he distributed it with the CC-Attribution licence. When scrapping a web site for data, Google and other engines usually search for metadata (the robots.txt file) that tells them what to index and what to not. If a user gives them permission to index a picture by not stating restrictions in the robots.txt, they can do index it. Of course, in both cases it might be that someone uploads a picture that he does not have permission to share. In this case the situation will, of course, depend on jurisdiction, but many laws have provisions that ensure that, if the content provider is dilligent in addressing copyright issues caused by the users, they are protected. For example in the USA the Digital Millenium Copyright Act establishes "safe harbor" provisions that protects content providers if they give a way to denounce copyright infringiments and address those in a given timeframe. | Copyright expires 70 years after the original writer breaths his/her last breath, after that it becomes public domain. And all works published before 1923 are in the public domain in the US. This means that the inheritors of the rights cannot sue you for infringement because there is nothing to infringe. If the music is not in public domain you will need to contact the rights holders and negotiate the rights to use the music. This can also be a company that has the right to sublicense the content to others. This is often the way radios and DJs get the right for the music they play. | Wikipedia has two kinds of pictures: Reusable pictures, most of them stored at http://commons.wikimedia.org Copyrighted pictures under fair-use, stored on the local Wikipedia (in your case, the Russian Wikipedia) but not on Commons. To know what case it is, just click on the Wikipedia picture, click on the blue "Description" button, and see whether it redirects you to Commons or not. Pictures on Commons are reusable if you include the author and license (see the full requirements). Commercial use is OK. Fair-use pictures can not be reused. Unfortunately, https://ru.wikipedia.org/wiki/Файл:Tschedrovitsky.jpg is in the second case, so you can not reuse it, even in a non-commercial setting, unless you can justify that your usage qualifies as fair-use in your country. Hopefully one day someone will find a legally reusable picture of Shchedrovitski and upload it to Commons. | Let's put to bed the myth of privacy that is at the heart of your question: in R v Sotheren (2001) NSWSC 204 Justice Dowd said “A person, in our society, does not have a right not to be photographed" So they can ask you to stop; its bad manners if you don't but it is not illegal. If they are the controller of the property then they can stop you filming from their property but they cannot stop you filming into their property from outside (either public land or land where you do have permission). See How do laws affect photography of non-humans in public when people may be in the frame? | Depends if the artist is a contractor or an employee Let's say I am the person who created Spiderman, but my artist came up with the design of the costume and everything Well, it certainly looks like you didn’t create Spider-Man - the artist did. If they are your employee then you, as their employer, own the copyright. If they are a contractor, then they own the copyright which can be transferred to you under the terms of the contract or otherwise. What if the design was written in paper and then the concept artist represented the written design graphically, does that make any difference? Not really. Here the artist has created a derivative work but since they did so with your permission, that’s fine. The derivative work is a seperate work with its own copyright owned as stated above. How can you make sure you don't face this problem if you hire an artist for your work? You set out in the contract who owns the copyright. |
Does common law encompass criminal law? A recent answer distinguishes the two but I had always thought that common law includes both civil and criminal components. Does it not? | Yes. And also no. See What is the difference between Common Law and Civil Law in the U.S.? A common law system is a common law system and that obviously encompasses criminal law. But that’s not the only definition of common law. In most common law jurisdictions, most crimes are now statutory crimes. That is, what they are and the punishment for them is detailed in an Act of Parliament (or local equivalent). However, the codification of what were once common law crimes is not (and arguably cannot) be complete. There still exist common law crimes which can be pulled out when needed. For example, in DPP v Pusey, the defendant was pulled over by several police officers and, while this was happening, a large truck collided with the stopped cars and the police officers were killed. While they were dying Pusey took out his phone and recorded their deaths while mocking and taunting them. This was not against any statutory criminal code in Victoria. So, the Director of Public Prosecutions pulled out the archaic common law offence of outraging public decency. In addition, statutory crimes are necessarily interpreted by judges and aggregate a collection of common law rulings around them. | I do not know what actually happened to anyone in the aftermath of this incident, but it is unlikely that there is a basis for civil or criminal liability in this case. Criminal liability does not generally attach to negligent conduct except in cases of homicide or criminally negligent motor vehicle operation. But, this case appears to have involved mere negligence. It appears that somebody made an honest mistake rather than acting recklessly or intentionally to cause harm. Governmental entities and officers of governmental agencies acting in their official capacity have immunity from liability for negligence except in some vary narrowly defined areas (e.g. failure to maintain government buildings, medical mistakes in government hospitals, and car accidents) which seem unlikely to be implicated here. But, it seems likely that the responsible parties were all governmental entities or officers of governmental agencies acting in their official capacities. So, it is unlikely that there would be civil liability either. Needless to say, however, this does not look good on the job performance record of any civil servant below the Governor (who doesn't get evaluated in that way) when being considered for promotion, demotion, unfavorable transfers or even termination of employment. Obviously, if new facts were uncovered and this was actually more nefarious than it seems, and this hidden truth was discovered, there could be a basis for civil or criminal liability. But, if this was the case, it would have made headlines. | Yes, of course slavery is illegal. "Involuntary servitude" imposed upon someone through due process of law is not slavery. This is analogous to a death sentence for a capital crime, which, because it is imposed by due process of law, is not murder. Similarly, the judicial imposition of a fine, or the forfeiture of other property, is not theft. Now, rhetorically, one can speak of the conditions of modern imprisonment as "state-sanctioned slavery," just as death-penalty opponents speak of "state-sanctioned murder" and recipients of parking tickets can speak of "state-sanctioned theft." But there's a big difference between rhetoric and the law. | Your question has two distinct aspects which have to be considered separately: criminal law and civil law. I will give an opinion on both aspects, but first I have to give you a word of warning: This case is not clear in the sense that the law can be immediately apply. For a full answer you need the services of a practicing lawyer who does the necessary research. I have a degree in German Law and I have had some practice in IT law, so I know what I am talking about, but I am currently not practicing it and I have done no research for this case. So please, pretty please, don't base any important decision on my opinion. It is a mere guidance, not more. Criminal Law The German Criminal Code (StGB) specifies two cyber crimes explicitly: Computer Fraud (Computerbetrug, § 263a StGB), which you violate when you gain some illegal monetary advantage using a computer, for example a hacker using your stolen credit card data to transfer funds to his account. Computer Sabotage (Computersabotage, § 303b StGB), which applies when you cause damage with a computer, for example a hacker attacking the power grid. The second option clearly does not apply here, but the first one could. That would depend on the answer to a couple of questions, most importantly if a user would gain some monetary advantage at your expense and if that advantage would be illegal. The first of these questions (advantage at your expense) already does not have a clear and universal answer. As it is quite common with fraud, this criminal law question has a civil law aspect (more on that on part two of the answer). The two ways how this could create an advantage to an attacker world be... A contract would not be enacted between you and the attacker, but he would take advantage of you believing in the contract's validity. This option would though probably not apply here, judging from the (spoiler alert) civil law part of the question. A valid contract would be created, but the terms and conditions would not apply and that would cause an illegal financial advantage for the attacker at your cost. Since the base contract would still be in effect and that comes with the obligation to pay, that advantage would have to be in the terms and conditions not applying. You can construct such a case, but that would depend on the terms in question, so there can not be an answer here. There is though a good chance that the terms would still apply (see below), so there will probably be no damage. The other aspect is if this advantage would be through illegal use of the system, which is an interesting question in your case, since the link is publicly accessible. But, then again you can also fake a POST, so you can argue that it is always possible to make the terms not appear. An aspect to be considered though, is that merely attempting computer fraud is already an offense. An attacker who thinks he can gain a monetary advantage from such an attack could be still punished, even if it is not even possible to commit the crime due to the circumstances (this by itself is an interesting question in criminal law). The bigger danger that I see is that your solution makes it easy for an attacker to make their own site and then use your public link to book on your site (in a man in the middle attack). That would clearly be an offense, but it would be the attacker's not your client's. But since your success depends on the trustworthiness of your site, I would recommend to look for a safer solution (such as POST with https). To summarize that part: There is a possibility that accessing the site in the described way is a crime, but I would say it is rather not due to the lack of damage. It is though possible that an attacker still commits a crime by attempting such an attack. You should in any case make your site safer to make it harder to commit MITM attacks. Civil Law The civil law side is whether the terms can be accepted in the described way. This is a case for the law of general terms and conditions (Allgemeine Geschäftsbedingungen or AGB). In a few words, for AGB to apply, the have to be notified to the client and he has to accept them. If your site is used how it is supposed to be, both conditions are met. In the (invalid) way you have described, the first condition is in question. Since the user knows that using the described URL means accepting the terms, I would consider the second condition to be satisfied. So how can the terms apply if the user has not seen them? In case you provide no shortcut to the accepted link and you also prevent that it can be found in another way (e.g. through a search engine), the direct link would be equivalent to someone signing terms and conditions without reading them, although he has had a chance to do so. That would still make the terms apply, because the client would have been given the chance to read them, which is the only thing the seller needs to do. So chances are that your terms would still apply (thus negating the financial advantage necessary for a crime). However, AGB law is a complex subject that is generally handled by specialists. Any opinion of someone who is not such a specialist has to be handled with care. That includes my opinion. | Actions in common law tort exist for both scenarios. Potential torts are negligence, trespass to chattel, and/or conversion. Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial time, or; (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion. The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being "what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently – the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate. | A and B have been in a common law marriage for many years. A and C then apply for and receive a marriage license. When A and C marry, what is the legal status of each marriage? I assume in answering all of these questions that C did not know that A was in a valid common law marriage to B at the time of C's marriage to A, although the answers below may implicitly shed some light on how the questions would be resolved if C was aware of this fact. The Marriage Of A and C Is Invalid, The Marriage Of A and B Is In Force The only way to end a common law marriage that is valid in the recognizing state (i.e. either the same one where it is entered into or another way as the case may be; see below for when a common law marriage or foreign marriage must be recognized as valid) apart from a Utah common law marriage, is by the same death or divorce that would terminate a valid marriage entered into with a marriage license. A valid marriage is not established between A and C. No marriage is established between A and C, even if A and C are married in a state that does not recognize common law marriage, and even if both A and C were not aware that a common law marriage was formed between A and B because A and C did not know that the state where A and B were living at the time that the common law marriage was formed recognized common law marriage. This rule is subject to an important burden of proof rule. If there is a facially valid marriage certificate in evidence, the burden of proof is on the person seeking to show that this marriage is void to show that any prior marriage did not terminate by death or divorce prior to the new marriage certificate being issued. This rule flows from the fact that there is no comprehensive index of divorces entered in the United States and the fact that a valid divorce can be entered by consent of the parties in a jurisdiction other than the place where the parties were domiciled at the time of the purported divorce. In practice, this can be used to circumvent the general rule even when the general rule actually applies, especially when a putative marriage existed for many years and the common law marriage was long ago and the couple was separated shortly after it formed (often with the former common law spouse or both spouses being dead at the time of the litigation). But, this is only a burden of proof rule and can be overcome with affirmative proof of a lack of divorce (e.g. by the testimony of A and/or B in this question). The question of when a foreign divorce is recognized by a U.S. state as valid is a complicated one and beyond the scope of this question. It is particularly complicated in countries with non-Western legal systems such as Islamic law, in which some divorces are effected non-judicially. Where Are Common Law Marriages Valid Most states recognized common law marriage at some point in their history, or prior to becoming states when they were territories or parts of other countries. The states that currently recognize common law marriage or recently did so, if the marriage was formed in the first place in that state are as follows: Alabama (if created before January 1, 2017) Colorado (subject to restrictions for minors but allowing same sex marriages even if common law marriage between them was not legally recognized at the time of the common law marriage) District of Columbia Georgia (if created before January 1, 1997) Idaho (if created before January 1, 1996) Iowa Kansas Montana New Hampshire recognizes domestic common law marriage for purposes of probate only (there is a three year cohabitation requirement) although it recognizes valid common law marriages entered into outside the state. Ohio (if created before October 10, 1991) Oklahoma Pennsylvania (if created before January 1, 2005) Rhode Island South Carolina Texas Utah recognizes only common law marriages that have been validated in a judicial proceeding. A common law marriage may be validated by a court of law up to one year after the alleged marriage has been terminated (effectively allowing for "common law divorce" in Utah only). Prior to statehood, Utah allowed polygamous marriage (at least de facto) and this issue greatly delayed its admission as a U.S. state, but it does not now recognize such marriages as valid and all people who entered into those marriages are now dead. The exact test for a common law marriage formation varies by state. The most common test for formation of a common law marriage is an understanding of the couple between each other that they are married, the couple holding themselves out to the public that they are married (especially in joint tax returns and in health insurance applications), and in some states, either cohabitation or consummation of the marriage. There is a body of law governing what connect a couple must have to a state in order for their relationship to be subject to that state's common law marriage rules. If the couple has a shared domicile in the state that is generally sufficient, but this is not always the bare minimum level of connection necessary to establish that a state's common law marriage laws will apply to a couple that is physically present in that state. For example, it is customary in many U.S. subcultures, for example, to hold a wedding in the state of the bride's parents' domicile even if neither the bride nor the groom are domiciled in that state. But, a ceremonial wedding held in a state that recognizes common law marriage without the benefit of a marriage license would almost always be valid in all U.S. states (if otherwise valid), even if neither member of the couple resided there. I am not aware of any U.S. state except New Hampshire where mere cohabitation and/or coparenting for a certain number of years establishes a common law marriage, even though law enforcement and journalists often describe couples in those circumstances as being common law married couples. Functionally, common law marriage usually comes up in one of two fact patterns. First, it validates ceremonial marriages conducted with most formalities of a fully valid legal marriage license marriage with a formal wedding that have some technical defect in formalities; these are easy cases. Second, it establishes marital rights between cohabiting couples (often with shared children) who live together and act more or less like marriage couples who never have a decisive moment that is a wedding or marriage ceremony but end up considering themselves to be a married couple and deal with the administrative state and in their social lives accordingly. In both cases, common law marriage is usually a doctrine invoked generally avoid harsh consequences for wives who have sacrificed economically in reliance on a domestic couple relationship who lack meaningful legal rights do to a lack of marriage formalities. N.B. Australia has a concept called de facto relationships that provide certain legal rights after more than two years of cohabitation for a limited period of time after the relationship ceases to exist in fact. These are not common law marriages in the senes of American law. When Must A State Recognize A Marriage Valid Where Entered Into At The Time Entered Into There is really only one exception to the rule that a common law marriage (or any other form of marriage) which was valid where entered into (even outside the United States) at the time it was entered into (even if that state no longer recognizes common law marriage) is valid in every state. The exception is that a state does not have to recognize marriages which are barred by public policy in the state where the second marriage takes place (for reasons other than a lack of a marriage license), but not in the original state. Basically, the marriages which a state does not have to recognize are: (1) marriages valid where entered into that were polygamous when entered into (generally outside the U.S.), (2) marriages where a spouse was a minor too young to marry at the time of the marriage by the recognizing state's standards if the common law marriage was not reaffirmed by conduct after both spouses were of age (Colorado recognizes common law marriages only when both spouses were at least eighteen years old at the time of the marriage or at some time afterwards in the continued common law marriage, and the validity of this unique limitation has not been legally tested), (3) a marriage entered into without the voluntary consent of both spouses that was valid where entered into (generally outside the U.S.), or (4) a marriage where the spouses were too closely related (although many states will recognize first cousin marriage that was valid where entered into even when first cousin marriage is not recognized in that state). This public policy exception also previously applied to (5) same sex marriages valid where entered into but not in the recognizing state, and (6) to interracial marriages valid where entered into but void in the recognizing state. But, these two public policy reasons to deny recognition of a marriage entered into elsewhere have now been held to be unconstitutional in the United States. Paternity Implications The father of a child born while A and B were married, prior to the purported marriage of A and C would be presumed to be the father among A and B, even if this paternity was not noted on the birth certificate of the child because vital statistics bureau officials were not alerted to the existence of the common law marriage. But, the rule in a majority of jurisdictions is that contrary to the general rule, the presumption that the father of a child born while A and C were purportedly married and at least one of them believed themselves to be married, was the person among A and C who did not give birth to the child, without other proof of paternity, would remain effective even after C learns that A and C are not married. Thus, a child of A and C would be legitimate, even though the marriage between A and C was void. Tenancy By Entirety Implications States with tenancy by the entirety are: Alaska, Arkansas, Delaware, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming. In those states, title to a residency owned by a husband and wife that would otherwise be a joint tenancy with right of survivorship would instead be a tenancy by entirety. A tenancy by entirety property is only subject to being used to satisfy judgments against both a husband and wife, rather than only against one of them individually and functions a bit like an unlimited homestead exemption as to money judgments against one spouse only. Any property purported held in tenancy by entirety between A and C would actually be held in joint tenancy with right of survivorship by operation of law and the claims of a creditor against A or C but not both of them could be enforced against that residence in the one half interest of the person against whom the creditor had a claim. Criminal Law Implications A would guilty of the crimes of bigamy in most states (or under the Uniform Code of Military Justice if A is in the U.S. armed services which might also prosecute A for adultery), although a minority of them might recognize an intent requirement that would absolve A of criminal liability if A didn't realize that A and B were living in a common law marriage state. A may or may not be guilty of the crime of perjury in connection with the marriage application depending upon whether A was aware that A and B were in a common law marriage. Restitution might be awarded in a criminal proceeding resulting in A's conviction, in favor of B or C but probably limited to the legal fees incurred to establish the invalidity of the marriage to C. The odds of a prosecutor pursuing a criminal case under these facts if B complained are probably about 50-50, given that the facts are quite blatant. Often both B and C would ask the prosecutor not to bring charges because both of them have an economic interest in A being able to make money while not in prison so their economic rights can be respected, and often, but not always, a prosecutor would respect those requests. Of course, depending upon the state where the marriage license was issued and the time that the common law marriage of A and B was discovered by a complaining witness to the police or prosecutor's office, the statute of limitations for one or more of these criminal offenses may have run by the time the prosecutor is considering bringing criminal charges. Statutes of limitation for state criminal charges vary greatly from state to state. Rights Of B Against A As A Spouse B has the full rights of a spouse to support during the marriage, and, if either A or B seeks a divorce, to a property division and alimony and if there are joint children to child support and parental rights, with respect to A. While every state has no fault divorce, in some states, fault is considered in property division and alimony and spousal support other than support for children during marriage, and this would work to the disadvantage of A. Rights Of C In States Without A Putative Spouse Doctrine Against A In states without a putative spouse doctrine, C has only the rights of an unmarried person with respect to A (e.g. rights arising from co-ownership and rights to child support and parental rights with respect to their joint children). This said, it is conceivable in these circumstances that C might have a right to recover prejudice in C's economic position as a result of a purported marriage to A under a restitution doctrine, or under a common law fraud theory. Rights Of B In States With An Alienation Of Affections Tort Against C In a few states (including South Dakota, Mississippi, and North Carolina) B would have a right to sue C if C continued to carry on the purported marriage after C learned of the common law marriage of A to B, in an alienation of affections tort. The alienation of affections tort also exists in Hawaii, Illinois and Utah, but subject to greater limitations: Illinois only permits actual economic damages to be recovered in alienation of affection actions. Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits. Hawaii would only allow B to sue C if C persistently overcame A's free will to establish the relationship with A (e.g. in a relationship that would constitute illegal sexual harassment in employment or an abuse of a fiduciary relationship by C) and B was without marital fault at the time. In Utah, B could sue C only if "full responsibility for the breakdown of a marriage can be attributed solely to the conduct" of C (with the typical case being one where C was a priest or psychotherapist for A). No states have both an alienation of affections tort and a formally recognized putative spouse doctrine. Rights Of C Against A In States With A Putative Spouse Doctrine And For Social Security Benefit Purposes In Colorado, Montana, Nebraska, Nevada, Texas, and Washington state and for purposes of Social Security benefits, C has the legal rights of a putative spouse from A for the period from the date of the putative marriage to C until C learns that A was in a common law marriage to B. The rights of a putative spouse are essentially the rights that a legal spouse would have had for a marriage of that duration reduced, to the extent necessary to respect the rights of B as a true spouse. The relative rights of B and C would be balanced by the Court in an equitable manner in the Court's discretion, likely, in part, by imposing greater burdens on A than a single spouse alone would be entitled to in a divorce. Note also that Colorado, Montana and Texas are the only U.S. states to have both common law marriage and to formally recognize putative spouse status. Bankruptcy Priority Consideration If the claims from B and C against A render A insolvent, and A files for bankruptcy, the marital claims of B will generally have priority as bankruptcy claims over the tort and putative spouse and contractual claims (if any) of C. But, child support claims of both B and C will have equal priority to the marital claims for alimony of B and will be superior to the property division claims of B. Probate Considerations If the common law marriage of A to B is discovered by C only after the death of A, then B has all of the rights of a surviving spouse (some of which are higher priority than creditors claims and some of which are lower priority than creditors claims) while C will have no spousal rights in the probate estate. Any putative spouse rights or tort or contract claim or property ownership claim that C has against A at that time can be asserted in the probate case as a creditor or co-owner of probate property. If A left a Will leaving A's estate in whole or in part to C, C will have rights an unrelated will devisee in the estate to the extent that there is anything left over after B's minimum marital rights and the claims of all creditors have been paid. The rights of a surviving spouse at death differ considerable from state to state. If A left assets by virtue of non-probate transfers to C (e.g. joint tenancy and/or beneficiary designations attached to particular assets), generally C will be entitled to those assets, but the assets that C receives at A's death from A may be invaded by B to the extent that the probate estate assets of A's estate are insufficient to meet A's obligations to B at death as A's surviving spouse. Joint Tax Return Considerations If A and C filed as married filing jointly on their taxes, their tax returns would have to be amended for all such tax years for which the statute of limitations had not yet run (usually three year from the due date of that return) as single or head of household taxpayers with separate returns for each of them. Usually, this would result in additional income tax being due from A and C combined. The application of prior tax payments made and prior tax refunds received would be allocated equitably by an appropriate court if necessary because the parties could not agree. Gift and Estate Tax Considerations For estate tax purposes, B will receive any unused gift and estate exemption of A at A's death. B will receive any assets received from A free of gift, estate and income taxes. Transfers at death to C from A will potentially be subject to estate taxation, and gifts made during life to C from A will potentially be subject to gift taxation. But, unless the sum of A's gifts and inheritances given to all people other than B during A's lifetime exceeded about $11.5 million, no gift or estate tax will actually be due at A's death. Retirement Account Taxation If A died with C as a beneficiary of a retirement account of A, or if C died with A as a beneficiary of a retirement account of C, the surviving person of A and C would not be able to roll over the proceeds tax free into a retirement account of the survivor. Instead, the survivor of A or C who was the beneficiary of the retirement account of the decedent among A or C would have to take taxable distributions either over the life expectancy of the surviving person, or over five years, as the survivor elected. Note On Authority I am writing from memory and my summary notes from when I was a professor of estate planning and later a continuing education teacher for lawyers. I could find all of the statutory or case law authority to back it up, but it would take another two or three hours that I don't have to devote to this answer. | Yes. It is a crime almost everywhere to throw something at someone, even if it causes little or no injury. Usually it would be classified as "assault and battery" although if it damages clothing or other property, it could also be called, for example, "criminal mischief" which is intentional damage to property. It would also be a tort that could be enforced with civil damages in most places, although only nominal damages would be awarded and there would be no award for attorneys' fees. In practice, however, few people would press charges or turn to the police in such an incident, few police would take action based on the complaint because it is so trivial, and few people would sue in such a case. For what it is worth, the "living law" in Japan recognizes that someone has a duty to pay to clean your clothes or replace them if they can't be cleaned in such circumstances and most people appear to comply with that obligation without court involvement if the victim insists. Also, pie throwing as a political protest in Europe is also almost surely illegal under European law, although, again, this is rarely enforced by common political culture and tradition. | Nope. Even if we were to accept this definition of law as some written decree, and I'm unsure that's the case1, there are civilisations with written law that predate the Ten Commandments. Babylonian Law (c.1800 BC) predates the Ten Commandments. Also, the Code of Ur-Nammu predates even that (c.2050 BC). 1. Most definitions of law don't require that it be written, but rather that it is some system of rules that govern the behaviour of some group of people. |
What is the state's obligation to provide a means to comply? The jurisdiction is Washington State, the specific situation is the purchase of a vintage automobile that had been abandoned. The vehicle was not running at the time, and had no title or registration. I had the Department of Licensing run a search which came back with no results, but they only claim to go back 7 years. The next step is to trailer it to the State Patrol for a VIN inspection, and this is the part that is causing trouble... I have made a good faith effort on multiple occasions to schedule an inspection through their website, but due to shut downs of this service during Covid and chronic staffing shortages that they mention on the site, there has NEVER been an appointment available whenever I have checked. This has gone on for several years now. Their website doesn't support getting your request into a queue, and I don't have the computer skills to automate the process of checking for openings so I have almost resigned myself to not trying anymore. Question: Given that the state has mandated that vehicles be registered, and that to be registered one must have a title, and that to obtain a title in the event of loss/abandonment a vehicle must be inspected, what is the state's obligation to provide a means to comply when every reasonable attempt has been exhausted? In other words, at what point does the government's inability to effectively administer a program become an unreasonable restriction on personal liberty? Supplementary: Is there a legal concept or term for this, or for a valid defense strategy that could be made if reasonable and good faith attempts to comply could be demonstrated? (i.e. a Latin phrase comparable to "mens rea", etc.) What other remedies might be available? I have considered proceeding with the restoration, and drafting an "Affidavit in lieu of registration" document detailing my numerous attempts to follow the process, and indicating a sincere desire to comply, but my concern would be having the vehicle impounded if/when I get pulled over. I have even considered asking local law enforcement to just issue me a citation so that I might appear in court and plead for an opportunity to be given the means to comply. (i.e. move to the head of the line...) I have also considered writing to my state representative. Are there any other preemptive actions that might help get this situation "unstuck"? Is there a statute of limitations for asserting ownership that might alleviate my concerns about proceeding with the project? | The state of Washington does not have an absolute requirement that vehicles must be registered. What it has is RCW 46.16A.030 (2): (2) It is unlawful for a person to operate any vehicle on a public highway of this state without having in full force and effect a current and proper vehicle registration and displaying license plates on the vehicle. Therefore you already have a means to comply with the law: simply refrain from operating this vehicle on any public highway of the state of Washington. In other words, don't drive or park it on public roads; keep it on private property. (In many states, "operating" includes parking; I could not immediately find out whether this is the case in Washington.) So now your question instead becomes: "What is the state's obligation to make it possible for me to lawfully drive this particular vehicle on the public roads?" And the answer to that is much more clearly, "none". Driving in general is considered a privilege and not a right, so your "personal liberty" is not at issue. The state is not doing a good job of providing a service which they generally do provide, which is certainly annoying, but is not a legal issue, and does not give you the right to break the law. I have considered proceeding with the restoration, and drafting an "Affidavit in lieu of registration" document detailing my numerous attempts to follow the process, and indicating a sincere desire to comply, but my concern would be having the vehicle impounded if/when I get pulled over. Yes, it probably would be. I have even considered asking local law enforcement to just issue me a citation so that I might appear in court and plead for an opportunity to be given the means to comply. (i.e. move to the head of the line...) You would still lose, unless the judge is particularly sympathetic. I have also considered writing to my state representative. That's a better idea - at least it doesn't involve violating the law. And legislators usually do make some effort to help constituents when they have problems with government offices. However, if the issue is simply that the State Patrol is overloaded with work, there may not be much they can do. Is there a statute of limitations for asserting ownership that might alleviate my concerns about proceeding with the project? The requirement to have an inspection before getting a title seems to be from RCW 46.12.530 (2): "The department may require additional information and a physical examination of the vehicle or of any class of vehicles, or either." So there is no exception written into statute. The implementing regulation looks to be WAC 308-56A-150. There are several criteria listed for when inspection is required, and I'm not sure which would apply to your vehicle. It may perhaps be "(g) ownership in doubt (WAC 308-56A-210)" which applies when you do not have the documentation described in WAC 308-56A-265. Or it may be the catchall "(c) One on which the identification number needs verification as requested by the department, county auditor, or authorized agent". You'll have to research this further. There doesn't seem to be any exception based specifically on the long time period that the car has been unregistered, or the fact that no theft is known to have been reported in the past 20 years, or anything like that. | In most states you are required to pull over to the side of the road and come to a stop for any vehicle displaying flashing red and/or blue lights, whether oncoming or overtaking. If you don't you are guilty of a moving violation.1 If the vehicle with the lights then pulls in behind you the same law forbids you from moving your vehicle. So that's the law for being pulled over by an unmarked car. If you are concerned that you were stopped in this manner by someone not authorized to do so (police impersonators have been known to do this) you should call 911 and get the dispatcher to confirm whether the apparent emergency vehicle is legitimate. In general, if you fear for your safety, you can stay in your car and ask to be escorted to a known police station before exposing yourself. E.g., here's the advice of one Ohio State Highway Patrolman: If the area where you stop looks desolate, Miller said you don't have to stop there. In fact, he said, "Proceed to that well lit area or a public building, the fire department, hospital." [B]efore you even stop, if you don't feel safe, "Use your cell phone to dial 9-1-1 and talk to the dispatcher, let her know what's going on, give your location and have her guide you as to what she wants you to do." There are some jurisdictions that restrict the use of "unmarked" cars by police. | An analogy to towing companies is tempting but misplaced, since towing is a statutorily-authorized and regulated activity (e.g. RCW 46.55). You therefore cannot just charge an arbitrary storage fee for uncollected equipment, and it is highly unlikely that there is any provision in the contract which authorizes you to charge for storage. The question is why you think you think they are responsible for picking up the excavator – presumably there is a clause in the contract that says that they will pick it up. Assuming that the contract doesn't say much, then your recourse would reside in the fact of their equipment trespassing on your property. You would need to officially withdraw permission for their equipment to be on your property (since you gave it in the first place). They would have a reasonable time to retrieve their goods, and if they don't do so, you would have a basis for suing them for damages. Also, the worst thing you could do is forcibly keeping their key until they pay you a storage fee: you'd need a court-ordered award, to get anything from them. The Connecticut towing law is here. Note that in order to call a towing company to get the equipment towed (if that's even possible), there has to be "conspicuous signage" warning of the possibility of towing "on such private commercial property"; but an overriding consideration is that you may tow if the vehicle is left for forty-eight or more hours. Two points to be noted are that although the law refers to "An owner or lessee of private property", the signage requirement implies that the property has to be commercial, not residential (this limitation to "private commercial property" is repeated in the statute, indicating a legislative intent to restrict the legal towing permission to commercial property). The law refers to "motor vehicles", but it is not clear whether an excavator counts as a "motor vehicle" (defined in para 54 of the definitions section). Although an excavator is a "vehicle propelled or drawn by any nonmuscular power", exceptions are carved out for agricultural tractors, farm implements, and "and any other vehicle not suitable for operation on a highway", which I think reasonably means that an excavator is not a motor vehicle. So since the towing statute does not authorize towing of something that is not a motor vehicle, that would not seem to be an option in this case (even if there were signage, and this is commercial property). And calling a towing company would only get the item removed from your property, but would not authorize you to collect a storage fee (the towing company can only do so after the police have been notified, which they must do withing 2 hours). | Main Question: Most likely not under Magnuson-Moss or U.C.C.. Question 1: If a charge payable before hand was not set forth in any written warranty, it is most likely not legal to deny remedy to the consumer. However, even if it was, it is possible that it would not meet the federal minimum standards for warranties as, per paragraph (d) a warranty has to provide for remedy without a charge. If there is absolutely no way for you to obtain the information to prove that a remedy is due — for e.g. no third party has legal or technical capacity to diagnose the vehicle — that is likely also a term to be found unconscionable and void, and may be found fraudulent, malicious and/or oppressive which may entitle one to collect punitive damages. (It is worth obtaining written confirmation of whether this decision is made in accord with their policies or on a line that they announce to be recorded) Question 2: Most likely same as Question 1. Question 3: Most likely same as Question 2. According to 15 U.S.C., subsection (a) of Section 2302 entitled "Full and conspicuous disclosure of terms and conditions; additional requirements for contents: "In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty. (4) A statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time." (5) A statement of what the consumer must do and expenses he must bear. (6) Exceptions and exclusions from the terms of the warranty. (7) The step-by-step procedure which the consumer should take in order to obtain performance of any obligation under the warranty, including the identification of any person or class of persons authorized to perform the obligations set forth in the warranty. (12) The characteristics or properties of the products, or parts thereof, that are not covered by the warranty. (13) The elements of the warranty in words or phrases which would not mislead a reasonable, average consumer as to the nature or scope of the warranty. It may, in addition to any or all of the above, be a violation of paragraph (8), (9), (10) and/or (11) based on specific fact patterns. To the 2nd point added: If the manufacturer stated that the vehicle would run at least a certain number of miles on a full charge for a certain number of miles driven or number of years, and did not stipulate it otherwise, they would have to remedy this. It is highly likely that they tried to evade making such written statement (if not written, it's not a warranty under Magnuson-Moss). If they did, and they did not define the scope of what they would have to do in the case of a defect or malfunction, they would have to remedy it by repairs within a reasonable time; if they fail, they would have to refund or replace. This does not mean that it is likely worth pursuing the matter in court other than maybe in small claims (See: ohwilleke's reply to this question for a general explanation). Moreover, most auto manufacturers put arbitration provisions in their sale contracts and/or their warranties and generally it may be required of one to opt out of it within 30 days of entering into the agreement. If that took place, first the dispute would likely need to be disputed through a qualified dispute resolution mechanism of the manufacturer, dealer, distributor and/or sellers choice depending on who gave the warranty. The specific State's lemon laws may provide for civil penalties for willful violations which may or may not be a very high bar to meet depending on the State's case law, and which is more likely to make it worth for "lemon" lawyers to take the case, but generally they are not a great deal more like hyenas of this segment of the law. It may still be worth considering for one depending on the specific facts, including State jurisdiction and the impeding nature of the nonconformity. (Please specify a State for the State's lemon laws applicable in this hypo) | "Legal requirement" can and in this case simply means "it's what is required in order for us to be reasonably able to offer you this service", noting that it would be unreasonable for such a dangerous business to operate, when one moron slipping and suing them could put them out of business. It's a little surprising that you've never had to sign a waiver before, but there are quite a number of similar waivers out there, such as REI (Seattle), The Edge (Vt), Croc Center (Coeur d'Alene), YMCA (MI) and U. Nebraska. They all have in common the requirement of a signature (indicating that you've waived your right to sue them), birth date, date of signature. This is the bare minimum that's required to have a valid waiver, and more info would be better (to uniquely identify the customer out of the 1000 John Smith's in the state and 500,000 in the US). If you break yourself and try to sue, they will trot out the waiver to put an end to the suit. Name, address, phone number and birth date do a long ways towards proving that the person who signed the waiver is indeed you. | Under Florida law (316.0083), an officer can view the infraction and issue a notification of infraction "to the registered owner of the motor vehicle involved in the violation". Thereupon, the owner has the right to remedies under §318.14, which include arguing that the owner did not commit the infraction. The camera evidence may sufficiently prove that an infraction was committed, but not necessarily that the vehicle owner committed the infraction. This is a civil matter, so the official who disposes of the appeal must determine whether it is more likely than not that the owner committed the infraction. That effectively means that in the face of evidence that the owner committed an infraction, some evidence is needed to show that the owner did not commit the infraction. Thus proof that he was not driving (I suppose witnesses to his whereabouts in Timbuktu on the day in question) would suffice, and there is no requirement that the owner prove someone else did the deed. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | If this requirement was not made before rendering the service, you are under no obligation to accept the term. You and the service provider must now find an agreeable method of payment. You still owe the provider but if you are compelled to pay then the provider will be compelled to be more accommodating in their allowed payment methods (cash, at least). As a general rule, if you are providing a service for any significant amount of money, you should require payment up front or at least a deposit and payments at milestones. Especially if you're 7,000 miles away from your client and put any restrictions on method of payment. |
On what basis is every Englishman presumed to know the laws of his country? In a previous question's answer, @motosubatsu quoted a passage from James Bigg, Esq. stating this as a "legal axiom." Where does this perception arise from? | I think it's ultimately a natural extension of the basic concept from Roman Law: ignorantia legis non excusat, i.e "ignorance of the law excuses not" and that in order for that to be workable laws can only truly obtain proper binding force when they are promulgated. In simple terms someone can't claim innocence through ignorance because the knowledge of what the law is has been made easily available to them. Thus the law can operate on the presumption that the people it applies to are aware of them. Indeed there have been occasional instances in history where someone could not have been reasonably expected to know that what they did was against the law and this has been taken into account. | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | This is a purely linguistic question, despite the hope to discover a special legal process. Somebody uses a word or phrase in order to communicate an specific idea. Somebody else thinks "That's a good way to put it" and uses the same or very similar expression to convey that idea. Enough people do this and it becomes "conventional". The word itself is not made up, it already existed, and was simply applied in a specialized way (e.g. "tort" is an ordinary French word meaning "wrong, mistake" taken into English in a more specialized manner). If you want to know the history of a legal term, you have to read relevant historical rulings to see when the word was first used. That is how we know that current technical term "consideration" derives, from around the time of Henry VIII, that it derives from rulings referring to "assumpsits" which were made "in consideration of" an obligation. "Trover" is a sufficiently old term in law that you will have a hard time pinning down first use and the pattern of expansion. | You have accurately summed up the conundrum. There is little else to say. You need to accept that there is confusion, even within the law itself, and rely on context to establish in any given instance which meaning is meant. You will come to find that there are many instances of such confusion in the law. The historic technical distinction in the law (especially in tort law) between assault and battery has been collapsed in the everyday vernacular and this had made its way even into the way that the words are used even by law enforcement officers and legislators, who grew up speaking the vernacular language like everyone else. Where I live, in Colorado, the word "menacing" has been used be legislators to replace the historic sense of the word "assault" and the words "assault" and "battery" have become synonymous. But, in England, they are struck with a situation in which the meaning of the word "assault" has become context specific. | As much as they like Most pieces of legislation have a “dictionary” detailing, for the purposes of that legislation (or generally) what specific words and phrases mean. This can broaden (or narrow) the definition compared to how they are used in normal English. The purpose of this is not to set a trap for the unwary, although this may happen, but to introduce precision and to allow a short defined term to be used in the drafting rather than having to explain what is meant verbosely every time it’s used. Of course, they can’t redefine terms so that they give themselves jurisdiction when they otherwise wouldn’t have it. For example, in australia, the Constitution gives the Federal Parliament the power to make laws about, among other things, “external affairs”. A law that tried to define “external affairs” more broadly than the Constitution does (which it doesn’t, so we fall back on what it means in English) would be invalid. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | My understanding is that defendants in Britain have to prove statements true by the preponderance of evidence, whereas in the U.S. the standard of evidence is "compelling" (a lower standard). This is not the case. Preponderance of the evidence can still be the burden of proof in the United States (in a civil libel case, although it must be proof beyond a reasonable doubt in a criminal libel case). But, the difference is in what has to be proved. In Britain, it appears to be necessary to show that the statements are true in order to prevail. In the U.S., it is merely necessary to show in a case like this one (because it involves a matter of public concern) that the statements were made with knowledge that they were false, or with reckless disregard to the truth or falsity of the statements made. A factual basis for believing the statements made to be true is a defense if the basis is at all reasonable, and is a complete defense if the factual basis for making the statement is disclosed and that is true or believed to be true by the speaker. It is not necessary for the statements to actually be true under U.S. law in a case such as this one, although actual truth is also a defense, which is not the case in all circumstances in U.K. law, and was not the case under the historical common law. Historically, defamation claims could be brought for statements critical of the monarch, for statements pointing out the natural infirmities of someone for example by mocking a person with low IQ, or for speaking ill of the dead. Furthermore, the U.S. has a variety of doctrines that make it hard to find that a false statement was made in the first place. For example, statements of opinion are not actionable and many of the alleged falsehoods in the McLibel case would be considered to be statements of opinion in U.S. law rather than statements of fact. Similarly, U.S. law does not require that statements be literally true, and instead recognizes that a defendant may have been engaged in using hyperbole, or may have gotten the gist of the accusation right even though strictly speaking the exact statement made is not technically true (e.g. someone might say that a company paid a "penalty" when it actually paid a settlement amount in a lawsuit seeking a penalty or paid an amount representing compensatory damages only rather than a penalty amount). In the same vein, it must be clear from the context of the statement that the person making it intended it to be received as a truthful account and not a mere parody or satire which was intended to be understood as false. For example, I couldn't sue someone who made a knowingly false statement that I assassinated King George V, who died several decades before I was born, or that I was telepathically controlling my uncle because I had a space alien parasite in my spine. Those claims are so absurd that they would be inferred to intended to be fictional on their face. Certain kinds of falsehoods (e.g. lying about one's military record in a a political campaign) are simply not actionable as a matter of law, no matter what, as the harm is not concrete enough. There is not, however, necessarily a defense under U.S. law to defamation liability if the defendant said many things that were true, but something else that would be defamatory in isolation. For example, even if everything else were true, if the defendant had also stated that the CEO of the Plaintiff was convicted of leading a Nazi concentration camp and killed millions of people, which would have been possible given the CEO's age, knowing perfectly well that the person with a similar name to the CEO who did so was someone else who died an untimely death decades ago, that statement might be defamatory and actionable (at least by the CEO personally and probably by the company if it was alleged that he was hired despite the fact that the company was aware of this circumstance). |
How is sexual intent proven or disproven in Indian criminal law? The Indian Penal Code states that physical contact and advances involving unwelcome and explicit sexual overtures is guilty of sexual harassment. Pikewise, POCSO act sections 7 and 11 state Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; How is sexual intent proven or disproven in the 2 cases? In the latter case the burden of proving a lack of intent is on the accused, while in the former case I think it's not. Nevertheless, the two provisions are similar due to "sexual intent" being used. How is this proven and disproven? | Sexual intent is proven (or disproven) like any other form of intent. A confession is not necessary, although that is one available method. It may be inferred with proof from circumstantial evidence. Any combination of direct and circumstantial evidence is allowed. There isn't a formula for it. The prosecution or defendant, as the case may be, simply has to convince the trier of fact that there was or was not sexual intent. Any otherwise admissible evidence that could rationally show that sexual intent is more or less likely can be presented. If it happens in a gynecological appointment, or because the defendant slipped on a banana peel after the defendant's glasses were splattered with mud so he couldn't see what he was doing, this is going to be exceedingly hard to prove in the absence of a pattern and practice in multiple cases that couldn't be a coincidence, or with something like bragging to a friend in private. If this happens at a festival celebration, or after a dinner date, or intent is corroborated by perverted photographs on the defendant's phone, or is accompanied by sexual language, any other intent is going to be highly implausible and circumstantial evidence will strongly point to a sexual intent. One way to disprove sexual intent is for the defendant to testify that there was some other intent. There is risk in that approach. You can't simultaneously testify that sexual contact never happened and that sexual contact did happen but without sexual intent, for example. Testifying that there was sexual contact without intent basically admits some other element of the crime. But it also forces the prosecution to prove that the defendant is lying, which depending upon the evidence, may be easy, or may be hard. In real life, most of the cases that get prosecuted are easy cases. But, there will always be cases that are closer and circumstances that one wouldn't easily foresee in advance, and that is why we have courts and trials. Ultimately, the prosecution presents evidence and the finder of fact has to decide if it proved that element of its case. | germany Is there any act of husband or wife which can be considered as rape? The paragraph for sexual offences is §177 StGb. Obviously there are nuances between those offences, not everything is "rape", but all of it is illegal. To answer your question, yes, the same acts that are considered rape when they are not husband and wife. While marriage had been an exception, this was considered archaic by many and this exception was removed in 1997: Vergewaltigung in der Ehe ist seit Juli 1997 strafbar. Mit dem 33. Strafrechtsänderungsgesetz wurde das Merkmal außerehelich aus dem Tatbestand der Vergewaltigung, § 177 StGB, gestrichen, sodass seitdem auch die eheliche Vergewaltigung als ein Verbrechen geahndet wird. Translation: Marital rape has been punishable since July 1997. With the 33rd Criminal Law Amendment Act, the characteristic "extramarital" was removed from the definition of rape, § Section 177 of the Criminal Code, so that since then marital rape has also been punished as a crime. There is no mention of how consent is to be expressed or even that it needs to be expressed explicitely. | It is not obvious that is it illegal in Washington state. Everett WA has local ordinances against "lewd conduct" (there are versions of this at the state level and in most municipalities). Having sex and masturbation are included in the class of "lewd acts", and are also included in "sexual conduct". An activity is "obscene" if three things are true. First, the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest and when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. I think having sex or masturbating could pass these two tests. The third condition is that the act explicitly depicts or describes patently offensive representations or descriptions of... [sex, masturbation, or excretion] The prohibition is more narrow: A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. If lewd conduct were completely illegal, you could not excrete or have sex withing the city limits. Now we have to turn to the definition of "public place": an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window Focusing not on the probable intent but on the words, it is primarily defined as "an area generally visible to public view". Your house qua building is probably generally visible to public view, as is a public toilet or hotel. The inside of your bedroom is probably not generally visible to public view, nor is the inside of a toilet stall. While the building is probably a public place, a closed stall within the building does not meet the definition (nor does a hotel room). It might however qualify under the clause "or under circumstances where such act is likely to be observed by any member of the public". The statute does not give a definition of "observe", but under ordinary language interpretation, observation may be seeing or hearing. Silent sex, masturbation or defecation might not qualify as being public. Obviously, excretion in a stall of a public bathroom cannot be a lewd act, presumably because the average person does not generally consider ordinary excretion as appealing to the prurient interest: but there could be contexts where it does. Another avenue for prosecution is the Indecent Exposure state law which is when one intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. It is totally non-obvious that sex or masturbation in a toilet stall is "open". There is a slippery slope regarding quiet sex or masturbation w.r.t. knowing that the conduct is likely to cause reasonable affront or alarm. Because the contexts where sex and masturbation are not clearly spelled out by statutory law, the matter would depend on how courts had interpreted previous cases. There have been arrests in Washington of people having bathroom sex, but I don't know if anyone has ever or recently-enough been convicted for having quiet sex out of view in a toilet stall, or similar place. There is a potentially applicable case, Seattle v. Johnson, 58 Wn. App. 64, which seems to involve public sex, and the conviction was overturned because the complaint was defective, in not including the element "that the defendant must know 'that such conduct is likely to cause reasonable affront or alarm'". It is not clear from the appeal what the act actually was – it probably was for public nudity. There is also an decision by the state appeal court division 3 (not publicly available) in Spokane v. Ismail which, in connection with a charge of public urination declares that "A toilet stall is not a public place. The center of Riverfront Park during the lunch hour is a public place", in connection with an ordinance just like the Everett one against public lewd acts. | There are several misunderstandings here. First of all, the US exclusionary rule applies only to evidence gained by the police, or by people acting as agents of the government, and not always to them. Secondly it applies only in criminal cases. The question does not say which state this would be in, and these are largely matters of state law, so it makes a difference. But I don't know of any state where taking a video without explicit consent, in a place where the person has a right to be, is a crime. In some states it would not even be a tort. If a video is taken without the subject's consent, that may be an invasion of privacy, and the subject might be able to sue (not "file charges). In such a case the video itself would absolutely be put in evidence, and if it recorded verbal permission to take the video, the case would be promptly dismissed, quite possibly with sanctions for a frivolous lawsuit. Even if the video were taken by a police officer, and was presented as evidence in a criminal case, the office could testify to the verbal permission. That would be enough for the judge to view the video as part of a suppression hearing (which is not before a jury). If the judge saw and heard verbal permission to take the video, that would be an end to the motion to suppress, unless it was claimed that the permission was somehow coerced or faked, and evidence supported such a claim. | There is a relevant law, Title 18 section 907 which states that "A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally". So possession of lock picks is not a crime per se. In Com. v. Gendrachi 389 A.2d 604 we are reminded that "intent need not be directly proved, but may be inferred from the circumstances surrounding the incident out of which the charges arise". The accused was busted in mildly suspicious circumstances at 5:20 am in the dead of winter, urinating. The court notes that "There is no evidence that appellant's hands were on the door or that he made an attempt to extract the tools from his pocket and apply them to the door. In fact, there is no act or statement by appellant that would lead one to infer that he intended to use the tools at that time", and that "appellant is a certified locksmith and it is not unreasonable to find the tools of his trade in his pocket, especially when he is wearing his work attire". Note that this is on appeal: he was convicted initially. The point is that there is a lot of slop in cashing out the legal concept of "intent". Pennsylvania does not, apparently, have any specific laws that refer to lock picks. It does have a statute that addresses having criminal tools, which are defined as (including) "Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have". Mr. Gendrachi had those very tools, and the appeals court did not say anything to suggest that the tools were not "criminal tools" (and in FN 5 they actually point out that the Commonwealth cannot say that the tools were weapons, a ludicrous proposition never raised by anyone – so by failing to deny that lock picks are criminal tools, they are adoptively admitting that they are criminal tools). Thus I conclude that there is a law in PA, that lock picks are burglary tools, and that the government would have to prove intent to use criminally. | colorado Short Answer This woman was engaged in legally permitted self-defense when she killed the man with a knife in the kitchen under Colorado law, and she has not committed any crime. Her conduct would also not provide a basis for a valid lawsuit for money damages against her. Long Answer Applicable Law In Colorado's state criminal code, the relevant statutory section, Colorado Revised Statutes, § 18-1-704, states, in the pertinent parts (emphasis mine): Use of physical force in defense of a person - definitions. (1) . . . a person is justified in using physical force upon another person in order to defend himself . . . and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: . . . (b) The other person is using . . . physical force against an occupant of a dwelling . . . while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit . . . sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000. The referenced definition of burglary as relevant to this fact pattern is that: A person commits . . . burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property. Note also that it doesn't matter for purposes of the burglary statute, if this is her kitchen, or someone else's, so long as it is not his kitchen. Also he need only be "attempting to commit burglary", so even if he was trying unsuccessfully to get into the house and assaulting her from just outside a door or window, her use of deadly force to prevent burglary would be justified. On the other hand, if he was lawfully present in the home (perhaps a husband or roommate), the burglary justification for the use of deadly force would no longer be present. The referenced sexual assault statute states in the pertinent part that it is committed if: Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will . . . [which includes any case in which:] The actor causes submission of the victim through the actual application of physical force or physical violence[.] Even if he does not "reasonably appears about to commit" sexual penetration or intrusion (which are necessary for the crime to be sexual assault for purposes of the use of deadly force law in Colorado), unlawful sexual contact is a crime against a person in an occupied dwelling, so it constitutes burglary that justifies the use of deadly force, even if it doesn't constitute sexual assault. Under these circumstances, the woman may use deadly physical force if she reasonably believes a lesser degree of force is inadequate to cause the rapist to cease committing sexual assault, and any other crime against person or property in the home. Application Of Law To Facts There is no reasonable doubt that the man is, at a minimum, in the process of committing burglary, and very likely sexual assault as well, although the language of the question is somewhat coy on this point as relevant to the Colorado definition of sexual assault. He has proven himself capable of physically overpowering her efforts to resist him with non-deadly force without success. This demonstrates that non-deadly force was inadequate. She used a knife to kill him for the legally authorized purpose of ending a burglary and probably also a sexual assault. Therefore, her use of a knife to kill him is almost certain be a use of deadly force for purposes of self-defense which is permitted by Colorado law. As a result, she would not be legally guilty of any crime for killing him with a knife in these circumstances. Incidentally, she would also have no civil liability in tort for money damages in this situation in Colorado. Application To Other U.S. States The exact wording of self-defense statutes differ from one U.S. state to another and I don't personally know every fine statutory detail of every one of them. But, Colorado's statute is quite typical. A state where her actions did not constitute legally justified in these circumstances would be an extreme outlier in U.S. law. I would be surprised if there was any U.S. state in which her actions would not constitute legally justified self-defense. Historical Note Suppose that the man in the question were the woman's husband in their own home where they were both lawfully present. Prior to the 1970s, marital rape was legal in every US state. It was partially outlawed in Michigan and Delaware in 1974, then wholly outlawed in South Dakota and Nebraska in 1975. The court case Oregon v. Rideout in 1978 was the first in which someone stood trial for raping his spouse while they lived together. By 1993 marital rape was a crime nationwide. (Source) Under current U.S. law in every U.S. state, the sexual assault justification analysis would be no different because there is no marital immunity for the crimes of sexual assault, although the burglary justification would no longer be present, so an intent to commit unlawful sexual contact without penetration or intrusion would not justify the use of deadly force. But, when marital immunity to sexual assault was part of the law, as it was in every U.S. state prior to 1974, and as it was in some U.S. states until 1993, she would be guilty of second degree murder or manslaughter. The distinction between second degree murder and manslaughter in that case would hinge upon whether she had an intent to kill or only intended to harm (as in a case cited by Jen in her answer). Also, she would have a good argument for manslaughter due to provocation by the victim that was not sufficient to justify the use of deadly force, even if jury concluded beyond a reasonable doubt that she did intent to kill him. Colorado's self-defense statute (in a subsection omitted because it was not applicable to the facts in the question) also permits the grade of a criminal offense caused in the course of conduct intended as self-defense that does not meet the statutory standards for self-defense (e.g. because non-deadly force would have been sufficient) to downgrade the severity of the offense for which the person may be convicted, in a manner similar to the "heat of passion" defense. But, these facts present no plausible justification for a first degree murder, which is often a charge punishable by death penalty or life in prison without the possibility of parole, since it was not premeditated or committed in connection with a crime by the perpetrator. Realistically, under the circumstances of the question, if he was her husband and they were in their own home, during a time frame when there was marital immunity from sexual assault charges, she would most likely be convicted of manslaughter under these circumstances. Side Observation The U.S. Supreme Court has held in Kennedy v. Louisiana, 554 U.S. 407 (2008) that the 8th Amendment to the United States Constitution, directly and as incorporated against the states under the 14th Amendment, prohibits the imposition of the death penalty for a rape not resulting in death (even the rape of a child). The death penalty has been unconstitutional in cases involving the rape of an adult woman in the U.S. since U.S. Supreme Court case of Coker v. Georgia, 433 U.S. 584 (1977). There are many serious felonies (including some omitted from the Colorado statute above because they were not applicable to this fact pattern) for which the use of deadly force in self-defense is authorized even though the U.S. Constitution prohibits the use of the death penalty upon a conviction of that offense which does not result in someone dying. | canada In Canada it all depends on whether it is Bob or Alice who is female. If it is the male who lies about the use of contraception it results in sexual assault (R. v. Hutchinson), and in the case of sexual assault it is possible to sue for damages in civil court. In contrast if it is the female who lies about the use of contraception it does not result in sexual assault (🤦), and thus suing for damages is not possible (PP v. DD, 2019 (this is literally the case you describe)). To understand this legal difference one has to go back to the 1998 case R v. Cuerrier, which was about which lies cause consent to sex be withdrawn. Does lying about your identity count (impersonating your twin)? Does lying about your wealth count? Does lying about your religious believes count? Specifically in that case someone had not disclosed that they had HIV. The court ruled in that case that sexual assault laws should only concern themselves with lies that create a risk of physical harm, and thus 'causing someone else to get you pregant' does not count, whilst 'causing someone else to become pregant' does count. Anyway, an amazing article about this can be found on thewalrus.ca, which discusses exactly these cases. It's definitely worth a read, but here is their description of PP v. DD: THE CONSEQUENCES OF Hutchinson played out earlier this year in PP v. DD, a decision released recently by the Ontario Court of Appeal. In PP, the plaintiff and the defendant were in a brief sexual relationship that resulted in a child. The plaintiff alleged that the defendant had lied to him about being on birth control, and that this lie had both robbed him of the ability to choose the timing and circumstances of the birth of his first child, and exposed him to the significant expense of childcare. In PP, the plaintiff chose to seek a remedy in civil court—meaning, essentially, that he wanted damages, not the imposition of criminal liability—arguing that the defendant had defrauded him. The plaintiff’s case in PP failed, mostly for policy reasons. Canadian law, like many other jurisdictions, is extremely reluctant to recognize any cause of action that might allow people to circumvent child-support obligations. But the Court of Appeal also commented on whether the plaintiff could advance a claim for sexual battery—the non-criminal counterpart of sexual assault. Relying on Hutchinson, the Court of Appeal concluded that the plaintiff’s consent to the sex he had with the defendant had not been cancelled out by her alleged fraud, because a woman who lies about being on birth control does not expose her male partner to any risk of significant bodily harm. | Does cybersex count as pornography? The law does not define pornography, so this is up to an interpretation of the courts. However, it appears to be common consent that a depersonalisation of the subjects is an essential aspect. For example, this verdict notes (translations and emphasis mine): Pornographie liegt nach der Rechtsprechung des Bundesgerichtshofs und der Oberlandesgerichte vor, wenn eine Darstellung unter Ausklammerung aller sonstigen menschlichen Bezüge sexuelle Vorgänge […] in den Vordergrund rückt […] (vgl. BGHSt 37, 55 (60); 32, 40 (44 ff); OLG Karlsruhe NJW 1974, 2015 (2016); OLG Düsseldorf NJW 1974, 1474 (1475); ebenso BVerwG NJW 2002, 2966 (2969)). […] Hinzukommen muss deshalb als weiteres Kriterium die sog. „Apersonalität des Geschlechtspartners“ (vgl. Erdemir, MMR 2003, 628 (631)). Die Darstellung muss mit anderen Worten durch eine Verabsolutierung sexuellen Lustgewinns unter gleichzeitiger Entmenschlichung der Sexualität geprägt sein. Pornographie ist danach anzunehmen, wenn der Mensch im Rahmen der Darstellung zum bloßen, auswechselbaren Objekt sexueller Begierde degradiert wird (vgl. S/S/Lenckner/Perron/Eisele, StGB 27. Aufl., § 184 Rdn. 4; MK-Hörnle a.a.O., § 184 Rdn. 15; jeweils m. w. Nachw.). […] According to the Federal Court’s and the state courts’ jurisdiction, a depiction is pornography if it emphasises sexual procedures disregarding all human aspects [references] […] Therefore, a necessary further criterion is the so-called “depersonalisation of the sexual partner” [reference]. With other words, the depiction must be dominated by a absolutisation of sexual pleasure and a simultaneous dehumanisation of sexuality. Therefore pornography has to be asserted if a depiction reduces human beings to mere replaceable objects of sexual desire [references]. (Also see the German Wikipedia for another summary and further references on the subject.) Now, cybersex usually, if not inherently, is a personal procedure, as opposed to a depersonalised one. Therefore I would not consider it to fall under the quoted definition of pornography. What other laws do regulate cybersex? The law governing the age of consent is § 176 StGB (translation), which includes: (4) Mit Freiheitsstrafe […] wird bestraft, wer […] auf ein Kind mittels Schriften (§ 11 Absatz 3) oder mittels Informations- oder Kommunikationstechnologie einwirkt, um […] das Kind zu sexuellen Handlungen zu bringen, die es […] vor dem Täter […] vornehmen […] soll, […] (4) Whosoever […] influences a child with written materials (section 11(3)) or with information or communication technology to induce him to engage in sexual activity […] in the presence of the offender […] shall be liable to imprisonment […]. *Translation adapted from this one to reflect recent changes to the law. Note that Kind (child) was established as Person unter vierzehn Jahren (a person under fourteen years of age) before. I would interpret this to capture cybersex. The only thing about this that may be debatable is whether the sexual activity during cybersex happens in the presence of the offender (i.e., the other person). |
How often can you appeal a rejection of the appeal(s) made? How often can you appeal a rejection of the appeal(s) made regarding a penalty fare notice? The appeal is appealing to the good nature and sense of humanity and justice, as the initial appeal was rejected. There was no specific reason how and why they came to conclude with a rejection. It simply claimed that the experience and explanation of the passenger was not "justified". My appeal had no intention to justify anything, I was merely explaining what I had experienced. Or are these the public transportation companies using the term "justification' interchangeably with "satisfaction"? | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. | england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: "Infinite" indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2. | In case a company is flooded by such "asymmetric" requests, how should a company react? Although article 12.5 refers to singular "a data subject", it can be inferred that exposing the controller to significant expenses is not part of the legislative intent. Accordingly, the company may have requesters choose between paying a reasonable fee for the ensuing administrative costs or withdrawing the requirement that delivery be by postal mail. The bad faith scenario you outline seems to be a non-sequitur, since generally a pattern (or a high number) of requests for postal mail delivery should prompt the controller to suspect that some or many might not be legitimate. A requester with bad intentions would be unable to prove the identity of the various data subjects he impersonates or alleges to represent. | Yes. A dispositive motion is a motion that can end the case. The most common are a motion to dismiss and a motion for summary judgment. A motion for judgment on the pleadings is like a motion to dismiss but usually for plaintiffs arguing that even if everything in the answer to the complaint is true, that the plaintiff still wins as a matter of law. This tends to come up most often in limited jurisdiction courts with pro se parties who fill out and file their own answer on a court form, usually in response to a collection action or eviction, with stuff like "I can't afford to pay" or "my mother died and I need another few month since I used up my money for health care her final illness and for her funeral." | There has never been a right to appeal directly, or discretionarily form a state trial court to SCOTUS. But, one can apply for a common law writ in SCOTUS with respect to a state trial court actions under the All Writs Act which is functionally an appeal, even though it is technically an original SCOTUS proceeding. But, original SCOTUS writs are extremely rare and I don't know if it has ever been used in the manner you describe. If so, it probably happened before the intermediate federal courts of appeal were created in the late 1800s. It isn't easy to do a search of cases to determine the answer. UPDATE WITH CORRECTION: After further consideration, I think that I have a better idea of what the question was getting at and want to elaborate on that. Most state courts (Utah, Texas and Oklahoma are exceptions to the general rule[1]), have either an intermediate court of appeal and then a state supreme court (sometimes given a different name such as "Court of Appeals" in New York State, in which the Supreme Court is the name of the trial court of general jurisdiction and the intermediate appeals court), or only a state supreme court from which appeals lie directly to the state supreme court. [1] In Utah there is an appeal of right in every civil case to the state supreme court and the intermediate court of appeals considers cases that it "kicks down" to the court of appeals rather than dealing with itself. In Texas and Oklahoma, there is a Court of Criminal Appeals in addition to the State Supreme Court, which operates much like a Supreme Court in criminal cases with the state supreme court that is nominally superior only rarely intervening in criminal cases (I don't know when precisely it can intervene in those states). In every state with an intermediate appeals court, there is an appeal of right to an intermediate appeals court which must be considered on the merits, and then a discretionary appeal to the state supreme court. Sometimes in these states there are a handful of exceptions. For example, in Colorado, there is a direct appeal of right to the state supreme court in death penalty and water law cases, and in municipal court and limited jurisdiction court cases (i.e. cases in courts limited to $25,000 in controversy or less), there is an appeal of right to what would usually be the general jurisdiction trial court and then a discretionary appeal from there to the state supreme court). But, there is still almost always one court to which there is a direct appeal of right. There are a small but non-negligible number of cases where what is usually a general jurisdiction trial court serves as an intermediate court of appeals of right for a lower trial court (e.g. a small claims court or municipal court), with appeal from there only in the discretion of the state supreme court. Those cases can and very rarely (but sometimes) do go on to be considered by the U.S. Supreme Court when a state supreme court denies discretionary review (in addition to being rare, few such cases are significant enough to justify the effort on the part of the parties to do so and are considered significant by the U.S. Supreme Court too), just as they would when an intermediate court of appeals rules and a state supreme court denies certiorari at the state level. But, in that case, the direct appeal still isn't a direct appeal of a "court of first instance" (i.e. a court where the original trial on the merits is held). But, there is no constitutional right to a direct appeal of right (there is only a constitutional right to a collateral attack via habeas corpus in criminal cases resulting in incarceration). The right to a direct appeal in state courts is a product of state law and state constitutions (in the federal courts it is a consequence of federal statutes). In some states without an intermediate court of appeals, there is also an appeal of right to the state supreme court. But, in other states without an intermediate court of appeals, appeals to the state supreme court are discretionary (much like appeals to the state supreme court from an intermediate appellate court and appeals to the U.S. Supreme Court). Thus, if you are in a state in which there is only a discretionary appeal to the state supreme court, and the state supreme court declines to consider your appeal on the merits, you can appeal to the U.S. Supreme Court once the state supreme court has declined your state level petition for certiorari. The actual pre-requisite at the state level in a direct appeal is that your state direct appellate options be exhausted. So, if you are in a state without intermediate courts of appeal in which the state supreme court reviews trial court decisions on only a discretionary basis, then you can make a direct appeal to the U.S. Supreme Court if you have sought review on direct appeal in the state supreme court and it declined to grant certiorari to review your case on the merits. In practice, this is still very rare. States without intermediate appellate courts are universally small in population and hence have small case loads. Most states with only a single supreme court still have at least one direct appeal of right and have had that right for most of their history. And, state supreme courts usually do exercise their certiorari power in cases that are worthy of discretionary consideration in the U.S. Supreme Court. But, in this narrow situation, the U.S. Supreme Court may consider a trial court decision on a direct appeal, without it ever having been considered on the merits at the state level. This happens rarely (although the U.S. Supreme Court not infrequently, i.e. perhaps a couple of times a year, considers a case upon which there has been an intermediate direct appeal and a state supreme court has refused discretionary review), but it has almost certainly happened sometime. It is hard to devise a legal research search that would locate such a case, however, and strictly speaking, the denial of certiorari can be seen as a state supreme court ruling that is required in almost every case. | Here's the thing: if the plaintiff/appellant/claimant are the same legal entity as the defendant/respondent, it's plain to see that one of them must lose. For instance, consider a case where two trains operated by the same corporation collide. Assuming that the drivers both performed their duties, the company is vicariously liable – such a case is frivolous and is likely to be thrown out for that reason. It's just a waste of time and money. Or your second example: If the woman was driving the city vehicle and crashed it in the course of her duties, it is the city that will be the defendant in the proceedings, not the woman. So essentially: while it's difficult to prove that something has never happened, these are good reasons to expect it would not happen. | Bad people are quite uncommon Most people behave in good faith most of the time - don't tie yourself in knots over the very few people who would be unscrupulous enough to try to do this. Burden of proof The person who makes the allegation has the burden of proof on the balance of probabilities. So the person who claims they didn't receive it has to prove that. If there are two equally credible witnesses, one saying they packed and posted the thing and one saying the thing was not packed then the burden has not been met. If the person who packed it has a photo of it packed and addressed then the other person has definitely not met their burden of proof. Insurance Insure it against loss or damage in transit. Then you can just replace it and claim on your insurance. | You need, at least, to let the person receive 2 reminders which have to name a reasonable period (after the first exceeds, you can send the second) and if the last deadline exceeds, you have the possibility of escalating further. Although often repeated, this is not correct which makes most of your argument moot. By German law (specifically § 286 BGB) these are the exact conditions for a default of payments: (1)If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice. Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice. (2)There is no need for a warning notice if a period of time according to the calendar has been specified, performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar, the obligor seriously and definitively refuses performance, for special reasons, weighing the interests of both parties, the immediate commencement of default is justified. (3)The obligor of a claim for payment is in default at the latest if he does not perform within thirty days after the due date and receipt of an invoice or equivalent statement of payment; this applies to an obligor who is a consumer only if these consequences are specifically referred to in the invoice or statement of payment. If the time at which the invoice or payment statement is received by the obligor is uncertain, an obligor who is not a consumer is in default at the latest thirty days after the due date and receipt of the consideration. (4)The obligor is not in default for as long as performance is not made as the result of a circumstance for which he is not responsible. Depending on what was contractually agreed on the default happened even before the first warning. For example that is the case if a specific payment due date was agreed to. Even if a warning would be required it is only one and you can see that no requirements on the specific wording or form on that warning is given. I don't know how you assume an "official reminder" should look like. According to the law a specific and explicit demand to fulfill an obligation is enough. Also, the warning does not need to contain a specific date. If it doesn't the default is effective immediately. |
What is/was a court of "judicature," and how is it named? Supreme court of judicature etc. I feel like it may even still be a thing in Scotland, but you see it in older EWCA decisions. What does the word mean and what does it note to qualify a court's name with it? | My understanding is that is simply another term for a "court of law" or for a "court of justice". All of those terms simply mean a court, a place where judgements under law are made. Which term is used is a matter of history and tradition, or perhaps of style. The term does not of itself imply any difference of rules or authority or procedure. Different courts do have different procedures to some extent, and if one court normally uses one term for itself, then that term may go with that court's procedure to some extent. Merriam-webster gives as sense 2: a court of justice Collins gives as sense 4: a court of law Cambridge gives: the legal system and the work it does The legal section of the Free Dictionary gives: A term used to describe the judicial branch of government; the judiciary; or those connected with the court system. ... Judicature refers to those officers who administer justice and keep the peace. It signifies a tribunal or court of justice. ... [sense 5] a court of justice or such courts collectively. | The concept of prima facie is common also in civil proceedings (and, impliedly, administrative ones). See the results from this query, most of which are civil cases. For instance, this memorandum opinion begins by acknowledging that the plaintiff-appellees "have met their burden of establishing a prima facie case for defamation". In theory, the purpose of prima facie elements is to establish "high-level" uniformity as to what items a plaintiff or prosecutor, as the case may be, will need to prove in order to prevail in a case. That uniformity is necessary for --and consistent with-- the so-called "equal protection of the laws". From a standpoint of equal protection, there is no reason why a case being criminal vs. civil should make a difference regarding the applicability of the concept of prima facie elements. | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). | Current Place of Magna Carta in US law Magna Carta is not now a current statute in any part of the US. I don't think it ever was (not since the US became independent of the UK), but I am not sure of that. Its words influenced the drafters of the US Federal Constitution. In some cases it may thus be helpful in understanding the original intention of the framers, but probably The Federalist and the records of the debates of the Philadelphia Constitutional Convention are far more persuasive and more helpful. The major decisions of the Marshall Court are also very relevant. The US Supreme Court can and does change its interpretation of laws passed by Congress and of the Constitution. The words of Magna Carta are not more binding than Supreme Court decisions. In fact they are not binding at all, on any court or official in the US in any way. They are part of our legal history, but they are mnot current law, no more than the Code of Justinian or the Laws of Hammurabi are. The detailed procedural rules of Magna Carta are certainly not in fore in the US in 2022, nor in the UK either. The Ninth Amendment, which protects unenumerated rights of the states and the People does not protect,such procedural details, At least it has never been held to do so, to the best of my knowledge. I don't even know of a case where such a contention was seriously argued. The question states that: The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions. There is a sense in which this is true, but a very weak one. The concept of “Due Process of Law” was to some extent spelled out in Magna Carta, and later court decisions and legal and political philosophers (such as Locke) built on it. But most of the specifics of what constitute "due process" at the time of Magna Carta have since been dropped, and most of the current requirements were added much later. The idea of a hearing before an impartial tribunal, where the accused can present evidence, goes back to MC. Other requirements of due process, such as a right to a lawyer, rights against self-incrimination, rights against double jeopardy, the right of an accused to testify under oath, the right of an accused to issue subpoenas to witnesses, the right to an impartial jury, The right to be free of search, seizure or arrest unless probable cause has been shown under oath, and many others were added long after MC, some not until the 20th century. Such one-time aspects of due process as the right to be tried by members of one's own social class, a vital aspect of MC, are long gone, and never really existed in the US. Two-Witness Rule There was an early debate in a Supreme Court case, a perjury case if I recall correctly, on the need for two witnesses for conviction, but later statues have altered that rule. I don't know of any such rule ever applying to arrests in the US. It surely does not apply now. Coke and Magna Carta Early in the 1600s Lord Justice Edward Coke used the text of Magna Carta (among other things) to argue that Equity courts should not be able to use injunctions to stop cases pending in common-law courts. To do this he gave to Magna Carta a semi-sacred status it did not have when it was originally issued. (Indeed J.C. Holt, in his classic study Magna Carta, arguses that the charter was a victory for King John, and a defeat for the Barons, because the Barons allowed themselves to be bought off by promises that John never intended to keep, and that were not, in fact, kept. He further argues that it was the re-issues over the period 50-100 years later that gave MC what contemporary force it had, but that it was Coke's invocation of it that gave it the modern reputation as a foundation of freedom. I agree.) Coke claimed things for Magna Carta it could not have meant at the time it was issued, as the equity courts did not exist as an institution at that time, and would not for several generations. Charles Rembar, in his excellent non-technical history of Anglo-american law, The Law of the Land: The Evolution of Our Legal System (ISBN: 978-1-5040-1566-0; 1980) wrote (pp. 57-8): Early in the 1600s, Lord Justice Coke declared that neither king nor Parliament could transgress fundamental principles of common law. In time the proposition was true enough for king (also, academic: he himself could make no law, fundamental or trivial), but it has never held for Parliament; no one in office followed Coke along this line, not even Coke himself. Removed from the bench, he entered the House of Commons, and fought the Stuarts there. In the last stage of his long career, Coke asserted the utter supremacy of Parliament, an assertion which by the century’s end had become the constitutional law of England. The equation of "Due Process of Law" with "Law of the land" was part of this argument on Coke's part; it was, in effect, a piece of spin, which not all later scholars have noticed. "Due process" was, at beat, a part of the "law of the land", and it was always subject to modification by Act of Parliament (earlier, by acts of King-in-Council). It is true tht the US Supreme court has taken "Due process" in a procedural sense, to imply in most cases the right to a hearing, before an impartial tribunal, including a right to present witnesses and evidence, and that several of these principles are mentioned in Magna Carta, and come down to us from MC through much legal history. Magna Carta in the Case of Murray's Lessee In the case of Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) The US Supreme Court looked back throigh legal history to consider what is and is not permitted by the US Fifth Amendment, and its "Due process" clause. This is the kind of extensive excursion into legal history that was more common in Court opinions from the fist half of the Nineteenth Century that it is now. (Rembar remarked, on p 170 of The Law of the Land, "the Supreme Court, ... is fond of legal history and often gets it wrong.) But it is important to note how that opinion from the Taney Court (not the previous Marshall Court) used Magna Carta. The court wrote: [59 U. S. 277] We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period since the establishment of the English monarchy when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. In short that court is interested in Magna Carta only as it has influenced US state and Federal statutes. It in no way states or implies that the exact procedure of Magna Carta must be that of the current US, or is assumed to be such in the absence of a statute changing that procedure. Rather it looks at how US States adopted procedures derived from MC as a guide to the meaning of the Due process clause. After discussing at 59 U. S. 278 what the procedure for retrieving money from tax officials who had allegedly retained it improperly under the statutes of the Tudors (already long after Magna Carta, although well before Coke) the Court wrote: [59 U. S. 278] This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England is sufficient to show that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on other subjects, and that, as respects such debts due from such officers, "the law of the land" authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. It is certain that this diversity in "the law of the land" between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the Constitution of the United States. ... [59 U. S. 279-280] Provisions not distinguishable from these in principle may be found in the acts of Connecticut (Revision of 1784, p. 198), of Pennsylvania, 1782 (2 Laws of Penn. 13); of South Carolina, 1788 (5 Stats. of S.C. 55); New York, 1788 (1 Jones & Varick's Laws, 34); see also 1 Henning's Stats. of Virginia, 319, 343; 12 ibid. 562; Laws of Vermont (1797, 1800), 340. Since the formation of the Constitution of the United States, other States have passed similar laws. This legislative construction of the Constitution, commencing so early in the government when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was "due process of law." *Prigg v. Pennsylvania-, 16 Pet. 621; United States v. Nourse, 9 Pet. 8; Randolph's Case, 2 Brock. 447; Nourse's Case, 4 Cranch C.C.R. 151. Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law when applied to the ascertainment and recovery of balances due to the government from a collector of customs It is to support this last conclusion on what is and is not Due Process under the Fifth Amendment that the Court examined history, including Magna Carta. All the rest of this discussion of history was Obiter Dictum not binding precedent. And of course, not Supreme Court precedent is binding on future Supreme Court rulings. The court can and does overturn its own decisions, and change its interpretations of the Constitution. Wooden v. United States and its citation of Murray's Lessee In Wooden v. United States (Mar. 7, 2022, No. 20-5279), Justice GORSUCH in his opinion concurring in the result, but dissenting from the majority opinion's reasoning, wrote, starting on page 6 of his separate opinion: Consider lenity’s relationship to due process. Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of “life, liberty, or property, without due process of law" Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person’s freedom or possessions to adhere to “those settled usages and modes of proceeding” found in the common law. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856); N. Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774–1775 (2012). And among those “settled usages” is the ancient rule that the law must afford ordinary people fair notice of its demands. See, e.g., Sessions v. Dimaya, 584 U. S. ___, – (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3– 5). Lenity works to enforce the fair notice requirement by ensuring that an individual’s liberty always prevails over ambiguous law. Early cases confirm the message. In United States v. Wiltberger, a sailor had killed an individual on a river in China. 5 Wheat. 76, 77 (1820). But the federal statute under which he was charged criminalized manslaughter only on the “‘high seas.’” Id., at 93 (quoting Act of Apr. 30, 1790, § 12, 1 Stat. 115). Chief Justice Marshall acknowledged that other parts of the law might have suggested Congress intended to capture the sailor’s conduct. 5 Wheat., at 105. But he insisted that “penal laws are to be construed strictly” because of “the tenderness of the law for the rights of individuals”—and, more specifically, the right of every person to suffer only those punishments dictated by “the plain meaning of words.” ... United States v. Mann tells a similar story. 26 F. Cas. 1153 (No. 15,718) (CC NH 1812). ... As the framers understood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand The first thing to note is that this is not a majority opinion, and so not binding law. Indeed another opinion in this case specifically responds to Justice Gorsuch's views, taking issue with them. The next thing to note is that while the opinion does cite Murray’s Lessee, it never so much as mentions Magna Carta, nor does it quote any of the mentions of Magna Carta in Murray’s Lessee. Justice Gorsuch cites Murray’s Lessee to support two principles. One is the "rule of lenity" whch says theist when there is ambiguity in a criminal statute, it shall be read so as to favor the accused. The other is the "rule of fair notice" which says that a person shall not be convicted of crime unless some law clearly makes the actions charged criminal. Justice Gorsuch derives both of these from the Due Process clauses of the Fifth and Fourteenth amendments. To establish this, he cites, not Magna Carta, nor cases from Tudor times, nor US cases from before the Constitution, but US Supreme Court cases written by Justices Marshall and Story (both members of the Marshall Court), and one of the numbers of The Federalist (often considered a good guide to the intentions of the framers). Nothing in this citation implies that the detailed procedures of Magna Carta are now in force, nor that they ever were in the US. It applies only a general rule of law, not a detailed procedure, and that on the basis of US Supreme Court precedent, not because Magna Carta says so. The Great Charter may have been one of the earliest statements of these rules, but it is the reconfirmation of them, in case after US case, that makes them part of US law today. | The concept of law predates writing. "Law" refers not only to the system of rules, as your definition notes, but to the individual rules making up that system (for example, there is a law that prohibits theft). An act is, more generally than the definition you quote, a thing that is done (for example, someone who is discovered committing a crime can be said to have been "caught in the act.") This also does not depend on writing. In our literate times, however, when a legislature (or any body, such as a corporate board of directors), wants to achieve something, someone writes a description of a proposed result. When the body makes a formal decision to adopt the written document (by a vote, for example), it is deciding to do the thing described in the document; that is, it is deciding to act. Typically, for a legislature, the thing it's doing is to create, modify, or repeal a law. It's not very difficult to see how a document that describes a legislature's desire to act came to be called an act. In some contexts, however, it can also be called a law. So the word law can refer to the entire system (as in law school), to a particular act (as in the legislature passed a law today called the XYZ Act), or indeed to a particular rule or section of an act (as in the law in question is subparagraph 2(B)(ii)(b) of the XYZ Act). Law can also refer to case law, of course, or regulatory law, so we tend to use statutory law or statute to denote the laws created through the legislative process. In conclusion, the word "law" has several related meanings, so its use can be imprecise. When speaking about specific paragraphs, precision may be in order. In a case like this, where a paragraph create exceptions to rules laid out in a preceding paragraph, it doesn't make a lot of sense to describe each paragraph as a "law." The numbered items in statutory text can be called many things, and usually have different names depending on the level at which they are found. So I would not know whether these are sections, subsections, paragraphs, subparagraphs, or something else. If I were unable to find the correct terminology for (in this case) India, would probably use a generic term like "items." | united-states In Colorado (which is an outlier among U.S state court systems), trial court judge in the state court system has a duty to rule on pending motions within three months, and if they do not, a litigant can, after providing certain notices to the judge and appropriate authorities in the court administration office move to have the judge's paycheck suspended until the judge rules. In practice, even most lawyers don't know that this rule exists. Those lawyers who are aware of this rule virtually never utilize it, out of the well founded belief that it only makes sense to do so if you are a client in a very time dependent situation whom you are certain the judge will rule against when the judge actually gets around to ruling and you want to get on to the appellate process quickly for the client. Even then, the prevailing assumption is that the judge will be prejudiced against litigant in all discretionary matters for the rest of the case, and that the lawyer for that litigant will be at a disadvantage before that judge for the rest of his or her legal career. Colorado has no similar duty for municipal court judges or administrative law judges (who are not administrative part of the state judicial branch), or for appellate court judges. Likewise, there is no such duty in federal court. In an extreme circumstance, a state court litigant could file a Colorado Appellate Rule 21 motion (formerly called a writ of mandamus) with the Colorado Supreme Court seeking interlocutory relief from the excessive delay, and a federal court litigant in an Article III federal trial court could seek parallel interlocutory relief from the U.S. Court of Appeals for the Circuit in which the trial court is located. But, either way, the likelihood of the relevant appellate court actually granting interlocutory relief for excessive delay by a trial court in addressing a pending matter is virtually nil, unless the case is one statutorily entitled to priority scheduling such as election law cases, protective order cases, and in Colorado state court, in certain civil cases involving very elderly parties. By way of example, I have had civil cases in which dispositive motions have been fully briefed and awaiting a ruling from a judge in both a general jurisdiction state trial court, and also in a different federal court, in which no ruling was forthcoming for more than a year after the matter was fully briefed. It isn't terribly unusual when appellate court rulings are released, to see that the oldest case ruled upon (often an appeal of a serious criminal conviction) that day was filed five or more years before the opinion is issued, even though once a trial court record is transmitted to the court (which typically takes three to six months), and there are typically only three or four appellate briefs to be filed plus half an hour of oral argument to conduct once the case is fully briefed for the appellate judges to consider before ruling. There are rare cases where proceedings can be even slower due to exigent circumstances. For example, I once had a limited jurisdiction civil case that went to trial over automobile repairs in which the presiding judge who had heard all of the testimony and taken careful notes from it had a serious health incident the evening after the last day of the trial, leaving him hospitalized for seven months, and in which it was discovered that the tape recorder that was supposed to have recorded the trial court proceedings that could have been used to create a transcript for use by another judge to rule on the case was broken and had recorded nothing. A year after the trial was completely and the judge had recovered and returned to work, we got the judge's ruling that he otherwise would have provided within a week (because that would have been his normal practice, not because he was required to do so) had he not been hospitalized. Needless to say, no one can tell the U.S. Supreme Court to speed up ruling on a matter in any binding way. There are some exceptions to this in U.S. criminal law trial practice at both the state and local and at the federal level, where there is a constitutional right to a speedy trial that if abridged results in the dismissal of charges against the defendant, and there are a few other deadlines of a similar character related to the post-conviction process. There is also a very short deadline in criminal cases, once a defendant is arrested, for the defendant to have a first appearance before a judge. | Are the steps of the process of judicial review spelled out anywhere? Judicial review isn't a separate kind of legal proceeding. It is something that happens in the course of making legal rulings in an ordinary lawsuit, or in a criminal case, commenced in a court where there is trial court jurisdiction over the kind of case presented. Usually, the trial court is a U.S. District Court in the federal system, and the trial court of general jurisdiction in the state system. But, in principle, any judge of any trial court, even traffic court or small claims court has the authority and the obligation to rule on the constitutionality of any statutes challenged in a case before that judge. Also, some appellate courts, while primarily having appellate jurisdiction, have a small class of cases where they act as trial courts. For example, the U.S. Supreme Court has original trial court jurisdiction over lawsuits of one or more U.S. states against one or more other U.S. states and handles a few such cases each year in a typical year. Similarly, many state supreme courts have original trial court jurisdiction over ethical violation cases brought against attorneys in the state. The initial ruling on the constitutionality of a statute almost always takes place in the trial court, rather than in an appellate court, although appellate courts review the trial court's ruling on constitutionality on appeal, if there is an appeal. The only times an appellate court acting as an appellate court raises the issue of the constitutionality of a statute for the first time on appeal are (1) when that issue goes to the subject-matter jurisdiction of the trial court or appellate court over the case, (2) where the failure of the court to raise the issue that a statute was unconstitutional of its own accord amounted to "plain error" or "structural error" by the trial court, or (3) where the trial court ruled in favor of a party for a non-constitutionality related reason which the appellate court finds was incorrect but the appellate court affirms the trial court anyway on the basis of the unconstitutionality of a statute at issue in the case before it. While a legal ruling on the constitutionality of a statute happens in the trial court, however, the ruling is often made prior to an evidentiary trial on the merits of the case, for example, in a ruling on a motion to dismiss a claim (made based upon the allegations of the person brining the claim in court documents alone), in a ruling on a motion for summary judgment (which is similar but is supported by exhibits and affidavits from the parties to develop the factual context), or in a ruling on a pretrial matter (e.g. an evidence suppression hearing before a judge prior to a trial in a criminal case) that is subject to what is called an interlocutory appeal (i.e. an appeal to an appellate court before the entire case is concluded with a trial on the merits). Also, even when there is an evidentiary trial on the merits, the case may be one in which there is a bench trial, rather than a jury trial, since many constitutional questions involve issues that are not subject to the jury trial right. The constitutionality of legislation and also of policies and practices of governments carrying out their duties, is one issue, often one issue of many, that is ruled upon, in the context of litigation between a party that has suffered a particularized injury from the unconstitutional action (as opposed to one shared by all citizens or all taxpayers), against a party that causes or has the power to prevent that injury. So, for the most part, the constitutionality of legislation is decided either in the context of a civil lawsuit, which is governed by the ordinary rules of civil procedure (see, e.g., In re A.C.B., 2022CA3 (Colorado Supreme Court January 6, 2022), holding that an indigent defendant in a civil contempt proceeding potentially resulting in incarceration had a right to counsel and vacating the contempt of court ruling entered when he was pro se as a result), or in the context of a criminal case against a criminal defendant subject to the ordinary rules of criminal procedure (see, e.g., U.S. v. Hansen, Case No. 17-10548 (9th Cir. February 10, 2020) reversing on direct appeal from a criminal conviction the trial court's conclusion that 8 U.S.C. § 1324(a)(1)(A)(iv) was constitutional as applied to the fact pattern of Mr. Hansen's case). There is a slight nuance in federal civil and criminal cases where the issue of constitutionality of legislation is raised, and also in most state courts. This is the court rule requirement that the attorney-general (the state attorney-general in the case of state court litigation and in the case of federal court litigation over the constitutionality of a state law, and the federal attorney-general in the case of federal court litigation) be joined as a party to the case in order to present an opportunity for the state or federal government, or both, as the case may be, to chime in on the constitutionality issue that affects far more people than the actual parties to the case. See, e.g., Federal Rule of Civil Procedure 5.1. But otherwise, there are no special court rules or procedures that apply to cases in which judicial review of legislation is sought. Also, in the event that one party makes a novel challenge to the constitutionality of legislation, and the government doesn't object because the government agrees with the person challenging the constitutionality of the law, it is common practice for the court to recruit an amicus counsel to argue on behalf of the constitutionality of the law, although this practice isn't uniform and is discretionary. This is a function of case law and custom, rather than being a statutory or court rule requirement, however. |
Can investors protect their business idea? Suppose that Alice is the developer/founder of the Uber app and finds an investor for the startup company resulting in the existing Uber company. Suppose also that there is no Lyft or UberEats app out there yet. Which one of the following is possible for Alice to do and not be successfully sued by the investor: Alice thinks Uber is very good but needs some minor modifications. For example she likes to work with drivers only between 40-50! Or she likes to get a cup of coffee to riders. So she decided to write a new application and name it Lyft with my her money. Alice thinks it would be a good idea if the company also delivers foods instead of transfering people. But it should be a new brand name and application, so she writse the UberEats application and names it "EasyFood". (So the UberEats will never have existed). For which of these two scenarios could the Uber investor sue Alice with reasonable hope of success? Also I would like to know, can an investor force a company founder or employee to sign an agreement like "You have no rights to use our co-business idea or any similar ideas to establish a new business like "Lyft" or "UberEats" with your own or any other investors"? Is such a thing possible at all? | An investor can require, as a condition of making an investment, that key management and creative employees of the company agree to a non-compete agreement. If such employes choose not to sign such an agreement, the investor will not invest. This is quite common. If Alice has signed such an agreement, she may not be able to start a new company with such new applications without permission from the existing company. She can surely write such applications for the existing company and get it to modify its business to use them. If Alice (still) owns a controlling share, she can simply order the company to modify or expand its business model. If she has sold enough of the company that she no longer controls it, she must persuade those who do control it to adopt her ideas. Any non-compete agreement must be limited, both in the range of activities it covers, and in the tiem for which it is valid. Some US states impose specific limit on these factors. An agreement tht exceeds such limits will not be enforceable. If Alice was employed by the company at the time she wrote any of these apps, the code may well be owned by the company, either under the work-made-for-hire copyright rule (see 17 USC 101) or under a specific contract of employment. Investors are likely to demand that such a contract be signed before they invest in a tech startup. Alice will also have a duty not to act contrary to the company's interests while employed by it. In the absence of non-compete agreements, Alice might not be prevented from founding or joining a competing company, but may not be able to use work done while employed by the first company for the benefit of a new one. | No more than using your own phone, eyeglasses or underwear while working for the LLC. These are all tools of trade than one wold expect employees of the LLC to bring to their job (especially underwear). There is potentially a problem if assets of the LLC are alienated for personal use rather than the other way around. However, that would be subject to a reasonableness test - using your work computer to book a personal holiday is eminently reasonable. Where there is a real liability issue is if the use of that personal asset caused damage to third parties e.g. if the personal computer was hacked and damage resulted. This would allow a potential plaintiff to bypass the LLC and sue the owner directly (or, more likely, as well). | Although crypto space may be little regulated, insurance is in most jurisdictions highly regulated. Any such arrangement would need to comply with current laws on insurance, until and unless modified laws to cover this sort of thing are passed, and then it would need to comply with those. Tax authorities generally allow one to declare "other business income" or "other investment income" without forming a legal entity. I cannot say how such income would be classified in any given jurisdiction. Whether the platform, or some legal entity associated with the platform, would need to be registered will depend on the current laws and regulations governing insurance, and on the way in which teh contracts are structured. A disclaimer cannot prevent one from being sued. The contracts would need to carefully and explicitly state who is liable for what. Programs cannot be held accountable for anything. Legal entities, including operators of programs, can be. If negligence in the creation or operation of a program causes a loss, the operator may well be liable. Programs cannot be sued for anything. Legal entities, including operators of programs, can be. It may well be essential to constitute the "platform" as a legal entity of some sort. Otherwise its operator will be liable for its actions. I cannot be sure. I once encountered a somewhat similar system in which insurance was provided by individuals exchanging contracts, so that in a sense each member insured all the others. There was a company that supervised and provided legal and administrative services to the group of individuals, and collected fees for this. That sounds a bit similar to the suggested platform, but I don't know exactly how that company was organized. The system was called "NJ CURE". I don't know if it is still in operation. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | Short Answer No. An AI cannot own a company. Artificial intelligences are not legal persons. The law recognizes human beings and legally recognized entities as persons. It does not recognize AIs or for that matter non-human species as persons except in a handful of jurisdictions that recognize, for example, some select rivers as legal persons (e.g. New Zealand). Approximate Alternatives Something close would be possible, however. It is possible to establish a non-profit corporation without owners, or to establish a non-profit entity that is not a corporation (often called a "foundation") that has no owners. These entities are required to have humans who serve on a board of directors. But, the nonprofit entity or foundation could have bylaws that delegate decision making responsibility on all or many matters to an AI, in much the way that decision making responsibility of all or many matters might be delegated to the CEO of a nonprofit corporation. While the AI can't own anything and indeed, to the contrary, would be owned by the entity, the AI's actions could cause the entity to earn income, to acquire and dispose of property, and to participate in lawsuits. And, while most non-profit entities and foundations are designed to have charitable purposes in order to garner tax benefits, there are many kinds of non-profits that exist for non-charitable purposes (e.g. country clubs, stock exchanges, HOAs and political organizations). If an AI was vested with management of most key parts of an entity's operations, that entity had no owners, and its board of directors was relatively docile, this would come reasonably close, in practice, to what an AI owned entity would look like. How The Law Could Be Changed Indeed, one plausible form of organization for the AI would be as a political organization which could be devoted to the purpose of reforming the law to give AIs personhood status. If one U.S. state did so, for example, this would allow all AIs to use that state's law to form entities owned by them, that could operate in any U.S. state, since geographic constraints do not really apply to AIs. And, it doesn't take that much money to lobby a single state to adopt a law if there is no obvious constituency to oppose the adoption of the law. Analogous Historical Precedents There are deep historical precedents for allowing people who were not legally allowed to own property to manage businesses. In the Roman Empire, the practice of having a slave operate a business or venture or transaction as an agent of the slave's owner was well recognized. This was also true, to a much narrower extent and much less frequently, under American chattel slavery. In the medieval and early modern era in Europe and in the post-colonial regimes in the Americas, it was not uncommon in jurisdictions that did nt otherwise recognize the right of a married woman to own property or to be recognized as a legal person in a court to be allowed to manage her husband's affairs on his behalf in his absence as his delegate agent to do so (often for long periods of time, for example, when the husband was away at war, and for entire fiefdoms for which the aristocratic husband was the lord). European law also recognized the concept that when a royal or noble title was inherited by an oldest son due to the death of his father, when the son was just a child, that the mother could serve a regent for the son and manage the affairs of the jurisdiction associated with the son's title, even though the mother was not legally permitted to hold that title in her own right. | Tricky. First, what is better for you? You usually start an LLC to protect yourself (the person) from liability in case things go wrong. Worst case, you lose all the assets of the LLC. So if the LLC owns the copyright, that is an asset, which can be lost if the LLC goes bankrupt. So I'd say it's better for your protection if you own the copyright personally. If you created the software in your own time, before the LLC was started, then you own the copyright. You should create a proper contract saying that the LLC has the non-exclusive right to market the software and keep profits from the sale of the software, and that this agreement can be cancelled by you at any time. Signed by you, as a private citizen, and by the director of the LLC, which happens to be you as well, on behalf of the LLC. That will give you maximum personal protection. On the other hand, investors won't be willing to invest in your LLC, because it basically owns nothing of any value. So if you want investments, then you may be less able to protect your assets, because the investors want to protect their assets as well. | This answer to a related question sums up the relevant concepts regarding work for hire. Since, according to your description of your relationship to A, you are not an employee (Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730), and you do not a written agreement, under US law, this would not be a work for hire: thus you hold copyright to something. I presume Company A gave you the source code and you are rewriting it to fit some technical requirement, so you have been given permission by the copyright holder to create a derivative work. You do not gain copyright to the original code: you only hold copyright to what you wrote. You would therefore need the permission of the copyright holder (of the original program) to sell copies of the modified program (currently A, company B in the future once the transfer is complete). There isn't a special "signing-over" ceremony for permission to copy, but the situation you describe is very messy. Even without a written agreement, you do understand that they intend to make multiple copies of the resulting program which includes your contribution, and you have received something of value in exchange for your contribution. So, one would argue, you have at least given permission to copy your stuff, even without a piece of signed paper -- in hiring you, you have given them an implied license to use what they paid you to create. The unclarity would be in whether you transferred your property rights, or simply licensed them to use it. Hence the recommendation to get an IP attorney. | Only if the company consents While some jurisdictions have by statute allowed corporations to be bound by pre-incorporation contracts, New York is not one of them and holds to the common law principle that a person cannot enter a contract before that person exists. In your circumstances the company is only bound by the second contract. So, who is bound by the first? Well, corporations can only act through agents and agency law tells us that an agent who purportedly acts for a non-existent principal is actually acting on their own behalf. So, the person(s) who signed for Company X on the first contract are personally bound to the contract. Unless they explicitly told Company Y that they wouldn’t be. It seems that they didn’t so Company Y can require performance of the first contract by them and of the second by Company X. Company Y must, of course, fulfil its obligations under both contracts - it needs to bear this in mind if it is actually impossible to do both, for example, transferring the same property to the signers of the first contract and Company X or becoming a full time employee of both. If so, it might be in Company Y’s best interests to let the first contract “die”. |
Do investors have any copyrights on the application they invest on? Considering I am the founder of Instagram, it means I have written 100% of the application code by myself, then found an investor and they put some money into the startup and got 30% of the new established company's shares. Then I decided to make some modifications and change some of the ideas and create another app/company by only myself and name it TikTok! In this new application I may have used some of the codes from my previous app as they have lot of similarities and also the previous app is written by me and I don't know how to write a similar code in a different way! And obviously there are similar ideas between this new TikTok app and my previous Instagram application. Is it possible for the investor of the first app suing me for using some similar codes or ideas to create my new app? | First of all being the "founder" of a startup in no way implies that one wrote all the code of the startup's primary or signature app. The founder could have hires coders, or had partners, or used open source code. But let's make some assumptions. Suppose Alice has created a startup, and wrote the code for an application. Suppose Bob invested in the startup, and got 30% of the stock, What rights does Bob have to the copyright on the code? It depends entirely on what agreements Alice has made. Alice might have sold or assigned the copyright to her startup firm, call that F1, If so, F1 owns the copyright, and Alice can't reuse it without F1's permission. If Alice has retained the other 70% of F1, she controls it and can have it grant her whatever permissions she likes. But if she has sold or assigned a majority shore to investors, she will need to persuade the management of F1, or a majority of the shareholders, to grant her permission. Alice might have merely licensed the code to F1. In this case she retains the copyright. If the license was not exclusive, she can use the code as she pleases, but so can F1, in accord with the license. In neither case does Bob directly own the copyright, or a share in it, unless a separate agreement granted or sold that to him. But he has a right to a share of the profits, if any that F1 makes, and a right to vote on decisions that 1 makes, long with other owners of F1 If Alice never formally transferred or licensed the software to F1, she still owns the copyright and can do as she pleases, even if shew sold most or al of F1 Note that to transfer a copyright there must (under US law) be a written and signed document, one signed by the owner or the owner's agent. It must specifically indicate what copyright(S) it transfers. A purchase of an interest in a business does not suffice without such a document. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | TOS are a contract. If you have a contract through the App, you have incorporated the TOS as a term of your contract. Contracts mean what they say they do, what you are thinking of as "basic contract law" is actual just an ordinary and customary term that people in your industry usually make a part of the contract, not contract law itself. | The notification that you saw is not useful legal information for you: stuff always belongs to whoever owns the stuff. It might be interpreted as saying "it doesn't belong to us", but you can't count on that (it's virtually guaranteed that at least some of the content there is owned by the website owner). A more informative statement would be "You will have to get permission from the content owner to copy their stuff", and "We're not going to spend time figuring out who owns what". You could read the terms of service (try this with Stack Exchange) to see what the site tells people. The TOS here says that if you contribute anything, it "is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license". You can then look up what that license says and learn what that allows. Websites are kind of tricky, though, because it's not hard to change the wording of a TOS, and you need to know what specific TOS was promulgated at the time a particular contribution was unleashed. Usual practice is to think it through carefully and not frequently tweak the TOS, but it's not illegal to change the TOS. Note that copyright law does not prohibit you from using other people's stuff, it prohibits you from copying. The distinction is clearer when you see a post that explains an algorithm with actual code, you read and learn and make use of that, but write your own code. As a user out there, if there isn't a clear indication that stuff posted is there for the taking, under some public license (as is the case with SE), then getting specific permission to copy, from the owner of the content (possibly untraceable), would be necessary. Now assume that you're a moderator or site-owner of some forum: presumably (hopefully) you have a TOS that addresses that situation, which says that moderators have the right to edit or delete content at their sole discretion, and also you say what kinds of posts are prohibited. Such an statement is not absolutely mandatory for all things, but it may be necessary to avoid litigation over some acts. One one end of the spectrum, it would be illegal for a forum to host child porn, stolen credit card numbers, or protected digital content. If a user were to post such stuff, the site would need to eliminate that stuff, and the poster could not legally rely on an argument of the type "That's my stuff, you have no right to mess with it". On the other hand, if a forum actually requires paid membership, then there may be a strong contractual expectation that the user is getting something of value, so you would have to watch for statements that could be interpreted as broad permission to put stuff out there without any interference. (For instance, a file-hosting service would have only minimal restrictions on content, aimed at protecting their own legal interests; whereas a political-advocacy site would have maximal interest in prohibiting the expression of views counter to the cause). Thus the SE TOS has you "grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works", which allows moderators to correct typos, delete offensive wording, and obliterate entire posts. If a site fails to have any such clauses in their TOS, then it might be a matter that has to be settled in court, whether they have the right to eliminate "spam" (i.e. advertising for a service, especially if the reason for getting an account was to provide an advertising platform). In light of the limited use sanctioned by the TOS, per the below comment, legal copying will be quite limited. However, "fair use" a situation where copying is allowed, regardless of what the TOS may say. (You could be banned from the site, but you could not be sued for infringement). Fair use was invented precisely so that people could make comments like "Jones advocates an absurd law, saying '...[quote from Jones]...'". Thus you can comment on a post and quote the relevant part ("The lines '[... quoting the code ...]' results in an infinite loop"). See the Fair Use FAQ for more details. | Makerbot's explanation of the Terms is accurate This is comparable with most other services that host and display User-created content - even with SaaS providers, as per Interpretation of content ownership/usage in service provider agreement. They are correct that they are asking for the lots of broad rights, but it's all qualified with (my emphasis): 3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to the Company and its affiliates and partners, an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. That is, if they use your User Content for a purpose other than including it in the Site and Services (and you have not agreed to this use), you may be entitled to relief in the form of an injunction or damages. | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | The answer to the question "can so-and-so sue me?" is almost always "yes", regardless of context. Such a suit might be baseless, and it might get settled in your favor, but you still have to spend the time and money to defend yourself. This can be disastrous for a start-up that's trying to get off the ground, and it's how patent trolls make their money. (I'm not accusing SnapChat of engaging in such tactics as a rule, of course; I'm just pointing out that the legal system does allow for them.) Whether or not you are likely to be sued is a separate question, and one that can really only be effectively addressed by a trademark attorney with full knowledge of the particularities of your situation. |
What are the consequences (if any) of admitting to a crime one did not commit? Say that Vicky the Victim is murdered by Mark the murderer. However, Mark's best friend Fred doesn't want Mark to go to jail. So Fred admits to the murder, trying to take the fall in Mark's stead. In the worst case, obviously, Fred is convicted for the murder and serves the relevant murder sentence. But if, somehow, it comes out that Fred was innocent of the crime, and he was actually trying to take the fall for Mark, then what consequences could Fred face? | A confession is (usually) taken after the court finishes its pre-trialing stage. There is a weightage and importance of such confession determined before the calculation of the gravity score of such crime. If the attorney somehow (fakely) proves Fred as the killer, Mark is declared innocent, and later on its discovered that Fred is innocent; the court can take some action against Fred. It would be first checked whether was Fred in a logical state of mind or not. If being manipulated by Mark, it would not be their fault of Fred. The court will also most likely see the age of the confessor to determine the importance of this. Here is a source from the National Registry of Exonerations which states the age of crime, and the percentage of groups with false crime declarations: One reason is that minors can be easily psychologically manipulated, and so by chance Fred if under 18 would not be considered to give any worth of confession unless proven to go against him. In some cases, the individual who made the false confession may be charged with perjury or obstruction of justice, particularly if their false confession led to an innocent person being convicted or if their false testimony impeded an ongoing investigation when the individual is not a minor. This is covered by perjury, a crime of expressing fake statements. In United States Code, Chapter 79 of Section 1632, it states: (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. The following law only applies to a sensible adult, who has intentionally, without a psychological circumstance, made a false statement to defend someone. It is hard later, for the prosecutor to prove the claimant innocent if the confession has solid ground and worth. Note that though false confession can come under perjury crime, an exemption exists for minors or those psychologically unwell or influenced. It reminds us of Miranda v Arizona, where Miranda, an inmate in prison cased over by Phoenix Police (Credits:@TannerSwett) who would torture an innocent inmate to confess a crime. In collective terms, it was called Miranda Warnings, where the inmate was warned, using torture to confess fakely. It would be clear from torture. In the 1936 case Brown v. Mississippi, which was the first time the Supreme Court excluded a confession from a state court prosecution, this was the issue. For days, three suspects had been tortured. The deputy in charge testified when asked how hard one of the defendants had been whipped: Not too much for a Black person; not nearly as much as I would have done if I had been in charge. An image of courtesy, The Crisis Magazine 1935: The Supreme Court passed American reforms where Miranda was passed, and torturing was banned with evidence for both interrogation and confession. At the time Miranda was written, more "modern" methods of questioning were being used: rather than beating, isolation, deception, and exhaustion. It seems unlikely that an innocent suspect would confess to a serious crime if they were not subjected to torture or other forms of violence or death threats. Confessions are extremely potent forms of proof of guilt for precisely this reason. To sum up, we conclude: If Fred was a stable adult, he is punished under the perjury crime If Fred is a minor or not stable psychologically, he is dismissed with no legal action taken against him | england-and-wales No. Reconciliation between victim and attacker has no bearing on the guilt of the attacker. It may have a bearing on the decision to prosecute: A victim can be forced to testify, but they may well not make a very convincing witness if they are. Also, in past times (when the police were the prosecutors for most crimes), they often had a "least said, soonest mended" approach to domestic violence. It may also have a bearing on the sentence. Note: England and Wales is a jurisdiction where prosecutions can occur without a complaint (in general). | The police (and any other involved public agencies) do not work for Steve. They make their own decisions. You didn't specify a location, and requirements to consent to a search vary by location. It wouldn't be surprising, though, if Steve can't legally consent to a search of someone else's room (but possibly could consent to search of common areas). One possibility you don't seem to have considered is that the police or prosecutor would, if Steve is willing to testify, use Steve's testimony as probable cause to get a warrant. Then they could obtain text messages from Mike's service provider (even if he's deleted them from his phone), search his room without his consent, etc. Details again vary by location. Finally, any jail/prison term is typically up to a judge or jury, not the police. Pre-trial detention is typically up to a judge or magistrate. (Also, outside the scope of your question, but if there is any chance Steve has allowed himself to become involved in the misdeeds, even slightly, Steve would be wise to talk to a lawyer. Or if he suspects the police could believe that.) | Firstly, there is no jurisdiction in the US where rape is a potentially capital crime, and murder is not - so you are discussing a hypothetical (and rather implausible) jurisdiction. Given your jurisdiction is hypothetical, you can make the law be what you would like. Secondly, duress is accepted in almost all jurisdictions as a defence to a charge of anything except homicide (and some jurisdictions allow it to reduce the severity of a homicide charge). Courts can be reluctant to accept a charge of duress, but a bullet wound would probably be persuasive. I don't know if someone who had just been shot would be physically able to perform though. The precise crimes the perpetrator is guilty of would depend on your specific jurisdiction, but I would expect at least: rape (because they organized it) kidnap shooting the brother | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. | Murder is Murder Adding all the elements of murder are proven beyond reasonable doubt then the person gets convicted. The fact that they were a sibling would be considered in sentencing as it always is. | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. | The facts of the flower pot would determine the outcome. The legal question is whether the owner was "negligent". A claim of ignorance is insufficient, what matters is whether the owner departed from what an ordinary reasonable person would have done in similar circumstances. You can write dozens of scenarios that yield different conclusions. For example, was the area underneath the flower pot a place where no reasonable person would be expected to be? Did some other person surreptitiously place the pot in a location, or did they release the moorings and give it a shove? How is it credible that the owner was not aware that there was a flower pot on the balcony? Res ipsa loquitur is not applicable since accidents happen. Things fall all the time, they do not necessarily fall because of something that the person directly controls, you have not proven (and we can't assume) that the victim is blameless, and the defendants explanation is quite plausible. You can of course rewrite the scenario to make it clearer that this is blatant negligence. A starting point would be to say exactly how the pot fell and why the victim was under the pot. |
What happens if police force you do something based on a supposed violation of a statute or ordinance they cannot name? I park on the street in front of my house, because it is very convenient - I can for instance, get to and from my car without rousing my dogs or waking up family. I had the police come one evening and tell me I had to move my car. When I asked what ordinance I violated (this was info I wanted to pass on to my attorney if the need arose), the policeman had to think a minute and then said I was impeding traffic. (This was strange in and of itself - in my experience with this department, the officers always name the ordinance violation that they're investigating. He did not, I had to ask near the end of our conversation.) I told him that there were a number of cars parked the same way on the same street, in the direction he was heading once he left. I made it clear I was NOT complaining about those people, I just wanted to know why I was being singled out. He assured me they'd do a sweep of the street. (I have footage from the next 5 days of the street, and it was never cleared by the police of vehicles - I have it for day and night times.) When I went down the road to turn around and park the way he ordered me to, I saw the same officer going down the road, swerve around a much larger vehicle and keep going. I called the police department, and reported all this. His sergeant called me back and asked me three questions: if I was within 20 feet of a stop sign (nope), if I was in front of hydrant (none on that corner) and if I was as far off the road as possible (i.e., on the curb and yes, I was). He said he'd review the body cam footage and get back to me (he hasn't). I am willing to drop the issue, as long as I don't feel I'm being singled out. But the weird lack of sync between the policeman, who never raised any of the points his sergeant did, and his sergeant, along with the fact that the officer seemed to have trouble naming the ordinance of which I was supposedly in violation got me thinking: what happens when an officer can't name an ordinance or law that is supposedly broken, but either orders you to do something based on the supposed violation or tries to arrest you for the same? (This is in Louisiana.) | It seems you found out what happened. The police are wrong all the time and usually absolutely nothing happens from it. The police are not required to tell you why you are being arrested. See supreme court case Devenpeck v. Alford. The court merely considers that to be good police practice. They do have to justify probable cause for the arrest to the court. | I am not a lawyer and I have never even been to the UK. You will not go to prison if your neighbor's dog attacks you and it dies as a result of you defending yourself. You might go to prison and/or owe the owner damages if: You are somewhere you do not technically have a right to be. It can be shown you could have retreated from harm but chose instead to stand your ground. The force you used was deemed excessive - it showed intent to harm the dog more than necessary to protect yourself You contributed to the confrontation in a way that a reasonable person would think might cause trouble You might be able to protect yourself from problems by: taking pictures or videos of the dog behaving badly or aggressively note dates and times when you observe the dog behaving badly or aggressively formally contact the dog's owner with your concerns and/or evidence in which you assert your rights to access the areas you walk through and your right to defend yourself in the event that you are attacked by the dog if possible, change your route or schedule to avoid the problem entirely Good luck | The law says don't drive an unsafe vehicle on the road. You disobeyed the law. There were methods of having your tyres fixed without driving on the road (e.g. taking the tyres to the mechanic in a different vehicle, calling a mobile mechanic etc.) so you have no defence of necessity. In all likelihood you will be convicted and penalised. You need legal advice. Whether it's fair or not is a philosophical consideration, not a legal one. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | In the scenario you described, you were both right: Police have no authority to demand that you leave a public space because you are photographing, nor does the government have the right to prevent you from photographing anything that is visible from a public space, including government facilities or employees. However, the police would likely have followed through on their threat to arrest you. In that event, any vindication for wrongful arrest and violation of your civil rights would only come (if ever) at the end of protracted and expensive litigation in the courts. (A plethora of examples is accumulated by watchdog groups like the ACLU and Photography Is Not A Crime.) | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. | You may contact a towing company; they will ask who you are, and will politely inform you that since you aren't the property owner, they aren't authorized to take someone else's car that is trespassing on the property. [Addendum] The first step in unraveling the legalities of the situation is seeing that only the property owner can give permission to enter (park) on the property. That permission can be rescinded, but only by the owner. The owner seems to have given permission and has stated in advance some conditions under which permission might be rescinded. The towing company could be called (by the owner) to act as the agent for the owner and remove the offending vehicle; but the towing company cannot just up an do this on their own. If they were to spontaneously tow a vehicle without officially acting on behalf of the owner, they would be liable for damages, owing to their having torted some guy's chattels. So the company will want to know that they are protected, in acting as the agent of the property owner. One way to do that is to verify that the person calling the towing company is the owner. Another would be to get the caller to swear that they are the owner and indemnify them against damages, in case they get sued. That pound of cure is more costly and annoying than the ounce of prevention of making sure that you're towing a car with proper authorization, so it's unlikely that they would just tow the car on your say-so. You might try suing the complex owner for some kind of breach of contract, if you think you have a contractual right to a parking space and they are negligent in doing what's necessary to meet your contractual right. The lease says "we may...", not "we will", so they haven't promised to absolutely enforce this rule. Or, of course, you could call the manager and mention that there's still a problem. |
What is the point of Devotion of All Working Time clauses? In an employment contract I red: Devotion of All Working Time: During your employment, you shall devote the whole of your work time, attention and abilities to your duties and shall give the Company the full benefit of your knowledge, expertise, ingenuity and technical skills. I was told this is not to be construed as a non-compete clause. I've seen similar clauses called Employee’s Devotion of Time, which I guess are the same thing. What's the point of such clauses? Can anyone give a simple example? I think what it's trying to say is an employee can't make money by performing another job at the same time they are on the clock for this job. I think it's rather assumed that an employee takes small intermittent breaks, so would this prohibit things like trading stocks? Or taking a (5 minute) phone call that relates to another job? What if it's passive, for example they bring their personal laptop to work to run a bitcoin miner? | Usually, a clause like this is used in contracts of full time managerial or professional employees of a business who are employed on a salaried or commissioned, as opposed to an hourly basis, in positions that are exempt from overtime requirements. It basically prohibits moonlighting with a second job while employed at your current job. A non-competition clause, in contrast, would typically prohibit working for a competitor for some period of time after ceasing to work at your current employer. This is concerned about spreading your time and efforts too thin, rather than competition. You could violate it even if your moonlighting job has no direct impact (other than loss of some of your full time services) on the firm that employs you in your primary job. It does not prohibit you from having a personal life (e.g. going to the dentist, visiting family, watching a movie, etc.). Normally, this is used as a backstop against gross abuses, with performance based evaluation as the primary means by which the employee is evaluated. The line between personal investment activity and moonlighting or an intensive hobby can be vague and it is usually only enforced in extreme cases. | Your premise is a little off, which changes the question somewhat. The actual clause in the 2016 Junior Doctors contract Section 3 (52) states: Where a doctor intends to undertake hours of paid work as a locum, additional to the hours set out in the work schedule, the doctor must initially offer such additional hours of work to the service of the NHS via an NHS staff bank of their choosing. The requirement to offer such service is limited to work commensurate with the grade and competencies of the doctor rather than work at a lower grade than the doctor is currently employed to work at. Additional work, such as; event and expedition medicine, work for medical charities, non-profits, humanitarian and similar organisations, or sports and exercise medicine do not fall under the scope of additional work as a locum. (note that 'locum' has a standard definition of 'a person who stands in temporarily for someone else of the same profession, especially a cleric or doctor' but is not defined in the contract itself - its a well known term that does not require further definition, but it plays an important part in your question) So, a few things from that section: Where a doctor intends to undertake hours of paid work as a locum This immediately sets limits on what the clause means - the intention is to limit locum work, not general work. The requirement to offer such service is limited to work commensurate with the grade and competencies of the doctor rather than work at a lower grade than the doctor is currently employed to work at A FY2 or later junior doctor can go elsewhere to work as a house officer if they cannot find work as a senior house officer, again restricting the clause to similar working conditions and not general work. This is very very similar to any company putting a non-compete in their contract for, say, a software developer - you need the companies permission to go do contract work for another software company for example. To specifically talk to your point about being a gardener, this clause does not cover that because the employee is not acting as a locum in their professional capacity at that point. The intention of this clause is to fill the gaps in the NHS staffing plan caused by 11 years of mismanagement and underfunding - no longer can an in-contract doctor or nurse work their 38 hour rota and then go fill a lucrative shift with a private hospital, they must offer any hours under 48 to the NHS via the employee bank - this means the bank can pay minimal wages to cover shifts it had to pay locums a lot more to cover before 2016. | As I understand it, the legal distinction here is: Whose choice was it that you not continue in your job? If the company was prepared to offer you an extension, until you told them that you were not interested, you are leaving of your own free will, and would not be entitled to redundancy rights. If your employer did not extend the contract when you would have been willing to continue, that is either a redundancy, or a dismissal of another kind. If you were dismissed for valid cause, you have no redundancy rights. if you were let go because of a lack of work, or because the employer decided not to have anyone doing that job, that I gather would be redundancy. | NO (mostly). Servitude means that the employer, or owner of the indenture, or whatever, can use physical force to make the indentee carry out the work given. If the indentee runs away they can be arrested and forcibly returned. This is distinct from the law of contracts. If Alice agrees to provide labour for Bob and subsequently fails to fulfil the contract then Alice may have to pay damages, but that is all. Even in cases of crminial fraud where Alice never meant to provide the labour in the first place, the penalty is defined by law, and would not be the provision of the contracted labour. As the OP notes, military service is generally an indenture-style contract; desertion is a crime. However the other party in that case is the government acting under law rather than a third party acting in their own self-interest. The Universal Declaration of Human Rights prohibits all forms of servitude. | Under federal law, an employer may impose direct deposit as a condition of employment. The Electronic Funds Transfer Act at 15 USC 1693k only says that employers may not require an employee to have a bank account at a particular bank: No person may— (1) condition the extension of credit to a consumer on such consumer’s repayment by means of preauthorized electronic fund transfers; or (2) require a consumer to establish an account for receipt of electronic fund transfers with a particular financial institution as a condition of employment or receipt of a government benefit. If the employee is allowed to choose their bank, then such a condition is legal under this law. The government's interpretation of this law is clarified in 12 CFR 1005 Supplement I at 10(e)(2): Payroll. An employer (including a financial institution) may not require its employees to receive their salary by direct deposit to any particular institution. An employer may require direct deposit of salary by electronic means if employees are allowed to choose the institution that will receive the direct deposit. Alternatively, an employer may give employees the choice of having their salary deposited at a particular institution (designated by the employer) or receiving their salary by another means, such as by check or cash. That said, individual states can create their own legislation, and many have made it illegal under state law for an employer to require direct deposit. You didn't name a particular state so I can't be more specific, but there is a chart here created by a payroll company showing the legality of such policies by state. Note that in some sense, the employee is not really being "compelled" or "mandated" to have a bank account - if the employer insists on using direct deposit, the employee is free to go look for a different job. US law does tend to recognize that there is a major power imbalance in employer-employee relationships, so there are many regulations; but at its root, it's treated as a contract between two independent parties who may each set whatever conditions they want, and enter into the contract only if they can agree. In contexts other than employment, I would expect even fewer restrictions on how a bank account could be set as a condition for something. For instance, it could be a condition for using a particular product or service. Again, if you don't want to open a bank account, you are free to not use that product or service. | The first question would be whether you are an employee, or an independent contractor. There is more to that determination than how the company labels you, but that is a starting point. Based on the minimal autonomy that you imply that you have, you would probably be found to be an employee. Then there are limits on the number of hours that you can work in a week or day, which they are complying with. The employer is required to record the hours that you worked, and it is a crime to keep false records. It is also required that an employer pay for the time you work. Therefore the employer cannot legally refuse to pay you for your labor, and they cannot legally falsify records. The employer can limit your pay to 15 hours per week, if you work just 15 hours per week. They can also set ridiculous performance standards, whereby at the end of the week you will not have done what they wanted you to do. Their only recourse is to dismiss you. In response, you can file a complaint, but note that the concept of "wrongful dismissal" under the act is about entitlement to termination or severance pay. The arbitrator may find that the employer contravened the act, and can order them to rescind the termination. Or, before you get fired, you can complain and the arbitrator could order the employer to either modify their work requirements or else to pay you for the time worked. The difficult point (for you) in this case is that the act does not address employer performance expectations, and employers are generally allowed to set their own performance standards. If you have a written employment contract, there might be provisions regarding termination which could help you. Without a written contact, there is no statutory provision that prevents an employer for terminating you, but they may have to give you notice and pay for doing so, as long as you are not terminated for "just cause". Hoang v. Mann, 2014 ONSC 3762 is an Ontario case where an employee was terminated for just case based on insubordination, job performance, inability to get along with co-workers and so on. On the front of job performance, the courts have found that an employer must clearly communicate standards to employees, and give employees an opportunity to meet those standards. But they do not generally decide e.g. how many units per hour an assembly-line worker can reasonably be expected to complete. | Do I give my letter 60 days from the end of the contract, or 60 days before September? My boss told me that it would be 60 days before the end of the contract, but I wanted a second opinion. Your boss is wrong. The contract requires a party to give a 60-day notice only if the party intends to override the default condition that "the contract shall run for the full term named above". Since your contract ends on June 30th and you plan on working there up to and including that date, you are abiding by the [contract] default condition. Therefore, you are not required to send a notice for something you are not intending to do (namely, to terminate the contract ahead of schedule). The information you provide here does not reflect any language in your current contract relating to subsequent contracts/renewals. The existence of such language might or might not change the assessment. That issue aside, you might want to ensure that the preliminary offer made to you verbally be somehow reflected in writing. It will not be more binding than the verbal offer, but that evidence could prove useful in the event that the new employer unexpectedly changes its mind at a time when your current employer has discarded you for contract renewal. Your prospective employer should become aware of how its request for a reference from your boss jeopardizes a renewal with your current employer. | I would recommend talking to an adult person in HR. I'm quite sure they will notice that what your manager wants to do is more than dodgy, and doing something dodgy may be in the interest of your manager, but not in the interest of the company. The best thing is to go to HR, acting as if a mistake has been made, and point out to them what your start date was, and that the new contract has the incorrect starting date, and they need to fix this mistake or you can't sign the contract. If they insist you sign it, then you DON'T sign it. If they say you will be fired if you don't sign it, then you tell them that in that case you would get legal advice. BTW. You definitely don't sign this as it is. PS. This answer was posted on workplace.stackexchange, not law.stackexchange, so please don't complain if there is no legal content. |
Are Rule of law and qualified immunity doctrines compatible? Are qualified immunity doctrines compatible with "rule of law" -- the notion of the law giving equal rights and obligations to citizens? Can things like death penalty or immunity from prosecution be justified under rule of law? | "Rule of law" is one thing, "giving equal rights and obligations to citizens" is another. Qualified immunity, both in doctrinal and statutory form, are statements of law, e.g. saying that a police officer has the power to use force in a manner that others may not. "Equal rights and obligations" are actually "equal, as defined in the law", for example a 6 year old has no obligation to comply with contract that that may have formed – there is an exception to the otherwise general rule, which is recognized by the law. | While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly. | There is no one answer, but here are some examples. India is famous for deriving general principles of more important constitutional law concepts that can be used to find constitutional amendments to be unconstitutional. The U.S. has not gone to that extreme but does derive constitutional protections for the overall scheme of the constitution and from the legal context of the nation when constitutional provisions were enacted that don't obvious flow from the text of the legislation (e.g. the 11th Amendment to the U.S. Constitution) has been interpreted to establish state sovereign immunity that the text of that amendment does not expressly provide for). Another somewhat weird source of law in the U.S. (constitutional at the federal level and usually common law at the state level) is that the 21st century right to a jury trial in a civil case depends upon whether the claim would have been litigated in England in 1789 in the courts of law or the courts of chancery in England. Customary international law is a thing. It also often arises from international practices or diplomatic norms, rather than tribunal adjudications. In the jurisprudence of the legislative process and some aspects of federalism, historical practices that have not been litigated are frequently resorted to as a source of law. For example, the question of whether a legislature is in recess has been resolved based upon historical practice. Prior to the French Revolution, customary practice was an important source of law in France. Customary practice was an important source of the English common law. In many British colonies and former British colonies (e.g. South Africa and Kenya and Sudan), lower tribal or village courts were often expressly permitted to apply local custom in their decision making. In the U.S., a collection of secondary authority texts compiled by the American Law Institute, an affiliate of the American Bar Association, called the Restatements, which summarize in codified form, various subjects in common law, are often used by courts as a source of law where there is no case law on point in a jurisdiction. In civil law countries, the leading legal treatises of law professors are an important source of interpretive authority of the civil code and other major codification of the law. Most Islamic countries provide in their constitutions that Islamic law is the highest authority and supersedes any secular law including other provisions of the constitution to the contrary. In many parts of the United States, mostly in the west, but also in Florida and Louisiana, property rights arising under Spanish/Mexican law, or under Native American law continue in force even though they derived from legal systems other than U.S. statutes and common law. See, for example: Tribe: We have "aboriginal title" to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the "sovereign" (the U.S.) has never properly taken them away, so they're still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There's still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits. (Source) | Judges do not decide, jurors do (however, if a judge is the fact-finder, then the judge makes such a determination). The main input that the decision-maker gets is a jury instruction. In order to unify "reasonable doubt", "reasonable price", "reasonable delay" and so on, appeal is often made a mythical being, "the reasonable man", so reasonable force would be the degree of force the reasonable man would use in a given situation. I will draw from California criminal instructions ('cuz I have them) but similar instructions can be found across jurisdictions. For example, one instructions says "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes". Or from a negligence instruction "A reasonable person would have known that acting in that way would create such a risk". More detailed appeal to The Reasonable Person is found in the justified homicide instruction: Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. There is no explanation of what it means to be "a reasonable person". Since nobody believes that they themselves are unreasonable, a simple and also wrong way of judging the matter is to subjectively judge whether you yourself would do the same thing, if you were in that situation. Very often, instructions do not even bother to say what "reasonable" means, so (re interpreting expert testimony) "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence"; (re corpus delicti) "That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed"; "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty", "when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable" The closest the law has come to articulating an objective characterization of "reasonableness" is in "reasonable doubt" instructions. One characterization is in People v. Feldman, 71 N.E. 2d 433. It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime A somewhat improved characterization is the Calcrim instruction Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt There is room for improvement, but it points in the right direction. On rare occasions, a law is written that actually includes a definition. The Gas Price Spike Act HR 3784 said The term ‘reasonable profit’ means the amount determined by the Reasonable Profits Board to be a reasonable profit on the sale. It is then up to the board to subjectively determine what that profit is. (BTW this did not become law). [Addendum] It's actually very difficult to determine what reasoning judges use in those cases where they are the determiners of fact. They will likely call on their knowledge of law, asking "are these circumstances sufficiently like past circumstance A where the defendant was convicted, or more like B where the defendant was acquitted". | In the U.S are judges, attorneys, physicians, teachers, professors, politicians, administrative officers liable for ordinary negligence? In the U.S., judges, prosecuting attorneys and legislators have absolute immunity from civil liability (but not from criminal liability) for legislative and judicial acts in their official capacity. Attorneys have absolute immunity from civil liability from some claims from some people (e.g. defamation claims from non-clients for statements made in connection with representing someone) and qualified immunity from civil liability from others (e.g. most claims of non-clients) for their acts as lawyers, but are liable to their clients for ordinary negligence. Physicians are liable to their patients for ordinary negligence in the nature of medical malpractice. Some acts taken by physicians that would otherwise constitute false imprisonment or assault or homicide are excluded from the definition of those crimes. Elected officials in the executive branch including mayors, law enforcement officers and the attorney general have qualified immunity from civil liability for their official non-judicial acts. This means that they are only liable for intentional violations of constitutional rights that are clearly established in the law. Subject to narrow exceptions (e.g. driving or medical malpractice) they are not liable for ordinary negligence. It is hard to know what kind of liability is contemplated for teachers and professors or administrative officers to answer. The answer would not be the same for all kinds of claims. Teachers of minors generally have the same immunities as a parent with respect to the use of physical force towards their students in order to maintain order in the educational process. The liability of teachers and professors also depends upon whether they are employed by public or private institutions. Those in public institutions often have more protections from liability, but also have exposure to civil rights claims that those in private institutions are not. Contractual waivers can also influence liability in these circumstances. Everyone has liability for ordinary negligence in their unofficial capacity and for many acts (e.g. driving a car) while on duty but not involving activities particular to their professional responsibilities. They are not employees or workers so that they could be reasonably absolved for ordinary negligence. We expect employees to be obedient so they have no moral responsibility, if we held them liable we would harm the market people would be reluctutant to enter a contract of employeement. In the private sector, employees are usually liable for ordinary negligence that they personally commit, even though the employer is also liable. Judges are employees and arguably workers as well. And, for their non-judicial acts, judges have the same liability as every other employee for their ordinary negligence. For example, if a judge gets in a car accident while driving from one courtroom to another, and harms another through negligence, the judge has personal liability for the judge's ordinary negligence and the judicial branch has vicarious liability for the negligence of its employee, the judge. In all these of judges etc cases they receive more than enough indenization for assuming responsibility. By freeing them from ordinary negligence we are making them negligent. Other than political economics why would the legislator free them from such responsibility? Analysis of why the law is the way it is, or what it should be, are really better suited for Politics.SE than for Law.SE. I discussion of the why's of judicial immunity is appropriate for Politics.SE. A discussion of "judges etc" is probably to broad for either forum. | "Double jeopardy" applies to a criminal proceeding, that is one that needs to be proved "beyond a reasonable doubt," and involves criminal sanctions such as jail time. Once OJ was acquitted of criminal charges, he couldn't be tried again as a "criminal." The second trial was a civil trial, with a "lesser" standard of proof (preponderance of evidence), and lesser "damages" (money, not jail time). So even though the facts were the same, OJ was accused of violating a different standard, that is a different "law" so to speak. He could be tried for a "tort" just not a crime. Or put another way, "wrongful death" is not the same as murder. The latter requires intent. Wrongful death suggests "tortious" negligence, but not necessarily intent. | Does that mean that the "reasonable person" standard also changes over time? The reasonable person standard changes every time a new finder of fact, either a judge or a jury, considers a case. To a great extent the whole point of a "reasonable person" standard is to inject irreducible uncertainty into the question of what conduct someone can be held liable for, thereby giving juries (or judges in bench trials) discretion to evaluate complex factual situations and consider those situations in light of the fact finders' collective moral judgment. There are seemingly objective tests by which reasonableness can be measured, such as the "Learned Hand test" which compares the risk of harm caused by not taking a precaution times the likelihood that the harm will manifest itself. But ultimately, this is very rarely so clear a standard that it overcomes the broad discretion of the finder of fact to determine what is and isn't reasonable under a particular set of circumstances. | There may be a purpose to have laws which are impossible to follow. (I'm neither a lawyer nor a politician, following points are what I like to call qualified hearsay - they come from qualified people I know personally but were given as a remark or during a chat over a cup of coffee and therefore are not easily substantiable with rigorous sources. You can treat them as a hypothetical ideas for your thought experiments.) Everybody is implicitly guilty Confident citizens and transparent law is the worst enemy of totalitarian regime. You learn to live with ingrained feeling that there surely is something you are guilty of. Merely being addressed by police makes you nervous and malleable; should you stand up against oppression, it is easy for the state apparat to detain or convict you of one or more default offenses. A good example would be the law present in many, if not all, socialist bloc countries saying that knowing of a comrade having commited an offense or merely planing to and not reporting it to authorities is an offense in itself. Whether you did or did not know would be determined by the authorities. Make your laws very strict with a hope thay they will be followed at least to a degree Not laws in themselves, but standards (technical norms) regarding nuclear power stations in the former Soviet Union were strict to the point where they were technically impossible to follow given the state of the art. For example the standards for manufacture of high pressure pipes would state very low level of material impurities that when the actual manufactured material contained twice the level of impurities the pipe will still be very safe to operate. In a centrally planned economy with ever more ambitious production projections and declared zero need for contingency this was one of several ways how to create a bit of a wiggle room. (Source: I once worked for a nuclear power research institute supporting Soviet technology and was told this by an expert on stainless steel.) So there you have a bit of an illustration what may happen if a law is intentionally impossible to follow. Since you labelled your question 'United States', I believe the follow-up question is why would anyone want to propose such a law. |
At what stage in history did intervention of courts become required for tenant evictions? In England and other common law jurisdictions (I assume throughout most of the world in fact) a tenant doesn't automatically lose entitlement to their home once they stop paying rent for whatever reason, or otherwise peeve the landlord. Or, perhaps they do, but a court order is almost always a prerequisite of enforcing this loss of entitlement to occupation of the premises. When did this come to be the case? I imagine at some point during medieval times or before them, that if a tenant stopped paying rent to their landlord, it might have typically started to get somewhat ugly fairly quickly, and without any intervention of the court. Am I correct that (at least 'justified') self-help evictions would have once been legal, and if so, then at what point did this stop being the case? | This is only a partial answer and admittedly doesn't establish when residential and commercial leases for money rent came to be enforced by court evictions rather than by landlord self-help. But it does establish an earliest time period in which this could have happened by describing when residential and commercial leases for money rent came into widespread use, which is much later than the question supposes. At some point during medieval times or before them, that if a tenant stopped paying rent to their landlord Court evictions for non-payment of rent or a termination of a tenancy under a lease didn't arise until some significant period of time after leases of that type came into use in the post-feudal era. In Europe While something bearing a fair similarity to modern real property law concepts and economics existed in the Roman Empire, this conception of real property law largely disappeared after the Roman Empire collapsed, during the Middle Ages in Europe, for the better part of a thousand years. Residential and commercial leases of real property with buildings on it for money rent by ordinary people that don't amount to serfdom, i.e. quasi-slavery, from which eviction is not the usual remedy for non-payment of rent, mostly post-date the Medieval era. During the era of serfdom, the goods and services provided by serfs to their lords was indeterminate in character between rent and taxation as almost all land was owned by feudal lords who were also the sole source of governmental authority. As noted at the Wikipedia link to serfdom above: Serfdom was the status of many peasants under feudalism, specifically relating to manorialism, and similar systems. It was a condition of debt bondage and indentured servitude with similarities to and differences from slavery, which developed during the Late Antiquity and Early Middle Ages in Europe and lasted in some countries until the mid-19th century. Unlike slaves, serfs could not be bought, sold, or traded individually though they could, depending on the area, be sold together with land. The kholops in Russia, by contrast, could be traded like regular slaves, could be abused with no rights over their own bodies, could not leave the land they were bound to, and could marry only with their lord's permission. Serfs who occupied a plot of land were required to work for the lord of the manor who owned that land. In return, they were entitled to protection, justice, and the right to cultivate certain fields within the manor to maintain their own subsistence. Serfs were often required not only to work on the lord's fields, but also in his mines and forests and to labour to maintain roads. The manor formed the basic unit of feudal society, and the lord of the manor and the villeins, and to a certain extent the serfs, were bound legally: by taxation in the case of the former, and economically and socially in the latter. The decline of serfdom in Western Europe has sometimes been attributed to the widespread plague epidemic of the Black Death, which reached Europe in 1347 and caused massive fatalities, disrupting society. Conversely, serfdom grew stronger in Central and Eastern Europe, where it had previously been less common (this phenomenon was known as "later serfdom"). In Eastern Europe, the institution persisted until the mid-19th century. In the Austrian Empire, serfdom was abolished by the 1781 Serfdom Patent; corvées continued to exist until 1848. Serfdom was abolished in Russia in 1861. Prussia declared serfdom unacceptable in its General State Laws for the Prussian States in 1792 and finally abolished it in October 1807, in the wake of the Prussian Reform Movement. In Finland, Norway, and Sweden, feudalism was never fully established, and serfdom did not exist; in Denmark, serfdom-like institutions did exist in both stavns (the stavnsbånd, from 1733 to 1788) and its vassal Iceland (the more restrictive vistarband, from 1490 until 1894). In the Middle Ages in Europe, outside of a few "free cities", renting a house or apartment, that wasn't a farm that you and your descendants were forever bound to serve your lord working, were mostly not a thing. Also, for most or all of the Middle Ages in England and the rest of Europe, your landlord was also your lord (i.e. the government) and he was the court before which all civil and criminal disputes involving his subjects and activities taking place on his land were resolved, so he had no need to resort to his own justice. In the early Middle Ages in England, real property disputes between aristocrats, who were mostly the only people who had interests in land other than as serfs, for example, over disputed boundaries or title, were mostly resolved in trials by combat. While some more modern real estate concepts were starting to emerge in England in the 13th century, culminating in what would be the status quo for the next several hundred years with legislation adopted in 1290 CE, this didn't have much impact on the common man and residential and commercial money leases of improved real estate remained rare. Serfdom was almost completely abolished only by 1485 CE in the Elizabethan era. See generally here. In continental Europe, the period after the end of serfdom and feudalism and before industrialization occurred, was called the "early modern period." This is also the period in which a legal regime based upon Roman law was restored to widespread use in continental Europe on a piecemeal basis in a process called the "reception" of Roman law. Even when true serfdom ended, most leases were initially long term or indefinite term sharecropping leases of farms by tenant peasants from the lords who had previously held them in slave-like hereditary servitude, not money leases of a residence or commercial workplace (often combined in one building) in the modern sense, where eviction for nonpayment of monthly rent or a termination of a short term lease was the norm. In sharecropping situations, shortfalls of rent basically amounted to theft of the landlord's property and were punished in that model, and evictions mostly arose as aristocratic lords and merchant landholders converted peasant farmland to other purposes. A near modern market based understanding of real property as a commodity that can be bought, leased, sold, or inherited on a widespread basis by ordinary people was later than that. Widespread modern commercial rentals of a house or apartment or non-farming business, that was not a sharecropped farm, in exchange for money rent, came into use largely in connection with urbanization and industrialization, although merchants and skilled craftsman started the early stage of this process in the early modern period in the late 1400s and early 1500s. As an aside, Ireland, like the rest of Europe, eventually transitioned to urban money lease arrangements for many of its people as its economy evolved, but when it attained independence that was recognized by the U.K. effective in 1922, only 1% of the land in Ireland was owned by Irish people, with the rest owned predominantly by absentee British landlords. Farmlands in those regions would have been mostly sharecropped at that time. In the Americas There were substantial swaths of the Americans in the colonial era, and in the early United States, where a large share of all workers were literal chattel slaves, and another very large share were sharecroppers with leases of indefinite duration and no fixed money rent. Widespread slavery, of course, persisted until 1865 in much of the United States, and sharecropping was widespread in parts of the United States into the early 20th century. The percentage of the workforce engaged in farming has increased significantly in the United States (and in the colonies that preceded it) in almost every decade since the 1700s. For example, in 1820, 72 percent of the American work force of 2.9 million was engaged in farming, almost all as freehold owners of their farms, as sharecroppers, or as slaves. Likewise, in urban areas, a very significant share of residential and commercial real estate was either owned by the occupants or was inhabited by indentured servants. So, residential and commercial leases for money rent were just starting to come into widespread use in the 1700s in the colonies that would ultimately come to be the United States. In Asia In most parts of the Southeast Asia and East Asia, serfdom (or a close equivalent of it) persisted longer than it did in England. For example, in Japan, most free peasant farmers were downgraded to serfdom starting ca. 1185 CE when the Kamakura Shogunate established feudalism in Japan. Cracks in this system were starting to develop during the Tokugawa Shogunate (1603 CE–1868 CE) which is also called the Edo Period (after the historic name of the capital in Tokyo), but the institution of serfdom wasn't completely dissolved until the Meiji Restoration in 1868, about four centuries after serfdom had reached a comparable level of near complete abolition in England. In Japan, as in England, widespread rentals of houses and apartments for money rent separate from a sharecropped farm, largely coincided with urbanization, which took place in Japan mostly in the Edo and Meiji periods. According to the Wikipedia link on serfdom above: According to medievalist historian Joseph R. Strayer, the concept of feudalism can also be applied to the societies of ancient Persia, ancient Mesopotamia, Egypt (Sixth to Twelfth dynasty), Islamic-ruled Northern and Central India, China (Zhou dynasty and end of Han dynasty) and Japan during the Shogunate. Wu Ta-k'un argued that the Shang-Zhou fengjian were kinship estates, quite distinct from feudalism. James Lee and Cameron Campbell describe the Chinese Qing dynasty (1644–1912) as also maintaining a form of serfdom. Melvyn Goldstein described Tibet as having had serfdom until 1959,but whether or not the Tibetan form of peasant tenancy that qualified as serfdom was widespread is contested by other scholars. Bhutan is described by Tashi Wangchuk, a Bhutanese civil servant, as having officially abolished serfdom by 1959, but he believes that less than or about 10% of poor peasants were in copyhold situations. The Maoist revolutionary movements in India are seeking to address the residual inequalities in land ownership that arose from feudal serfdom-like practices there that persisted in some Indian states in substance although not in form, into the 20th century. One of the reasons that there are few surnames that are widely used in countries like China, Korea, and Vietnam is that in those countries serfs were assigned the surname of the dynasty of their feudal lords, and their surnames were changed if their lord was conquered by another lord during a period of consolidation of aristocratic power. | Any eviction order (for non-payment) will not be enforced by the sheriff (as ordered by the court), and that is how evictions would happen. This is also required under the governor's order of March 20. Foreclosure entails eviction – though the order prohibits the enforcement of an associated eviction order, and doesn't prohibit starting action against a property owner. Theoretically, you could file for eviction against your tenant and at some point the petition could be granted, and the sheriff would enforce it. Those are the current legal options. Current (optimistic) projections are that evictions could happen in the second half of May. | You should have seen this coming. This might vary a bit from place to place, however it would generally be accepted that if you are in a rented place, you have to pay rent. Most jurisdictions would have some law which requires pro-rata'd payment for the time you actually stay, there would not be any requiring the landlord let you stay free. An uninvested third party might ask "Why would a landlord provide you with 5 days free rent". Another way to look at it is that one of the elements of a contract is consideration (think payment) - Thus in contracting to stay in his place longer you should expect to provide consideration - and pro-rata'd rent would be typical. | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | You have acknowledged that the house was in "new" condition, which establishes a baseline for determining if the present state is normal wear and tear. The lease and California law agree that normal wear and tear is not the responsibility of the tenant. You may then need to sue the landlord in small claims court to get the remainder of the deposit (the above guide will be useful). The thing that is not clear is exactly what constitutes "normal wear and tear". The state guide tends to emphasize extreme forms of damage such as dogs chewing the woodwork, or cigarette burns. If you do ordinary cleaning on the walls, windows, carpets etc. then it is more likely that the judge will find in your favor. | We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately. | I assume you are not legally emancipated. To evict anyone, there is a legal process – nobody can just kick a tenant out, without the appropriate court order. These guys describe the process for evicting an adult child (where the child does not have a lease and is a tenant at will). A custodial parent has a legal obligation to provide, among other things, a place for the child to live. Kicking a child out is contrary to that obligation, and could constitute child abandonment ("neglect" under CRS 19-3-102), and that is a crime. A court would not grant a parent's motion to evict a minor child. If a landlord takes the law into his own hands, as it were, he can be sued under CRS 38-12-510. | Is there any way I can persuade the new landlord to start renting apartment as close as possible to the end of 30-day period? If you already signed a contract with the "immediate move-in" clause, it is going to be difficult to persuade the new landlord. That is because the landlord would have no incentive to postpone his source of income and there is no statute or legal provision available to you on that. If you have not signed the contract, then you two can still negotiate until either party leaves or you reach an agreement. Under contract law, the latter is referred to as knowingly and willfully entering a contract. |
Is forcibly smearing someone with feces a crime, and which one? In February 2023, a German ballet director forcibly smeared dog feces into the face of a journalist. The director said the journalist had written scathingly critical reviews of his work for years, and had "thrown shit at me for years". When the journalist visited a performance of a piece he directed, he confronted her in the opera lobby, started a discussion and finally smeared her with dog feces from a bag he had with him. While this is certainly despicable behavior, would it count as a crime? The attack, while disgusting, did not cause bodily harm, since feces can be washed off. It is really an attack exploiting the person's sense of disgust and a form of humiliation - but I think humiliating someone is in itself not criminal. So, what crime would that be? Some form of assault? I am most interested in answers about German laws, but other answers are welcome, too. | tl;dr: As far as I can see, in germany this would be covered under Körperverletzung (literally: "bodily harm", Strafgesetzbuch (StGB) § 223), and possibly under Beleidigung (insult, §185 StGB). Public broadcaster NDR reports that Goecke is in fact being investigated for committing these offences - Nach Hundekot-Attacke: Staatsoper Hannover trennt sich von Goecke. While the title of the law "Körperverletzung" refers to "Verletzung" (injury), the actual text is more complex: (1) Wer eine andere Person körperlich mißhandelt oder an der Gesundheit schädigt, wird mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe bestraft. English (from official translation): (1) Whoever physically assaults or damages the health of another person incurs a penalty of imprisonment for a term not exceeding five years or a fine. So, Körperverletzung is one of two things: actual bodily harm, or physical mistreatment (or assault) This means that mistreatment is covered, even if it does not result in medical harm or injury. For example, in 2016, a court found an accused guilty of Körperverletzung for putting a dead bird into the letterbox of a court. The repulsion which a court employee felt when finding the dead, decaying bird was considered to be a form of mistreatment. While a court would need to decide, smearing someone with feces seems reasonably similar to making them touch a rotting bird corpse, so it would likely be covered by the same law. In addition to that, dog feces may cause real health problems, such as allergic reactions or infections. This would obviously qualify as Körperverletzung, but may be harder to prove. In addition to that, the humiliation caused by the act might also count as a form of insult (Beleidigung, §185 StGB). Note that §185 StGB explicitly mentions an insult committed via a physical act ("mittels einer Tätlichkeit") as an aggravating circumstance. | An act in self defense is legal (StGB §32): "(1) Whoever commits an act in self-defence does not act unlawfully". However, "(2)'Self-defence' means any defensive action which is necessary to avert a present unlawful attack on oneself or another" – removing a trespasser is not necessary to avert an unlawful attack. This does not apply to removing an annoying person. Under §223, physically assaulting a person is a punishable offense. Pushing a person is one form of assault (so is punching them or pummeling them, perhaps a more severe form depending on the physical damage done). However, the response is also criminal because it goes past that which is necessary to avert the assault (a push is not a license to commit mayhem). Under §§33-35 there are defenses for excessive self-defense ("Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty"), which don't seem applicable in this situation (rage is not the same as fright). | While @jqning is absolutely correct in stating that truth is always an "absolute defense" to a claim of defamation, keep in mind that truth can be a subjective thing. What is one person's version of the truth, may not be another's, even with regard to the same exact experience. Also, while "statements of opinion are not defamation" is typically regarded as true, it has very broad exceptions and is not something that can be relied on in isolation. Defamation is generally defined as a false, published statement that is injurious to the plaintiff's reputation. An online posting, even on an obscure website, will likely be seen by a few people, thus satisfying the publication requirement. A plaintiff cannot succeed in his or her online defamation claim if the defendant's defamatory statement is true. So, for example, if a customer posts a review of your restaurant on Trip Advisor claiming that there were roaches crawling around, you may sue them for defamation. You would then have to prove that there was no roach infestation, and thus, the defendant's statement was false. However, what if there was only one? What if he has a witness who saw it? His truth may be different from yours, and it is up to the trier of fact to decide. Also, getting sued, whether or not you prevail, is at minimum a pain and can be a very expensive ordeal. Opinions are exempt? OK: Following that line of reasoning, restaurant owner shows he's had monthly inspections and prophylactic measures to ensure against pests and the exterminator testifies. The defendant, fearing he's in trouble now, claims that his assertion of roach infestation was just his opinion based on his experience. Opinions are privileged under the law of defamation, right? Not always! Importantly, an opinion may be viewed, generally, as a statement of fact (employing the "reasonable person" standard) if it is something that is either provable or disprovable. What this means is that if the reasonable person would construe your statement to be factual, and not mere opinion, it will be deemed as such and if untrue then you're liable for defamation. The courts may interpret, "I think that [restaurant] has a roach infestation problem," as a statement of fact. This has occurred in numerous cases where people think they can say what they want as long as they couch it as an opinion, with words like "I think..." or "In my opinion...". But when someone says something that factual in opinion form, that is not protected. So, if Jane says, "In my opinion Joe Schmoe is a pedophile..." without absolute proof that Joe is, in fact, a pedophile, then this is libelous (defamation if published or spoken to another). This is because the statement in and of itself is one of "verifiable fact couched in opinion" and it is so damaging to Joe's reputation that if it's not true it is libel per se (defamatory if published – meaning shared). A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. While the law varies some, and sometimes substantially, from state to state, here are some often used examples arising from California courts. Libelous (when false): Charging someone with being a communist (in 1959) Calling an attorney a "crook" Describing a woman as a call girl Accusing a minister of unethical conduct Accusing a father of violating the confidence of son Not-libelous: Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context) Calling a TV show participant a "local loser," "chicken butt" and "big skank" Calling someone a "bitch" or a "son of a bitch" Changing product code name from "Carl Sagan" to "Butt Head Astronomer" Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact. Modified photos that can be shown to scandalize persons or businesses are clearly defamation, and are quite popular on social media. So, for example, if you threw the flyers (I assume you didn't but as an example) all over, and then photographed and published your opinion about the business littering neighborhoods, this would be libelous. The less obvious and absurd the modification, the more likely it is that a court will find it defamatory. So, a picture of a woman with a man's naked torso photoshopped on will not be defamatory, a version photoshopped showing what is to be purported to be her naked body, is. In your case, you face two issues that you should ask yourself: Is your opinion really verifiable (or non-verifiable) facts couched in words that try to make it opinion, or is it truly just your opinion. If fact, is it absolutely true? If the answer is yes, it's fact and yes, it's absolutely true, you're OK. Keep in mind though what I mentioned about truths differing: What if the business didn't know they were put there, or, what if they were placed on cars in a public place and blew in the wind? That could be a problem. While you are most likely fine, you may want to just say, X business's fliers are all over the place, littering the neighborhood and (assuming you called and asked them to pick them up, or wrote them) they refuse to pick up the litter. It sounds like the statements you made are fine, because you don't say that the business littered, or that they put them there; you say they are "plastered" all over, but you don't accuse them openly. That isn't to say it wouldn't be found to suggest fact that they would have to show isn't true (or that they didn't get permission from the property owner). My point is only that, in general, be careful. If he felt that you misrepresented what he did by way of distributing fliers, or if he thought you doctored the photo or set it up, he could sue you if he felt it damaged his business's reputation. | There is no exhaustive list of material banned specifically in WhatsApp profile pictures, but there is an exhaustive list of crimes that § 140 StGB applies to: Whoever rewards or approves of publicly, in a meeting or by disseminating material (section 11 (3)) in a manner which is suitable for causing a disturbance of the public peace one of the unlawful acts referred to in section 138 (1) nos. 2 to 4 and no. 5 last alternative and in section 126 (1) or an unlawful act under section 176 (3), sections 176a and 176b, under section 177 (4) to (8) or section 178 after it has been committed or culpably attempted incurs a penalty of imprisonment for a term not exceeding three years or a fine. In turn, sections 138 and 126 enumerate various crimes, whereas the other mentioned sections relate to (child) sexual abuse. Section 138 (1) no. 5 lists: murder under specific aggravating circumstances (section 211) or murder (section 212) or genocide (section 6 of the Code of Crimes against International Law) or a crime against humanity (section 7 of the Code of Crimes against International Law) or a war crime (section 8, 9, 10, 11 or 12 of the Code of Crimes against International Law) or a crime of aggression (section 13 of the Code of Crimes against International Law) The last alternative is indeed a “crime of aggression” which is defined in particular as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. In Germany, there is a clear consensus that Russia is waging a war of aggression against Ukraine. The “Z” symbol is used in a Russian context in support of this invasion. It is therefore understandable that a prosecutor has the reasonable suspicion that publicly posting a Russian flag with the Z symbol is public approval of this crime of aggression. Spiegel Online reported of 140 similar cases across Germany. Thus, the photo could be real. Of course, the accused should not accept this invitation to talk to the police and instead get themselves a criminal defense attorney. A defense strategy would likely argue that the profile picture was not “suitable for causing a disturbance of the public peace” so that the conditions of § 140 StGB were not fulfilled. More realistically, the defendant would not contest a fine. | Yes, a statement made to only a single other person can be defamation, at least in the US (you don't mention the jurisdiction that you or the accused person are in, and it may matter). Only the accused person can normally sue, and that person would need to establish that the statement was made, and that it was false. In most cases actual damage to reputation also needs to be established. However, a few limited categories are considered defamatory per se. these include an accusation that a person is guilty of a serious crime. (The exact line for defamation per se will depend on the jurisdiction.) If a statemant is defamatory per se actual damage need not be proved. Strictly speaking saying that someone "is a pedophile" only says that that person is sexually attracted to children, but it is usually taken to mean that the person has in fact sexually abused children, which is a crime, and would I am sure be considered defamatory per se. Even so, proof of actual damage to the reputation of the person defamed might be important to the measure of damages to be awarded. often the number of people to whom an accusation is made is relevant to the degree of damage to the reputation, and thus to the damages to be awarded, but the relation is not always 1-to-1. Particularly with a very serious accusation, the damage to reputation could be significant, even if only one or a few people heard the false statement. By the way, the word is spelled "pedophile" (or paedophile in UK English), it is from two Greek words meaning literally "lover of the young". A now obsolete related term is "pederast", with much the same meaning. | It is illegal in Scotland. There is currently no law specifically against it in the rest of the UK. If you find this is unbelievable, yes it is. There are attempts now to change the laws. PS. There are no photos taken "of the act". Taking the photo is the act. The pervs use a selfy stick or just get down on the floor to take photos, or take photos on stairs. PPS. News on Jan 16th 2019: "A new law will now be introduced in the next couple of months. It could mean that perpetrators might face up to two years in prison and are added to the sex offenders register." | If I did punch him , would that be okay? No, that would be Assault and Battery. If you did him serious injury you could face a charge of Grievous Bodily Harm. If you killed him, that would be murder. If you are in the UK, Canada or Australia and you were charged with murder you could claim provocation in an attempt to have the charge reduced to Voluntary Manslaughter. If you were in the US you could attempt to argue "extreme emotional or mental distress" if you are in a state that has adopted the Model Penal Code for any of the charges; if successful your sentence would be reduced. I saw people punch one another over this in movies. And I saw aliens invading the Earth in the movies - what happens in the movies if not necessarily true. Kissing my wife is adultery right? No, extramarital sex is adultery. Notwithstanding, adultery is not illegal in common-law countries. I'm pissed and don't know what to do? I sympathise with you but this is not a legal question. Whatever is going on between you, your wife and your neighbour is a social situation; not a legal one. | s893 Cruelty and maltreatment The recruits and the sergeant are members of the military and subject to the Uniform Code of Military Justice. s893 says: Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. The recruit could bring a complaint to their CO who would investigate and, if it had merit, convene a court martial. However, apart from the physical assault, it’s unlikely that the conduct portrayed would meet the threshold of “cruelty toward, or oppression or maltreatment of” by the standards of the time and possibly not even by today’s standards. The abuse has a training purposes the sergeant is being deliberately and extremely provocative to to determine who has self-control under such provocation and who doesn’t, who has self-discipline and who doesn’t and who needs more and less training in that area. Of course, the training methods of the US Marines at the time were positively humane compared to those of Soviet Albania and the USSR (Chechnya) and even of the French Foreign Legion. Under no1 circumstances would a recruit be legally entitled to assault the sergeant s891 is quite clear: Any warrant officer or enlisted member who— (1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office; (2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or (3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office; shall be punished as a court-martial may direct. 1 Self-defence from imminent risk of death and training excepted. |
How illegal is it to give your prescription medicine to another person (in any amount)? Is it expressly illegal to give even one pill of a prescription medicine you have to another person? If so, what law says this, and under what terms? If not, what are the minimum terms, for example, amount, before giving someone else your prescription medicine becomes a crime? And even then, how prosecutable / prosecuted is this? At what amount does one begin to see people actually arrested or charged with something? But hypothetically, might law enforcement still pursue and investigate an instance of sharing a very small amount, if they got a report saying it had happened? This could be in any country, but I can specify the US if it needs a focus, but I prefer a global / international / comparative perspective. | germany How illegal is it to give your prescription medicine to another person (in any amount)? Under the conditions: you are a private person you are giving (not selling) it is not, in itsself, illegal to give your prescription medicine to another person. OLG Stuttgart, Beschluss vom 18.01.2012 - 4 Ss 664/11 - openJur Nur die berufs- oder gewerbsmäßige Abgabe von Arzneimitteln, die apothekenpflichtig oder von einem Arzt verschrieben worden sind, an Endverbraucher außerhalb von Apotheken unterliegt der Strafbarkeit nach §§ 95 Abs. Abs. 1 Nr. 4, 43 Abs. 3 Satz 1 AMG. Die Abgabe verschreibungspflichtiger Arzneimittel an Verbraucher ist nach § 96 Nr. 13 AMG nur strafbar, wenn der Handelnde Apotheker oder eine sonst zur Abgabe von Arzneimitteln befugte Person ist. Das Tatbestandsmerkmal der Berufs- oder Gewerbsmäßigkeit bezieht sich auf sämtliche Tathandlungen des § 97 Abs. 2 Nr. 10 AMG. Die unerlaubte Abgabe auf Grund ärztlicher Verschreibung erworbener Betäubungsmittel an einen Dritten ist nicht von § 4 Abs. 1 Nr. 3 a BtMG gedeckt. 3a: auf Grund ärztlicher, zahnärztlicher oder tierärztlicher Verschreibung, Only the professional or commercial sale of pharmaceuticals that are sold in pharmacies or have been prescribed by a doctor to end users outside of pharmacies is subject to criminal liability under Sections 95 (1) No. 4, 43 (3) sentence 1 AMG. According to § 96 No. 13 AMG, the supply of prescription drugs to consumers is only punishable if the person acting is a pharmacist or another person authorized to supply drugs. The constituent element of professional or commercial activity refers to all acts of § 97 para. 2 no. 10 AMG. The unauthorized supply of narcotics acquired on the basis of a doctor's prescription to a third party is not covered by § 4 Para. 1 No. 3 a BtMG. 3a: on the basis of a medical, dental or veterinary prescription, Sources: OLG Stuttgart, Beschluss vom 18.01.2012 - 4 Ss 664/11 - openJur Medicinal Products Act (Arzneimittelgesetz – AMG) §43 - Pharmacy-only requirement, placing on the market by veterinarians §95 - Penal Provisions §96 - Penal Provisions §97 - Provisions on administrative fines | There is, as far as I can see, no Crown exemption from the sale of goods acts (including the International Sale of Goods Conventions), but unfortunately for this patient the NHS has no liability either in logic or in law. The doctor provided a written prescription, for which there is no charge, and which allows patients to buy certain drugs. The patient took the prescription to a chemist's, which (for money) provided the drug specified in it. Even if the patient had noticed that the prescription was for the wrong form of medicine, the pharmacist has no discretion to alter it; if the prescription specifies tablets, the patient can either buy the tablets or not buy them and take the prescription back to the doctor. In neither case has either the doctor or the chemist committed any conceivable offence regarding sale of goods. (There might theoretically be a case for negligence, but it would never be worth either suing a doctor for an £8 prescription fee or reporting him to the authorities for writing a prescription for the right drug in the wrong form). | Assuming you mean methamphetamine, then the answer is no. It is illegal to drive with any amount of methamphetamine in one's body. The main Minnesota law on driving while impaired (DWI) is Section 169A.20 subdivision 1: It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles, within this state or on any boundary water of this state when: [...] (7) the person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols. The schedules of controlled substances are at Section 152.02. Methamphetamine is listed in Schedule II (subd. 3 (d) (3)). However, there is an exception if you were taking the substance as a prescription. Section 169A.49 subd. 2: If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20, subdivision 1, clause (7) (presence of Schedule I or II controlled substance), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12. Note that since this is an affirmative defense, the burden of proof falls on you to prove that you had a prescription, and that you were using the substance according to its terms (e.g. taking only the prescribed dose). In particular, if your doctor or pharmacist told you not to drive while taking it, then that would seem to say that you were not using the substance as prescribed. | There is a world of legal difference between a doctor or counselor "pressing" you to consider meds and even suggesting several and them actually writing a prescription. The line to cross is a non-doctor writing you a prescription for prescription meds; this has not yet happened. And 99.99% of the time, it won't happen. The counselor is licensed by the state and will clearly know their legal limits, which are an important part of their education and licensing; they are not going to risk their license or a lawsuit by doing something illegal. If the counselor is a doctor and is able to write prescription, then they will ask you about medical history and other meds during a formal clinical visit in order to write the prescription. If you feel the counselor may be pressing you too hard to consider meds, he may be crossing an ethical line, but that's entirely different than breaking the law. Determining if he crossed an ethical line is for his licensing board to consider, not you. You can ask the licensing board how to proceed. Ask the counselor for their license number; they will freely give it and tell you who to contact. | They're not actually billing people different amounts because they have insurance or not. Doctors can pretty much bill a patient whatever they want for their service, similar to how a grocery store can charge whatever they want for their fresh deli cheese. Generally, they charge every single person the same amount. It just gets discounted depending on the insurance you have and how much they're willing to pay. One of the huge benefits of having medical insurance (outside of them paying for your medical expenses) is that they build contracts with service providers, known as their network. Those contracts specify prices (both preset and algorithmic) for certain services that you receive through those providers - the insurance provider will only pay that much and the doctor cannot charge the patient more than what is paid. If a claim was processed through a different insurance provider, the price will likely be different since each provider will have a separately negotiated contract with different price points for different services. It's not a system of "this is the insured price and this is the uninsured price" but rather a system of "this is the contract you established saying you'd accept this much from us for this service." For an uninsured person, though, you have no insurance provider and more importantly no provider contract backing you up. So you'd have to face the full force of the non-discounted price of those services. You'll face the same problem even with insurance if you go out-of-network, where the provider does not have contracts and therefore will only cover up to a certain amount that they would normally pay out for a similar service, requiring you to cover the rest of the amount of whatever the doctor decided to bill for that particular service. Without that insurance contract preventing the doctor from billing you the remainder of what they'd normally charge, you'll likely be slapped with a bill for that remainder. Directing back at your original question: there is no reason that a medical provider would ever legitimately bill someone a different amount because they are insured or not, thus there are no laws preventing it. It's that they already agreed to accept this certain amount from patients covered under this specific insurance. Again, they bill every patient the same amount - the insurance company is just saying "we're giving you this much and the rest of this, yeah that needs to go away." If you've ever looked at an EOB (Explanation of Benefits) from your insurance company, you'll see that the actual billed amount from the doctor is almost always much, much higher than what is actually paid out by you or the insurance, often known as the insurance discount. Maybe you'd rather think of it as a coupon? | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary. | It is not absolutely against the law to produce schedule 1 substances (such as marijuana). Per 21 USC 822(a)(1), Every person who manufactures or distributes any controlled substance or list I chemical...shall obtain annually a registration issued by the Attorney General which entails specific permissions to make, distribute etc, under (b). If you turn to the prohibitions in 21 USC 841, it starts the list of prohibitions saying "Except as authorized by this subchapter, it shall be unlawful...". The code is liberally littered with the expression "unauthorized". The Attorney General is given authority under 21 USC 811 to make rules, thus can permit production. It's not actually clear who the grower is in the Compassionate IND program. In the Randall case, the "doctrine of necessity" was apparently invoked successfully which led to charges against Randall being dropped. The legal details of the AGs blind eye towards states like Washington are a little hazy, as it were. |
Can an AI admit to guilt? OpenAI is being sued for using content that it has no right to access. Someone asked ChatGPT what sources they used and the AI replied with a list that incriminated itself. How exactly would the law deal with a machine that can "respond" like this? Can the creators simply say "Oh, it is wrong. It doesn't do that." and then just walk away? | No Can a Dog admit guilt in court? Can a car have and admit guilt? No. AI is nothing but property and a piece of evidence, just like a dog or car. It is not a person and thus can not admit to anything. Everything the AI says is evidence, not an admission. Very damming evidence, but not the makers saying "I did it." | There is no real answer to that question at this point. If on filed such a suit, it would probably be under a negligence theory. You would sue: Forbes, because they're the website the user visited? The ad network that provided a vector for infection and didn't properly check their content? The makers of the ad, because they made the ad with malicious intent? and anyone else who might have been negligent. You then have to prove they were negligent. Can the user sue the responsible party for damages? You can sue anyone for anything. The problem is winning. Does it make a difference whether the user has taken due diligence with software updates and patches? It might. Contributory negligence would be an obvious defense to such a suit. | No, you can't The last paragraph of the MIT License explicitly says the author is not responsible for damages (emphasis mine): THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. A software license is not a contract. You didn't enter a contract with the developer or team. You found software online and decided to use the software. When you install paid software you are almost always presented with the EULA and check-box saying you agree to it. You took an action and agreed to the EULA. You didn’t have to agree to anything before getting access to the code under the MIT license. The software is offered "as-is" which is further protects the author. You'd have to show the author convinced you to use the software fraudulently. You're unlikely to talk to the author at all, and since the entire source code is available for review, it would be very difficult if not impossible to claim fraud. Finally, in the U.S. people have been sued using the Computer Fraud and Abuse Act. None of the notable cases involve embedding a virus in an open-source project. Of interest is how the CFAA defines a virus (emphasis mine) (A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; Simply writing bad code wouldn't be enough. You'd have to prove the developer acted maliciously. Hobbyists working for free don't usually have much money. The other major contributors to open source are large companies like IBM and Google, which have lawyers on retainer and deal with frivolous lawsuits frequently. | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | Interesting that they don't give a source and also don't link to anywhere (such as Wikimedia commons). So I assume that content is google's own. So generally speaking: No, when no license is provided, that means you can't use whatever it is in a project of yours (whether commercially or not), because the "default", when nothing is specified, is that no license is given. So unless you find a license that grants you a permission on google's own content, these sounds can't be used freely. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | The images and text are copyright (if they are). What Google does with them is fair use/dealing. It works like this: if Google's bot can find them then you (the owner) have put them on the World Wide Web presumably because you want people to see them, effectively you have put them on public display. Google is assisting you in that endeavour by enabling people who are looking for what you are displaying to find it. Their use of your material enhances its value to you which is a rock solid defence. If you don't want your stuff on public display then a) don't put it on a public part of the web - there are plenty of private cloud storage facilities or B) stick a file in your website that tells bots not to index it. | No. Oregon does not recognize this as within the scope of its self-defense law justification, except insofar as its owner is allowed to use non-deadly force to protect property. But, a sentient AI is also not a proper party to a criminal case and can't commit a crime. |
What was the impetus for the Offences Against the Persons Act 1861? Why in the mid nineteenth century of all times was there seen to be an overhaul of the provisions which surely existed in other forms previously barring such age old offences as assault/rape/murder/etc? What brought about OATPA1861? | In simple terms it was part of a wider effort to consolidate and simplify criminal law referred to as the Criminal Law Consolidation Acts 1861 (which were themselves revisions of the Peel Acts) Basically the sheer number of acts was causing administrative headaches - the courts and parliament were losing track of what was and wasn't in force. Since at least nominally ordinary English folk were supposed to know the law it was getting a bit ridiculous that the people whose literal job it was to make and adjudicate these laws weren't able to! In the words of James Bigg Esq: It would be superfluous to attempt to enumerate the causes which have led to the passing of these statutes : the circumstances which led to their occupying the prominent attention they have received were twofold: ist. The Court of Queen's Bench, a few years since, spent some time in solemnly considering the effect of an act which was afterwards found to have been repealed some years previously, but of which repeal both judges, counsel, solicitors, and all the parties concerned were, at the time, profoundly ignorant, and 2nd, Very nearly at the same period an act was formally passed by Parliament to repeal several acts which had been actually repealed about 20 years previously. As it is a legal axiom that every Englishman is presumed to know the laws of his country, and as the preposterous proceedings just mentioned cast a grave suspicion before the eyes of the public upon the accuracy and extent of the knowledge even of judges and legislators, it was felt that some means ought to be adopted to determine with clearness and precision what laws were really in force and what were abrogated : hence arose the question of “Statute Law Reform,” which for many years has received the intermittent attention of the legislature, and been handled by commissions of inquiry almost innumerable and uniformly expensive. PS: If you're interested in the general topic of how these acts came to be and the legal environment at the time it's well worth reading the whole "Preface" section of the book I linked to above. | […] that prior to 2016, Germany had some outdated […] laws. […] The changes of November 9, 2016, BGBl. I 2460 ff, were brought forward under the impression of the 2015 NYE spike in reported sexual assaults. Particularly incidents around the Cologne train station/cathedral area were widely received. […] outdated rape laws. No, there was no change in the subsection concerning rape. Only editorial changes were made, now following the “new orthography”, less pompous wording/update to today’s parlance, and change in numbering. This meant that no did not mean no, […] If I ask you to “touch me down here” and you say “No” and I take your hand regardless and, without (physical) resistance from your side, place it at the respective location, then it’s sexual assault now, because you said “No”. Previously, it would have required force, e. g. grabbing your hand, to constitute a criminal offense. […] the victim would have to demonstrate injuries from self defence. […] Legally – what the law says – it is not necessary. You will not find a single reference in the law “the victim must demonstrate injuries”. However, successful persecution will be difficult in a he-said-she-said situation. If the court cannot be convinced, it will decide in dubio pro reo (i. e. acquit the accused). This is a general issue of criminal prosecution, though, but people get particularly agitated if it is concerning sexual self-determination. It is notable that a change in law does not bring improvements in that regard. […] a victim being too drunk to consent was not enough […] Previously, there was “in a defenseless situation”. Courts (not the police) interpreted this mostly restrictive. Being drunk does not automatically mean being defenseless (and arguably some people even like drunken sex/having sex while on drugs). Now there is an additional alternative “taking advantage of a person’s physical or psychological condition causing a significant impairment in forming or expressing his will, unless he gives his express consent”. This is a shift toward a subjective assessment of criminality. A sexually very experienced person is well-versed in his capability of giving consent to sexual interactions, whereas a sexually-inexperienced person exhibits “significant impairment” at an earlier level. It is yet to see how courts deal with that. […] When did Germany officially implement this law, […] The changes took effect the next day, on November 10, 2016. Technically, there’s no “implementation period”. However, on November 10, 2016, no lawyer could have definitely answered, for instance, the question “What is a legal definition of ‘against apparent wish’?” | What is the status of laws that refer to the Queen now we have a King? As mentioned in Treason Felony Act 1848 - Wikipedia: Section 10 of the Interpretation Act 1978 says that references to the Sovereign reigning at the time of the passing of the Treason Felony Act are to be construed as references to the Sovereign for the time being. since 1978 a general solution exists which applies to all acts. Between 1901 to 1978, Section 30 of the Interpretation Act 1889 used a similar wording. Sources: Treason Felony Act 1848 - Wikipedia Interpretation Act 1978 - Section 10 References to the Sovereign. In any Act a reference to the Sovereign reigning at the time of the passing of the Act is to be construed, unless the contrary intention appears, as a reference to the Sovereign for the time being. Interpretation Act 1889 - Wikipedia Interpretation Act 1889 | However, in the last 233 years, only a handful of people have been prosecuted for violating this law. The census bureau has noticed that a more effective way to get everyone counted is to follow up in person if someone neglects to respond to the questionnaire. Once they follow up and the person has responded, there's no longer a basis for prosecuting. What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce? The possibility of prosecution is presumably thought to increase the response rate even if virtually nobody is ever prosecuted. The law also serves as a formal statement by congress that responding to the census is important, even if the executive doesn't prosecute people for failing to do so. Another thing to consider is that an element of the offense specified in 13 USC 221 is refusal or willful neglect. Without evidence of an affirmative refusal to respond, the prosecutor would need evidence of willfulness, which goes to state of mind, and that is notoriously difficult to prove. Any defendant who claims to have intended to respond but for chronic forgetfulness would introduce reasonable doubt unless the prosecutor had something to show that the defendant intentionally refrained from responding. | Part answer to Q1: Is my conceptualization correct? No, insofar that your Points 1 to 4 are all "completely illegal" regardless of how the authorities deal with them, and the rest are not, on the face of it, crimes but presumably civil wrongs (which can be dealt with by, for example, fines or restraint / good behaviour / banning orders etc without one having a "criminal conviction"). Also: if the authorities, for whatever reason, decide against dealing with crime then it hasn't been "decriminalised" - that is the remit of the law makers, not the law enforcers. It's still a crime but with a lower political/ operational etc priority. | The key limiting factors are the language: and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. And, also, the context of the term "belief" in the statute in conjunction with religion which is defined in the same section, which suggests that in this context it is intended to be understood as the kind of belief that constitutes a core worldview for a person, even if it is secular (e.g. Confucianism or a Stoic philosophy of life), rather than isolated particular ideas about factual things. There is also considerable room for judicial interpretation over whether, for example "effect of" is limited to an "effect" reasonably derived from the "conduct" in question. Still, in general, the U.K., has higher standards mandating civility in dealings with others than the U.S., and there is lots of conduct barred by the Equality Act of 2010 which would not be barred under U.S. law, for example. The closest analog in U.S. law is really the tort of "outrageous conduct" also sometimes known as "intentional infliction of emotional distress." | 1911-1913 very shady time in USA political history. They could amend the Constitution to make a law Constitutional. There's nothing shady about that in the least. In fact, it is the point of constitutional amendments: to provide a mechanism to change the constitution when it prohibits something that an overwhelming majority of people -- well, of congress and of state legislatures -- think should be allowed. A constitutional amendment can reverse the provisions of Article I; it can reverse a constitutional ruling by a court (or at least reverse the ruling's effect); and it can certainly overcome arguments by Jefferson and Jackson, which have very little legal weight if any. Wasn't the whole point of the revolutionary war ... It doesn't matter what the point of the war was. What matters is that the constitution controls what the government can and can't do, and the constitution can change. The constitution countenanced slavery until it didn't. The constitution required senators to be chosen by state legislatures until it didn't. The constitution forbade income tax until it didn't. | Whether or not one holds the opinion that the adult morally should be prosecuted, there are only two legal questions – can the adult be prosecuted, and must the adult be prosecuted? The easiest question to answer is the "must" one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government can prosecute, if they conclude that the action was not legally justified under §418 of the Crimes Act 1900, as defense of another against a criminal assault. The government won't prosecute if they conclude that such a defense is likely to succeed. |
Can I use the name Winky Dink in my book titile? I want to write a book about an experience with my siblings that affected my whole life and I wanted to title it "My Winky Dink Syndrome" or "Winky Dink and Me" Winky Dink and You was an American children's television show that aired from 1953 to 1957. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. | Yes. You could, assuming that you did not associate it with any real motion picture (which would be a trademark violation). You'd probably want to clarify in fine print somewhere, however, to avoid confusing your fans. | Copyright is irrelevant, because names are not protected by copyright. Trademark is relevant: a name can be protected by a trademark. "Yoda" is a registered trademark owned by Lucasfilms, a subsidiary of Disney. There is a list of goods and services where the property right is asserted, so for example you could get sued for peddling art books under this name. It just depends on what your business does. For instance, a plumbing business isn't competing with Lucasfilms w.r.t. that class of goods and services. | Yes that seems to be the case. The section after the one you quoted, 551:11 Share of Unnamed Child says: If the property not devised nor bequeathed shall be insufficient to satisfy the just share of such child, after allowing advancements received by him, the same shall be made up in just proportion from the property devised or bequeathed to others. The page "Can I Disinherit My Child?" from a law firm blog, says: New Hampshire has a strong policy of protecting “pretermitted heirs,” which are heirs that were not mentioned in a Will. N.H. R.S.A 551:10 states that [e]very child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate. Simply put, you do not name or refer to your child in the Will, then he can claim an inheritance as if you died without a Will. Historically and currently, the rationale is that if you did not mention him anywhere in your Will, you most likely forgot about him, because it is human nature to forget things. However that same blog page also says: There are various ways to disinherit a child. The most often used method is to specifically name or refer to the child, or a class, such as “my children” or “my son, Alex, and his issue,” that you intend to disinherit, and you must then state that you intend to disinherit that child. Another way to disinherit a child is to state that you give that particular child one (1) dollar, or a small sum of money. So it would seem that if one chose to include language such as: I leave to any other children I might have, and to their issue, if any, the sum of $10, jointly. then such possible surprises are covered. This would be after mentioning specifically any children one wanted to leave larger amounts to. | No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request). In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence. The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt. | I'm not familiar with the case you're citing, but it sounds like this may be an application of the doctrine of "inevitable disclosure" or "inevitable use." A classic case would go something like this. WonderWidgets has discovered that by treating its widget molds with a teaspoon of ground cinnamon, it can create a superpowerful widget that is impervious to normal wear and tear, and will last forever, with very little additional expense. To protect its competitive advantage, WonderWidget takes all sorts of measures to ensure that AAA Widgets never learns about the benefits of the cinnamon additive. WonderWidgets hires Jane, an engineer with a PhD in cinnamonology to make improvements to the additive. She signs a confidentiality agreement promising to protet the company's trade secrets. After a year with WonderWidgets, Jane is recruited by AAA Widgets. WonderWidgets sues them both to prevent them from consummating an employment relationship. Assuming that the information Jane acquired from WonderWidgets is a protected trade secret, the idea here is that everyone knows exactly why AAA is hiring Jane, and that it would basically be impossible for Jane to work for them without applying the knowledge she acquired from WonderWidgets, i.e., there her employment would lead to an inevitable disclosure of WonderWidgets' trade secrets. I think most people would agree that there's at least a reasonable argument to be made in favor of WonderWidgets, there are also efforts to apply this doctrine in much shakier circumstances. For instance, WonderWidgets might try to prevent its janitor from going to work for AAA because it taught him how to mop floors, and it has cleaner floors than AAA, and therefore its cleaning techniques must be superior, and therefore those techniques must be protected. There are some states in which WonderWidgets would win the cinnamon case, and some where Jane would win, because the state doesn't recognize inevitable-disclosure at all. I don't know of any states where WonderWidgets would win the janitor case. Of course, most cases are not as clean-cut as either of these hypotheticals, but I'd say the one you're asking about is closer to the second one than the first. | This was at least a feature of Athenian law. In the Aristarchus of Isaeus (early 4th century BC), it is recorded that "the law expressly forbids any child—or woman—to contract for the disposal of more than a bushel of barley". This is a sufficiently ancient and transmissible principle of law that there well may have been Egyptian and Sumerian analogs. You might get the details that you seek by focusing on medieval English common law. | In fact, the first recognition of the First Sale doctrine came about precisely because a publisher attempted to do something of the nature of what you suggest. In Bobbs-Merrill Co. vs Straus, the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." They made the mistake of attempting to enforce it against, among others, R.H. Macy and Co., who they then had to take to court - and lost. This established the First Sale Doctrine, which then later (in 1976) was codified (in 17 U.S. Code § 109. Textbooks recently tested another element of this; in the 2013 case, Kirtsaeng v John Wiley and Sons Inc., the Supreme Court held that the First Sale doctrine trumped a notice forbidding selling a book outside of a particular territory or region (Kirtsaeng imported textbooks from Thailand, where they were much cheaper than in the US, and resold them at a profit in the US). |
What would be the sequence of events necessary in order for social media websites to be considered common carriers? There has been a lot of cries for social media platforms to be regulated as common carriers. However, what would be the actual, concrete events that must happen for such a thing to happen? Does it require an explicit act of congress, for social media platforms to be regulated as common carriers? Can someone who has been extensively deplatformed, eg. Trump, Alex Jones or Laura Loomer, file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell? | However, what would be the actual, concrete events that must happen for [common carrier classification] to happen? Congress would have to pass such laws, since social media platforms are currently covered by a different set of rules. In particular, the Telecommunication Act's concept of “information services” is a far better fit for social media websites than the “common carrier” concept. If the FCC were to unilaterally reclassify social media platforms as common carriers, that would be a difficult to defend position. It is also likely that other laws that require some content filtering would need to be updated or removed. Can someone who has been extensively deplatformed […] file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell? Congress has already provided rules for the regulation of social media platforms. A lawsuit would have to show that these laws are unconstitutional. The existing rules on social media regulation will not be unconstitutional merely because of the scale and importance of those platforms. A free speech argument will not automatically work, (a) because the deplatformed person's free speech rights must be weighed against the platform's free speech rights, and (b) because the first amendment is a defensive right against the government, not against private entities such as a social media platform. Quite specifically, the amendment only says that “Congress shall make no law … abridging the freedom of speech”, but it does not prevent private entities from making rules about how their services may be used. | In the general case, it seems unlikely, based on the wording (which is convoluted). In certain cases, if the president of Russia posts "My name is Vladimir Putin", that post is personal data. On the other hand, you might, based on my writing, conclude that I am from the US, and you might even conclude that I'm in Washington state, but that doesn't distinguish me from 7.5 million others, so on those grounds that is not personal data. Eventually, though, you might identify me specifically from other things that I may have said on SE. The definition depends on two parts. First, personal data is "information relating to an identified or identifiable natural person". Any "information" provided by a natural person is "related to" that person (as is any "information" that is about such a person). The second part defines "identifiable natural person", that is, who is an "identifiable person"? Every person can, in principle, be identified by reference to some label or description of fact about them, so every person is an identifiable person, under this definition. This means that every piece of text that refers to an individual (not even text which can identify the person) is "personal data". Obviously, any individual can be uniquely identified by some collection of identifiers; the problem is that the wording of the law does not explicitly say "using that supposed personal data". If I mention that I have a relative named Knudt, that would technically be personal data: I've given information that relates to a person, though you have no idea (and could not possibly figure out) who that person is. Another term that the regulation defines and uses in a few places is "pseudonymization", which is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person The point of interest here is that this says that "personal data" which cannot be attributed to an individual is, nevertheless, still personal data. I think the most important part of the regulation is art. 6, which defines lawfulness of processing, especially para 4., which allows consideration to be given to safeguards such as pseudonymization. | I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies. | As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar. | Some people seem to believe that just because something happens 'in the internet' it is somehow outside normal jurisdictions. Wrong. In may be harder to investigate and prosecute crimes in the internet, but the laws apply all the same. There are some problems when it is unclear 'where in the world' something did happen -- in the jurisdiction of the perpetrator, the victim, or the service provider? But problems of jurisdiction apply e.g. to international fraud cases in the non-web-world as well. In many jurisdictions, the informed and voluntary consent makes some things legal which would otherwise be illegal. For instance, if two boxers get into the ring, it is understood that each of them did consent to be hit by the other. But usually two fighters could not legally agree to a fight to the death, because even if there are laws on assisted suicide, they do not apply to a fight. Insults, libel, and slander are not on the same level as homicide. There are jurisdictions where they are not prosecuted without the request of the victim. But an insult might also violate other laws, e.g. disturbing the peace. So don't bet on such an app unless you know for sure which jurisdictions are involved. | Anyone can say anything on Wikipedia – even they tagged that claim as requiring a citation. There's no way to directly prove that there is no such requirement, but these guys maintains that there are no such laws in the US, and EFF says the same thing. This Wiki page agrees, giving details about a specific bill introduced in the House and also in the Senate in the 111th Congress that did not become a law (it did not survive the scrutiny of the judiciary committee in either case). Another failed attempt was in the 112th Congress. | Let's look at the Ur-example of a free-speech law, and the most wide-ranging, the First Amendment to the Constitution of the United States of America. It says (my emphasis): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This limitation applies only to the government. Indeed, it has been argued that this limitation only applies to the legislative branch of government and not to the executive (except when exercising legislatively delegated power) or judicial branches. Certainly, the courts have held that it is within their power to issue "gag" restraining orders. Notwithstanding, it imposes no restrictions on how non-government actors can limit your free speech. The owner of a shopping centre can require you not to evangelise, the owner of a stadium can require you not to use offensive language and the owner of a social media platform can restrict your speech in any way they wish. You have a right to talk - they have a right not to give you a platform. | The law you cite says that the Secretary shall furnish such committee with any return or return information specified in such request That includes specific individual returns. That it was intended to include such returns is made clear by the provisions restricting identifiable individual data to executive session. Whether this ought to be the law might well be debated. Whether the House ought to use this law as a way to get at Trump's returns could also be debated. Those are matters of politics, or perhaps ethics, not law. Whether some other provision of law overrides this provision in this case is pretty clearly going to be argued in court, and we will see what the decision is. I won't try to predict it here. |
How does Unionization in the USA work? I can't seem to be able to find and simple explanation as to how unionization in the USA works. I watched the documentary "American Factory" and the workers basically rejected unionization plans. My question is, how often can unionization votes be held? If one vote fails today, can another vote be held tomorrow? And then ad-infinitum until it passes? If not, how often? Who is in charge of organizing the vote to form the Union in the first place? If a vote to form a union passes today, can another vote be held tomorrow to disband the union? If not, when can a vote to disband the union be held, and who is allowed to organize such a vote? Also, the worker population of a company is constantly changing. Basically like the Ship of Theseus. I think, none of the founding members of the UAW union in 1930 are alive today. But the union is still alive and well. So, was there any vote in the interim 90 years to reaffirm the union? Or is it that once a union is formed, it is un-disbandable? I also read about Stabucks workers forming unions. So when a union is formed, a company is no longer allowed to hire any worker outside of the union? So if there is this really great talented person whom Starbucks wants to hire. But this person wants to negotiate directly with Starbucks and does not want anything to do with the Union. Then this person cannot be hired? | First of all, the question seems to misunderstand what "union elections" are about. They do not involve forming or joining a union. Under 29 USC 157 all employees have the right to form or join any union at any time. No election is needed. 29 USC 159 provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities The above section is part of the National Labor Relations Act (NLRA) of 1935, as amended and updated. It is found in [Chapter 7 of 29 USC] (https://www.law.cornell.edu/uscode/text/29/chapter-7) A union is formed as the voluntary act of its members. A union generally has a constitution that controls its operations. This will specify under what conditions the union will be dissolved. An individual may leave a union at any time. Elections, such as those mentioned in the question, are held by the National Labor Relations Board (NLRB) when employees desire that a union become the designated collective bargaining representative for a bargaining unit (which is a group of employees deemed to have a "community of interest"). There is considerable flexibility in just which employees shall be designated as a bargaining unit. In the event of a dispute, this is resolved by the NLRB. (see 29 USC 159(b)). Elections may also be held when there is a desire by some workers to change representatives. A petition requesting a representation election can be filed by a union, a worker, or an employer. Under 29 USC 159(a) the representatives for a bargaining unit: "shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment". That is what representation elections are about. A union, or other organization, is supposed to be recognized or designated as the bargaining representative for a bargaining unit (BU) only if a majority of the workers in that BU who make a choice want that representative. In addition to being certified by the NLRB after winning an election, a union can be recognized as the representative voluntarily by the employer on the request of a majority of the employees. Or such a request can trigger a secret ballot election. My question is, how often can unionization votes be held? Representation elections are normally held no more often than once a year in any BU. Specifically, 29 USC 159(c)(3) provides that: No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held. Cases recently in the news where a second election has been ordered or proposed in a shorter period of time involve cases where it has been held, or alleged, that the previous election was not valid because of unfair labor practices. An election can also be held to decertify the bargaining representative, or to substitute a new representative. In all these cases a majority of the workers voting must agree for any change to be made. The "no more than once per year" rule applies to all these elections. If there are more than two choices on the ballot (for example, if several different unions are proposed, perhaps along with "no union") and no one choice gets a majority, a runoff is held between the two choices with the largest number of votes. This is specified in 29 USC 159(c)(3) All representation elections are held under the authority of, and are regulated by, the NLRB. So when a union is formed, a company is no longer allowed to hire any worker outside of the union? This is not correct. That is what is known as the "closed shop", and it is illegal under the NLRA. Arrangements that are legal (when they are part of a collective bargaining agreement (CBA)) under the NLRA are: The "union shop". On being hired, an employee must join the union within a specified time (which must be at least 30 days, but may be longer). This is specifically permitted by 29 USC 158(a)(3). However, many states have by state law prohibited union shop agreements. An "agency shop". No employee need join any union, but any employee must pay the designated bargaining representative a fee (normally less than the union membership dues) for its efforts in representing the workers of that BU, and that worker specifically. Some states have by state law prohibited or limited agency shop agreements. An "open shop". No worker need pay any dues or fee to any union or other representative., But if the representative is a union, its policies are set by the union members, and to become and remain a union member, a worker must pay union dues. Aside from any shop agreement included in a CBA, 29 USC 158(a)(3) provides that it is an unfair labor practice (ULP) for an employer: by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ... It is also a ULP (under 29 USC 158(a)(2)) for an employer to: dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it ... The provisions of the NLRA and some proposals that have been made to change it are summarized and explained in "The National Labor Relations Act (NLRA): Union Representation Procedures and Dispute Resolution" from the Congressional Research Service (CRS). This report goes into more sub-topics than this answer calls for. As far as I can tell, it correctly describes the current law. See https://www.everycrsreport.com/about.html for more info. | This document from the Michigan Sec'y of State says that "A US citizen who has never resided in the US and has a parent, legal guardian or spouse that was last domiciled in Michigan is eligible to vote in Michigan as long as he or she has not registered or voted in another State". You then use the Federal Post Card Application or the Federal Write-In Absentee Ballot, which you can get here. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | It depends on whether state law allows the use of drop boxes. Many states do -- in 2016, a little over 15% of ballots nationally were returned to drop boxes. Several states require drop boxes; some specify how many are required. (As far as I can tell, no state requires a drop box in every precinct.) For example, Washington, which is a "vote by mail" state, allows voters to either mail ballots back, or return them to a drop box. The law requires the county to provide: "a minimum of one ballot drop box per fifteen thousand registered voters in the county and "a minimum of one ballot drop box in each city, town, and census-designated place in the county with a post office.* In Washington general elections, between 40-50% of ballots are returned to drop boxes -- in 2016, 57% were. Predictably, the use of drop boxes has been in the news recently. | Because an "Order, Resolution, or Vote" is not the same as a Bill, and does not become a law. Thus the procedure for presentation, leading to signing, pocket acceptance, veto, or pocket veto, does not apply to Orders, Resolutions, or Votes. Therefore it is repeated to indicate that it applies to those legislative acts also. A "Vote", in the sense used here is a legislative decision or action that is neither a Bill nor a resolution. For example, the decision on when to adjourn to, that is, when Congress will come back into session after an adornment, is a Vote. A "Bill" is a proposed law. If it is passed by Congress and not vetoed, or if any veto is overridden, it becomes a law. Other legislative actions do not become laws, but otherwise go through much the same procedure. Note that some legislative actions do notneed the "Concurrence of the Senate and House of Representatives". For example, when the House votes on a new Speaker, it is a vote of the House only, and neither the Senate nor the President has a say. | It would depends on the laws of the particular state, since each state has its own laws pertaining to voting. The law in North Carolina, N.C. Gen. Stat. §163-275(7), says that it is unlawful For any person with intent to commit a fraud to register or vote at more than one precinct or more than one time, or to induce another to do so, in the same primary or election, or to vote illegally at any primary or election The corresponding jury instruction says what it means to have an intent to commit a fraud: Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom. Specific intent is a mental purpose, aim or design to accomplish a specific harm or result. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant voted more than one time in the same election event, the (name election event or contest),and that defendant did so with the intent to commit a fraud, then it would be your duty to return a verdict of guilty. If you do not so find, or if you have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty The prosecution would presumably construct an argument that the defendant intended that is vote be counted twice, and if they can prove that intent, then the jury should convict. Defense could argue that the intent was based on a reasonable belief that their absentee ballot was not counted thus disenfranchising defendant, and defendant acted with the lawful intent that their vote be counted, once. Because NC law contains procedural provisions to filter out double-voting, defendant can reasonably have a non-criminal intent, even if they are mistaken about the efficacy of those safeguards. However, the Ohio law does not carry an intent element: (A) No person shall do any of the following: ... (2) Vote or attempt to vote more than once at the same election by any means, including voting or attempting to vote both by absent voter's ballots under division (G) of section 3503.16 of the Revised Code and by regular ballot at the polls at the same election, or voting or attempting to vote both by absent voter's ballots under division (G) of section 3503.16 of the Revised Code and by absent voter's ballots under Chapter 3509. or armed service absent voter's ballots under Chapter 3511. of the Revised Code at the same election; This doesn't even require that you know that you are voting twice. So it depends on the particular law of the state. | Prior to the 14th and 15th amendments, the US Federal Constitution and the Federal laws passed under it neither allowed nor denied anyone the right to vote. The decisions on who would and would not be allowed to vote, including for members of Congress and for President, was wholly in the hands of the sates, and were regulated by the various state constitutions and laws. A few states permitted women to vote, and at least one permitted free blacks to vote, at least for a period of its history. The Federal government had nothing to say on the matter. In at lesat one case the US Supreme Court refused to consider such a question. That was the case of Luther v. Borden, 48 U.S. (7 How.) 1 (1849) which grew out of the Dorr Rebellion The state of Rhode Island, had retained its pre-revolutionary charter (dating from 1663) as its constitution, and required the ownership of a significant amount of landed property as a qualification to vote. The Wikipedia article on the rebellion (linked above) states: By 1829, 60% of the state's free white men were ineligible to vote (women and most non-white men were prohibited from voting). In 1841 a group led by Thomas Wilson Dorr held a convention to draft a new state Constitution, (known as the "People's Constitution"), and held ratifying votes on the draft. They declared that it had been approved by a majority of those qualified under the old laws as well as a majority of those voting and qualified under the new rules, and that it was therefore the valid constitution of the state. The old (charter) government said this was invalid and illegal. Attempts to establish the new government by force failed. However, a revised state constitution that greatly expanded voting rights was passed and took effect in 1843. Luther v. Borden was a case of trespass against members of the militia acting under the charter government, brought by a supporter of Dorr. The plaintiffs brought extensive evidence (over 150 pages) intended to establish that the Dorr or "People's" constitution had been validly ratified by a majority of voters, and that the old constitution had improperly restricted voting rights. The case went to the US Supreme Court, where Chief Justice Taney wrote in the majority opinion: The plaintiff contends that the charter government was displaced, and ceased to have any lawful power, after the organization, in May, 1842, of the government which he supported, and although that government never was able to exercise any authority in the State nor to command obedience to its laws or to its officers, yet he insists that it was the lawful and established government upon the ground that it was ratified by a large majority of the male people of the State of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the State. ... The point, then, raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State, and the well settled rule in this court is that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. Besides, if the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision. {emphasis added} Thus, until the passage and ratification of the 14th and 15th amendments, which forbid states to deny the vote based on race, national origin, and a few other grounds, the Federal Constitution had nothing to say on the point. States were required to grant the right to vote to women by the 19th amendment in 1920, and the 26th (1971) prohibited denial on the ground of age to anyone 18 or older. The 24th (1964) prohibited denial for failure to pay a poll tax or any other tax. The 14th amendment has been held to guarantee the equal weight of votes, in what was at first known as the "one man, one vote" rule (later "one person, one vote") and has been used to overturn individual and group denials of voting rights. But there were no federal voting rights in the years before 1865. I am not aware of any writings by any of the "founding fathers" (say the members of the Constitutional Convention) that seriously discuss the possibility of a female President. But they did consider and endorse the possibility of a person being elected president who might not be qualified to vote in some of the states. They declined to impose, or permit Congress to impose, a property, or other variable, qualification on the president, even though many of the original states had property qualifications for voters. Options for this were proposed and voted down in the Convention's drafting process. | Labor Code §70 states that (1) Where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith. so yes, it is legal to deduct union dues. There is no requirement to notify a prospective employee that they will be required to be a member of a union. The employer is required to inform you of deductions for taxes and union dues, under §254, when they pay you, which is why you know that you were a member of a union. That is what labor law gives you, but a union contract could impose other obligations on the employer. It is a matter of public record that a certain workplace is unionized, so you can find out, they just don't have to volunteer that information. There is no statutory limit on union dues, that is a matter set by the union. |
If the Jury considers evidence that should be discarded in the US, what would the result be? This comes from the movie A Guilty Conscience, which may be one of the best movies of the past 20 years in Hong Kong and its box office is the highest ever. Movie Spoiler Warning What if the defendant's lawyer obtained some evidence that can prove the defendant not guilty, but he obtained it illegally (such as by electronic eavesdropping). Now the Jury all hear that evidence (the recording and and perhaps even the video). However, since the judge said it is illegally obtained, the judge told the Jury they should discard this evidence. So, now the Jury is faced with 2 choices: Discard the evidence, and without it, now the defendant will have a death sentence or life prison Take that evidence into consideration, which is to ignore the judge, and set the defendant free What if the Jury as a whole chooses option 2, which is opposite of what the Judge told them to do. Then what will happen — will the defendant simply be set free? (and as a side note, do you know if this applies to most other parts of the world? And if the Jury knows the defendant is not guilty but he or she is sentenced to a death sentence or life prison, isn't that outright absurd? But I guess I will ask it as a separate question) | The jury would never hear the recording The recording and its provenience would be provided to the prosecution who would, rightly, have issues with its admissibility. The defence and prosecution would make submissions on this to the judge, normally well before the trial date and the empaneling of the jury. If the recording had genuinely emerged during the trial, such submissions would be made without the jury seeing them. The submissions would typically be in writing rather than verbal. If the judge decided the evidence was inadmissible the jury would never see it and never know of its existence. If the jury somehow found out about it anyway, this would be grounds for an immediate mistrial and we would start again with a new jury. Illegally obtained evidence is not automatically inadmissible Hong Kong is not the United States - admitting or excluding illegally obtained evidence is at the discretion of the judge based on where the interests of overall justice are best served. In any event, the absolute prohibition in the US applies only to prosecution evidence - evidence illegally obtained by the defence is subject to the same rules as in Hong Kong; the judge decides. | Whether evidence is admissible in court or not doesn't depend on whether it conforms to any standard, compliance, or certification. Those factors may affect how strong the evidence is (i.e how convincing it is), but those factors don't determine whether the evidence may be used at all. Different jurisdictions have different rules, but in most places, as long as the evidence is relevant to the case in trial, then it is admissible. There are usually rules which may render evidence inadmissible, such as if it was obtained illegally, or if it would have such a prejudicial effect on proceedings that it would undermine the fairness of the trial. If you are wondering if evidence is relevent or not, an easy way to determine so is asking yourself: does this evidence help a party's case? Does this evidence undermine a party's case? If yes to either question, then it is relevant. | You have raised two broad questions. The question about reasonable suspicion asks: when is evidence illegally obtained? That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: what use can the government make of illegally obtained evidence? This is the subject of the exclusionary rule. The short answer is this: The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence ("fruit of the poisonous tree") in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs. To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions. History and rationale of the exclusionary rule The exclusionary rule originated in Weeks v. United States, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that "the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence." Weeks was convicted. The Supreme Court reversed, holding that: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), the doctrine was extended to prevent indirect use of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The Court acknowledged the 'complexities' of this distinction in Nardone v. United States, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to "examine the prosecution as to the uses to which it had put the [illegally obtained] information." Frankfurter J, delivering the opinion of the Court, quoted the above passage from Silverthorne and said: In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Development of modern limits to the exclusionary rule The Court clarified the purpose of the doctrine in United States v. Calandra, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said: The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The Supreme Court endorsed a good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded: The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Court cited Leon and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings: [B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs" ... A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The Court endorsed an even more circumspect approach to the rule in Hudson v. Michigan, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs", which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding" it, and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." We have rejected "[i]ndiscriminate application" of the rule, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,"—that is, "where its deterrence benefits outweigh its 'substantial social costs.'" (citations omitted) Current state of the law As of June 2017, the last word on the rule is the Supreme Court's decision in Utah v. Strieff, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule: First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." (citations omitted) Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine: The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the "temporal proximity" between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider "the presence of intervening circumstances." Third, and "particularly" significant, we examine "the purpose and flagrancy of the official misconduct." (citations omitted) [W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct. Specific scenarios Can the past arrests serve as a basis for reasonable suspicion to stop a person? As a basis for inclusion of the person on an informal watch list? As mentioned in the introduction, this question is not really about "fruit of the poisonous tree." It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Terry v. Ohio, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in United States v. Sprinkle, 106 F.3d 613 (1997): A prior criminal record "is not, alone, sufficient to create reasonable suspicion." Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted) As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? What if law enforcement set up a sting operation targeted at this individual? As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to "warrant a man of reasonable caution in the belief that an offense has been or is being committed": Brinegar v. United States, 338 U.S. 160 (1949). Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before? If the evidence is suppressed then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: Pennsylvania Bd. of Probation and Parole v. Scott. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in Utah v. Strieff: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.' Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine. | The question to be answered is "did the state prove guilt beyond reasonable doubt", the answer to which should have no reasonable doubt. The interests of the defendant are sufficiently protected by the basic burden of proof requirement. The alternative that a single vote of not guilty exonerates the defendant would seriously hobble the interests of the people, and the alternative of automatic mistrial would make trials prohibitively expensive. The unanimity requirement does mean that in case of initial disagreement, parties have to re-think their positions, which is not a bad thing. The question of whethar a supermajority of guilty votes suffices for conviction was decided in a recent case, Ramos v. Louisiana, allowing conviction with a 10-2 vote. The court takes unanimity to be a basic common law right from the 14th century. Louisiana and Oregon had unconventional schemes allowing less than unanimous decisions: the reasoning behind the unanimity requirement is discussed extensively in that opinion. Since Alito, Roberts and Kagan dissented in part, the rationale for the other view is also spelled out. | There are essentially no such limits on the use of such evidence. The police are free to use evidence from one case in whatever other cases it may be helpful, and criminals have no right to turn over evidence to the police on the condition that it not be used against them. The Exclusionary Rule has no application here, because it only governs evidence that was obtained in violation of the Fourth Amendment. Because the defendant here consented to producing the evidence, the Fourth Amendment does not apply. Nor does the Fifth Amendment prohibit the use of this evidence. The right against self-incrimination only applies to compelled self-incrimination; if a defendant wants to voluntarily confess or turn over inculpatory evidence, he is free to do so. | The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge. In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never "attached," for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.) Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process. If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure: If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree. States, however, may approach this slightly differently. | Yes. Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate. Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called "jury nullification." And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible. Basically, if you "roll the dice" there is some non-zero chance you will be acquitted, while if you plead guilty, there is none. Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions. Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option. Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency. Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move. | At the federal level, there is no real equivalent to what you're describing. A probable cause hearing evaluates the government's evidence in a similar way, but it doesn't ask whether a reasonable jury would convict. The closest I can think of is a Rule 29 motion, which does ask that question, but not until trial has already begun. You typically make the motion at the close of the government's case, and (if it was not successful) again at the close of your own, though I've heard tales of judges granting the motion at the end of the government's opening statement. The states all have their own rules, but they're generally pretty similar to the federal rules in this respect, as I understand it. I don't know of any state that allows the kind of motion you're talking about, in criminal cases, at least. In civil cases, I think everyone has Rule 12(b)(6) motions, which ask the court for a pretrial determination that there's no set of facts that could establish liability on the plaintiff's theory of the case. |
Why did French have such a lasting influence on the English legal lexicon? It seems so pervasive but, still confusing that we don't simply use French altogether for legal purposes, which I suppose was done at one time. But why were certain terms kept from French, while the rest of the language used reverted to English? It would make a bit of sense if there had been no terms available in English to refer to e.g. corporate bodies prior to the Normans' arrivals, but that doesn't seem terribly plausible. | Because the Normans spoke French. The English Nobility didn't speak English till the 14th century at all. Why? Because the Norman Nobility spoke French till the whole debacle of the Hundred Years' War was halfway through. William The Bastard left only very few nobles from before in power when he landed in 1066 and delivered a smackdown on the previous rulers. He established a whole new nobility and based on his orders (in French), this also formalized most of the Common law between 1066 and the 100 years war. It was the Norman nobility talking, and they had the text written in French and Latin, the civilized languages, not the gibberish Old English/Anglo-Saxon and Norse that was used by the peasants. Any English you and me would understand wouldn't even exist for another 200-300 years. Or to cite the Britannica: The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged. English changed. Would you understand Beowulf from about 700-1000 AD, which is Old English? Hwæt. We Gardena in geardagum, þeodcyninga, þrym gefrunon, hu ða æþelingas ellen fremedon. Between this and modern English is a very heavily French-influenced English called "Middle English". This still is mostly illegible to a modern reader, but you find this from about 1066 to the 15th century. Only after the Hundred Years war ended, active steps were taken to remove French from the courts and language, which would result in modern English - yet the influence was extreme in the legal world then. To come back to the example above: I bet you do understand the Francis B Gummere (died 1919) translation into modern English, even if it feels a little archaic to us in 2023: LO, praise of the prowess of people-kings of spear-armed Danes, in days long sped, we have heard, and what honor the athelings won! | Depending on your jurisdiction, such lists may be protected, but not by copyright. For example, in Germany there was a court decision that scanning all the country’s phone books and selling them on CD constituted “unfair competition” and was illegal, while hiring 1000 typists who would manually type in all this information would not be. Databases are protected in many jurisdictions, and a list of the 1000 most commonly used English words could reasonably be called a database. | Has it ever been formally established that giving any group, X, a priority of credulity in court over any other group, Y, would amount to granting the group X a title of nobility? No. This has never been formally established. In the 100 years between the ratification of the US Constitution and "Coffins v US", were there any laws or court decisions which would give any groups de facto nobility over other groups by demanding that their accusations against some other groups must be assumed (if formally stated) true until proven false? Effectively so. For example, the doctrine of res ipsa loquitor works that way and that have been classes of people who have been historically not eligible to serve as witnesses. There are also many procedural circumstances historically (e.g. confessions of judgment) that operate in this manner. Did the argument that this amounted to granting of titles of nobility (which was prohibited) ever come up in any court cases? No.* The core litmus test under the title of nobility prohibition has been that a privilege granted by the government is hereditary and is not simply ordinary property. Without a hereditary component, the title of nobility prohibition does not apply. A lengthy analysis of this jurisprudence can be found in the answer to the Law.SE question "What exactly is a title of nobility?" While this question isn't a true duplicate of that one, the pertinent legal authorities are all discussed in the answers to that question. Obviously, it isn't possible to know every legal argument that was made orally in a trial court or legal brief for all of the United States for all time by everyone and anyone, often leaving no historical record whatsoever. There are no recorded appellate court opinions of which I am aware, however, that engage with this legal argument and rule upon it (which is usually what someone really means when they say "did this argument ever come up in a court case"). Post-Script This post also confounds a "presumption of guilt" with a per se rule regarding credibility determinations, but while both go to the issue of how evidence is evaluated by a tribunal, the two concepts otherwise have nothing in common, and sometimes it isn't clear which is which. For example, in many U.S. jurisdictions, a marriage certificate in existence at the time someone is born, accompanied by the passage of time under a short (often five year) statute of limitations, conclusively prevails on issues of paternity, over a DNA test that is 99.999% certain to be correct as a matter of genetics. You could interpret that as meaning that marriage clerks are always more credible than genetic scientists. But, of course, that isn't really the intent. Instead, this is effectively a substantive rule of law couched as an evidence rule. Similarly, the requirement that real property can only be conveyed in writing could be interpreted as an evidence rule, but it is more realistically viewed as a rule concerning the definition of what a transfer of real property really is that is useful to make a bright line rule. Thus, an oral statement can be a promise to transfer real property, but it doesn't really happen until there is a signed deed or other conveyance. A traffic ticket basically has a presumption of guilt in some jurisdictions, because if you fail to appear you are found guilty in absentia even without evidence, something that is not permitted as a matter of criminal procedure in the U.S. for more serious offenses for which you can be incarcerated. But, on the other hand, if you do appear, the prosecution has the burden of proving that you committed the offense alleged in the ticket. Perhaps the closest example there is to a presumption of guilt (either rebuttable or conclusive, depending upon the statute and facts) is a statutory rape law, which in theory, presumes that someone under a certain age does not have the capacity to consent to intercourse, rendering the offense rape. But, a more straightforward way of understanding those laws is that sex with a minor in the circumstances described is itself illegal without regard to any conclusive presumption of lack of consent. There are also many laws prohibiting certain people from testifying about certain matters in certain circumstances. For example, spouses may not testify against each other in court over a spouse's objection in many kinds of cases. These rights are called "privileges" and are not considered to be titles of nobility. The U.S. Code of Military Justice, intentionally allocates legal rights in these quasi-criminal proceedings in a manner that treats people with different military ranks unequally. Officers have different legal rights than enlisted soldiers, for example. But, since military offices are not hereditary, these rights are not titles of nobility. | Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England & Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice. | Is it possible that a court of one jurisdiction would apply the laws of another jurisdiction? For example could a case heard in France (by a French court) apply the laws of the US? If no, then what is the point of such clauses? Yes. This can be done and the example you provide could happen. This is done in civil cases, but not in criminal cases. The other main exception is that a court will not apply another jurisdiction's tax laws, although this is less absolute and the other jurisdiction's tax laws may still be considered as relevant to a civil dispute, so long as they are not enforced. For example, I have litigated a case where the events took place in France in a U.S. Court where the court had jurisdiction over the parties and the relevant choice of law rules pointed to French law. The overarching principle of that the law of the place with the most significant connection to the legal issue decided applies. But there are many subsidiary rules that provide clarity in some areas (although the clarity was reduced with the effect of making forum law apply more often, in the 1960s-1980s after a previous regime of more black and white rules). A clause like this is generally effective if it the parties have any connection to the forum chosen. It is a close cousin, although not nearly so strongly preferred in the law, of an arbitration clause. Also do such clauses go by other names than "attornment" clauses? This article points out such a name is specific to Canada. Yes. In the U.S. an "attornment" clause is a provision that requires a party to a contract to affirmatively declare upon notice from the other party if the attorning party claims that the other party is in breach of the contract or has unfulfilled obligations (with the attorning party waiving any claims for breach of contract not identified at that time). An "attornment" clause is normally found in a lease or secured promissory note and facilitates the transfer of the leased property or secured debt in a way that the new owner can know that there is no risk that it is already in default apart from the transferor's representation. Otherwise, the aggrieved party wouldn't have to mention anything until the statute of limitations arrived. All of the meanings, including the Canadian one, go back to the notion of affirming the existence of certain rights in advance of a dispute arising between the parties. This Agreement shall be construed, interpreted and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Québec and the federal laws of Canada applicable therein (excluding any conflict of law rule or principle of such laws that might refer such interpretation or enforcement to the laws of another jurisdiction). The language above is a choice of law clause. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Québec, judicial District of Montreal, with respect to any matters arising pursuant hereto. The language above is a choice of forum clause, a.k.a. choice of jurisdiction clause, a.k.a. choice of venue clause. | It may "seem[] normative" that "a law cannot enumerate any specific persons or companies to be included or excluded from its provisions." But in fact it is not generally the case. There are various kinds of laws that traditionally have named specific people or entities to define their scope. These include: In nineteenth-century England, a divorce could only be granted by a specific law passed by Parliament, naming the persons to be divorced. I am not sure when the practice stopped. In the US during the nineteenth century (and I think the early twentieth century also) a corporation was normally formed by a specific law granting a charter of incorporation to the named company. In the US during the period 1866-1870 there were a number of laws passed permitting former Confederate officers and officials who were presented by the 14th amendment from holding office under the US or any state to hold office again, as the amendment provides for. Eventually Congress passed a more general amnesty. It was once common for the English Parliament to pass bills of attainder. These were legislative declarations that a particular person was guilty of a particular crime, generally without any trial or other process. Sometimes the specific sentence was also imposed by such a bill. This was sufficiently resented that the US Constitution specifically forbids Congress or any state from passing such a bill. It was once common for actual laws to grant payments to specific people for specific purposes. This is no longer common, but there is no legal bar to it in either the UK or the US that I know of. The UK Copyright, Designs and Patents Act 1988 contains a provision enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan" whose author, J. M. Barrie, had given his copyright to the hospital in 1929, later confirmed in his will. This right is to persist even after the expiration of ordinary copyright for the play, but is not a full grant of copyright. Laws or ordinances invoking eminent domain to take the property of particular individuals for particular purposes are common, mostly at the local level. In the US, the Equal Protection Clause generally forbids laws which treat people, or groups of people, differently unless there is some rational basis for the distinction. But in some cases a plausible basis is asserted and such laws are passed. | He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect. | There are two legal jurisdictions in the Channel Islands, the Bailiwick of Guernsey and the Bailiwick of Jersey. The law in Guernsey differs from the law in the UK partly because the Common Law developed differently (more Norman influence on Guernsey than on England) and partly because Guernsey and the UK have different legislatures and so pass different laws. Until recently the UK was a member of an organisation based in Belgium and Luxembourg called the European Union which has its own legal system and courts and which requires member states to enact identical legislation in certain matters including, in particular, employment law. Although the UK is no longer a member of the EU most of its employment laws remain as they were in the EU-era. By contrast Guernsey has never been a member of the EU. So this is an additional reason for differences in laws. Generally the parties to a contract can stipulate what law governs the contract and which country's courts have jurisdiction. For example a contract between a Guernsey company and an individual resident in England could be stipulated to be governed by the laws of France and subject to the jurisdiction of the courts of Barbados (this particular example is highly unlikely but I am just illustrating the principle). If the contract does not stipulate the law (or the contract is unwritten) then there are default rules which determine which jurisdiction's laws apply. However, that said, most countries, including England and Wales, have some "mandatory" employment laws. These are laws which apply to everyone employed in England (or Wales) even if England/Wales does not generally cover the contract of employment. Mandatory laws typically cover such things as minimum pay rates, rest periods, minimum paid holiday entitlement, protection from unfair dismissal etc. So some employment laws in England and Wales apply to everyone working in England and Wales whilst some other aspects of the employment relationship are governed by the law of the contract - which might be England and Wales or might be some other system of law. |
Why is a lawsuit a "suit"? Where does the term "law suit" for a legal case come from? It seems to perhaps only be used to refer to civil cases, however. Also, is it a purely American (USA) term or does it also find use elsewhere? | The historical root is Old French sieute, sivre meaning "follow, pursue". You pursue your defendant in court. This is an ordinary legal term in post-Norman England. The root is also invoked every time the government prosecutes a person for a crime. The expression "law suit" is more modern, being a rearrangement of "suit at law". An early attestation in the legal sense is (1325) Statutes of Realm (Rawl. B.520) (2011) v. 6 Ant ȝif a ne cometh noȝt, þanne a sullen ben iiuged ase for ateint, ant sullen ȝelde duble, þoru þe siwte of þe king, to hoem þat habbeth ihaued þene harm. | "Law" refers to rules; "jurisdiction" refers to the situations in which those laws apply. For example, the United States Constitution is the supreme law of the United States of America. But for the most part, it only applies within the territorial jursidction of the government that enacted it, i.e., places inside the borders of the United States, or to those over whom the United States has personal jurisdiction, i.e., United States citizens, permanent residents, those currently inside its borders. So the United States Congress could pass a law outlawing the sale of dogs, but it would have no effect on dogs in Canada, as Congress has no jurisdiction over dogs in Canada. Similarly, if a Canadian terrorist (the most dangerous kind, really) launched a missle over the border into the United States, the FBI could not arrest him in Toronto, as they lack jurisdiction to enforce the law outside the United States. "Jurisdiction" is also a concept that limits the powers of courts to hear cases. "Subject matter jurisdiction" refers to limits on the types of cases the court may hear, and "personal jurisdiction" refers to limits on whose cases the court may hear. For instance, if the New York Legislature established a small-claims courts to resolve claims for less than $10,000, your case might be dismissed for lack of subject-matter jurisdiction if you sued someone for $10,001, or it might be dismissed for lack of personal jurisdiction if you sued someone who had no connection to New York. These explanations are admittedly incomplete and imprecise to provide a basic understanding of the concepts, rather than an overwhelming -- and boring -- exposition of the precise meanings of these terms. | You know that a judicial proceeding has been filed against you when you are "served" with notice. In fact, legal proceedings cannot generally proceed without somebody swearing that you were served notice. If a criminal complaint is being pursued against you then you might also learn of this fact when an investigating law enforcement agent contacts you to question you or arrest you. "Filed a case" could mean all sorts of other things. For example, it could be that they filed a police report, or filed a complaint with some company or non-law-enforcement entity. It could be that they have in fact filed a claim in a court of law and whoever is serving process just hasn't been able to find you. In any of these events I don't know of any way that you could proactively determine that without knowing exactly where and how the "case" was "filed." Actually, if a criminal complaint was filed against you and approved then a court in another state could have issued a warrant for your arrest. Contact your local police and they should be able to do a nationwide search for open warrants on you. Police will not typically release information on "open investigations." So even if you knew the exact agency where it was filed they may not tell you anything. If they decided not to investigate it then you might have a right to request the complaint under open-records laws – that depends on the state and the agency. | The law that New York passed does not create any cause of action, it overrides existing rules regarding time-barring of civil claims, so the quick answer to the question "does this law apply in that kind of case" is "that law is irrelevant". There is a general legal question about the jurisdictional limits of a court. For example, a foreign insurance company will be subject to specific personal jurisdiction in a US federal court over a claim under a cargo insurance policy for a shipment to the US. The case Daimler AG v. Bauman seems to be similar to the type of case you are asking about. This case involves the Dirty War of Argentina, and the question of whether Daimler's business connection to Mercedes-Benz Argentina gives plaintiffs standing to sue in US courts over actions in Argentina. SCOTUS held in that case that Daimler is not amenable to suit in California for injuries allegedly caused by conduct of MB Argentina that took place entirely outside the United States The court first notes that For a time, this Court held that a tribunal’s jurisdiction over persons was necessarily limited by the geographic bounds of the forum but this has been modified to recognition of two personal jurisdiction categories: One category, today called “specific jurisdiction”...[which] encompasses cases in which the suit 'arise[s] out of or relate[s] to the defendant’s contacts with the forum' [and] distinguished exercises of specific, case-based jurisdiction from a category today known as 'general jurisdiction,' exercisable when a foreign corporation’s 'continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.' The court observes that "general jurisdiction has not been stretched beyond limits traditionally recognized". As I understand the hypothetical, the proposed wrong does not derive because of the defendant's connection with the jurisdiction, and the connection to New York (or any other state) would be that it might be forum convenient for the plaintiff to litigate in. This would fall under the category of "general jurisdiction" (assuming that New York is not the company's corporate home nor is it their primary place of business), and the state's courts would not normally have jurisdiction in that case (lacking any specific statute creating a cause of action and explicitly declaring extraterritorial jurisdiction). The underlying constitutional rationale is the Due Process consideration that a person (including a corporation) should not be be forced to defend themselves in courts in states where they have no real connection. The question that would be asked is whether the corporation had sufficient connection to the state that the state courts would have jurisdiction. We should also turn to three SCOTUS cases, Nestle v. Doe et al, RJR Nabisco, Inc. v. European Community and Kiobel v. Royal Dutch Petroleum Co., where questions of extraterritorial jurisdiction are considered. The Nestle court's analysis of the underlying principle starts by observing and citing from RJR Nabisco that First, we presume that a statute applies only domestically, and we ask "whether the statute gives a clear, affirmative indication" that rebuts this presumption. In Kiobel, the court states – reaching further back to Sosa v. Alvarez-Machain that [w]hen a statute gives no clear indication of an extraterritorial application, it has none, a principle which "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord) (EEOC v. Arabian American Oil Co). The relevant statute under which these suits were initiated is the Alien Tort Stature, 28 USC 1350, which allows an alien to sue in US courts under certain circumstances, and states only that "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". ATS would clearly not be applicable to the case of a US person suing a foreign corporation, but the other cases have articulated a principle that transcends the specifics of the ATS – there would have to be a statute giving a state extraterritorial jurisdiction over the matter. | united-states Overview The big picture to keep in mind is that in the United States the applicable deadline for filing a lawsuit is very specific to the legal theory upon which relief is sought from a court, and that there are numerous special rules (which can vary from claim to claim and based upon the individual facts of the case) that can modify these general rules. Exceptions to the general rules are common enough that it is not safe to rely upon them. There is a lot of case law on these issues because dismissals of cases because a statute of limitations has run are usually all or nothing issues in a lawsuit, don't depend on too much evidence, and are often relatively straightforward and inexpensive to appeal relative to other kinds of legal issues. Also, lawyers whose cases are dismissed for failing to meet a statute of limitations often have a strong incentive to encourage their clients to appeal, because they may face malpractice liability if the dismissal of their client's claims is upheld. While the question is specifically directed at how statutes of limitations apply to continuing violations, it isn't possible to really clearly answer that question outside of the larger context of how statutes of limitations in the United States work in general, and without considering other legal doctrines that can have similar effects to rules based upon continuing violations under different legal theories. Also, keep in mind that when you hire a lawyer to bring a lawsuit, the lawyer needs lead time to prepare the documents starting the lawsuit. The best practice is to contact a lawyer as soon as possible because this may allow claims with shorter statutes of limitations that you had not even considered to be brought. It is usually very imposing on the lawyer to bring a new lawsuit to them less than a month before the deadline for bringing suit. Sometimes it is possible to get the job done a week or even a few days before the deadline, but this invites mistakes that could impair later phases of the lawsuit, limits the time available for factual investigation and legal research before bringing the lawsuit, drives up the cost of preparing the documents because work that would otherwise be done by staff or junior lawyers may have to be done by senior lawyers, and exposes you to the risk that you won't be able to find a lawyer who is actually willing to take on your case on acceptable financial terms right away. Statutes of Limitations In Ohio In Ohio, for non-criminal cases, some of the most common statutes of limitations are as follows (citations to the relevant statutes are found in the linked material): 21 years to recover real estate; 8 years to sue on written contracts; six years to sue on oral contracts; two years for actions for personal injuries or property damage; and one year for libel, slander, malicious prosecution, false imprisonment, and professional malpractice. Most other types of lawsuits are subject to a four-year limitation. See also here (providing more specific examples including four year statutes of limitations for claims for trespass and fraud). Different and usually must shorter statutes of limitations apply to reopening court judgments in cases due to irregularities in the proceedings, and to appeal court judgments. If a statute of limitations runs without a lawsuit being filed, the right to seek legal redress for the wrong committed expires. With very narrow exceptions, usually invited or assented to by the party sued in some way, once a statute of limitations has expired the claim that is barred can never be revived. A nice medium length summary of the various doctrines applicable to statutes of limitations (mostly discussed below) in the state of Minnesota, which is fairly typical of U.S. states) can be found here. Statutes Of Limitations For Federal Law Claims These limitations apply to claims under state law. Claims under federal law sometimes have their own statutes of limitations (e.g. federal copyright and patent infringement lawsuits), and sometimes are governed by the analogous statute of limitations under state law. For example, the statute of limitations for lawsuits under the federal Lanham Act is based upon the most analogous state law statute of limitations. In those circumstances it is usually necessary to look a case law in the state and federal courts in that state to determine the correct statute of limitations for that kind of claim. When Does A Claim Accrue? The date that one starts to calculate from for a statute of limitations is sometimes the date when the wrong is done (also known as a statute of repose), and sometimes when it is known or should have been known by the person bringing the lawsuit. The date when you start counting to determine the statute of limitations deadline is the called the date that 'the claim accrues" or that the "claim arises." Usually a claim accrues when the person bringing the lawsuit knew that a particular person breached a legal duty to them and that this breach of a legal duty to them caused them injuries, even if the amount of the injuries caused is uncertain. But for some kinds of lawsuits, knowledge that a person breached a legal duty to them alone is enough even if it wasn't clear at the time that the person to whom the duty was owed would suffer legal injuries. What Must One Do Before The Statute Of Limitations Runs? In most U.S. states (including Ohio pursuant to Ohio Rule of Civl Procedure 3) and in the federal system pursuant to Federal Rule of Civil Procedure 3, a statute of limitations is met by filing a lawsuit with a court by the deadline, so long as a defendant has a summons and complaint delivered to the defendant within the time allowed by court rules after the lawsuit is commenced. But, in other U.S. states, such as Minnesota, the statute of limitations applicable to a defendant can only be met by delivering the summons and complaint in a lawsuit to a defendant, whether or not the lawsuit has been filed with the clerk of the relevant court. When a summons and complaint has been delivered to a defendant but the case has not yet been filed with the clerk of the court in which the lawsuit states that it is brought, that court has what is called "hip-pocket" jurisdiction over the lawsuit. Tolling and Estoppel Certain circumstances (such as a victim who is a minor, or the death of the victim before the statute of limitations has expired) can toll the statute of limitations (i.e. stop it from running) while that situation continues or for a certain maximum length of time. Some statutes of limitations can be lengthened with an agreement of the parties in what is called a "tolling agreement". Another concept similar to tolling is that someone who is sued may be prohibited from asserting a statute of limitations defense under a doctrine called "estoppel" if the failure of the person to bring the lawsuit within the statute of limitations is caused by the misconduct of the person seeking to assert the statute of limitations defense. Both tolling and estoppel are exceptions to the general rule that are frequently interpreted strictly against people bringing a lawsuit, however. One should never assume that these doctrines apply and rely upon them making a lawsuit timely, unless one has no other choice but to do so. Continuing Violations Sometimes in the case of a "continuing violation" the statute runs from the last time that the continuing violation was committed. But, it is not safe to assume based upon logic alone whether a violation is a continuing violation or not. Sometimes the statute of limitations runs from the initial violation, even if it continues. Sometimes a lawsuit can seek remedies from the first time the violation occurred until the present based upon a continuing violation if a lawsuit is commenced within the statute of limitations after the violation ceases. Sometimes a lawsuit can be brought based upon a continuing violation until the requisite number of years after the violation ceases, but the remedy is limited to harms caused by conduct that was within the statute of limitations or to injuries that occurred within the statute of limitations. There is really no way to know which of these rules applies to a particular kind of claim without examining the case law for each particular type of claim. A related concept is that in lawsuits to collect a debt for money owed, the statute of limitations is typically reset every time a payment is made or there is a written affirmation from the debtor that a debt is owed. Other Exceptions To The General Rules Previously Time Barred Claims Sometimes a statute of limitations is amended to make it longer. When this happens, claims that were already barred by the statute of limitations are generally not reinstated. But claims that are not already barred by the statute of limitations on the effective date of the new law usually, but not always, benefit from the new statute of limitations. Borrowed Statutes Of Limitations Sometimes someone can bring a lawsuit in a court where, for example, the defendant resides, even though the wrong occurred in another jurisdiction that has different statutes of limitations. The way that this situation is handled varies. The most common rule is for the state where the lawsuit is filed to apply its own statute of limitations unless the lawsuit would have been barred by the statute of limitations in the place where the wrong occurred. But not all states follow this rule in all cases. Special Rules For Counterclaims Some states allow counterclaims that would otherwise be barred by a statute of limitations to be brought when they relate to what someone is being sued over, even when otherwise, the statute of limitations for the counterclaims would have expired. For example, suppose that someone sues Joe for breaching a promissory note in Colorado (which has a counterclaim exception), five years after the contract was allegedly breached (in a state where the statute of limitations is six year); Joe may be able to counterclaim against the person suing him for fraud in the same transaction in which the promissory note was created even though the three year statute of limitations for bringing a fraud claim in Colorado would have otherwise expired. Dismissals Without Prejudice For Suing In The Wrong Court Some states allow you to bring a lawsuit that is otherwise barred by the statute of limitations, if a lawsuit is filed within the statute of limitations in a court that then dismisses the claim for a reason unrelated to the merits of that claim (usually lack of subject-matter jurisdiction), and the person bringing the lawsuit promptly refiles it in the proper court. The Relation Back Doctrine Sometimes after a lawsuit is filed against a defendant the complaint in the lawsuit is amended to assert new claims against the existing defendants, or to assert claims against a new defendant, after the statute of limitations for filing the new claims against the existing defendants, or the existing or new claims against a new defendant has expired, even though the original lawsuit was filed within the statute of limitations applicable to those claims. In those cases, the claims in the amended complaint will be treated for statute of limitations purposes as filed when the lawsuit was originally filed, if the "relation back" doctrine is satisfied. This is governed by Ohio Rule of Civil Procedure 15 and Federal Rule of Civil Procedure 15 respectively in state and federal court. In cases where new claims are asserted against an existing defendant, the relation back doctrine applies roughly speaking when the new claim arises from the same transactions and events that the lawsuit was originally based upon, even if it attaches significant to different facts or different legal theories. In cases where a new party is sued, the claims roughly speaking relate back when the new party had notice of the lawsuit within the statute of limitations and the new party knew or should have know that the new party was not sued originally only due to a mistake regarding who the proper person to sue in the case was (e.g. because related corporate entities had similar names and the wrong corporation in the group of affiliated companies was sued). Failure To Assert The Defense Statutes of limitations, and most other grounds for dismissing claims as untimely, are affirmative defenses, not something that must be established on the face of the complaint initiating a lawsuit. So, if the defendant fails to raise a statute of limitations defense in a case, even if it is actually available under the true facts of the situation, then the lawsuit will not be dismissed for failure to sue within the statute of limitations. Other Rules That Can Bar A Claim Filed Too Late Contractual modification of the statute of limitations Sometimes a statute of limitations can be shortened by a contractual agreement of the parties, most often for breaches of the contract shorting the deadline for bringing claims arising from its breach. If this shortening of the statute of limitations isn't unreasonable and is obtained with fair disclosure, and no public policy is violated by the modification, it will often be upheld by a court. For example, a contract might require a party to raise a dispute concerning an item contained in a statement or invoice presented to the party asked to pay it within a certain reasonable time period, even if the relationship between the parties is ongoing and the statute of limitations would otherwise run from the last date upon which the parties reached a final settlement between them of their dealing with each other. Probate and Bankruptcy Cases There is also generally speaking a strict time limitation in addition to a statute of limitations on enforcing claims against people who have died (sometimes called a "non-claims statute") and against people who have filed for bankruptcy. Sometimes, however, a deadline involving a non-claims statute that is triggered by giving notice to the person to be barred by it can be waived in cases where the person with the claim had no actual notice of the deadline. Lawsuits Against The Government There are also often special additional time limits that apply to lawsuits against government entities and governmental employees acting in their official capacities, especially for torts as opposed to breaches of contract. These are often much shorter than the usual statute of limitations. Laches Sometimes claims have no statute of limitations at all, but those are the exception and are quite rare. But even when there isn't a fixed deadline for filing a lawsuit, a legal doctrine called laches bars lawsuits when they are filed an unreasonably long time after they arise in a manner that is prejudicial to the person sued. Sometimes the doctrine of laches can even bar a claim in a lawsuit, or certain kinds of relief in connection with a claim in a lawsuit, even if the claim is brought within the applicable statute of limitations. In these situations, this doctrine is similar to the doctrine of estoppel preventing someone from asserting a statute of limitations. For example, if someone knows that the records necessary to defend against a lawsuit are about to be destroyed even though the statute of limitations will not run for another few years, the lawsuit could be dismissed under the doctrine of laches if the person bringing the lawsuit knew that and deliberately waited until after the documents were destroyed to bring the lawsuit. Mootness A claim can also be barred because it has become "moot" which is to say that due to the circumstances that have occurred since a legal wrong was committed, it is no longer possible for a court to provide relief the relief that the person bringing the lawsuit is seeking. For example, in a lawsuit seeking possession of an apartment and no other relief, the lawsuit becomes moot if the person in the apartment leaves the apartment and surrenders possession to the person seeking it, or if the building burns down. | No. A plaintiff may travel to the defendant's jurisdiction to file suit if desired. Nobody usually does this, though, due to travel and logistical considerations. The defendant is the one who decides whether to challenge jurisdiction. Good contacts will include a forum selection clause which would lay out what happens where in the event of a dispute. And this can be anywhere, it is not limited to the locations of the plaintiff and the defendant. N/A. | In Uzuegbunam v. Preczewski (2021), the US Supreme Court addressed a case that sought one dollar in nominal damages. I'm assuming you mean only claims involving money damages as a remedy, because there are many claims every year involving no literal money damages and the remedy sought is some other kind of relief (although such relief would still have practical or economic value). | You are confusing a few concepts. One is the distinction between what are known as "common law" jurisdictions derived from the English legal system, and "civil law" jurisdictions derived from one of the continental European legal systems that is ultimately derived from Roman law. Another is the distinction between determining the meaning of ambiguous legislation, which all courts do by definition, and the power of judicial review, which overturns legislation which is invalid for some reason rather than merely trying to interpret an ambiguous provision. Ambiguous means "unclear" or "capable of being interpreted in more than one way" and every time every court encounters unclear legislation it must decide what it means, even if it is not invalidated. In contrast, some judiciaries that have the power of judicial review and those that do not. Judiciaries that can declare a law to be invalid have the power of judicial review. Judiciaries that cannot declare a law to be invalid do not have the power of judicial review. Every state and federal U.S. Court at every level (not just the U.S. Supreme Court) has the power and obligation to declare that a law violated the U.S. Constitution. In many countries, no court, or only a "constitutional court" has the power to make declare legislation to be invalid by exercising judicial review. Every time that a legislature passes a statute on a subject covered by common law (i.e. judge-made law derived from case decisions that serve as precedents), it shrinks the scope of common law relative to statutes. And, in principle, almost all of the common law could be replaced by statutes without all that much difficulty. But, in civil law countries, statutes are frequently comprehensive and are the sole source of legal authority about their subject matter superseding all case law, while in common law countries, statutes are often piecemeal tweaks to a common law background that is assumed by the statute. For example, every civil law country would have a comprehensive statute setting forth the principles of contract law, while a typical common law jurisdiction might have a statute that declares that certain contracts must be in writing but does not comprehensively set forth the law of contracts in all circumstances. There are some features of civil law countries, such as the absence of jury trials, which cannot be constitutionally changed to the civil law system, even in jurisdictions such a Puerto Rico and Louisiana in the United States which have civil law roots prior to joining the U.S. (at least in criminal cases and in the federal courts). The power of judicial review (i.e. the power of courts to declare a statute unconstitutional and void) is also inherent in the U.S. Constitutional system of government and could not be removed without a constitutional amendment. There are common law countries, e.g., England, which did not historically have the power of judicial review, which was an innovation for a common law countries such as the United States when it was first invoked. (For what it is worth, India goes one step further; its Supreme Court asserts and exercises the right to declare portions of its own constitution to be unconstitutional.) There are other aspects of civil law legal systems which would probably also be declared unconstitutional in the United States as well, such as the lack of a prohibition on the introduction of hearsay evidence in criminal trials which violates a provision of the U.S. Constitution's Bill of Rights known as the "confrontation clause." It is unclear to me whether the principle that case law precedents have binding legal effect in future cases, which is part of the common law system that is absent in the civil law system, has a constitutional dimension or could be displaced by law. But, most aspects of a civil law legal system could be adopted in the United States if the relevant legislatures so desired. Indeed, many aspects of the U.S. legal system have moved in that direction. For example, only a handful of U.S. states now recognize the concept of a "common law crime". Almost all states now only allow criminal sanctions for crimes codified by statute, which was not the case at the time of the American Revolution, when few crimes were codified. Obviously, with a constitutional amendment, almost any change to the U.S. legal system is possible. |
Is MailChimp compliant with GDPR? In light of recent news of Facebook not being compliant with GDPR because it processes data in USA and not in europe, would a website using MailChimp for newsletter be GDPR compliant since it is based in USA and holds the data there? Their website claims that they are compliant with GDPR, but just looking at their cookie notice that has the full cookies preselected (and the selection is hidden) shows that isn't completely correct. But their website not being completely correct doesn't mean their service isn't, that's why I'm asking the question | Mailchimp as a company is probably mostly GDPR-compliant. But this doesn't mean that using the Mailchimp service would be compliant as well. This is because the GDPR has different compliance obligations for “data controllers” and “data processors”. The data controller is responsible for the compliance of all processing activities they determine the purposes and means for, regardless of whether those activities are actually outsourced. In contrast, the primary responsibility of a data processor is to only use the data as instructed by the controller, but not for the processor's own purposes. So Mailchimp probably doesn't abuse its customer's data, and offers an Art 28 GDPR conformant data processing agreement as part of its contracts. Mailchimp also offers features that assist with related privacy laws, such as collecting proper consent as required by the EU ePrivacy Directive. And Mailchimp has a page about European data transfers. This is where it gets tricky. Not the Mailchimp service, but the customer is the data exporter / data controller and is responsible for compliance with Chapter V of the GDPR. The data controller must decide themselves whether the international transfer into the US is legal. Briefly, the GDPR allows the following grounds for an international transfer of personal data: target country has an adequacy decision from the EU – no, because the EU–US Privacy Shield was invalidated in the Schrems II ruling Standard Contractual Clauses (SCCs) – maybe, see below discussion Binding Corporate Rules – not applicable exceptions, including explicit consent or only occasional transfers – not applicable The Mailchimp guide about EU data transfers correctly states that the Schrems II decision only invalidated the Privacy Shield, and did not invalidate the concept of SCCs. That means it is still legal to use SCCs as a basis to transfer personal data in non-EU countries. But this doesn't imply that SCCs can serve as a basis for transferring personal data specifically to Mailchimp in the US – a case by case analysis is necessary that determines whether security of processing is guaranteed and whether data subjects would have effective legal remedies if their rights were breached. It now happens that exactly the same reasons that caused the Privacy Shield to be invalid must also make us doubt whether SCCs can be valid in their place. The problem with transfers to the US never was the risk that the recipient would sell the personal data to the highest bidder, but that the US-based company is subject to US spy laws like FISA 702 and EO 12333 that do not provide effective legal remedies for foreign affected persons. (Mailchimp explicitly confirms that it is subject to those spy laws as an “electronic communication service”.) In the wake of the Schrems II ruling the EDPB has published a document with recommendations for supplemental safeguards that could make SCCs permissible, but these recommendations (like end to end encryption, or only transferring pseudoymized data) cannot work for US-based cloud services such as Mailchimp. Some (such as the US government) have argued that Schrems II was based on outdated information, but this standpoint is not shared by European regulators. So, the data controller – the Mailchimp customer – has to make their own judgement about this international transfer. If SCCs combined with Mailchimp's supplemental measures provide sufficient safeguards, then the international transfer is legal and GDPR-compliant. Mailchimp offers all the necessary paperwork such as DPAs, SCCs, and so on. If there are no sufficient safeguards, then the transfer is clearly illegal. My personal opinion is that Mailchimp's supplemental measure fall far short of what would be required per the EDPB recommendations. Lower courts in the EU now routinely consider all transfers to the US as illegal. A company using Mailchimp was also an early target of a post-Schrems II enforcement action, though it wasn't fined since it immediately stopped using the service. So while it's not possible to definitely say that using Mailchimp would be a GDPR-violation, it's very difficult to argue that such use could be compliant. | I don't think you would be responsible for whether your software is used in a GDPR-compliant manner. For GDPR compliance, it is important who the data controller is. The data controller is whoever determines the purposes and means of a personal data processing activity, i.e. the why and how. The data controller alone is responsible for their GDPR compliance. When a data controller wants to run some software, it's the data controller's responsibility to ensure that this software is used in a GDPR-compliant manner (or possibly not at all). Determining purposes and means of processing When someone other than the developer runs a software, the question is who might be a controller: you as the developer, they as the operator, or neither, or both? The operator is clearly a controller: they determine a purpose for data processing (e.g. to manage staff) and have determined means to perform that processing (e.g. to use the software). The developer may or may not be a controller. Clearly, the developer has made choices about how the processing of personal data will be performed, i.e. has determined some means of processing. E.g. the developer has developed a particular architecture, chosen a way to store personal data, and has implemented some security measures. But determining some means is not sufficient to be a data controller, see discussion below. Has the developer participated in determining the purposes of processing? I think this will depend on the specific functionality provided by the software in question. If the software just does what it says and processes the data for the operator's purposes, everything should be fine. If the software also processes data for the developer's purposes, that developer might be a controller. For example, if analytics or crash reports are collected by the developer, that would be a clear indication that the developer would be a (joint) controller. So depending on specific factors, the operator might be the sole controller, or the operator and developer might be joint controllers. Essential vs non-essential means What about the developer determining some means? When does this make the developer a joint controller? The EDPB has created a theory of essential vs non-essential means: 40. As regards the determination of means, a distinction can be made between essential and non-essential means. “Essential means” are traditionally and inherently reserved to the controller. While non-essential means can also be determined by the processor, essential means are to be determined by the controller. “Essential means” are means that are closely linked to the purpose and the scope of the processing, such as the type of personal data which are processed (“which data shall be processed?”), the duration of the processing (“for how long shall they be processed?”), the categories of recipients (“who shall have access to them?”) and the categories of data subjects (“whose personal data are being processed?”). Together with the purpose of processing, the essential means are also closely linked to the question of whether the processing is lawful, necessary and proportionate. “Non-essential means” concern more practical aspects of implementation, such as the choice for a particular type of hard- or software or the detailed security measures which may be left to the processor to decide on. – EDPB guidelines 07/2020 on the concepts of controller and processor in the GDPR, added formatting for legibility Looking through that list of essential means, some might be determined by a software's developer, but I wouldn't expect this to be the case for this kind of open source software. types of personal data: the software certainly sets a framework for processing specific kinds of personal data, e.g. by providing database fields for names, contact details, and schedules. But ultimately, the developer does not control which data is actually collected and filled into those fields – the developer does not cause specific kinds of personal data to be processed with the system. duration of processing: unless the software is programmed with a fixed retention schedule, it should be impossible to argue that the developer has determined the duration of processing. Even then, it would also be the operator who has determined this duration to be appropriate, rather than editing the open-source software to change the duration. But typically, no such retention schedule is enforced, and retention would depend solely on the operator (who can use an admin interface or a database console to erase old records). categories of recipients: typically, the developer does not determine to whom the data in the system will be given. But if the system sends data to third parties by itself, this might change. For example, if the system is pre-configured to store data in an existing cloud database instance, or to a specific analytics server, the developer might be acting as a controller. Here, good software engineering and legal risk minimization coincide. Best practices for web apps state that account credentials and connection strings shouldn't be hardcoded or committed to a repository, and should instead be provided externally (e.g. via environment variables). categories of data subjects: this depends solely on how the software is used. The developer has no way to determine whose data the operator will enter into the system. If the developer isn't a controller, might they be a data processor instead? In a GDPR context, a data processor is whoever processes personal data on behalf of a controller. The developer is clearly not a processor in this scenario because both the “processing” and “on behalf” criteria fail. The developer has no access to the data in the operator's instance, so cannot process the personal data. There is no direct relationship between the developer and the operator. The operator has not delegated authority to the developer so that the developer would be acting “on behalf” of the operator. There is a legal relationship between the two roles (the developer has licensed the software to the operator) but that is entirely irrelevant in a data protection context. The GDPR isn't directly about cookies While the GDPR does cover how personal data can be processed with cookies, the famous “cookie law” is actually separate: those cookie consent requirements stem from EU member state's implementations of the ePrivacy directive. Instead of talking about “controllers”, ePrivacy has concepts such as the “provider of an information society service”. While this role fits perfectly to an operator/provider who runs a web app in a publicly accessible manner, it does not fit a developer who merely makes some source code available. Is the developer even subject to the GDPR? The GDPR can only apply to data controllers and processor who process personal data. As discussed above, the developer is probably not processing personal data at all. Even if the developer were processing personal data, it is questionable if GDPR would apply assuming the developer has no “establishment” in the EU (e.g. an office). Then, the question would be whether those processing activities are either related to offering goods or services to data subjects in Europe, or whether the processing activities involve monitoring the behavior of people who are physically in Europe. Unless the developer is actively targeting European businesses with marketing for this software, the answer is very likely “no”. Could the operator sue the developer for providing software that isn't GDPR-compliant? The operator can sue anyone for any reason, but is probably not going to win. As discussed, the operator is a data controller. They are responsible for ensuring that their purposes and means are GDPR-compliant. That involves selecting suitable software. The data controller would be neglecting their own responsibilities if they just download some random software and start feeding personal data into it. Things might be different if the operator specifically advertises GDPR compliance features but you're not going to do that. It's also worth noting that common open source licenses like the Apache License 2.0 include a warranty and liability disclaimer. To which degree they protect the developer ultimately depends on national laws, but they make it difficult for the operator to make a legal argument that they're entitled to a GDPR-compliant product. See also the related question: Do warranty disclaimers in software licenses carry any legal weight? What can you do? First, don't worry too much. Given how much bad software there is on the internet, surprisingly few developer get into legal trouble for writing source code that's buggy or missing some features. Second, consider choosing a license for your project that includes a reasonable warranty/liability disclaimer. Third, make the state of your project clear in your README file. If someone knows that this is alpha-quality software and that no compliance features were implemented, it's their own fault if they actually use that software. | The CEO wants to "fool" users You are essentially admitting that the company you are working for is about to deceit its customers and asking whether that is legal. The relevant set of laws is rather sparse and does not give direct answers in regards to oAuth tokens or other details of that level (which is probably making your CEO think he can "handle" the arising questions). Probably the most relevant bit of legislation that applies here is The Federal Trade Commission Act (15 U.S.C. §§41-58) which prohibits unfair or deceptive practices and has been applied to online privacy and data security policies. I am pretty sure that, in practice, if the users take your company to court, it will be held liable because: users are allowing us to read their CRM data and once we get the data, the data become ours, and we can do whatever we want with it. Is this true? While the users are still allowing you to read their data it is completely up to the Terms/EULA what you can do with it. However, once you have made the users think that they have withdrawn your access (e.g. they "deleted" oAuth tokens), you are no longer authorized to read the current data (although the Terms may still allow you to use the old data you obtained when you had access). Silently continuing to access their data without their knowledge/approval is definitely a deceit. The CEO wants us to download all of their emails and store them in our database There would be nothing wrong with that if it was in the Terms. But if it is not, that would be a blatant (and easily punishable) breach of privacy. Note that you may also be held personally liable for this wrongdoing (if/when proved so). "Just doing your job" claim will not work. | It seems like some law must have been breached during the sharing of this information? Possibly, even probably. The scrutiny of your personal account in order to glean personal data (your IP address) and then using that personal data to match accounts may contravene Recital 50 of the GDPR: The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. If the website terms which you agreed to don't include this data matching, then that processing is not lawful. The rest of Recital 50 is relevant and worth quoting in full: If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. It seems to me that an anonymous account could reasonably expect that the "further processing" of data matching is not in the public interest, an exercise of official authority, scientific or historical research or statistical. There is no link between the data matching exercise and the purpose for which IP addresses are normally collected: the operation and physical security of the website. Now, it may well be that the website terms do allow this data matching to discover links between accounts, or in any case prohibit having two accounts and allow reasonable methods to discover such links. It's also possible that a court has ordered the processing (as Iñaki Viggers has mentioned. We don't have that information; but ostensibly one wouldn't normally expect a personal account to be examined in this way, and certainly wouldn't expect any link discovered to be relayed to a third party. | The GDPR does not have specific rules on passwords. Instead, the GDPR imposes a more general requirement to ensure data protection by implementing “appropriate” technical and organizational measures, “[t]aking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons” (c.f. Art 24, 25, 32 GDPR). As of 2021, the state of the art for password storage is a special password hashing function such as Argon2, bcrypt, or scrypt. However, the nature and context of processing could reasonably lead to the conclusion that the usual hashed password storage is not appropriate, for example because the ability to find links between user accounts is more important. There is a trade-off between different aspects of security, and the data controller could reasonably arrive at an unusual conclusion. However: The data controller would still have to implement appropriate measures to protect these plaintext passwords, for example by storing them in an encrypted manner, keeping unforgeable access logs, and limiting access to plaintext passwords to specially trained staff. Encryption is one of the few things that are explicitly required whenever appropriate. The data controller better have a good analysis that shows that this unusual approach to security is appropriate. Even if not explicitly required, an Art 35 data protection impact assessment could be useful. The data controller has the burden of proof to show that these processing activities are GDPR-compliant. So is this data controller breaking the law or doing morally dubious stuff? Not necessarily! It is possible to find a scenario where they are doing the right thing. However, such a scenario is far-fetched and rather unlikely. Without further background, the most likely explanation is that the presented password handling scheme does not comply with GDPR. | Yes, their waiver has no legal basis and is invalid under the GDPR. They should have hired a better lawyer. GDPR rights cannot be waived (mrllp.com). The last bit should have been: Therefore, in consideration of my participation in any project, I understand that retaining my name and email address, as described above, does not require my consent and that the right of erasure, as spelled out in the GDRP Article 17 (1) b does not apply. The legal basis for our lawful processing of this personal data is Article 6 (1) f ("processing is necessary for the purposes of the legitimate interests pursued by the controller"). I.e. there is nothing in the GDPR that compels GitLab to erase this information, but their waiver is bogus. Keeping track of individual contributions in a software projects is necessary for a number of reasons, including security (if somebody contributes code that jeopardizes security, you want to audit everything that person has contributed). | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | The GDPR as such puts obligations on the Data Controller (DC), that is the person or firm or other entity who determines the purposes for which data is processed. The entity that hires the developer and operates the web site is responsible for compliance with the GDPR and other laws and regulations, such as the e-privacy directive and its implementing laws. However, it is highly likely that in commissioning a web site the DC would specify that it be designed to aid compliance with the GDPR and other relevant laws, and if the developer did not do that it might be a breach of contract. Indeed, even if GDPR-friendliness was not explicitly required by the contract between the developer and the DC, the implied warranties of merchantability and fitness for the purpose would probably apply. A designer who, knowing the site is to be hosted and operated within the EU, failed to design it to facilitate GDPR compliance might well be in violation of those warranties. But that would depend on the specifics of Italian law. But note that GDPR compliance is not a matter of web site design, but of the ongoing practices of the operation of the site. There are various ways to comply with the GDPR, no specific technology or design need be used. The DC must so operate the site as to comply. If the DC fails to do that, penalties could be imposed on the DC, not on the developer. |
What is the minimum sentence for murder in Japan? In the Yakuza series, several characters are sent to jail for murder, but it's only ever for 10-15-ish years. I was wondering if this was at all realistic, since I'm only aware of people going to jail for murder for 50+ years. For the record, the relevant jurisdiction is Tokyo, and the murders were evidently committed without justification (e.g. not in self-defence). | Article 199 of the Penal Code, as it appears from changes up to 2017, says: 人を殺した者は、死刑又は無期若しくは五年以上の懲役に処する。A person who kills another person is punished by the death penalty or imprisonment for life or for a definite term of not less than 5 years. This is for homicide as opposed to other related crimes, and there are also effects on sentencing for someone who is guilty of multiple offences, for example. The term can be halved if there are sufficient extenuating circumstances, so 2.5 years seems to be the minimum. In any case, 10-15 years is within the range. | As far as I understand, no one can jail anyone as a result of a civil matter. I can't just say, hey! You did this! I'm taking you to jail. You simply don't have the reason and authority to do so - and I doubt the jails would want random people coming in for random reasons. Courts also don't send people to jail for this. As far as I understand, you can only be jailed by a judge for a criminal matter. However, you can go to jail as a result of a civil matter. When this happens, you need to found guilty of a criminal offence, most notably Contempt of Court. You can be found guilty of that offence if you don't respond/comply to the court's instructions - such as failing to repay debts. In order to be found in contempt, the court needs to find that you also intended to refuse the court's instruction (this is known as mens rea). If you were found liable, the court would not send you to jail. They would instead tell you to repay the damages that you owed the creditor (the person who filed suit). Inability to do this does not result in contempt of court, however, you should generally let the court know of this. In terms of this, the court can allow the creditor to garnish wages, have scheduled payments... etc of the debtor. To answer the main question, the only time that the court will jail a person will be upon conviction of a criminal offence (such as contempt of court), and not a civil matter (such as liability). | Assuming that this wasn't a planned murder or assault, the most serious charge would be vehicular homicide. In the US, this is governed by state law, but states are not radically different in whether this is a crime. In Washington, under RCW 46.61.520, vehicular homicide is a class A felony, punishable by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than fifty thousand dollars, or by both such imprisonment and fine The crimes is defined as causing death while driving (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or (b) In a reckless manner; or (c) With disregard for the safety of others. and such speeding is highly likely to be found to constitute the element of recklessness. There are also hit-and-run charges, which is a class B felony (10 years and $20,000). A person can be found guilty of both charges, and the judge can apply the prison sentences consecutively, meaning you add them up, rather than serve the jail time at the same time (in this case, essentially dispensing with the hit-and-run term). The law is written so that a killing is a crime, and if you kill two people that could be two charges (the question is whether there is a single act or two – most likely there was a single act in this particular case). There is no state where recklessly killing a person while driving is legal. First degree murder could be considered under 9A.32.030 if a person "Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". That kind of charge was applied to the Charlottesville driver, but it is highly unlikely to be applied to even the most extreme speeding. The actual penalty imposed depends on the sentencing laws of the state. In Washington there is a complex calculation based on the severity of the crime (16 degrees – vehicular homicide is level 11), prior criminal history, whether there are multiple convictions (vehicular homicide and hit-and-run). Aggravating and mitigating circumstances can also be considered to compute the actual sentence; I don't see any way for a non-specialist to guess what the actual penalty would be in this case. | So each government has jurisdiction of the crime if and only if it occurs within their borders. In addition, the Federal Government can take a crack at any crime any where in the United States, though typically they only do so if the crime involves crossing state lines (kidnapping over state lines, ect). At the maximum, suppose for arguments sake Alice fatally shoots Bob while Bob is standing at dead center of the Four Corners Monument (the only place in the United States where four states meet). This means that one act of Murder has been committed in four seperate states, so Colorado, Utah, New Mexico, and Arizona can all claim jurisdiction over the case and each prosecute Alice for First Degree Murder. Additionally, the Federal Government may step in and also prosecute Alice for First Degree Murder (though they are more likely not too. The Feds rarely prosecute crimes after the State UNLESS the State did something horribly wrong... I.E. Utah let her go because Utah is crazy). Additionally, the monument marks the dividing line between the Navajo Nation and the Ute Tribe, both semi-autonomous Native American Tribes that have their own recognized court systems, so they could conceivably charge Alice with First Degree Murder. So in total, the most amount of times someone can be charged for the same crime due to cross-jurisdiction is 7 times (Four States, 2 Tribal Governments, and one Federal Government). In likely hood, a few of these guys will pass because it's a waste of effort. If Alice gets the death penalty in Arizona, Colorado can't kill her a second time. It's important to note that each government gets exactly one trial so Alice can't be convicted twice in Arizona. A more realistic example occurred in the D.C. Beltway Sniper Case, where the perpetrators were tried in both Virginia and Maryland but only for the crimes committed within those states. VA got first crack because they had (and eventually carried out) the Death Penalty. Maryland tried both for insurance in case the VA cases got thrown out for reasons. The Feds found this satisfying and decided not to press their charges. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | No, if, as you say we put aside the human rights questions surrounding the death penalty itself and assuming that the prisoners had been legitimately charged, convicted and had exhausted their appeals process. Once a person has been convicted, sentenced to death and has exhausted their appeals then the timing of the execution passes from the judicial branch to the executive branch of government. This is why governments can implement and remove moratoriums on executions at their discretion. Doubtless there are administrative rules and logistical issues involved in the actual timing of the execution but if these have all been correctly dealt with then they are essentially held at the pleasure of the person in the government charged with the decision. Was it legal? Probably. Was it ethical? ... | New York State's sentencing laws do not have sentencing guidelines in the sense that the federal courts do. Donald Trump is an individual with no prior felony convictions who is charged with Class E felonies. The statutory sentencing range for these offenses under New York Penal Law Section 70.02(1)(d) is a determinate sentence of 1.5 to 4 years. Under some circumstances, alternative sentencing (like probation) might be authorized. Essentially the whole ballgame is the discretion of the sentencing judge and the question of whether the sentences of conviction would be served concurrently or consecutively. The sentencing hearing would happen only after a jury enters its verdict on guilt or innocence, and only in the event that there was a conviction on at least one count of the indictment. It would be an evidentiary hearing at which evidence regarding an appropriate sentence would be presented by the prosecution and the defense. I am not familiar enough with the facts of the complaint and the applicable New York State Penal Law provisions to know how the issue of consecutive v. concurrent sentences would be resolved. | I think that there won't be any trouble from Germany, but the US could be a problem if the girl reports the case to authorities. In that case, further details would depend on the state in question. As far as Germany is concerned, there are two sections in the penal code that could be relevant here: § 176 StGB - Sexual abuse of children § 182 StGB - Sexual abuse of juveniles To make things more complicated, we would also have to take into account juvenile penal law and whether Germany would have jurisdiction in the first place. 1) Jurisdiction: I'm not sure whether this case would fall into German jurisdiction under § 3 StGB as the case could be deemed to be committed in the US. However, in that case, Germany could still assume jurisdiction under § 5 item 8 StGB. 2) Since our guy was only 18, it would be at the discretion of the court to decide whether juvenile criminal law or regular criminal law is to be applied. In the former case, the sentence would be lower (if there is a sentence at all). But then we still have to figure out whether our guy broke a law in the first place. So first of all, let's take a look at § 176 StGB: “Section 176 Sexual abuse of children (1) Whoever performs sexual acts on a person under 14 years of age (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years. (2) Whoever causes a child to perform sexual acts on a third person or has a third person perform sexual acts on the child incurs the same penalty. (3) In especially serious cases, the penalty is imprisonment for a term of at least one year. (4) Whoever 1. performs sexual acts in the presence of a child, 2. causes the child to perform sexual acts, unless the act is subject to a penalty under subsection (1) or subsection (2), 3. influences a child by way of material (section 11 (3)) or information and communication technologies a) in order to cause the child to perform sexual acts on or in the presence of the offender or a third person or to have the offender or a third person perform sexual acts on the child or b) in order to commit an offence under section 184b (1) no. 3 or under section 184b (3) or 4. influences a child by showing pornographic images or depictions, by playing pornographic audio recordings, making pornographic content available by way of information and communication technologies or pornographic speech incurs a penalty of imprisonment for a term of between three months and five years. (5) Whoever offers or promises to supply a child for an offence under subsections (1) to (4) or who arranges with another to commit such an offence incurs a penalty of imprisonment for a term of between three months and five years. (6) The attempt is punishable; this does not apply to offences under subsection (4) nos. 3 and 4 and subsection (5).” Since the girl is 15 years old, this section is probably not relevant. However, to know for sure, we would need to know her exact age when contact started. If she was only 13 years and 11 months and contact lasted 1 year and 2 months, then § 176 might be relevant after all. That takes us to § 182. “Section 182 Sexual abuse of juveniles (1) Whoever abuses a person under 18 years of age by taking advantage of a predicament by 1. performing sexual acts on that person or having said person perform sexual acts on them or 2. causing the person to perform sexual acts on a third person or to have sexual acts performed on them by a third person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) A person over 18 years of age who abuses a person under 18 years of age by performing sexual acts on that person or having that person perform sexual acts on them for a consideration incurs the same penalty. (3) A person over 21 years of age who abuses a person under 16 years of age by 1. performing sexual acts on that person or having that person perform sexual acts on them or 2. causing that person to perform sexual acts on a third person or to have a third person perform sexual acts on that person, and thereby exploits the victim’s lack of capacity for sexual self-determination, incurs a penalty of imprisonment for a term not exceeding three years or a fine. (4) The attempt is punishable. (5) In the cases under subsection (3), the offence is prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. (6) In the cases under subsections (1) to (3), the court may dispense with imposing a penalty pursuant to these provisions if, having regard to the conduct of the person against whom the offence was committed, the wrongfulness of the act is minor.” § 182 para. 1 StGB applies only to cases where the offender takes advantage of a predicament. I seriously doubt there's a predicament involved here. § 182 para. 2 StGB only applies for sexual acts for consideration, i. e. when money is being paid. Since apparantly there was no payment involved in this case, no problem here and we can go on to para. 3. § 182 para. 3 StGB only applies to cases where the victim lacks the capacity for self-determination and the offender is at least 21 years old. Neither is the case here. Summary: As far as Germany is concerned, there's no trouble to be expected under § 182 StGB. § 176 StGB might cause problems but only if the girl was under 14 when contact began. (You stated that she's 15. This could mean that she just turned 15 but was 13 years and 11 months when contact began.) As far as German law is concerned, it looks like our guy was overly cautious and there was no need to cut contact. From the US perspective, however, things will probably be different. I'm not familiar with US law but we would probably need to know the state in question. |
What is the legality of distributing free software that displays another website page after automated reformatting and editing I recently noticed that local news sites are terrible in that they transfer ludicrous amounts of data, never stop transferring data, and load an obnoxious number of ads and pop ups. As a result they are often very slow to load and reading the articles can be a challenge and is hardly pleasant. Disabling JavaScript helps but isn't a panacea. I therefore decided to write some simple code (less that 75 lines of JavaScript and HTML) which accepts a URL (eg for a local news article), loads the content, and then: removes ads; "read more" sections; "related articles" sections; pop ups; "most read" sections; the comments section; and lays out the article nicely. The code is a single HTML file that runs locally. My assumptions are that: if I hosted the page on a publicly accessible web server I could/would be sued for using the local news sites' content without permission; that making no money from the service would be irrelevant; that this is because of Copyright. I should be clear that the retrieving of the news articles is done by the client rather than the server. My questions then are: Can I freely distribute the code publicly on, say, GitHub so that other people can download it and use/run it themselves without any party facing any sort of legal action? Alternatively, if I were to host the site on a publicly accessible web server, and let users enter URLs themselves - rather than hard coding in URLs to specific sites, could/would I face legal action? | Hosting copyrighted material on your servers is probably a bad idea, but software that changes how such material is displayed is likely fine – and there already are tools doing similar things. For example, the news publisher Axel Springer sued adblocker maker Eyeo for copyright infringement in Germany in 2021, since the adblocker manipulates the contents of a web page. This was rejected by the court. (See summary by The Register which also provides US context, summary by Eyeo, actual ruling (in German)). Core argument in that case was that adblockers do not distribute protected works, and do not create derivate works of the website. They merely change how the website is interpreted by a browser. However, the details here are dependent on German copyright law and on the specific capabilities used by adblockers – it might not generalize to other scenarios. Some browsers (e.g. Safari, Firefox) offer a reading mode that strips out all website contents except the main content, and then displays it in a more legible fashion. This strips out all navigation, sidebars, ads, and so on. So far, I don't think this kind of functionality has been challenged. This existing reading mode sounds quite similar to the reformatting tool you're envisaging. There are similar tools available in many programming languages, such as the Arc90 readability project (software, archived website), which is in turn inspired by the Instapaper app. Read-it-later apps like Instapaper and Pocket do involve a bit of a grey zone though, since they involve server-side storage of articles. | You can't grant or license that which is not yours. For example, the Slack terms of service say: We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. So Slack's agreement with Org A does not give A any right to let any other organization B use the software. It does not matter how A and B are related, nor whether B is nonprofit or for-profit, nor what A would be getting in exchange. If B wants to use it, they need to make their own agreement with Slack. | Yes, it does. Using the downloaded content, whether it was scraped or individually downloaded one file at a time, for research or for commercial purposes would violate that TOS provision (unless some other provision contradicts it, or you obtain specific permission). The site owner could sue you for such a violation, should the owner become aware of it. I do not think it would be likely to be a criminal offense, depending on the jurisdiction. | Not on its own, no Overview A ToS can be of some value, but will not fully protect the site operator (host). For one thing, a ToS is probably not binding on the user based on a contract of adhesion such as "by using this site you agree to...". A specific act, such as clicking a checkbox that defaults to clicked or activating an "I accept the terms" button is probably required to make a ToS binding on the user. But a host must do more that obtain an agreement to its ToS. Once it has actual knowledge of illegal content, a host must take action to remove or disable it, or else it may be liable as if it had posted the content itself. It also depends what kind of "something illegal" is involved. The most common form is perhaps content that allegedly infringes copyright. Safe Harbor In the EU Article 14 of the EU Directive on electronic commerce (Directive 2000/31/EC) will apply (note that being a directive, rather than a regulation, 2000/31/EC) depends on implementation in national law, which may vary from one country to another. Article 14 reads: Hosting Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 14 means that when a host obtains actual knowledge of infringing or otherwise illegal content, the host must promptly delete that content or disable access to it. Such knowledge could come via a takedown notice. According to the page "Copyright infringement and remedies in Germany": One of the main situations refers to platform operators. Once they have been informed about a specific infringement on their platform, they are required to remove the specific infringing content and to implement measures in order to prevent future violations. See also the Wikipedia article "Notice and Take down" which discusses Article 14, and points out that it does not define a specific notice and take down procedure, unlike the US provisions of 17 USC 512 (which includes the DMCA notice and take down procedure, and the related Safe Harbor provisions). Since Article 14 clearly envisages some sort of notice procedure, but not specific procedure has been defined in the laws of most EU member states, including Germany, some people use the US DMCA notice format, as describesd in this article. Such a notice may serve to give a German host "actual knowledge" and impose liability if the host fails to respond promptly. There have been recent legal cases which affect the procedures in such cases, as reported in "Copyright 'safe harbours' for service providers need to be consistent" from Pinsent Masons and "Germany: Time To Hit Pause: Copyright Infringement On User Generated Platforms – When Is The Platform Provider Liable For Damages?" from Morrison & Foerster LLP. The Morrison & Foerster article reads: Previous rulings by the CJEU have addressed both the application of the safe harbor principle set out in the EU E-Commerce Directive1 that shields hosting providers from liability for hosted unlawful third-party content of which they have no actual knowledge and, separately, the extent of infringement of copyright by hosting of, or linking to, copyright infringing third-party content under the EU Copyright Directive. But it is still unclear under which conditions the providers of the various online platforms that store and make available user-generated content, can rely on the safe harbor privilege applying to hosting providers to avoid liability, or whether they must not only take down the infringing content when they obtain knowledge of such content but also compensate the rightsholders of such content for damages for copyright infringement. The Pinsent Masons article reads: [A] ruling last year by a German court has highlighted an anomaly in the way 'safe harbour' protections ISPs enjoy under EU law apply in the case of copyright enforcement. It has confirmed that applications for blocking orders and injunctive relief are treated differently, despite the economic effect of those measures being the same. The safe harbour protections stem from the EU's E-Commerce Directive. That legislation prohibits service providers from being put under any general obligation to monitor for illegal activity by users of their service. In addition, where the service providers are mere conduits to infringing activity by others, they cannot be held liable for that activity unless and until they obtain 'actual knowledge' of the activity. At that stage, a service provider must act expeditiously to remove or to disable access to the information if they are not to be held liable themselves for infringement. However, EU copyright law cuts into these 'safe harbour' protections. It makes clear that rights holders can apply for an injunction against intermediaries whose services are used by a third party to infringe copyright. In Germany, however, changes made to the Telemedia Act in October 2017 have spurred debate over the admissibility and the requirements of blocking injunctions. Other unlawful content Other sorts of illegal content are possible, such as neo-Nazi propaganda and Child Pornography, which are criminal under German law. In theory Article 14 applies to such content as well as to alleged copyright infringements. But since these are serious crimes, the degree of promptness expected from a host will probably be greater. Conclusion A hosting provider will need, at the least, to respond to notices alleging copyright infringement or other illegal content, and provide an address to which such notices can be sent. A host might do well to implement the full DMCA takedown procedure. ToS provisions will not provide a shield against liability after a notice is sent to the host. A host may be required to block future access by those whose previous uploads have been found to be unlawful. This may require soem sort of log-in procedure. Thus a simple ToS provision, as described in the question, particularly in the absence of any log-in mechanism, and of any enforcement of the ToS provisions, will not be enough to shield the host from liability for unlawful content posted by users. | Yes. This is infringement. This infringement might be excused by a "fair use" defense but it probably isn't. At a very small scale tailor to a very specific educational program, for example, for just members of a thirty person English class that they are currently taking, it might qualify as educational fair use. But I get the impression that the contemplated translation project is far more ambitious than that. The underlying content of the events reported in the news are not protected by copyright, but the language used to report those events and any translations of that language, is protected. The only reliable way to solve it is to get permission to do so from the holder of the copyright of the source of the new reports you are translating. | You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry. | It's not clear to me that your website is, per se, illegal. (Though good luck finding a webhost with a hard drive large enough to store it. Harry Potter and the Philosopher's Stone is roughly 38,000 characters. If I've done my calculations correctly, storing all of the strings of this length or shorter would require something like 1053760 GB of storage. Give or take.) The main problem is in distributing the "index" of the string containing the text of Harry Potter and the Sorcerer's Stone. This index is just the integer obtained by taking the entire text as a string and treating it as a number in base 26 (A = 1, B = 2, etc.) In other words, all of the information contained in the book is also contained in the index number, and in a relatively simple way. Distributing this number is therefore entirely equivalent to distributing the text; you don't need the website at all. It's entirely analogous to e-mailing the text to someone else; in that process, the text is transformed into a number (in binary, under a different encoding scheme) along the way. But you couldn't seriously argue in a court of law that you were not distributing the text, you were just telling a friend about a very large number. Just to back this up with some actual law citation: US copyright law gives the copyright owner the exclusive right to make and distribute copies of the work. And a "copy" is defined as follows: “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. In other words, J.K. Rowling (and/or her publishers) have the exclusive rights to distribute that integer, since the work is "fixed" in it by its very nature, and since the work can be reproduced from it. | I'm only going to consider US perspectives, which may or may not answer your question entirely. Also, I'm not going to address the guesses in other answers because, and except to say, they don't appear to be based in law, but rather (mis)understandings of law. 17 U.S. Code § 512 provides protections for service providers when providing content, online. This expressly includes caching. In Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. N.Y. 2012) at 39, the Court held that to exclude these functions from the safe harbor would remove protections for service providers under subsection (c). The answer, however, lies in Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006), in footnote 17, at 852: Local caching by the browsers of individual users is noncommercial, transformative, and no more than necessary to achieve the objectives of decreasing network latency and minimizing unnecessary bandwidth usage (essential to the internet). It has a minimal impact on the potential market for the original work, especially given that most users would not be able to find their own local browser cache, let alone locate a specific cached copy of a particular image. That local browser caching is fair use is supported by a recent decision holding that Google's Click for Enhanced Coverage Linking Searches own cache constitutes fair use. The case referred to is Field v. Google, Inc, 412 F.Supp. 2d 1106 (D. Nev. 2006). Although the Perfect 10 v. Google, Inc. was overturned on appeal - Google was permitted to utilise thumbnails in their search pages - and the above is merely obiter, it is the closest to a ruling on browser caching I have been able to find. In short: Google's caching has been found to be fair use. It is unlikely that your local cache would not, as it is generally done automatically. |
Is there any way to penalize fundraising that is based in part on frivolous lawsuits? In a purely hypothetical question...let's set the hypothetical in Arizona in the United States as a default jurisdiction for the question, although other U.S. jurisdictions would be useful and of course around the world would be interesting. Let's posit an individual is crowdfunding an organized effort to compel the government to change something. As a part of that effort, "proof" of the legitimacy of their ongoing fight is the existence of legal claims they are filing in court. The courts in this scenario have found that not only are these suits without merit, they often do not even pass the frivolous standard and are otherwise ridden with legal errors unbefitting of any serious attempt to actually win in court. Thus, they have had multiple cases dismissed, yet they find ways of continuing to file different objections to the government action to show the people that they are asking for money from that they are still fighting and can absolutely win this thing. Does using the courts in this way violate any law other than the individual sanctions for improper suits? In particular, is there any way to go after the money being fundraised for an activity that seems on its face to be of fraudulent intent? (I.e. filing cases with 0 chances of winning just to be able to dupe people into thinking their money can be used to help win an unwinnable fight?) If there was such a way, would it be the state or federal government pursuing the case, or could any private actors have standing? The only ones I could think of are those who donated on the belief of the false claims who later felt defrauded. | Does using the courts in this way violate any law other than the individual sanctions for improper suits? Not really. Such an organization would probably have to be classified as some form of non-profit other than a 501(c)(3) in most cases, however, since politically motivated litigation usually doesn't qualify as a charitable purpose. In particular, is there any way to go after the money being fundraised for an activity that seems on its face to be of fraudulent intent? (I.e. filing cases with 0 chances of winning just to be able to dupe people into thinking their money can be used to help win an unwinnable fight?) No really. If they took money and spent it on the personal benefit of people related to the founders that might be fraud. This is essentially what happened in a non-profit purportedly established to help pay for a border wall. But using the money for a stated purpose of the entities that outsiders see as futile is probably not fraud or a violation of state regulation of entities that are not for profit. If there was such a way, would it be the state or federal government pursuing the case, or could any private actors have standing? A state attorney general's office generally has broad supervisory standing to confirm that entities which are not "for profit" are conforming to state law and their governing documents. Donors might have private causes of action for fraud if there were fraudulent misrepresentations made to secure funding that both the state AG and the Justice Department could also enforce criminally. But, the conduct described does not appear to be fraudulent. | There's an interesting philosophical debate you can have. By the plain text of the First Amendment, it protects libel. Aside: Yes, the First Amendment does apply to libel cases. A libel case, like all lawsuits, involves the government's judicial branch using its coercive power to make you pay money as a result of your speech, based on a law requiring you to pay money for certain kinds of speech. Tort law is not optional; a libel case isn't "you promised not to say bad things and then said bad things," it's the government saying "what you did is bad, now pay the person you hurt because of your speech." The idea that "you can say it, you just have to face the consequences" isn't enough and hasn't been for quite a while now. Traditionally, the main point of freedom of speech was that a court couldn't stop you from saying something, but could only seek to punish you after the fact (and for that you get a jury, a public hearing, etc.) But more recently, courts realized that subsequent punishment had similar effects to prior restraint. If you're going to be punished for some kind of speech, you're going to steer clear of saying anything a jury might think is that kind of speech. Libel law is heavily influenced by the First Amendment, and has been for over 40 years. The First Amendment looks like it protects libel, but it also looks like it should protect your right to reprint any book you want. It also looks like it should protect your right to tell someone "go and murder this person." It also looks like it should protect your right to say whatever you want in court, whether or not it's true. It also looks like it should protect your right to falsely shout "fire" in a crowded hall, with the intent to cause a stampede (this isn't just a turn of phrase, there was an actual incident in which 73 people were killed which is believed to have started when someone falsely shouted that there was a fire). It also looks like it should protect your right to post a sign saying "There is a bomb at this elementary school." Yet the Constitution explicitly sanctions copyright, and no one would seriously conclude that Congress may not protect the integrity of the judicial process by punishing perjury. Ordering a hit, making bomb threats, intentionally causing panics -- the fact that speech is a key part of these can't mean that the government isn't allowed to criminalize them. You cannot run a civilized society in which death threats are legal. So, the courts interpret. Language in the Constitution that appears absolute is understood to have implied exceptions. The people writing the document were well aware that perjury was generally a crime. The same Congress that proposed the First Amendment passed a law criminalizing perjury. Sure, you're punishing someone based on their speech, but it's clearly not meant to be protected. You can't run a court system without perjury laws, and its absence from the First Amendment doesn't mean that the First Amendment thereby upended this basic principle. The courts have identified a number of kinds of speech that, by longstanding practice, are not protected. Intellectual property violations are one. Obscenity is another. So are threats. So is "speech integral to criminal conduct" (e.g. "what'll it be, your money or your life?") And so is defamation. The text of the First Amendment may not exclude it, but courts have uniformly held that it's not something the amendment was ever meant to protect. The First Amendment does still pose constraints, which are some of the most defendant-friendly in the world (interestingly enough, US law is descended from English law, and English libel law used to be among the most plaintiff-friendly in the world). It's not libel if it's true. It's not libel if it's an opinion (unless it's a statement of fact dressed up as opinion). It's not libel unless you were at least negligent; if it was about a public figure, you have to have known it was false or seriously doubted its truth. But these restrictions leave a core of speech that is and always has been punishable. | Yes, but ... You can bring a suit in an Australian court of competent jurisdiction. You would then need to find and serve the defendant in compliance with both Australian law and the law of the jurisdiction they are in. They can then raise a jurisdictional challenge that the Australian court is not the appropriate forum - they might be right depending on where the substance of the contract happened, whether the contract has a nomination of venue clause and if the contract is subject to an arbitration agreement. If the Australian court decides it does have jurisdiction it would have to decide which law applies - this is likely to be a mix of law because some laws in both jurisdictions are likely not excludable by contract. If you win, you would then have to get the judgement enforced somewhere the defendant has assets. Not paying a judgement is not a crime so the defendant will be of no interest to law enforcement - getting money from them is your problem. tl;dr Cross-national litigation is way more expensive in time and money and way less certain in outcome beyond the inherent uncertainty in any lawsuit. This is not something you can expect to succeed at without lawyers in both countries so you will be spending tens of thousands for an uncertain outcome. If you are chasing millions this may be worth it but if you are - don’t do million dollar deals by email in the future. | There is usually a law that could be stretched to cover such a case. In Washington, RCW 9A.28.030 says A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. The "intent" of the law is to punish people for saying "I'll give you $5000 to kill Smith". But just looking at the text, if you give someone money to encourage them to engage in a specific kind of criminal conduct (e.g. beating people up), then you've violated the law. So, handing a guy $5,000 and saying "I think you should be rewarded for your act" could easily be construed as promoting the future commission of the same or similar crime. | Is it unethical to file a claim against an attorney who lied? No. It is actually encouraged if the claimant can submit proof of attorney's misconduct. The grievance is to be filed in the claimant's jurisdiction rather than with the American Bar Association. An attorney's lies may be severe enough to constitute fraud on the court and possibly warrant disbarment. See Matter of LaRosee, 122 N.J. 298, 311 (1991). The real question from a practical standpoint is whether the Disciplinary Review Board and related entities will follow through or be unduly lenient about that attorney's misconduct. What if the Judge ultimately rejected the attorney's claim? That does not reduce the impropriety of the attorney's misconduct. The so-called "zealousness" with which lawyers advance their clients' position does not justify indulging in dishonesty devised to result in miscarriage of justice. Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)? No. Judges generally are not up-to-date about attorneys' misconduct. Putting them on notice might frustrate a crook's further attempts to mislead the court in that and other cases the judge presides. By not reporting a crook, the public remains exposed to risks from that lawyer's pattern of misconduct. | There is a legal dictum, de minimis non curat lex, which might lead to an exasperated court official refusing to issue your lawsuit (with or without providing the $1 out of his own pocket to save everybody's time); I recommend you look it up. But there is no official term for what you suggest, although many lawyers might off the record provide colourful descriptions. If you wish to waste your money on such a claim, then obviously in your view it is worth pursuing. Clients often say "the principle is more important than the money", though they say so more often before they receive the bills than after. | It looks to me as if "money laundering" is a misunderstanding; though any organization has a duty to prevent this, charities have no special responsibilties. However, charity law does in general terms prevent a charity from giving money to a cause that does not further the charity's aims. The Charity Commission's guidance says "Charities can only spend their money on projects or activities that support the aims stated in their governing document" (and although it goes on to outline exceptions, you still need to obtain the Commission's agreement to return a gift from a source you find objectionable, for example). The rationale is that people gave money to the University to further the cause of education; the researchers have no right to divert that money to Shelter (or another charity like the Roman Catholic Church) without the giver's consent. My experienced but non-expert view is that these payments would be a breach of the law, though they would probably be treated as a de minimis exception; you can't blame the University's legal team for insisting they should not be made. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. |
Do companies have a legal right to force you to use their server after you have purchased their hardware? I have purchased several "Internet of Things" devices that, by default, come with an app that lets you turn it on and off. They use normal WiFi to communicate and are screwed into the walls so are now awkward to replace. The default app communicates with the server that is provided by the British seller, S. The disadvantage of relying on someone else's server, include, it could suddenly disappear. the provider may decide to charge for the service. if your Internet connection goes down, so do your devices. you are limited by the functionality that they deign to provide you with. As such, I want to mitigate this risk. Though it is sold by S, the device is a rebadged product from a Chinese manufacturer, M. As such, this device is physically capable of being controlled by any server. I have seen many other owners discussing on community forums how they were able to achieve this by using the app provided by M. The S app is heavily based on the M app but has less functionality. For example, the M app allows one to unlock the device so that one can use any server. That switch has been removed in the S app. Recently, however, S has "updated" its firmware to prevent owners from using the M app, thereby preventing owners from using their own servers. This was not the case when I purchased the devices. This firmware was automatically rolled out to devices without notification and without advisement on what it changed. I have spoken to the Customer Service team at S and they have refused to provide a version of the firmware that allows owners to use their own servers. Having purchased this device outright, I own it. As I understand it, neither S nor M retains any ownership. Therefore, I do not want a company to tell me how I can and cannot use my physical property. Is there any legal basis to force S to allow me to use my physical property as I see fit? S is in England. M is in China. OP is in England. | You can replace the software on the device The supplier does not have to help you to do so You are correct that because you own the device, you can do what you like with it. That means you can install whatever firmware or other software on it that you like. However, the supplier does not have to provide this to you or assist you in any other way. | When I signed up over 5 years ago, I signed a contract agreeing to a specific service at a specific price and I was locked-in for 24 months, lest I be charged a penalty for early breach of contract As the original 24-month fixed term has expired long ago, the service provider is no longer obliged to provide the service at the original terms. They may terminate the contract at any time, and equally you are allowed to quit any time as well. The notice you have now got is essentially a termination notice combined with an offer for a new contract. You can accept it, or give them a counteroffer, or walk away to another ISP. | I will try to answer some of my questions based on recent developments and other information I've seen. Yes. 2. No. On page 23 of this Commerce Dept. memo on TikTok, it describes: This prohibition would remove the TikTok app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States. On page 15 of this Commerce Dept. memo on WeChat, it describes: This prohibition would remove the WeChat app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States. 3,4,5. No for WeChat. In letters sent to the opposite party in a lawsuit and filed with the court, the US government has provided assurances that WeChat users will not have any civil or criminal liability for downloading or using the app for personal or business communication. we can provide assurances that the Secretary does not intend to take actions that would target persons or groups whose only connection with WeChat is their use or downloading of the app to convey personal or business information between users, or otherwise define the relevant transactions in such a way that would impose criminal or civil liability on such users. In other words, while use of the app for such communications could be directly or indirectly impaired through measures targeted at other transactions, use and downloading of the app for this limited purpose will not be a defined transaction, and such users will not be targeted or subject to penalties. I'm not entirely sure for TikTok, but the same may be true for TikTok since the prohibited transactions for both are essentially the same. No. The regulations on prohibited transactions do not require the blocking of traffic from the apps. Simply carrying the traffic of the app is not one of the prohibited transactions, as long as the company does not have a contract for internet transit or peering with ByteDance/Tencent, nor are providing hosting or content delivery services to ByteDance/Tencent. On page 23 of the Commerce Dept. memo on TikTok linked above, it says: User data could still be served by data centers, [redacted] operating outside of the United States. On page 7 of this declaration by a Commerce Dept. official further explains that WeChat traffic will still flow through the US: Moreover, this prohibition would not affect Internet transit or peering services in the United States that are not “directly contracted or arranged” by Tencent, and thus would leave the overwhelming majority of Internet traffic, including WeChat data, untouched. | This is unlikely to be a problem. There are many companies that have already registered software-related trademarks prominently involving an X or the name Xcom. That Twitter has changed to X branding does not substantially change this general situation. With trademarks, the general question is whether similar branding causes confusion. It is unlikely that someone would confuse the X display server / X.Org project / X.Org Foundation with the social media service now being branded as X or x.com. Of course, anyone can sue anyone, the real question is whether that's possible successfully. Here, I have my doubts that x.com could successfully demonstrate confusion in its favour. It is worth noting that the X.Org Foundation does not seem to hold any relevant trademark registrations at all. This is not unusual for Open Source software projects and doesn't mean that X.Org has no rights, but does make a defense a bit more difficult. However, there also doesn't seem to be a relevant registration by the ex-Twitter company or by the X Corp. The x.org domain name is unlikely to be threatened. If the x.org domain name was being used in bad faith it could maybe be seized, but the X.Org Foundation has a pretty strong claim on this name. For historical context, both x.com and x.org were among the six single-letter .org/.net/.com domain names when such registrations were stopped in 1993. But while x.com has been pretty much dormant since that company was renamed to PayPal, x.org has (I think) always been associated with the display server software, and has been used continuously by the X.Org Foundation since its establishment in 2004. | Good question. A trade mark simply protects the company's exclusive right to use it to identify their goods and services. (R) means that the trade mark has been registered, TM means that, while not registered, the company is claiming a trade mark. Trade marks do not have to be registered to be enforceable. You are certainly not infringing their trade mark by what you are doing and you are not laying claim to the trade mark, so there is no requirement to use the symbols. Best practice is to use the symbols and identify who they belong to: "Intel and Core are trade marks of xyz". | If you're in the U.S., then section 117 of the Copyright Act is likely what you're looking for. The U.S. Copyright Office says: Under section 117, you or someone you authorize may make a copy of an original computer program if: the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred. Based on the information you provided, it sounds like you meet all three of these criteria. They also note that your particular software's license agreement might include special conditions that affect your right to make a backup copy. Such a warning would only make sense if it was legally possible for the software distributor to make such a limitation, so I'm afraid the direct answer to your main question is "yes". It's definitely not the norm - at least in my experiences - but it is a possibility so you'll need to consult your program's license agreement. There's also a possibility that the company misunderstood you and was thinking that you were running a backup server (in the sense of a redundant infrastructure) and not making an offline backup of your entire server. It's quite normal to require an additional license for the former case. | This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right. | united-states There is no general rule against one company or person buying both broadcasting rights and merchandising rights to a particular piece of content in the US. There are anti-monopoly/anti-trust laws, but those generally only apply if a particular entity holds a monopoly or a commanding market position in a whole market sector. If one firm held the rights to 80% of all online games, for example, an anti-trust action might well be warranted. But a single game or property is not generally considered to be a market sector for anti-trust purposes. Exactly what the proper market sector is in such cases is often a complex, technical, and highly disputed issue. The "original owner of the IP" can decide who s/he wishes to sell that IP to -- nothing requires, or forbids, that different sets of rights be sold to the same buyer. The original owner will attempt to get the best deal available. Sometimes that is a very lucrative deal, and sometimes it is far from that. As long as unlawful methods are not used to induce a sale, whatever bargain the parties make is generally acceptable to the law. I do not know who did, or did not, buy any of the rights to Squid Game, and that info might not be publicly available. But there is no law that I know of against the same party having both broadcast and marketing rights to it, and perhaps other rights as well. |
Can someone who has been disbarred act as a scribe for a disabled lawyer? I'm watching Better Call Saul right now and I'm at the bit where Jimmy is suspended and Kim gets in a car accident. It got me thinking: if someone were disbarred, would it be legal under US law for them to do act as a disabled lawyer's eyes or hands? Or would this in effect be practicing law without a license even if they are under direct instruction? | In New Mexico, where Better Call Saul is set, N.M. R. Prof'l. Cond. 16-505 prohibits an attorney from employing a suspended or disbarred attorney as a law clerk or paralegal only if there is an order from the New Mexico Supreme Court or its disciplinary board prohibiting that appointment. I don't believe the show ever indicates there was such an order. Other states have different rules. Some prohibit this type of activity altogether, while others permit an attorney to continue as a paralegal while suspended, but not after being disbarred. I believe some states merely require that the attorney disclose that she is using the services of an attorney who is under discipline. | Its worth actually reading through the law again - they're meant for different categories of drugs - and its worth looking up the relevant laws as a whole. You can't cherrypick which law you charge them under in this case. It depends on what the suspect has in posession, and if you have more serious charges, they're probably going to be preferred unless the prosecution decides to throw the entire library at the suspect and charge them with everything they can, or a larger subset. A quick search on the internet - which shouldn't be taken as legal advice, brings up this link. Category 1 drugs are addictive and seen as therapeutically useless - you shouldn't have any realistic reason to have quantities of it in your posession. Category 3 is drugs with therapeutic use - stuff like codine. You could get a prescription for that, but there's potential for abuse. They're aimed at different classes of drugs - and the confusion is over a misinterpretation of what the law is about. As an aside, this is why you need to usually read more than just a specific statute or law to get what its about. | No. If the person who reviews the contract is in fact a lawyer, and does the review in his or her capacity as a lawyer so that there is in fact an attorney-client relationship, the lawyer would be subject to malpractice liability if the review failed to meet the required standard of care. This generally means that the lawyer made errors that no reasonably careful attorney would make. It would also require proof of loss caused directly by the negligent legal advice. See the Wikipedia article on Legal Malpractice. If the person reviewing the contract is not a lawyer, or there is clearly no attorney-client relationship, there is probably no liability (although there might be a case for unlicensed practice of law, depending on the jurisdiction). A lawyer might be able to use a written disclaimer to indicate that there is not an attorney-client relationship, but I am not at all sure of that. I am not addressing the issue of why a lawyer would be willing to provide such advice for free, nor the ethics of asking for such free advice, as mentioned in the comment by @Studoku above. If a lawyer is willing to give such free advice, that is his or her decision. This answer assumes US law, since no jurisdiction is stated in the question or comments. Details may depend on the specific state. Laws elsewhere will likely be roughly similar, but may not be. This answer is not to be construed as legal advice, but merely as a general opinion on the state of the law, for educational purposes. | If I lock you in a room without access to anything and tell you "Write a novel" and you write a novel with characters, you have copyright in the work. But it's not absolute: If you use your own characters, you own all the copyright in the work, but not in the idea, as ideas are not copyrightable, see Feist v Rural. If you use someone else's characters extensively (as in more than a short hommage/cameo), you very likely make a derivate. You own a copyright in your part, as in the expression of the story or pictures you created, but you do not gain property interest in the existing characters' expression. Since the copyright to the characters lies with the owner of their IP, you need their OK to release (and also to even make) your work - as with the owner of a copyright is the sole right to decide on distribution and creation of derivates under 17 USC § 106 (2). Also remember that making an unlicensed derivate work risks having nothing you can sue for in case the original copyright owner lifts your ideas and scenes-a-faire parts and adapts them for their own derivate, see Anderson v Stallone The strange case of fanfiction chains... Now, there is a strange situation when a work is based on a work which is based on a work... Then, publishers and editors start with red ink and the result is, that what people know as Twilight now has nothing to do with the fanfiction it started as (It wasn't Vampires in the original draft), and 50 Shades of Grey ended up striking any and all supernatural from it, despite it having been a Twilight fanfiction originally. By making own characters and own expression of the world, there could be no copyright infringement. US law vs Egypt law? Both Egypt and the US have signed the Berne convention, meaning that copyright is very very similar in the broad strokes that the right to allow or disallow derivates is with the copyright holder. Also, since Ben10's copyright owners are to the best of my knowledge in the US (Cartoon Network Studios & Men of Action Studios), they will sue in a US federal court. | I would probably have a legal disclaimer out of an abundance of caution. That being said, you have a right to free speech via First Amendment guarantees. While that right is not absolute and some words “by their very utterance” cause injury or incite an immediate breach of peace, and do not receive constitutional protection, (there is the old adage you do not have the right to shout fire in a crowded movie theater). This (your blog) is not that. To take it to its logical (or illogical) extreme, there are many things on the internet, in magazines, scholarly articles, etc. that could injure someone or cause damage in the event that one who was not qualified or competent to perform the action described undertook to do so. A child could burn themselves following the directions on a mac and cheese box but they shouldn't be cooking in the first place. The same rings true for high voltage electricity - a non-licensed electrician should probably not create a high voltage power supply. But, will some? Yes. But you are not liable for printing a blog about the practice. On another but related note, if you are a licensed electrician your licensing authority may require that you take precautions to ensure you do not inadvertantly direct others to engage in practices of licensed professionals that could cause harm by giving them information. I doubt this but I don't know because I am not an electrician. As far as could you be liable for writing it....under our legal system you can be sued under a theory of negligence for just about any action someone thinks was unsafe or causes injury. And you never know what a jury will do. But I think that to sue someone for simply writing something would be fairly easily dismissed through a motion for summary judgment by a competent attorney in the event you got sued. If everything a person wrote, that if followed by an unqualified person resulted in injury, resulted in liability for damages than it would have a chilling effect on their First Amendment right to free speech. That said, I go back to my original statement that it couldn't hurt to have a simple liability waiver for extra protection. It could be something as simple as: "The information contained herein is not mean to be comprehensive and is for informational purposes only. You should not undertake to perform anything described herein without adequate training and/or supervision. The Author disclaims any responsibility for any injury, damage, or loss as a result of reliance upon the information found on this site/blog." If you do use a liability waiver, make sure it is bold and obvious. Otherwise, it can backfire! | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | Is the restaurant's conduct lawful? Yes They can refuse to serve anyone they like (or don't like) as long as that decision is not discrimatory based on one, or more, of the relevant protected characteristics defined by section 4 Equality Act 2010, which includes: marriage and civil partnership Bob not being in the company of someone else does not equate to his marriage / civil partnership status. It just means he was on his own at the time. HOWEVER, this is a moot point as... Part 3 of the 2010 Act, which deals with discrimination when providing "services and public functions", states at section 28 that: (1)This Part does not apply to the protected characteristic of— [...] (b)marriage and civil partnership. |
What legal character does the Istanbul document have? The Budapest memorandum and the Istanbul document are two important documents thought to guarantee security & stability in the regions of the former Soviet Union. 1 The Instanbul documents states: "We reaffirm the inherent right of each and every participating State to be free to choose or change its security arrangements, including treaties of alliance, as they evolve. " I have heard that the Instanbul document is a declaration of intent, not a treaty. What is the legal character of this document? Is it legally binding? If yes has Russia retreated from that agreement? Istanbul document | This is what is usually called a declaration (that the Instanbul Document is sometimes called a declaration of intent has no legal significance). Declarations are not binding in the way that treaties are. They don't independently create obligations to the world. But they can play a role in establishing or reflecting customary international law; can provide evidence of opinio juris; and domestic legal systems can look to them in applying a presumption of conformity. The Universal Declaration of Human Rights and the U.N. Declaration on the Rights of Indigenous Peoples are two other declarations. They both happen to reflect a lot of customary international law: much of the content is binding even though it also appears in these declarations. | You've asked a two part question. [Is this a violation of] the international policy that a country should never refuse entry to verified citizens of their own? In considering that question, the US example may be illuminative. The US requires US citizens to have a "passport book" when flying into the US, even though the US issues "passport cards" that serve as proof of nationality. If you can get to the border and prove your US nationality (by passport card or otherwise), they'll let you in, but airlines won't board you unless you have a passport book. If you don't have a passport book, you're supposed to get to the nearest consulate and apply for a passport before flying to the US. But note that the US obligation to admit its own citizens is principally a feature of US law. CBP does not waive 8 USC 1185 because of some international body; there is no body that enforces international "policies" of this nature. Rather, they do so because they know that the federal courts would require them to admit US citizens based on the right of free movement implicit in US law. If someone were unable to get into their country of citizenship and unable to gain legal residence elsewhere then unless they could remain on the run for the rest of their life they would eventually end up as the subject of negotiation between whatever country is trying to deport them and their country of citizenship. In other words, in the worst case, such people become a bilateral diplomatic matter between two countries. Therefore, any challenge to the restriction would have to go through the Italian or EU legal system. Is this a violation of the EU freedom of movement directive, whereby a verified EU/EFTA national cannot normally be refused entry to any EU/EFTA state? It certainly seems to be, but without a decision from an EU court, we can't be certain. From Article 5 of the freedom of movement directive (2004/38/EC): Article 5 Right of entry 1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. No entry visa or equivalent formality may be imposed on Union citizens. This doesn't say anything about allowing EU citizens to board aircraft from non-EU destinations without their EU passports. So if Italy makes a rule that EU citizens need a passport to board a flight to Italy from outside the EU and Schengen area, that doesn't seem to violate Article 5 except by implication. It would be for a court to decide whether that implication is in fact present. Because Article 5 doesn't say anything about where the passenger has flown from, we can also consider the case of a dual citizen of an EU member state and a "third country," who might fly to Italy using the third-country passport, and then present a national ID card at the immigration counter. If such a traveler were denied entry, that would appear to violate Article 5. If that traveler's other nationality were one that required a visa in the non-EU passport, the traveler might have a stronger case that Italy's rule infringes on the right of free movement. EU or EFTA citizens could also challenge the restriction more generally as an infringement on the right of free movement that is established in the Treaty on European Union (TEU), even if the directive itself does not prohibit the restriction. For example, one might argue that free movement is restricted because there are countries to which EU citizens can travel with only an ID card, but from which they cannot return to Italy with only that card. In addition, non-Italian EU or EFTA citizens could challenge the more restrictive regime applied to them on the argument that it violates the principle of non-discrimination articulated in Article 9 of the TEU: Article 9 In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.... Furthermore, non-Italians residing in Italy could challenge the more restrictive regime on the basis of Article 24 of the directive: Article 24 Equal treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. | The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now. | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. | There are two major relevant judicial decisions: the International Court of Justice's advisory opinion on whether Kosovo's unilateral declaration was in accordance with international law, and the Supreme Court of Canada's opinion on whether Quebec had the right under international law to unilaterally secede. Judicial opinions aren't terribly common, because questions of secession are usually handled through force of arms. Although the Canadian decision was made by a national court, it's considered a significant work of reasoning and is often cited on this issue (for instance, it was heavily cited in briefs before the ICJ). The ICJ held that Kosovo's unilateral declaration of independence was in accordance with international law. However, this did not mean that Kosovo could unilaterally secede. As the ICJ noted, they were not asked what the legal consequences of the declaration were and they were not asked whether Kosovo was independent. They were only asked whether making the declaration violated international law. The ICJ found that in general international law does not prohibit unilateral declarations of independence. In particular situations they might violate other rules of international law (e.g. if they're tied to an unlawful use of force or violation of peremptory norms), but in general a unilateral declaration of independence is not illegal. Again, though, the ICJ took pains to emphasize that they were not making any decisions about the right to secede. The case was only about announcing that a country was seceding. The Supreme Court of Canada's ruling, in contrast, was about whether actual secession was allowed. The court found that it was not, under either Canadian or international law. While international law creates a right to self-determination, that right typically only justifies secession in colonial empires. In general, a people is meant to achieve self-determination in the state they reside in. When a people is fully integrated into the life and governance of their state, they are not being denied self-determination. They might not always get what they want, but if two people disagree then someone is always going to be disappointed. The court held that A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. | is this absolutely required to be considered a valid document in most jurisdictions, most notably, the European Union? Not at all. There is no legal requirement that contracts, terms of service, and so forth be drafted, devised, or even validated by a lawyer. Law requires that certain types of contract be notarized. That refers to the moment where the parties sign/formalize the contract, which is different from --and independent of-- whether its terms were written by a lawyer. A messaging service like the one you have in mind definitely is not subject to such requirement either. | You're completely misreading the goals and purpose of the Export Controls Office - Overview. They regulate the transfer of US regulated information and technology, commodities, and software in the interest of national security and economic growth. Transfer and export are not the same as the use of technology that personal devices contain. The simplest thing to do is simply call the Export Controls Office, and they will explain the difference, and tell what you need to do and what is not required of you when traveling. Some countries do prevent the use of some personal tech or Apps, i.e. Russia and Signal, the encrypted phone app; but that has nothing to do with UC. |
Is an NDA binding for sex workers or escorts? I have heard of some sex workers or escorts signing a non disclosure agreement with the person who is hiring them. Or their agency already has a policy in place. Since paying for sex isn't legal in Canada, would such policies or NDAs be enforceable? For example would it be breach of contract if a escort signed an NDA then told her friends she slept with you? Charlie Sheen had this NDA but I don't think money was involved, and I'm not sure if it was considered enforceable anyway. | If correctly structured, probably First, there is no issue with escorts in Canada. If you are in Toronto and need a plus one for the big gala dinner, you can hire a date provided sexual gratification is not part of the deal. An NDA as part of that sort of contract would be fine. Similarly, in jurisdictions where sex work is legal, there’s also no problem. So, we will just focus on contracts where one of the fundamental obligations involves an illegality. This doesn’t have to be prostitution, it could be a contract for murder, or the supply of illicit drugs, or the supply of unpasteurised milk. One of the requirements for a valid contract is legality of objects. A contract for an illegal purpose is void. See What is a contract and what is required for them to be valid? Therefore, an NDA that was a term of such a contract is also void. However, an NDA that was a separate contract, even a collateral contract, would be enforceable because NDAs do not have illegal objects. This can probably best be illustrated by an example. Let's imagine there is an establishment where people can go for food, drink, entertainment, and socialise - we'll call it the club. As part of the contract for using the club or being an employee or supplier to the club or its patrons, there is an NDA not to reveal anything that happens in or is associated with the club. There is no reason to believe that this NDA would not be a valid and enforceable contract - subject to the normal laws that limit such agreements. Now, if visitors entered other agreements that were void, with each other or with the club - such as for the supply of sex or illegal drugs - this would not, on its own invalidate the NDA contained in the other contract. If a court decided that the whole operation was a sham and that the club was merely a front for a brothel, they may find the original contract is void as being against public policy or, it quite likely may be an irrelevancy, because people engaged in a joint criminal enterprise have very few rights against one another anyway. However, if the club is primarily a legitimate business, then there would be no reason to impugn the original contract. | Yes, it also applies. However, an employment implies they agree to having employment related data stored and processed (e.g., to be paid). When there are performance related bonuses in the contract, this will likely (but IANAL) imply they agree to performance data being collected and stored appropriately. Furthermore I would assume most of such data processing (such as knowing who is responsible for a certain change, who created a file, modified it etc.) falls into "legitimate interests" of the employer, as this information may be necessary for operations. I'd assume (still IANAL) that much of the consequence wrt. GDPR is the right to have your data erased. So a company should be prepared to remove such data when an employee leaves the company, e.g., by clearing the responsible person fields upon request. At least for data where there is no legal requirement to have such data provenance. But: consult your lawyer for a proper legal opinion! | are contract terms enforceable that say the employee has to pay the employer if they leave without giving notice? Yes, as long as the penalization is not of punitive nature. The doctrine of at-will employment is only the default condition, but a contract may supersede it. As for the extra question, reciprocity of sanctions (as in leaving without notice) is not a requirement for enforceability of a contract. In general, the lack of reciprocity only signals that there is a difference in the parties' bargaining power, but usually that does not affect enforceability. | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | Bonded labor is illegal in India, but enforcement is lax. Read Right against exploitation in Fundamental rights in India. The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour)... As per law, they cannot make the contract binding if it relates to bonding of the laborer. But a general contract may stand in court if they have made you sign the contract and paid the duty to government for the contract. This contract will be mild form of Bonds/begar-contracts. As per the requirements of the contract, usually they will ask you to give them your original documents and degree certificate. Do not do that. That will give them control, and it's illegal. From personal experience, such companies are phonies and they want to exploit you. Visa thing is a scare. As per they wont give me Experience letter and Releasing letter; they might do that, and so you will not be able to show experience. You can file a lawsuit against them. (But you know it's a waste of time in Indian courts) As per first three things you mentioned: It is written on my company's letter head. It doesn't contain any stamp paper. It doesn't contain any company seal. It's not a contract. Do not provide them your actual signatures. Make a strange signature so that you can later argue that it's not your signature. But think about the consequences: You are going to that (probably shady) company, do you think they will hold any of their promises later, at all. Think: Will the company stay in business until your bond is over? Then how will you get an Experience certificate? That ends the answer. A few suggestions I'd suggest finding a different job. I'd suggest talking to a lawyer. It's cheaper than your life being screwed up. I'd suggest talking to your family about it. Nothing written here constitutes legal advice. Talk to a lawyer to get a legal opinion on the matter. | It means that the agreement lasts for 6 months under which confidential information (CI) provided must be kept secret for 3 years. So lets say you signed this agreement on January 1, 2018. Any CI materials provided between Jan-1 2018 to Jun-30 2018 must be kept confidential up until January 1, 2021 (3 years from the effective date). However if you received a CI material on July 1, 2018 the NDA would have expired and you would not be obligated to keep it confidential at all. These types of short-term NDA's require careful oversight because it is easy to forget that the NDA has expired and start providing CI to third parties not obligated to keep them confidential because the NDA expired. So, in short, it means that anything provided as CI during the 6-month term of the NDA must be kept confidential for 3 years. After 6 months the NDA is no longer in effect and care must be taken in exchange of CI to third parties. | Unless your employer agreed in a contract to not discuss your employment, then there is no legal restrictions on them discussing anything about your employment. If they say things that are untrue you could sue them for defamation. | This paper describes a website created to test the hypothesis that nobody bothers to read the TOS, and it contained a privacy clause saying that "we may share everything, and a clause that by agreeing to these Terms of Service, and in exchange for service, all users of this site agree to immediately assign their first-born child to NameDrop, Inc. If the user does not yet have children, this agreement will be enforceable until the year 2050. All individuals assigned to NameDrop automatically become the property of NameDrop, Inc. No exceptions. Since this was not a real webpage, there was no attempt to enforce. TOS is just another kind of contract, so the question is which kinds of contract conditions are enforceable and which kinds are not. It depends on whose laws you are operating under, which explains the use of expressions like "void where prohibited by law". There are innumerable conditions that could be included in a contract which are unenforceable. A contract requiring a person to commit a crime is unenforceable. Many jurisdictions have laws prohibiting a person from waiving certain rights, for example you cannot sign away your right to be represented by legal counsel in a dispute. There are related "unfair / deceptive" practices laws, which might include meta-conditions that any clause disclaiming liability must be prominently displayed. These are terms that a reasonable person would clearly know in advance are illegal and unenforceable. There is also a concept of "unconscionability", a finding that a certain condition favors the business to the point of "shocking the conscience", which may take a deeper legal analysis to evaluate. A requirement to litigate small disputes in California might be deemed unconscionable for a customer in an East Coast state, but it might not be. A typical characterization of an unconscionable contract is one that "leaves one party with no real, meaningful choice and is unreasonably advantageous to the other party", especially when due to asymmetrical negotiation power. For example, Ellis v. McKinnon , 18 Cal. App. 4th 1796 (employment contract for a salesman, commissions were forfeit if company had not received payment from the customer by the termination of employment). The main case law in the US in this area is Williams v. Walker-Thomas Furniture, 350 F.2d 445, where a customer bought furniture on credit, with a clause allowing repossession of all of the furniture in case of default by the customer. The doctrine is encoded in UCC 2-302. However, "unconscionable" does not mean "I don't like it". In lieu of statutory price controls, a customer probably cannot avoid paying an agreed on exorbitant price for a product ($100 for a dozen rolls of toilet paper). Here is a bit more legal analysis of unconscionability, which focuses on three factors: one-sidedness, oppressiveness, and likeliness to result in unfair surprise. |
Have a child but reduce the risk of child support Lets say a Man and a Women agree to have a child. But the Man want's to make sure that before they have a child the man is granted full custody over the child and that the women can never file for child support. Isn't this already kind of done in practice by sperm donors or women that birth a baby for a couple that cannot conceive? Can this be done via a contract and maybe a NDA? | No australia You seem to be labouring under the misaprehention that the male and female parents are the only people involved and only their needs and desires are relevant. Child support, as the name implies, is for the support of the child. The law is that that parents are responsible for the wellbeing of the child and, barring of removal of the child by the state, this is not an obligation they can avoid. | In the UK, male circumcision is legal, and only requires 2 things: That consent is obtained, if the subject is too young to give informed consent, the parent can give it. The caveat here is that you have to be able to give parental consent. Simply being the biological father is not enough, an unmarried father is not automatically given "parental responsibility" and must be obtained through courts. That the procedure is performed by a "competent person". This is not necessarily a doctor There also needs to be a consent with both parents. One case in the UK involved a Muslim father wanting to circumcise his son. The mother disagreed and the court upheld the refusal of permission to perform the procedure until the child was of age to decide for themselves. For many, this is a matter of faith, such as with Muslim and Jewish communities. In Jewish communities, the circumcision (a ceremony called a "Bris" or b'rit milah) and the circumcision is either performed by the father or his representative, but is almost always performed by somebody trained in the procedure, dictated by the "mohel" and are usually physicians... Either way, written consent is not required, there are no documents to sign, forms to mail in to the government, etc. The only things that need to happen is that parent(s) who have parental responsibility must agree and consent, and that the procedure be performed by a "competent person". | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | They cannot force a contract on you after the fact. You should leave these numbskulls alone, they are clearly up to something that makes them likely to be sued. I am adding the following: it's not illegal as far as I know to declare anything you want to a person as long as it isn't a threat. "You are now beholden to give me your firstborn makle child." lol, no. | canada In Canada it all depends on whether it is Bob or Alice who is female. If it is the male who lies about the use of contraception it results in sexual assault (R. v. Hutchinson), and in the case of sexual assault it is possible to sue for damages in civil court. In contrast if it is the female who lies about the use of contraception it does not result in sexual assault (🤦), and thus suing for damages is not possible (PP v. DD, 2019 (this is literally the case you describe)). To understand this legal difference one has to go back to the 1998 case R v. Cuerrier, which was about which lies cause consent to sex be withdrawn. Does lying about your identity count (impersonating your twin)? Does lying about your wealth count? Does lying about your religious believes count? Specifically in that case someone had not disclosed that they had HIV. The court ruled in that case that sexual assault laws should only concern themselves with lies that create a risk of physical harm, and thus 'causing someone else to get you pregant' does not count, whilst 'causing someone else to become pregant' does count. Anyway, an amazing article about this can be found on thewalrus.ca, which discusses exactly these cases. It's definitely worth a read, but here is their description of PP v. DD: THE CONSEQUENCES OF Hutchinson played out earlier this year in PP v. DD, a decision released recently by the Ontario Court of Appeal. In PP, the plaintiff and the defendant were in a brief sexual relationship that resulted in a child. The plaintiff alleged that the defendant had lied to him about being on birth control, and that this lie had both robbed him of the ability to choose the timing and circumstances of the birth of his first child, and exposed him to the significant expense of childcare. In PP, the plaintiff chose to seek a remedy in civil court—meaning, essentially, that he wanted damages, not the imposition of criminal liability—arguing that the defendant had defrauded him. The plaintiff’s case in PP failed, mostly for policy reasons. Canadian law, like many other jurisdictions, is extremely reluctant to recognize any cause of action that might allow people to circumvent child-support obligations. But the Court of Appeal also commented on whether the plaintiff could advance a claim for sexual battery—the non-criminal counterpart of sexual assault. Relying on Hutchinson, the Court of Appeal concluded that the plaintiff’s consent to the sex he had with the defendant had not been cancelled out by her alleged fraud, because a woman who lies about being on birth control does not expose her male partner to any risk of significant bodily harm. | Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know "what harm are you afraid of that a pre-nuptial agreement could prevent?" This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen. | How to Best Help I suggest you ask around at the courthouse. You might need to get advanced permission from the judge. Every courthouse is setup a bit differently so it's hard to say exactly whom you will need to ask. But ultimately that will probably require the judge's advanced approval. Order of Child Support You used the term violation so I will assume the mother has in her possession a copy of the Order of Child Support (OCS) resulting from the divorce or paternity case that determined the amount and timing of support payments she is entitled to. Correct? Aside: If the mother doesn't already have an OCS it's pretty simple to get one. Most states just have a standard set of forms and a formula to apply. There is very little subjectivity involved. Unless one or more of the parties has unreported or variable income. And she can also collect back child support too. Back Child Support AFAIK you are not barred by statute for seeking back support as far back as when dad's obligation began. Which AFAIK is when mom became the primary caregiver. In practical terms, this would be the first day mom had the kids living with her and dad didn't live with them. Interest on Unpaid Child Support Most states allow mom to collect interest on (ordered but) unpaid child support at a rate set by statute. In some states the interest rate is in the 9 to 12% range. You need to compute it using a spreadsheet. You go back to each ordered monthly obligation, calculate the number of months from then until the current date, then multiply that number times the obligation amount times 1/12 of the interest rate. Then add all those months together to get the total. Like I said, a spreadsheet is the easiest way to do this calculation. Motion for Contempt of Court Assuming you have acquired an OCS, enforcement is also pretty straightforward. In some states, the mechanism to force the father to pay is called a Motion for Contempt of Court for violating the OCS. Again, it's so common, unfortunately, most courthouses support pro se litigants by having all the necessary forms on hand and volunteers to help people fill them out! When mom files the contempt motion with the court she will schedule a date for a Show Cause Hearing, at which time dad will need to appear and explain why he should not either pay up or be found in contempt of court. Courts enforce child support VERY strictly. So the paperwork alone should be enough for her to win her case. Unlicensed Practice of Law As for you "helping her" in court. Be very careful. That sounds dangerously like practicing law without a law license. There is a thing called a "bar" in the courtroom that only attorneys or clients are allowed to cross (by practice and tradition). That's where the term bar exam originated. Anyway, if you want to try that, be very careful and you might want to run that by the judge or clerk and get prior approval first because the unlicensed practice of law has the potential to be a sticky wicket. Use of an Interpreter I would be shocked if the court did not make allowances for non-native English speakers to use the services of an interpreter in the courtroom. That's something you definitely need to ask around at the courthouse for all the details. And whether the interpreter needs to be licensed, registered or otherwise approved by the court in advance. Process Service One last point. Make sure to properly process serve dad with the motion and paperwork. Process service is what will bind him to appear at the show cause hearing. You should be able to find forms, instructions and a professional process server by asking around down at the courthouse. Dad will have a chance to respond in writing to the motion prior to the hearing. And mom will have a chance to respond to his response. Ask around at the courthouse how all this works. Especially the deadlines involved. These are also strictly enforced. State Registry Enforcement Assistance One last, last point. In the future, it might help if the OCS made a provision for the father to pay directly to the state registry for child support enforcement. The will keep track of all the payments and can provide enforcement assistance like levying bank accounts and garnishing wages, etc. So that could help with future enforcement. Disclaimer I am not a lawyer. I am not your lawyer and you nor the mom are my client. This is not legal advice. So please don't do anything based on what I write here; if you do, please be aware you do so at your own risk. So seek the advice of a real lawyer if you are going to actually do anything that might create an issue. | There are legitimate apps that let you buy phone numbers. With the right app I can buy let's say a landline number in Kansas. I call you, and you will think it's some guy in Kansas calling you. That's totally legal, it's a genuine phone number, and just like I can buy 10 phones and have ten phone numbers, I can use an app to pretend to have 10 phones. I cannot pretend to by your child's school with that kind of app, because for obvious reasons your child's school's number is not up for sale. If an app let's you pretend to be someone else, like your child's school, then your phone company will be very interested in hearing about that. You don't have to sue the app maker, your phone company will. These three police officers will also be very interested, and impersonating a police officer is by itself a crime. (Normally impersonating a police officer is done by putting on a uniform, but calling you with the number of that police officer will also count). So these three police officers will have a word with your husband as well. So suing the app maker (you can't sue an app, you can only sue the people responsible for it) is very hard, and not needed. Complain to your phone company, complain to the police, first to the three police officers he impersonated (the phone company will have records of phone calls seemingly coming from them) to advice them they are being impersonated, and then you complain to the police for harassment. |
Can I record myself cooking on camera, in the kitchen community space of the house that I rent a room at, and not be in violation of 9.73.030? I rent a room with a few other housemates, and I was wondering if I can record myself in the kitchen cooking and not be in violation of 9.73.030. I understand that Washington State is a two party consent state, and that it would be a violation of 9.73.030 to record audio or a private conversation of a person without the consent of everyone involved. However, if I am making a cooking video in the kitchen for say YouTube, and someone wants to use the kitchen before I am done with it, and they attempt to have a conversation with me, would that be a violation of 9.73.030? Ultimately, would it be a crime to record cooking videos in the community space of where I live, without the consent of other people? | As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to "private communication": therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication. You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are unaware of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits recording it. An unavoidable sign may aid you in your quest to not get sued. | The tenants have a right to the "quiet enjoyment" of the house, but the only way to enforce that is to sue the landlord, and the probable remedy is money damages, with an injunction possible. Neither of those really solves the problem here. The California Tenants Guide notes, onpages 63-4, the "Special rights of tenants who are victims of domestic violence, sexual assault, stalking, human trafficking, or elder/dependent adult abuse." These special rights allow a tenant who is a victim to move out on 14 days notes without penalty, rather than a longer period that would otherwise be required. But here the tenants, it seems don't really want to move out, they want the landlord to move into an appropriate care facility. It is also not clear to me if this provision would apply when the aggressor is also the landlord. There is no simple way for the tenants to force this. They could, as interested parties, file a petition witj the proper court claiming that the landlord is incompetent to manager her own affairs, is a danger to herself and/or others, and is in need of a guardian. But such a petition is unlikely to go anywhere unless someone is wiling and able to act as a guardian, someone who would be acceptable to the court. One of th tenants would probably not be acceptable, even if one was willing. One option is to keep calling 911 on every violent outburst, and to document the violence on cell-phone videos, or in any other way possible. This might eventually lead to the police or other authority intervening in s helpful way, but that is far from assured. | From Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses. [...] there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i.e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time); and (2) that there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. [...] we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use. This is distinguishable from downloading movies because in the case of videotape or PVR recording, the copyright owner authorized the broadcast, and private, non-commercial time-shifting at home has been held to be fair use. When downloading a movie, the copyright owner did not authorize the communication, and copying movies by downloading them from an unauthorized source is not generally considered fair use. One policy reason why this difference might make sense is that when time-shifting, you are usually paying for the channels, and they are in turn paying the copyright owner for the permission to transmit their work. However, this is only a guess, and not really relevant to your legal question. | I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer. Idk. But probably not. The YouTube terms of service seem to prohibit this pretty clearly: You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player)... You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. Now, were YouTube itself licensing the videos in question under the CC license, they might be prohibited from enforcing that term: You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. though I'm not sure if the language in question would apply. However, it seems likely that in most cases, YouTube is using the material in question under the license to which users agreed when they created their accounts, and therefore is not bound by the term in question. All that said, it's entirely possible that the clause in the YouTube ToS prohibiting downloading does not apply for whatever reason (unconscionable in a contract of adhesion, browsewrap agreement doesn't form a contract to begin with, it's superseded by either some other agreement (part of the API EULA, etc), it's contrary to some law in your jurisdiction, etc). Just to be very clear, though, there is no COPYRIGHT CONCERN preventing uses like the one you mentioned. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | Here's where you went wrong legally: Suppose I legally obtain some digital image created by somebody else (e.g., by downloading from a public website). That, right there, is copyright infringement- unless the copyright owner has granted permission or the image is public domain you cannot copy it - this breaches "the right to make reproductions". By posting it on the web (assuming that it isn't itself an infringing copy) they have given implied permission for you to look at it in a web browser but not to copy it into a presentation even if that presentation is never presented. If it is presented then that makes the infringement worse - it adds breaches of "the right to communicate to the public" and "the right to use the work as a basis for an audiovisual work". How is this different from the computer wallpaper? It isn't. If you are using the one of the defaults that shipped with the OS then the license gives you permission. If you are using someone else's copyright without permission then it's a breach. There are defenses to copyright infringement but these are quite nationally variable - search this or other sites for "fair dealing" and "fair use". | There is not necessarily a contradiction. Information that they may keep may be: Account information Subscriber information Information on breaches of the Terms of Service or Agreement So yes, they might certainly not keep any logs – although that claim is doubtful, since they almost certainly keep at least error-level logs of their services – but that doesn't mean that they have no information to disclose to law enforcement. It's also questionable what "logs" refers to – would aggregate statistics be considered a log, by law? Would your last known IP address be considered a log, provided they don't keep any other history? | While I don't like agreeing with a landlord, you are in the right here. Your tenants do not have the right to access the property now they have moved out. If they were still living there things would be different and it would be reasonable for them to fix minor damage (to preserve their deposit). They did not do so. Get the damage fixed professionally, keep all reciepts, and take it out of the deposit. |
Why do adjectives sometimes follow nouns in legal phrases? For example, consider the phrase "bodies corporate." Would the more natural English construction not simply be "corporate bodies"? Why is the former form so often used? | The postpositive adjectives in many legal noun phrases in English—attorney general, fee simple—are a heritage from Law French. Source See also the Norman Conquest of England And also see section 69 SOCPA2005, specifically at s.69(3)(a) and s.69(4)(a), for the use of "body corporate" in england-and-wales legislation. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. | Some jurisdictions do that. Others don't (see, for example, the Dutch national identity card). My New York driver's license is in all caps, and I rather suspect that it's a holdover from the days in which licenses were processed using a computer system that had only upper-case characters. But that's just a guess. The real answer is that the premise of the question is incorrect. | In general, it means the word has a special meaning in the context of the contract, often as a shorthand for a more complex term. For example, from the Stack Exchange terms of service The Stack Exchange Network (the "Network") is a set of related Internet sites and other applications for questions and answers, owned and operated by Stack Exchange Inc. ("Stack Exchange"), a Delaware corporation. This means that anywhere in the ToS where you see "Network" with a capital "N", it means "the set of related Internet sites and other applications for questions and answers, owned and operated by Stack Exchange Inc., a Delaware corporation" -- but it's much easier to simply say "Network". You'll find the meanings of these words defined somewhere in the contract, usually in a section labeled "Definitions". If they're not defined, they don't have any special meaning. | Caveat Keep in mind that words do not have uniform definitions for all times and places and contexts. Words can have different meanings in particular contexts and can be defined in a contract or statute to have a meaning different from the common meaning. "Person" Usually Includes Entities Of Any Kind This said, usually the term "person" in the law refers to any human being and any trust, estate or entity that is capable of suing and being sued and entering into contracts. An "entity" in this sense would often include partnerships, limited liability companies, corporations, non-profit associations (whether or not incorporated), business trusts, joint ventures, local governments, states, the federal government and foreign governments. (I break out trusts and estates separately because there is divided authority in different jurisdictions over whether trusts and estates are entities, or are simply a special hat that the trustee or executor wears that are not entities, which can be relevant in some highly technical situations.) Agency Situations The term "person" is also often used in the sense that it refers to the principal and not the agent, when an agent is taking action on behalf of the principal. Thus, if there is a law that says "a person who enters into a real estate contract must disclose that person's taxpayer identification number", and someone with a power of attorney from you signs a real estate contract on your behalf, the power of attorney agent should disclosure your taxpayer identification number and not theirs. Why Is The Term "Person" Defined So Broadly? One important reason for using the term "person" to apply to entities as well as human beings, is that it allows for statutes and contract terms or case law legal rules to be stated in very general terms without being wordy in a way that accurately reflects how those legal rules or contract terms should apply to entities. For example, a statute using the word "person" might say: A person who is engaged in business in this state must register with the department of business licenses. By using the word "person" in this way, the statute wouldn't have to say instead (probably less accurately and less comprehensibly): Any individual, partnership, limited liability company, corporation, business trust, non-business trust, estate, governmental entity, or other entity, including the principal of any agent acting on behalf of the principal, engaged in business in this state, must register with the department of business licenses. The phrasing without the word "person" would be more likely to create loopholes because some kind of entity is omitted, and would be prone to ambiguity because one would have to decide which words that define the kind of persons and entities that are covered modify which other words in the sentence. Thus, using the word "person" is often makes entities more rather than less accountable to the law, by making legal language more clear and more general (and hence containing fewer loopholes). "Individual" or "Natural Person" Usually the term "individual" or "natural person" would mean a human being, although, of course, there are other senses of the word "individual" such as "an individual Widget" referring to exactly one Widget in particular, as opposed to Widgets in general. Alternative Definitions Of "Person" There are isolated times when the word "person" would not include minors and incapacitated people who are incapable of suing or entering into contracts in their own name due to lack of legal capacity. It isn't uncommon to have a definition of "person" in a statute or contract that omits governmental entities, that omits all kinds of entities, or that omits particular kinds of entities (e.g. foreign entities or corporations). For example, a tax statute might define "person" in a way that includes natural persons and entities, but excludes governments. Some of the definitions of terms like these in the bankruptcy code are particularly non-intuitive. | According to the Law Bod's Blog, Law French – When Law and Language Collide: ... After 1066 French became the language of the elite. During the reign of Edward I the first statute was written in French and Law was professionalised1. This led to the development of a weird little dialect called law French. As you can see from the image below law French is a bizarre mix of French, Latin, Anglo-Saxon and whatever other languages happened to be hanging around. ... Continental French was originally being used in courts but during the reign of Henry III and Edward I Anglo-French was used to create an entirely new legal vocabulary ‘giving special meanings to ordinary words ... Above from the second result returned from a web search for "why was french used for English law". The first result, a Wikipedia article about law French, is also informative. | As a general rule, legal language is interpreted loosely with respect to singular versus plural, or male versus female (in interpreting pronouns). A clause that uses the word "tenant" can thus be construed as referring to multiple tenants, and "tenants" can also refer to a single tenant. Likewise, "he, him" refers to a third person, regardless of gender. If the intent of an agreement is that only a single person shall reside in a place, then the wording of the contract would have to say that, and you can't derive that from using "tenant" rather than "tenant or tenants". I don't think the issue comes down to "treating y'all as one person", it comes down to whether the obligation is joint, a series of several obligations, or a joint and several obligation. You would look for expressions like "We and each of us agree...", vs. "Each of us agree...", or "We agree..." to sort that out: I assume that the language just says "Tenant agrees...", that is, there is nothing at all in the wording of the lease that resolves the matter. Tenant (whoever that is) has an obligation to Landlord to pay rent. It doesn't matter if Tenant is 1 person or 10: you have to pay the rent. If 5 out of 10 of those people mysteriously disappear, the other 5 still have to pay a now-doubled rent per person. Each person is fully responsible for all of the lease obligations, and if you are the only reliable person in a lease with 10 parties, you could get stuck with the entire obligation. If Tenant needs to go away for some reason, Tenant can normally negotiate with another person to assume their obligations, so Tenant would come up with an arrangement with a new person, and the new person would have an obligation to (old) Tenant – this is basically a private arrangement that doesn't involve the Landlord. However: it is pretty standard that landlords get a say in letting in new tenants, and you have a clause in your agreement that says that. There are two ways for the old tenant to "go away". One is to completely terminate the old agreement, and the landlord signs a new lease with the new person: the old tenant is completely free of any subsequent obligations, and if the new tenant fails to pay rent, the landlord has to go after the new tenant. The other way is by assigning his obligation (as described above): the agreement is between the old tenant and the new tenant (with the landlord's consent). The question now is, what is the meaning of the clause "the assignee shall sign a separate written agreement with Landlord and Tenant"? (Earlier, I missed the significance of "Landlord and Tenant"). The core question is whether the new arrangement is a novation, or is it an assignment? A novation requires agreement between all parties, and that is what seems to be implied here. California landlord law then tells you that this "makes the new tenant (rather than the original tenant) solely responsible to the landlord". In contrast, "Like a sublease, an assignment is a contract between the original tenant and the new tenant (not the landlord)". Since this involves the landlord, the conclusion is inescapable that this is not actually an assignment (despite the use of the word "assignee"). All of the parties to the agreement would have to agree to these new terms, if in fact there is an agreement that substitutes D for C in this agreement with the landlord (a notation). If C remains on the hook and this is just a personal arrangement between C and D (with Landlords consent) – which is not what the clause says – then you don't get a vote in the C-D arrangement. | Yes, but the difference is in nuance, not substance Illegal means “not according to or authorized by law” and lists unlawful as a synonym. Unlawful means “not lawful” with illegal as a synonym. So, by definition, they mean the same thing and can be used interchangeably. Illegal does carry a slight hint of being more egregious than unlawful and would be more often used of criminality than of a parking offense but it’s not wrong to use them interchangeably. |
Can a Lawyer represent a client in a business deal where he knows that his client is being screwed over? Two people are partnering to purchase a business deal. A lawyer is representing Partner A. The lawyer knows that Partner A is being screwed over by Partner B, i.e. Partner B has no money to contribute, etc. Is the lawyer ethically allowed to represent Partner A? | british-columbia The lawyer must give "an open and undisguised opinion of the merits and probable results of the client’s cause." "When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter." As long as the lawyer is satisfied that "the client has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision," the lawyer can take instructions from that client. The lawyer would only be required to withdraw if the client persists in instructing the lawyer to act contrary to professional ethics. | Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache. | Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea. Let the lawyers handle it Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them. For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way. "Aha!" you shout. "Success! Daylight!" But then what? It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again. Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree? Be wary of unintended consequences Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.) Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation. | Hire a lawyer, who is licensed and trained in law and who is obligated to be honest with you and advocate for your interests, and get him/her to review your business plan. He/she will point out real or potential problems with your ideas and plans, show you legal gray areas of the law and advise you on what you can and can't do. Some lawyers offer a free initial consultation. As an example, you can browse and read specialties and qualifications for legal help in New Jersey: https://www.justia.com/lawyers/business-law/new-jersey There's no substitute for real legal advice; not consulting with an attorney before signing contracts or starting a business can put in in real legal jeopardy. Don't ask legal advice from randos on the Internet, as they are not trained or licensed, and it is illegal to act or work as a lawyer without being licensed. As ohwilleke points out, you may want or need to consult several different lawyers. | united-states You may be confusing the right to an attorney if you cannot afford one that is applicable only in CRIMINAL cases, not civil cases like you are discussing. You may be able to get an attorney to take your case on a contingency basis but there are two things to keep in mind: The attorney has to have some expectation that the case is winnable. The amount to be recovered must be worth the risk of taking on this case. In other words, for the attorney it's more of a business question that a legal one. Many attorneys will give you a free 30 minute, more or less, consultation. Perhaps you might give that a try. | Legal Services Society is a non-profit organization created by the BC Legislative Assembly through this act, created in order to serve the legal needs of certain classes of society, defined vaguely with reference to "a reasonable person of modest means". Accordingly, they have rules regarding who they can and cannot serve. and they are constrained financially. With vast demands on their resources and little by way of resources, prudent triage is called for. That is, when you show up, you shouldn't expect to talk to a senior attorney (or an attorney). From what I can determine, you cannot expect to get your problem solved right away. It is also not clear that your problem is within the scope of what they do (criminal, incarceration, serious family matters, immigration). "Giving legal advice" is something that only a few people are legally allowed to do – lawyers, who have you as their client. If the person were an attorney, they still couldn't give you legal advice until the appropriate relationship is created (and they have the relevant facts). The person you met with may be a paralegal or a law student. Under the law (sect. 8 of the act), you cannot sue them for damages because of their actions, except if carried out in bad faith. The waiver might be a bit redundant, but it is a wise idea to tell people that you can't sue them. If you want to know what you can expect from the lawyer, this publication will be helpful, though it is generic and not specific as to your particular issue. | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | No, the clause is correct. The reason it is put in is to protect the designer from the client's mistakes (or lies) about whether the material the client wants to use is copyrighted. To see how this works, suppose the client gives the designer a photo, and says she has the rights to it. It turns out the client doesn't have rights, and the true owner sues. The designer will undoubtedly be named in the suit. This clause will probably not protect the designer against the true owner, so she may end up having to pay damages. However, this clause gives the designer grounds to sue the client to recover any damages she suffers. |
Is it legal to submit fake digital identification documents to private companies? Suppose that Facebook asks me to verify my identity. Is it then legal for me to create a fake digital image of a passport showing my pseudonym as the real name and submit that as if it were an image of a real passport? | Nope. 18 U.S. Code § 1028 - Fraud and related activity in connection with identification documents, authentication features, and information (a) Whoever, in a circumstance described in subsection (c) of this section— (1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document; [...] (c) The circumstance referred to in subsection (a) of this section is that— (1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document; So you're 1) producing a false identification document that 2) appears to be issued by the United States. Whether you'd actually be prosecuted for this is something that I'm not qualified to answer. | First, agree w/Dale M re: it would be an egregious and likely career-ending move for an attorney to fake his representation. That said, there is likely no reason why you would be unable to request such proof of representation. Your job consists of protecting the assets of the trust, carrying out any other duties outlined in the trust document, being honest and in communication with the trust's beneficiary, managing the assets, and ending the trust as determined by the trust document. Several of those points (particularly the "protecting the assets" part) argue heavily in favor of your confirming the veracity of any claims involving the trust and/or the identity or true intent of those seeking any information, etc., with respect to the trust. Also, demand letters are letters stating a legal claim and usually asks for restitution or performance of an obligation. It's not entirely clear what constitutes a "demand letter requesting information" unless you have a legal duty to provide that information (and this would - or should - be stated in the demand letter itself). Finally, should you be unable to obtain the confirmation you're seeking, you should consider consulting a trust administration attorney. In most cases, you may use trust assets to pay for expert help (including tax preparers and accountants). | You quoted the definition of personal data from Art 4(1) GDPR. This definition of identifiability is further explained in Recital 26: […] To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. […] If the user ID is unique, then the hashed user ID will be unique as well. Thus, the hashed ID will enable “singling out”, and would still count as identifying in the sense of the GDPR. You also claim that there's no way to reverse the hash. This is not quite correct. Assuming that the hash function itself is secure, then the only way to crack the hash is to brute-force the input. The difficulty of brute-forcing depends only on the entropy of the input data, not on the size of the output hash. It is thus comparatively easy to crack hashes of short low-entropy strings like sequential integer user IDs, IPv4 addresses, or weak passwords. In contrast, it would be difficult to crack long random user IDs, such as UUID version 4 identifiers created from a cryptographically secure RNG (CSPRNG). Even if the hashes can't be cracked, they are not anonymous – you can link them to the original user ID, after all. The GDPR only considers data anonymized if there are no “reasonably likely” means to re-identify the data subject. If this de-identification is reversible, it's called pseudonymization instead. If storage allows, a better technique to generate pseudonymous IDs is to create a table that maps the true ID to a CSPRNG-random ID. Unlike a hash, the random ID cannot leak extra information about the original ID. This pseudonymization technique could perhaps also be turned into irreversible anonymization by deleting the ID mapping, assuming that no “singling out” can happen. Pseudonymization is a very good security measure. It is explicitly mandated whenever appropriate in Art 32 GDPR. So you should probably use it. It's just that GDPR continues to fully apply to processing of the pseudonymized data. Since the pseudonymized data is the data subject's personal data, you may be required to delete it when receiving an Art 17 request for erasure. You may also be required to forward the request to others with whom you shared the data. However, the right to erasure has many conditions and exceptions. If you actually need to keep the data for a particular purpose, chances are good that you can keep it. | Is X considered personal data? Can you use X to directly or indirectly identify a natural person? In the data to which you have access can X be related to an identifiable natural person? If you answer yes to either of those questions then X is personal data. Article 4(1): ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Scenario 1: you want to count each user agent that comes to your site, that's the only data you have, then the user agent is not personal data (it cannot be used to identify someone - unless it has a name and address etc, which seems highly unlikely - and you cannot relate it to anyone). Scenario 2: you have customer records with names, addresses etc (clearly personal data) and want to record each customer's user agent then the user agent is personal data (it relates to the identifiable natural person). Scenario 3: in one dataset you record that a user agent was associated with order ID 123456 and in another dataset you record that order ID 123456 was for John Smith (plus address etc), then the user agent is personal data (it relates to the identifiable natural person). Is this considered storing personal data? If X is personal data. Do I need user's consent to record X? If you want to record X and X is personal data, then you must have an Article 6 lawful basis for recording X. Consent is one of the six lawful bases. Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. | You are missing something. The fact that you have a tick box and its state is saved in the database is enough. The burden of proof is only "on a balance of probabilities", so someone arguing that they didn't consent would have to demonstrate that you falsified the database entry somehow. In terms of GDPR requirements in general you don't need a greater level of proof than this, the key thing is that you have a robust system in place to obtain proof (such as not allowing data into the database without a tick in the box). | Yup, it's illegal. You want something, they have something you want. They let you have the thing provided that you do certain things, otherwise they won't give it to you. So providing a credit card is material to the contract. You know that the credit card number is false, you are representing that it is true, the card is a material fact, you intend to get them to allow you in using this false representation, they don't know it is false and they rightfully rely on your truthfulness. They have been harmed by your false representation (maybe: it would cost you a lot in attorney fees to try to challenge on this point). This is fraud. | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. | Submit emails in their totality Your testimonial affidavit can quote or cite them as applicable. There is no protection of anyone’s privacy in court. By the way, the email where admissions were made is probably inadmissible if it was sent were in the course of bona fide negotiation to resolve the dispute. If the other party objects they will be thrown out - I wouldn’t hang my case on them. |
Are social media TOS invalid because lack of due process and mutuality creates an unenforceable illusory contract? Generally speaking, the TOS of social media platforms share certain common features. They do not give the user the right to any "due process." If the platform wishes to cancel, block or suspend the user, they can do so with impunity. The platform can exercise its sole discretion and the user has no right to due process or a fair hearing. Even worse, these social media platforms routinely engage in the practice of so-called "shadow banning." This practice effectively cuts off users from accessing the platform with an elaborate ruse and conspiracy designed to deceive the user into believing they still are using the platform normally. But, in fact, all their posts are disappeared into the either by the platform to intentionally trick the user into wasting their time creating more posts that go nowhere. My hypothesis is that these common practices (deceptive shadow banning ruse conspiracy, lack of due process, no right to any appeal or fair hearing and lack of mutuality -- the platform can do whatever they want with autonomous impunity and the user can't even register a complaint) combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform constitutes an ILLUSORY CONTRACT and, therefore, renders the TOS invalid in their entirety. Does my hypothesis have any merit? Edit I am using the following definition of illusory contract: A promise that is unenforceable due to indefiniteness or lack of mutuality, where only one side is bound to perform. The TOS I am referencing seem to meet all the requirements to me. They lack mutuality. Only one side is bound to perform. | No Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws. If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled. My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...] This part is correct. They have the complete impunity because of how the contract is written. However, that does not make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform something until the contract is terminated. An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules. The claim of non-mutuality is frivolous: If you claim "I don't agree to the TOS and contract", you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too. Also, there is a severability clause, which is valid: even if a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid. Your conclusion is wrong and meritless. | First of all, a contract is valid without a signature and even without being in writing; all that is needed is consent by the parties. Therefore, the signature is merely evidence of that consent and is only relevant if a dispute arises over the general consent or the particular terms that were consented to. A digital signature would make it harder for Bob to argue that those were not the terms he signed but if I have Bob's signature on them then the onus of proving he didn't sign rests with Bob, I don't have to prove he did. All of the methods you suggest are valid as would an email saying "Got the contract. I agree. Bob." | Yes. This is legal. The only possible liability for a truthful and accurate disclosure of fact is a defamation action (in the absence of a privacy clause in the contract) and this is truthful so it would not violate anyone's legal rights. Credit reporting agencies routinely collect such information and court actions to collect unpaid debts are also a matter of public record. Credit reporting agencies in this business also have some additional obligations (such as the obligation to remove an entry after a period of time and an obligation to present rebuttal statements from the person affected). But, you should understand that merely publicly sharing truthful information about a factual matter is not really what a "blacklist" means. Normally, a blacklist includes an implied understanding that certain actions will be taken as a result of placement on the list rather than merely sharing information for what it is worth. An example of a law prohibiting a true blacklist from Colorado is the following: § 8-2-110. Unlawful to publish blacklist No corporation, company, or individual shall blacklist, or publish, or cause to be blacklisted or published any employee, mechanic, or laborer discharged by such corporation, company, or individual, with the intent and for the purpose of preventing such employee, mechanic, or laborer from engaging in or securing similar or other employment from any other corporation, company, or individual. Incidentally, I'm not convinced that the statute would be constitutional if enforced under modern First Amendment jurisprudence, although one U.S. District court case from 1971 did uphold its validity in the face of a somewhat different kind of challenge. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971). | Tinder's Terms of Service (TOS) is pretty clear: Therefore, you agree not to: • use the Service or any content contained in the Service for any commercial purposes without our written consent. • copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, images, trademarks, trade names, service marks, or other intellectual property, content or proprietary information accessible through the Service without Tinder’s prior written consent. • use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents. • modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service, or cause others to do so. • use or develop any third-party applications that interact with the Service or other users’ Content or information without our written consent. The Company may investigate and take any available legal action in response to illegal and/ or unauthorized uses of the Service, including termination of your account. If you ignored that and did your machine learning research with images anyway, you're breaking the TOS, and to be honest, you may not be caught. But if you published your research, Tinder could demand you engage in arbitration or sue you on the premise that your research proves you violated their TOS. If your jurisdiction is outside of the US, other laws may come into play, but it's safe to assume you could still be in legal jeopardy from Tinder. | Under Australian Consumer Law (ACL) the test is not unconscionably; for standard form consumer contracts its unfairness: A court may declare a term ‘unfair’ if: it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; it is not reasonably necessary to protect the legitimate interests of the party that would be advantaged by the term; and it would cause detriment to a party if it was relied on. However, an important caveat is that a term that is specifically allowed by Australian law is not unfair. To clarify slightly, the dispute resolution clause in Section 6 requires mediation before binding arbitration, both under the respective ICC rules and both with their seat in Amsterdam under Dutch law. A few things to say to start with: Choice of law clauses are supported by Australian law. However, the Australian Consumer Law cannot be excluded by contract so the proceedings would be under the ACL first and Dutch law where the ACL did not apply. Mediation and arbitration are both supported (and encouraged) by Australian law, including agreeing on the seat, so those terms are not prima facie unfair. Limitations of Liability clauses (such as that under Clause 5) are also supported by Australian law so that is not prima facie unfair. However, there are a number of issues with the Uber ToS that may meet the threshold of 'unfair' and/or may breach the 'misleading and deceptive conduct' provisions in the ACL. In no particular order: The costs under the ICC rules of USD 5,000 are considerably more than the costs of using and Australian service like the AUD 1,000 charged by the Resolution Institute. Similarly, the seat being in Amsterdam is likely to "cause detriment" to Australian consumers. I am not alone in this view but it has not yet been tested AFAIK. s60 of the ACL impose a warranty that services will be rendered with due skill and care: damage that arises from this failing to happen cannot be excluded or limited by contract. Similarly claims for misleading and deceptive conduct cannot be excluded following the decision in Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246. The claim that Dutch law applies "exclusively" is patently wrong and therefore 'misleading and deceptive'. Even if Uber believes it (and I doubt their legal team does) misleading and deceptive conduct under ACL does not have a defence of genuine belief. the DISCLAIMER says "UBER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS" - they can't do this. Even though they say at the end "... TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW" this is unlikely to be sufficient to claim that the initial statement was not misleading. It hasn't yet been tested but if I wanted to bring a claim against Uber I would just go down the the Local Court and file a Statement of Claim - I would feel pretty confident that the magistrate would rule against them and that Uber would be unlikely to appeal. | does that mean I'm agreeing to whatever the state of that website is on the day I'm signing, or any and all future updates to that website? That type of "blank slate" agreements is lawful and it means "the conditions of which you are made aware", hence the terms as of the date you entered the agreement. To supersede that meaning, the agreement would need to be explicit about referring to "any and all futures updates to that website". Your willful agreement of unknown future updates is described in Restatement (Second) of Contracts at § 154(b) as [the party being] aware, at the time the contract is made, that he has only limited knowledge with respect to the facts [...] but treats his limited knowledge as sufficient You might want to save a copy of the terms if you are concerned that the counterparty might unilaterally change the terms and allege that your acceptance was in reference to those. | Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the "Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?" comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later. | In case a company is flooded by such "asymmetric" requests, how should a company react? Although article 12.5 refers to singular "a data subject", it can be inferred that exposing the controller to significant expenses is not part of the legislative intent. Accordingly, the company may have requesters choose between paying a reasonable fee for the ensuing administrative costs or withdrawing the requirement that delivery be by postal mail. The bad faith scenario you outline seems to be a non-sequitur, since generally a pattern (or a high number) of requests for postal mail delivery should prompt the controller to suspect that some or many might not be legitimate. A requester with bad intentions would be unable to prove the identity of the various data subjects he impersonates or alleges to represent. |
Is a similar name and synonym to existing brand a trademark infringement? A company named Blackboard exists, with trademarks on the name. I would like to use the brand name "Greenboard." Is there any possibility of trademark infringement if I use this name? I don't think it would cause confusion among consumers I did not know the company existed when I came up with the name I would have distinct logos for my own brand We would be businesses in the same industry with competing products | The legal standard is whether the allegedly infringing mark is confusingly similar to the mark that is allegedly infringed. This is a mixed question of fact and law usually determined by the trier of fact (which is the jury, in a jury trial where there is a colorable dispute of fact regarding the issue). | It’s not a problem Is there any reasonable prospect that you or the landlord would argue in a dispute that you are not the tenant? No. Is there any reasonable prospect on all the available evidence that such an argument would succeed? No. Therefore, no problem. Where this can be a problem is if someone commences legal action in the wrong name (e.g. the landlord sues “Travis Parks” instead of “Parks Travis”] and there is a summary judgement (if there is a hearing the mistake will be sorted out). A judgement cannot be enforced except on the named person. It can also be a problem if the lease is in the name of a company. Because companies are ‘virtual’ people, they can only act through agents and their name (and number in some jurisdictions) is the only thing that identifies them. | IP in Game Rules Game rules and other game "mechanics" are not protected by copyright. They are considered to be "ideas, methods or procedures". 17 USC 102(b) provides that: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. If the wording of the rules is not the same, and no art or visual design was copied or imitated, the fact that the gameplay is the same does not afford any copyright claim. Claims of Similarity A comment from the OP says: I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property. If the maker or distributor of the new game states that it is similar to the old game, something like "This is a Flower version of Monopoly." would that be any sort of IP infringement? Such a statement would in no way infringe any copyright. Would it infringe the trademark rights on the mark "Monopoly". That is harder to say. The key question in a trademark case is whether the use of a mark, or of words or images that refer to or suggest a mark, would cause reasonable people to falsely think that the new product or service is endorsed, sponsored, or approved by the makers of the old, or to falsely believe that the new product or service comes from the same source as the old one, that is, is made by the same firm or the same people. Whether a particular statement of similarity would do that is a question of fact, and would depend on the details of the statement and the overall presentation of the new game. But a disclaimer can and often does avoid a potential trademark infringement issue. A statement something like: FlowerPoly is not endorsed, approved, or sponsored by Hasbro, the makers of Monopoly, and holders of the trademark on that name. FlowerPoly was created by a completely different group of people. One should not rely on the reputation of Monopoly when deciding to purchase or play FlowerPoly. It would be wise to have the exact details of any statement of similarity, of any disclaimer, and of the name itself, reviewed by a lawyer with experience specifically in trademark law. In general, merely suggesting a similarity is not trademark infringement. Specifically, comparative advertising is not infringement. For example, a new drink could advertise that "NewCola is better than Cokle." That would not be an infringement of the trademark "Coke", because it makes clear that the products are different, and come from different sources. | Do you have permission of the person? In general, product names fall under trademark law, not copyright. And while it's possible to use the name of a non-employee as a trademark, doing so without the permission of that person is rather dangerous. That person may sue you for a number of different reasons, with different demands - chiefly financial compensation or a rename of your product. | I am answering primarily with regard to the U.S. Lanham Act (15 U.S.C. § 1501 et seq.) and state trademark laws in the U.S., but except as noted, these concepts are widely honored internationally in trademark law. As a general rule, generic names cannot be trademarked. Thus, you can't trademark "liquor store" for a liquor store, or "Calendar" for a calendar, but you might be able to trademark "liquor store' for a copying machine line, or "Calendar" for a perfume. Sometimes a trademark can be obtained for a stylized logo incorporating a generic name (e.g. "liquor store" in bold pink 48 point comic-sans), but to be valid, the trademark must disclaim any assertion of rights in the mere genetic words themselves. Also, sometimes a trademark that is descriptive but not truly generic, like "Palisade Red" for red wine made in Palisade, Colorado (as opposed to the truly generic name "red wine"), can acquire what is known as a "secondary meaning" through exclusive use over a period of time while registered with the Patent and Trademark Office, without contest from anyone else. If it meets these requirement it can win an entitlement to trademark protection. But, the nuances of this particular route to trademark protection are particular to U.S. Lanham Act (which is the name of the federal trademark law in the U.S.). Domain names and entity names in a particular jurisdiction are somewhat different. While it is possible for two competing products or firms to share a generic name, it is not possible for two owners to have precisely the same domain name or precisely the same entity name in the same jurisdiction, even if the firms seeking the same name sell completely dissimilar types of products. For example, there can only be one: "Calendar.com" domain name, even if one company uses the name "Calendar" to sell calendars and the other company uses the name "Calendar" to sell perfume. In those cases, however, it is relatively straightforward to determine what names are and are not taken. | Monopoly is a trademark of Parker Brothers. You would need to get permission to use that trademark. The artwork of the game is copyrighted and cannot be duplicated without violating that copyright. In general, the labels meaning phrases like "Go to Jail" and "New York Avenue" are probably copyrighted and some court decisions have decided that labels are a copyrightable element. However, there is some gray area. The game mechanics are not copyrightable and can be duplicated. What this means is that if you clone the game and use new labels (like new property names and card titles) then you are probably fine. You would have to make a novel board design. If you clone the game, but use the game's labels, then you could potentially lose in court. Of course, remember that corporations will sometimes sue just to intimidate people, even if they have a losing case. Just because your clone is non-infringing doesn't mean they won't sue you. It costs them money to sue people, so if your clone is obscure or not used by many people it could fly under the radar and be ignored by the company. If your clone was a success and became widely used, that would significantly increase the chance you could get sued. In most cases a company will threaten infringers before they sue them, because it is a lot cheaper to threaten somebody than sue them. Therefore, you could make your clone and just plan on discontinuing it if they threaten you. Of course, there is a small risk they would sue you anyway. If you made no money then you are probably safe because it would be a lot harder for them to argue that you commercially damaged them if you made no money. | Speaking from a U.S. perspective (which may or may not generalize elsewhere), trademarks can be used by different companies when they operate in different industries. An answer on Avvo by Kurt Van Thomme captures the important question when using an existing trade name in a new industry: The question in these kinds of circumstances is often whether the goods or services offered by the two companies are sufficiently related such that a consumer would be likely to think a company providing the first product or service would be reasonably likely to provide the second product or service also. Kurt's answer includes an example where the name "Pioneer" is used by a seed company and an electronics company. The two products are unlikely to be provided by the same company, so there is low risk of consumer confusion. In my layman opinion, it seems unlikely that J.K Rowling or Warner Brothers would use the trade name Voldemort to market a software development tool (as it seems unlikely they'd market a software development tool at all, unlike a complete video game, which would be a more likely product), so you could legally use the name insofar as it is not likely to cause customer confusion. Note that you still might attract negative legal attention if the trademark holder is particularly litigious, so when I say "you could legally use the name" I mean that you could probably win a lawsuit (at whatever legal fee costs) if one were filed against you. However, some marks are regarded as "famous" or "well-known" in some jurisdictions. In that case, the mark is afforded much broader protection, and your ability to use it in a different industry is greatly diminished: Famous marks are those that enjoy a high degree of consumer recognition in a particular jurisdiction or in a specific field of commerce or industry. However, few trademarks enjoy the status of “fame.” Examples of marks held to be famous in certain jurisdictions are COCA-COLA, KODAK, WIMBLEDON and VIAGRA. For example, you could not start a business selling automobiles under the brand name "Coca-Cola" even though it is tremendously unlikely that the Coca-Cola Company would branch out into selling cars. The mark's status as "famous" would still allow the Cola-Cola Company to succeed in stopping you from using that mark in commerce, even in a vastly different industry. If the trademark holder of the name Voldemort succeeded in persuading a court that the mark met the jurisdiction's standard for a famous mark, then you could not use the name even for your software development tool. Note also that because trademark is intended to reduce confusion over the source of a good or service, trademark holders can lose their trademark by failing to defend it from confusing uses. Therefore, some trademark holders aggressively pursue even borderline cases to ensure they don't endanger their trademark. | The agreement linked in the question seems to be or to purport to be, for a non-final, non-production version of the board. I have seen such agreements used, both for hardware and software, used when beta-test versions of products are being distributed to those who agree to do such testing, often in exchange for a reduced price on the final product, or an early look. I have also seen similar language used when an evaluation version of a product is provided free, or at a much reduced price. In such a use, it would be a reasonable contract, it seem to me, and I see no reason why if it were agreed to by both parties in such a situation, it would not be binding. Often such agreements also include a non-disclosure aspect, but this one does not seem to do so. I cannot see how such an agreement could be made applicable automatically, without both parties having chosen to agree to it, and indicated this by signing, clicking, or in some other positive way. I doubt that it could be made automatically applicable, on an "by using this product you agree" basis. I don't know of any physical consumer product, or appliance, sold with such an agreement in ordinary commerce. I am not sure what would happen if a manufacturer wanted to require all purchasers to sign such an agreement. I don't know if it would be binding. I would think that the purchaser's rights under the First Sale doctrice, could be modified by a valid contract agreed to by the purchaser. I do not think that they could simply be revoked by a contract of adhesion, which the purchaser had no choice to decline before making the purchase. As the OP says this was not signed or agreed to in any way, I can't see how it binds the OP. |
When has Judicial Review not been the process used to deem an act unconstitutional? Are there any examples where Judicial Review has not been the process used to deem an act unconstitutional? | Several examples come to mind. This may not be comprehensive. Attorney General's Opinions Ands The Equivalent In state and federal governments in the United States, there is typically an official in the Attorney General's office who reports directly to the Attorney General who writes Attorney General's opinions which are binding legal authority on the government officials in that state or in the federal government, as the case may be, on legal issues. One purpose for which an Attorney General's Opinion is frequently used is to declare that a law shall be considered unconstitutional for all purposes by government officials in that governmental body. Typically, this is only done when the precedents regarding a law's unconstitutionality are unequivocally clear, for example, because the U.S. Supreme Court or the state supreme court in the state in question, has declared a virtually identical law to be unconstitutional (e.g. a religious test to run for public office in a state constitution), even though a court has not ruled on this particular law and it remains on the books. County attorneys and city attorneys in their respective local governments often do the same thing. State and federal tax collection agencies often following the federal model of regulation like documents called "Revenue Rulings" and "Revenue Procedures" will sometimes make determinations that are binding on the government that are essentially identical in process and effect to an attorney-general's opinion, except that these are typically issued under the supervision of the top tax policy official in the tax collection agency, rather than by an official in the Attorney General's office. This is also sometimes done by administrative or independent agency boards in the course of carrying out their determinations. For example, the Environmental Protection Agency might determine, by regulation, that a "right to farm" law under a state statute or state constitution is unconstitutional to the extent that it interferences with its environmental regulation of farms. Prosecutorial Discretion Frequently prosecuting attorneys refrain from bringing charges under laws that they believe to be unconstitutional (at least in the circumstances that present themselves where the law could theoretically be used) as a matter of explicit or implicit policy. Even when a policy is explicit, however, it is often an internal policy not disclosed to the general public. And, since prosecutors routinely exercise prosecutorial discretion for all manner of reasons, it isn't easy to identify cases where a failure to bring a particular charge is a result of a determination by a prosecuting attorney that a law is unconstitutional, at least as applied in the circumstances of a particular case. Real Estate Title Standards A somewhat similar practice is found in real estate title work, most often in cases involving racially restrictive real estate covenants. Often there is a statute, regulation, or simply an industry standard privately adopted title standard that title companies trying to determine the state of title to real property use to disregard racially restrictive real estate covenants (and certain other less well known title issues) on the grounds that they are unconstitutional. This is done notwithstanding the general common law rule that duly executed and recorded real estate covenants are binding and run with the land. Mass Implementation Of Retroactive Precedents In rare circumstances, when a once widely used legal practice is determined to be unconstitutional and to have retroactive effect, such as convictions of crimes by non-unanimous juries in the State of Oregon, an ad hoc administrative process is established to identify and summarily invalidate the unconstitutional convictions or judgments, without litigating those cases in the courts on a case by case basis. Legislative Determinations and the Veto Power A legislative body will often repeal or amend a law for the reason that the law in question is believed to be unconstitutional, even if the constitutionality of this particular law has not been adjudicated in a court. In theory, this is a way in which a legislative body deems an existing law unconstitutional. In practice, however, different legislators will justify the repeal or amendment of an existing law for different purposes and there is no obvious way for someone not familiar with the legislative history of an act and the related deliberations to know if a law was repealed or amended because it was unconstitutional. Similarly, sometimes a President or Governor vetos legislation for the reason that this politician believes that a bill passed by the legislature is unconstitutional. But there is generally no definitive way to determine which vetos are for this reason and which vetos are for some other reason. Pre-Litigation Advisory Opinions The federal courts are not allowed to issue advisory opinions in the absence of a genuine case or controversy as a rules of the jurisdictional limits on their authority under Article III of the United States Constitution. But some states grant either the state supreme court, or a special committee or council, the authority to review newly enacted statutes, and/or proposed ballot initiative, to determine if they are unconstitutional on their face, before they take effect. In many civil law countries outside the United States, a constitutional court, or a "council of state" has similar authority. Military Law Under the Uniform Code of Military Justice (UCMJ) in the United States, disobeying a lawful order is a ground to impose military justice penalties, but court-martial or otherwise. Implicit in the provision of the UCMJ, is the right and obligation of people subject to this provision of the UCMJ (basically active duty military personnel), to exercise independent judgment to disobey an unlawful order. One form of unlawful order is a military order to do something unconstitutional. So, in the first instance, a soldier given an order must evaluate whether or not the order which has the force of law as to them, is unconstitutional, and secondarily, this is raised as a defense before the appropriate military justice body (e.g. a court martial) to a prosecution seeking to discipline the soldier for disobeying an order under the UMCJ. To the extent that raising a defense in a court martial is equivalent to raising a defense in a court proceeding, that really isn't any different than ordinary judicial review. But, when a soldier refuses to follow an order on the grounds that the order is unconstitutional, this amounts to an invalidation of the order on constitutional grounds by a means other than judicial review. Constitutional Amendments The 14th Amendment to the United States Constitution specifically held that all laws adopted by the Confederate government during the U.S. Civil War issuing public debts were void as a matter of law. Similarly, the adoption of various other constitutional amendments, such as the 13th Amendment prohibiting slavery, upon adoption, immediately caused all laws authorizing and regulating the institution of slavery in the United States to become unconstitutional. Prohibition and the abolition of poll taxes provide other examples of existing laws being determined to be unconstitutional immediately, when constitutional amendments take effect. Non-Court Precedents Specific historical acts and courses of dealing are often treated as determinations that different kinds of conduct are, or are not, constitutional. For example, the U.S. Civil War was taken as a non-court precedent establishing that a U.S. state does not have a right to unilaterally secede from the United States of America, even before a court reached that determination. This likewise implicitly resulted in the conclusion that all confederate laws were unconstitutional. Many examples of this involve separation of powers provisions of the constitution and provisions adjudicating the internal affairs of legislative bodies. The former are rarely litigated so custom, practice, and political pronouncements have to suffice instead. The latter are often expressly non-justiciable (i.e. beyond the jurisdiction of the courts) so determinations of when legislative procedures are constitutional or not are often vested in the discretion of the legislative bodies themselves. Most constitutional questions related to electoral college results, Congressional elections, and the constitutional amendment process are non-justiciable and are therefore resolved by legislators rather than judges. | This determination is largely a facts and circumstances specific test to be evaluated with little additional legal guidance by the judge or jury faced with evaluating the question (usually a judge in the way that the issue usually presents itself). Like many fairly vague legal standards, it leaves open the possibility that there will be inconsistent rulings on this question in circumstances presenting similar facts. | While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court. | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | Yes It's legal: but that's more of a bug than a feature. The Constitution says this about the appointment of Supreme Court judges: he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ... In the Federalist Papers: No 76, Hamilton had this to say: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. and in No 78: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." He was wrong about the first but right about the second. Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed. Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President. Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency. This analysis shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average. The US Supreme Court has always been partisan. Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In Brown v Board of Education 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS. So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus. | Double jeopardy in its usual sense wouldn't attach because impeachment is not a criminal proceeding, which is the only thing double jeopardy applies to (esoteric estoppel matters not withstanding). You might recall that OJ Simpson was tried and acquitted of murder in a criminal court, and then subsequently tried and found liable in a civil court for those murders. There was no double jeopardy protections of which he could avail himself. But the constitution says that the Senate shall have the sole power to try impeachments, so for the most part we can expect that whatever they say goes. So they can dismiss for any reason they desire, in principle. The impeachment of Senator Blount is one example: the House impeached him, and on the same day the Senate expelled him under their constitutional power to do so, and then dismissed the impeachment for lack of jurisdiction (arguing that Congress members cannot be impeached; the impeachment was otherwise still relevant after his expulsion because it could result in preventing him from gaining office again). The costs here are political: in your hypothetical situation with very strong evidence, if popular opinion turns too strongly in favor of conviction then refusal to do so may cost the Senators and their party in subsequent elections. Attempts to argue arcane technicalities might not save you at the ballot box. Under existing impeachment precedent (as well as Congressional rules precedents), the courts would be loathe to get involved by default. Though if the action was sufficiently egregious (not even superficially resembling what a judge might call a trial, say) maybe they would feel judicial intervention and action was warranted and justified. But that's purely speculative. | It's supposed to be carte blanche, i.e. "blank check". The quotation has left out several words. You can find the full decision at https://supreme.justia.com/cases/federal/us/458/176/case.html. The complete sentence is: It thus seems that the dissent would give the courts carte blanche to impose upon the States whatever burden their various judgments indicate should be imposed. | A quick answer: your analogy isn't quite right. The Constitution gives the House "the sole power of impeachment." So unlike you, their work is never "going to court." No judge is ever going to look at the evidence they used and say, "You only used notes, not a final report. That isn't good enough, or admissible." A longer answer: impeachment is not a legal process. It is a political process. The only binding requirements are those found in the Constitution. These cover who can be impeached and tried, for what, how punished and by whom. All other matters of procedure are decided by each house. There are several sets of rules and precedents that cover impeachment. But if the House or Senate decides to ignore these rules and make up new rules, they can. After all, Article I of the Constitution gives each house "sole power" over impeachment and trial. It also gives each house the power to "determine the Rules of its Proceedings." You might ask, why, if impeachment is a political process, do so many people talk about it as if it was a legal process? The answer is simple: Both sides are busy trying to put their spin on what is going on in the House. If either side believes they will get more support by talking about impeachment in legal terms, that is how they will talk about it. But this spin should not hide the reality: impeachment is political. That impeachment is political does not mean that it should not be guided by the same values that guide legal processes. Of course, the hearings should be fair, the President should get due process, and so on. But because they are political, no court is going to step in and assure that they are fair. The only guarantee that the President will get a fair hearing and due process is also political. If enough Americans think he did not get treated fairly, or was denied due process, or what impeached unfairly, they can vote the Democrats out of office. Politics is the key to understanding much of what has gone on so far in the impeachment process. For instance, for a long time, Speaker Pelosi refused to hold a vote on whether to formally start impeachment proceedings. She offered a variety of explanations for this, but the truth was that she did not want to force Democrats from close districts to have to openly vote against the President. Similarly, Republicans, who wanted to force Democrats from close districts to vote against the President, argued that it was unfair, illegal or unconstitutional to have any hearings on impeachment without such a vote. Since there are more Democrats than Republicans in the House, Democrats got to decide when that vote was held. Of course, if the House does impeach, and the Senate has to try the President, since Republicans control the Senate, they will control the rules, etc. |
Package recieved after full refund, illegal to keep it? So I ordered a package with a company (a Chinese company), after it not arriving and reaching the deadline I got a full refund (490 USD). The day after I received the money, I bought the same product locally for more money. 2 weeks after the refund I received the package that I got a refund for anyway. I already contacted the company and we are currently figuring out what to do with the package. Either buying it with a discount or shipping it back. But out of curiosity, If I decided to keep my mouth shut to the company and keep the package. Would that be Illegal? Would it be considered theft or fraud? Thanks in advance, Robbert PS: I have no clue on what tags I should add to this, but seeing that I ordered the package online, I added the online tag. | It is their property, so keeping it without permission could well be seen as theft. I think you are obliged to make reasonable attempts to notify them you have their property before using it or selling it. Just like if someone left the item at your house after a party. If they want it back, however, it is at their cost, you should not be out of pocket for their failure to deliver within a reasonable time-frame; you may find they've already claimed the cost of the product from the courier and don't want it back. You are well within your rights to offer to buy it from them, and them to accept or reject that offer, this is a separate contract to the original sale. | We have made a complaint about this decision to the local administrative and highest courts of Finland. Both of these courts rejected our complaint (the highest court rejected our right to even file a complaint!) without even looking into the details of the matter at hand. Did you hire a lawyer? If the court rejected your complaint without even considering it, it may have been procedurally improper. Generally speaking, once your complaint is rejected by a court with proper jurisdiction, the matter is resolved and you lost. End of story, too bad. You have no recourse but to accept the action of the local government as lawful even though you believe that your case was wrongfully decided. In any case, I doubt that the local government's action in your context is illegal. This is an issue of "condemnation" and not zoning. Generally speaking, the government has a power of eminent domain to seize property for a public use so long as a process is in place for the owner to obtain compensation for the seizure. A government owned recreation center would generally be considered a public use. Certainly, nothing you have described would violate the Charter of Fundamental Rights of the European Union, 2010/C 83/02, Article 17. As you note: No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. This is a case where the deprivation is in the public interest, in which the Finnish courts have decided that the conditions provided by law for doing so have been met, and in which you acknowledge that you have a right to compensation. Since it appears that the compensation has not yet been determined, it is premature to say that the compensation you receive will not be fair or paid in good time, and you need to participate actively and vigorously in the compensation process to make sure that you do make the best case you can for fair compensation. Also, as you note, this has happened many times in Finland. This strongly support the conclusion that this action is legal under Finnish law, even if you would prefer to interpret its laws in another manner. Of course the compulsory purchase will not be paid with a fair market price but with a much lower price, which is technically a legalized robbery as it has many times occurred in similar cases in Finland. My next step is to file a complaint to the European Union Fundamental Rights commission in hopes that they can help me. An appeal to the European Union sounds futile to me, as everything you have said suggests that your rights under the E.U. Charter have not been violated. Call it robbery if you will from a moral perspective, but as you note, it is legalized robbery in much the same way that taxes are "legalized theft." Your efforts would be better sent hiring a lawyer to help you negotiate with the local government over the price. If you make a strong evidentiary case that the land is worth more than you have been offered, you have a decent chance of getting more than you have been offered, even if it is less than what you believe it is worth. You also have a better case of winning on appeal on the issue of an unfair price in a second instance court in Finland, than you would on the issue of whether the condemnation was legal, on which the settled law in Finland and under international law is that it generally is legal in your circumstances. | Yes. It is legal to do this within reason, although U.S.P.S. packages are limited to 70 pounds (which would be a very small refrigerator). Generally speaking, however, you have no obligation to pay for a package that you did not ask to receive. | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. | Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations. | No You agreed to this: If the change of ownership from Seller to Buyer is not able to be completed (i) due to either party’s fraudulent activity or (ii) for any other reason, Buyer and Seller acknowledge and agree that GoDaddy shall have no liability or responsibility regarding the same. You got your refund - that’s all they owe you. | Swiss customs has a form to submit questions like this and they gave me a very informative answer. As it turns out the receiver is also part of the customs process. If for some reason customs decides to open an investigation assuming that something regarding declaration/import was wrong the receiver will also be part of the investigation and it is possible that they determine that the receiver is at fault as well. In this case in addition to the import fee additional fines or fees might be imposed on the receiver. I do not know how they determine this, but from a law perspective it is clear. There is always the option to just report a wrong declaration upon receiving the package which means you have to pay the import fee, but no other fines, fees or investigations will include the receiver (assuming the goods involved can be imported legally). The legal part points towards (this part sadly does not exist in English): Zollschuldner Art. 70 Zollgesetz (specifically section 70 (2) c.). For the unlikely reason that the swiss administrative legal code becomes unavailable this is said article translated by me: Customs debtors have to pay customs fee, or if they become unavailable make guarantee for it (materially). Customs debors include: a) The person sending goods across the border (sender) b) The person responsible declaring the goods c) The person on whos behalf goods are ordered <-- Some interesting tidbits: Transport compaines are not liable for anything Your heirs inherit your customs penalties (i.e. you order something from another country, then your heirs have to pay customs fees if you happen to die) Buying a company also means buying their customs obligations. | On the first page of https://www.gov.uk/duty-free-goods/overview you find: "You can bring some goods from abroad without having to pay UK tax or ‘duty’ (customs charges), as long as they’re for your own use." And on the next page "... will use them yourself or give them away as a gift". This clearly doesn't cover anything that you bring into the UK to sell it. And a bit further on the site it says "You must tell customs (known as ‘declaring’) on arrival in the UK if you have goods: ... that you plan to sell". Since you are asking here, it is quite obvious that you intend to sell :-) You said "e.g. say this guys comes every month from Russia to France for unrelated business, each time he fills up his luggage with the maximum allowed amount of goods that comply with custom laws". If this guy sells the stuff to you, then the maximum allowed amount of goods to import without paying taxes is zero. Once he is willing to pay taxes, there is no limit. Obviously regularly importing things from Russia or France and selling in the UK at a profit means that he is running a business in the UK, which means he would have to register a business, pay corporation taxes etc. It's all a matter of degree; for small amounts nobody cares (up to some limit you don't need to register a business or pay taxes; I don't know the details). |
Why are inserted legislation section identifiers often preceded by a "z"? Many times, in UK legislation, the structure is of numbered sections, like 1., 2., 3... Sometimes a subsequent act will insert sections that append lettered suffixes to the numbered section identifiers that precede their placement position within the act being amended, so that you might easily end up with sections 1, 1A, 2, 3, etc., which is also very sensibly understandable. Other times, one finds added sections that add a Z before the A/B/C, etc. So you may get 1, 2, 2za, 2zb, 2zc, 3, etc. Obviously these are just section enumeration conventions, and could just as easily be entirely arbitrary subject to the whim and caprice of Parliament, but I assume that there is a discernible formula and pattern to them, and I wonder what it is. What is the significance or motivation for the convention of adding an additional 'Z' to inserted subsections? As a corollary, what general procedural codes exist to guide (or bind) the parliamentary legislative draftspeople? Surely there must be style guides that they are bound to follow. What are these, and would they have the force of law? | They follow the rules within the Office of the Parliamentary Counsel drafting guidance 6.4 NUMBERING OF INSERTED PROVISIONS At the beginning of a series 6.4.1 Number as follows when inserting a new whole provision at the beginning of an existing series of provisions (e.g. a subsection at the beginning of a section or a Schedule before the first Schedule). New sections inserted before the first section of an Act are preceded by a letter, starting with “A” (A1, B1, C1 and so on). The same approach is taken in relation to all other divisions of text (other than lettered paragraphs). Thus the Insolvency Act 2000 inserted a Schedule A1 before Schedule 1 to the Insolvency Act 1986, and the Enterprise Act 2002 inserted a new Schedule B1 after Schedule A1. A provision inserted before “A1” (or “ai”) is “ZA1” or (“zai”). In the case of lettered paragraphs, new paragraphs inserted before paragraph (a) are (za), (zb) etc. And paragraphs inserted before (za) are (zza), (zzb) etc. At the end of a series 6.4.2 Where adding a provision at the end of an existing series of provisions of the same kind (e.g. a subsection at the end of a section or a Schedule at the end of the Schedules), the numbering should continue in sequence. Between existing provisions 6.4.3 The following applies when inserting whole provisions between existing provisions. New provisions inserted between 1 and 2 are 1A, 1B, 1C etc. New provisions inserted between 1A and 1B are 1AA, 1AB, 1AC etc. New provisions inserted between 1 and 1A are 1ZA, 1ZB, 1ZC etc. (and not 1AA etc.) New provisions inserted between 1A and 1AA are 1AZA, 1AZB, 1AZC etc. 6.4.4 Do not generate a lower level identifier unless you have to. A new provision between 1AA and 1B is 1AB not 1AAA. But a new provision between 1AA and 1AB is 1AAA. 6.4.5 The above recommendations apply equally to sub-paragraphs with roman numerals and lettered paragraphs. New sub-paragraphs between sub-paragraphs (i) and (ii) are (ia), (ib), (ic) etc. New paragraphs between paragraphs (a) and (b) are (aa), (ab), (ac) etc. New paragraphs between paragraphs (a) and (aa) are (aza), (azb), (azc) etc. Series of more than 26 6.4.6 After Z use Z1, Z2, Z3 etc. For example, after section 360Z insert sections 360Z1, 360Z2 and so on; after paragraph (z) insert paragraphs (z1), (z2), (z3). Re-using numbers 6.4.7 If you are inserting new text at a place where there has previously been a repeal, do not re-use the number. | This is very common in all sorts of legal documents, not just the United States Code. Another familiar example where this is seen is on checks. It serves as a sort of "redundancy check", to help catch errors where either the words or the numerals could have been incorrectly transcribed. Of course, one could ask why similar redundancy isn't used to avoid errors in other contexts; there doesn't seem to be a good answer for this besides "tradition". Some people feel the practice is obsolete and should be abandoned, e.g. https://www.butlersnow.com/2020/04/five-5-reasons-to-stop-writing-numbers-like-this/. | Do newer contracts superceed prior ones? It depends on whether the contracts conflict with each other. That is why many contracts contain language akin to "This contract supersedes and replaces any previous or contemporaneous agreements between the parties". The parties would need to adapt such clause if the contracts are compatible and they intend to maintain them. I have seen many contracts saying tgis "this will happens unless agreed in writing to do something else".However many contracts do not have this in written. The main purpose of that language is to specify that any amendments to the contract shall be in writing. That precaution makes it easier to ascertain whose version of the contract is binding, such as where party A alleges an oral amendment and party B denies that such amendment was agreed upon. Your outline of the agreements between A and Z is incomplete. At the outset, the contracts are not necessarily incompatible: The first contract does not provide a deadline for payment; it is unclear when the 2nd contract will be in force; there is not enough information to discern whether the 2nd contract is an amendment of the 1st one, or an independent agreement involving unrelated considerations; there is no indication that the 2nd contract replaces and supersedes the 1st one; and if Z is the draftsman in both contracts, the doctrine of contra proferentem could favor A's legal position. Therefore, the matter of superseding contracts depends on various factors. | Prologue, a magazine published by the National Archives, had an article about the missing S back in 2012. In short, the problem was due to a scrivener's error. Congress recognized the error at roughly the same time it submitted the amendment to the states but decided it was too late to fix it: There was a brief discussion of the possibility of recalling the joint resolution for reconsideration in each chamber, but Congress was operating under severe time pressures as it worked toward adjournment for the summer, and it was decided that the record of congressional debates and actions on successive versions of the joint resolution made the intent so clear that the missing s could not affect interpretation of the text. The proposed amendment was therefore allowed to go to the states in its imperfect form. Given the basically undisputed nature of the error, I think it would be unlikely that courts would indulge an argument that "department" should be interpreted differently than "departments," at least in any way that would change the outcome of a dispute under the 25th Amendment. | If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked. | The official Scottish government website, under the section headed Proof of identity uses the terms "could" and "can" which, in the UK, do not impose a statutory duty or obligation unlike "must". It also confirms that: Landlords who rent properties to tenants in England and Wales must check that a tenant has a right to rent, and live, in the UK. You don't need to do this check in Scotland. (My emboldenment) So it seems there is no lawful reason to ask the question but asking, in and of itself, does not appear to be in breach of the Equality Act 2010. It is what the prospective landlord does with that information that may, or may not, make it so either by: s.13 Direct discrimination (1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ... (5)If the protected characteristic is race, less favourable treatment includes segregating B from others. ... Or s.19 Indirect discrimination (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. (3)The relevant protected characteristics are— ... race ... For completeness and clarity: s.9 Race (1)Race includes— ... (b)nationality; (c)ethnic or national origins. ... | The right belongs to the federal government because the Constitution says it does, in Article 1 (section 8, clause 3). This, and the other rights listed in that section, are known as enumerated rights - that is, somebody has explicitly listed them out. The section begins The Congress shall have power .. and each clause may be read separately with that phrase prepended. They should each all be read together with the final clause, which is To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. In the context of the Constitution, this enumeration means that Congress alone has the authority to make such laws. In particular, Congress is the only legislature with the right to make laws governing commerce between states and each other, states and Indian nations, or states and foreign nations. Other sections and their clauses enumerate rights explicitly reserved to the States and the People, and further clarify that any rights not enumerated are also reserved thusly. | "Acknowledged" is fine. There is no "preferable" substitute with which to prefix your signature. As a precaution, never leave too much space between the end of clauses and your signature, lest another clause later on gets slid in without your consent (a public institution is unlikely to incur such misconduct, though). Also, always be sure to ask for a copy of the contract/agreement you sign. |
What is the legal status of the accusations on Pakistan by Bangladesh? Bangladesh and India routinely accuse Pakistan of committing a genocide of 3 million people in 1971. Bangladesh also demands an apology from Pakistan. The demand for an apology is only due when the atrocities are proven beyond doubt. Then again, if the atrocities are proven beyond doubt, an apology won't suffice. It would automatically go to a criminal court. However, surprisingly, Bangladesh never went to ICC or ICJ to resolve this matter. Please correct me if I am wrong, but as far as I know, after 1973's tri-party Delhi Agreement, Bangladesh cannot demand the above two. What is the legal status of this matter? Is this a legally viable case for Bangladesh? | All three nations are under the jurisdiction of the International Court of Justice, and also agreed to the Convention on the Prevention and Punishment of the Crime of Genocide, which was in force at the time. There are current cases (Ukraine v. Russia, The Gambia v. Myanmar) under that agreement, so in principle there is no legal impediment to a complaint by Bangladesh. The Delhi agreement is irrelevant first because it does not negate any legal rights of Bangladesh and second because the agreement is just between India and Pakistan. So there is no compelling legal reason why Bangladesh never filed a case with the ICJ. It turns out that there were some important holdouts on the Genocide Convention – two of the permanent members of the Security Council (PRC, US), which have veto power. This can explain why there were no ICJ cases on genocide until 1993. It should be noted that the US was a supporter of Pakistan at the time. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | General case - legal or not? It is hard to prove a negative - however, as far as I can see: It is not illegal to state your opinion that the existence of the state of Israel is unjustified, or that the state should be dissolved. Such a position would be considered outrageous by most Germans, in particular it is against the stated position of pretty much all political parties, except for the extreme right or left, and of most other organizations. It is not, however, illegal. In general, the dissolution of a state is not in itself illegal according to national or international law, as long as it happens voluntarily. There are some precedents: For example, during the German Reunification of 1989, the German Democratic Republic (East Germany) acceded to the Federal Republic of Germany (West Germany) under the (old) Article 23 of the Grundgesetz. One could argue that the German Democratic Republic effectively dissolved itself by that accession. What would probably be illegal would be to call for a violent end of the state of Israel, or even for a war. The relevant laws: §130 Strafgesetzbuch -- Volksverhetzung (incitement to hatred) §13 Völkerstrafgesetzbuch -- Angriffskrieg (war of aggression) and, only applicable to the state: Art. 26 Grundgesetz -- Angriffskrieg (war of aggression) Special case - civil servants Civil servants are citizens, too, so mostly the same laws apply to them. However, for civil servants specifically there are higher requirements when it comes to respect for the German constitution, specifically for the "freiheitliche demokratische Grundordnung" (literally: "basic free and democratic order"). That means that opinions which are "extremist" but not illegal may not be tolerated. Applicable laws/regulations: §7 Beamtenstatusgesetz §9 Richtergesetz §3 of the Tarifvertrag der Länder (TV-L) As far as I can see, the rules for whether something violates these rules would be similar as above. Note that there are even some Israelis who think that the state of Israel should not exist, at least not in its present form, so such a position is not totally unthinkable. The Wikipedia articles Right to exist and Existenzrecht Israels (German) give a good overview. | Since the treason statute is quite vague, you have to discover what the details of the law is by looking at precedent. Almost all federal treason convictions in the US have involved declared wars. There is the case of John Fries, an early tax rebellion case in 1800, who was pardoned by the president thus rendering the need for legal appeal moot, but this involved armed insurrection and is thus not analogous. All other federal cases have involved people supporting the enemy in case of a declared war. In this specific case, the allegation is that by advocating not working with Syrian Kurds in an assault on Raqqa (because it was thought to be in the best interests of the US in terms of our relationship with Turkey, given the position of the Turkish state w.r.t. Kurds), Flynn benefited ISIS. Compared to various wartime treason convictions, such as Tokyo Rose and Axis Sally, the difference between imaginary "aid" in the case of Flynn vs. actual aid in the other cases is so stark that there is no case to be made for a treason charge. | Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof." | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | If a nation's constitution does not allow a legal means of secession, then the only possibility would be to appeal to a multi-national judicial body, but such bodies have negligible power to enforce. While numerous organizations recognise a generalized right to self-determination (for example the UN has declared that "all peoples have the right to self-determination"), this does not automatically translate into an internationally-recognized right to illegal secession. The International Court of Justice deftly avoided any finding on whether Kosovo had a right to secede, and there is no generally recognised (or denied) "right to secede". There are certain conditions under which one would have support for a claim to legal secession, for example peoples subject to decolonization, the territory was invaded / annexed after 1945, or the state flagrantly violates the rights of those peoples concerned. The "decolonization" angle has been applied to Somaliland (the premise being that the merger of British and Italian colonies into the nation of Somalia was invalid). The use of "peoples" reflect the importance of some sort of ethic division, which becomes a matter of controversy. There is reading on the topic, for example: Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia Secession (Bibliography by Theodore Christakis) The Remedial Right of Secession in International Law | The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges. |
Welfare and the Covid Vaccine Could the Federal government say that if you are not vaccinated against Covid then you lose your welfare benefits? Would it be constitutional? What I am asking is, would a federal law (passed by congress) requiring people on welfare to be vaccinated be constitutional? | Could the Federal government say that if you are not vaccinated against Covid then you lose your welfare benefits? Would it be constitutional? What I am asking is, would a federal law (passed by congress) requiring people on welfare to be vaccinated be constitutional? For the most part yes. Arguably, a religious exemption might be required. But the federal government absent other countervailing considerations, generally has the power to mandate vaccination and other responses to a contiguous disease in cases where the vaccination would affect interstate commerce. All manner of things can be established as conditions to federal spending and federal programs. In cases where the program is purely federal, that discretion is almost unlimited (except for individual liberty considerations like freedom of religion). In cases where state cooperation is required, as noted in the answer by user6726, this discretion isn't absolutely unbounded if the state objects. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | If the requirement is imposed by an employer, then the basis for an exemption, if any, would be whatever the employer choose to allow, unless some applicable law required some particular exemption. Such mandates are not common. Indeed I do not recall hearing of any such absolute mandates. But an employer could choose to impose one, and I have heard (and read) discussions of hospitals, for example, requiring COVID-19 vaccinations to be taken by employees when available. If an employer mandates a vaccination, it is up to the employer to decide when, and if, an exemption is warranted. It is up to the employee to decide whether to comply by accepting the vaccination or refuse at the risk of being fired. I do not know of any law which would specifically require an employer to grant exemptions in particular circumstances. A law might exist, or be passed, requiring such exemptions. If the employee had a particular medical condition which makes a vaccination si9gnificantly more risky for that employee than for an average person, and if that condition was considered to be a disability (not all or even most medical conditions are so considered) then the Americans with Disabilities Act (ADA) would require the employer to offer a "reasonable accommodation" to the employee, if one is available. Exactly what accommodation is "reasonable" is a fact-based determination, and would depend on the reason for the mandate, the cost and burden of the accommodation on the employer, and the degree if risk to the employee with and without the accommodation. In some cases no accommodation is found to be "reasonable", and in such cases the ADA does not mandate any accommodation at all. The ADA generally specifies whet must be done when an employee has \ a disability, but dopes not specify exactly how a disability must be proved. A medical certificate is common, but njot invariable, iof an employer questions the existence o a disability. The ADA would not require an exemption for a "Religious/Philosophical" objection. Soem state laws protect religious scruples in various particular employment situations. In some but not all states objections on such grounds for vaccinations otherwise required for school attendance are honored. The exact grounds accepted vary from state to state. A specific state would need to be listed for a more specific answer to be given, and I am not aware of any state that has such a requirement for exemption from a private employer's vaccine mandate. Addition: It seems from comments that some employers, such as hospitals and the military, already require vaccinations for some diseases. This seems reasonable to me, and does not change my answer otehrwise. | The "Privacy Rule" (45 CFR Part 160 and Part 164, Subparts A, E) don't forbid this. Sect. 164.502 states the general rule: (a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. "Health information" is defnes in part 160 as any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Your picture would not constitute health information (and anyhow, they are allowed to gather health information, just not freely disseminate it – the pictures on the wall were presumably with permission). There is no general law (which would be state law) against taking a person's picture (though commercially exploiting someone's picture would require permission, via the concept of personality rights), and it is directly required in a number of instances (for identification purposes – school ID, driver's license, passport, voting in some states). It is an unusual requirement and since they scanned your driver's license it is especially inexplicable. Assuming that this is just a story they tell all patients because they want before and after pictures (which you would have to consent to, if you didn't already in one of those "sign here" flurries), saying that this is for "security purposes" would be untrue, but I don't think it's actually illegal. Taking but not using a photo would not cause you harm, so if you had let them take the picture, there would not be a basis for suing. If they use it for advertising without permission, that would be a problem. | Legally obtain employee’s covid vaccination status without employee’s consent? No Request employee to provide one. On grounds of what law? Anyone can ask anyone anything, however, I presume you are asking when they can demand to see your certificate. Employers have a general right to issue reasonable and lawful instructions to employees and failing to comply is misconduct. The direction to show a certificate is certainly legal and almost certainly reasonable given the employer’s obligations under Work Health and Safety law. More directly, all businesses in NSW are required to have and update a COVID-Safe Plan. It is perfectly reasonable for them to require employees to divulge their vaccination status. In certain workplaces it may be appropriate for them to mandate vaccinations. Also, there are various Public Health Orders under the Public Health Act 2010 that mandate vaccinations for health care workers, aged care workers (and visitors), child care and care workers. An employer has a legal obligation to check this. In addition, there are requirements under the Public Health (COVID-19 General) Order 2021 under the Public Health Act 2010 requiring some business to check in all visitors to the premises (including employees) including checking their vaccination status. This is what a status check looks like. There are 45 types of premises and events in this category listed in Schedule 5. Terminate employment should employee decide not provide this information or openly declare that they do not want to get vaccinated? What is the law allowing to discriminate the employee on their vaccination status? This is a typical office environment, nothing to do with health care or public sector. Yes. More specifically, refusing a lawful and reasonable instruction is misconduct and, if persistent, may warrant dismissal. If they refuse vaccination in a workplace where vaccines are legally mandated or where the employer has required them (and the requirement is reasonable to protect the legitimate interests of the business), they are similarly disobeying a lawful and reasonable direction. Case law in industries where flu vaccines are mandated is clear - refusal to have them is a legitimate reason for dismissal. There is no doubt this will be good law for COVID vaccines. Decisions on whether an employer not in a mandated industries can make vaccines mandatory have only been made at the Tribunal level so no precedents have been set but the general thrust of these decisions is if it is a reasonable precaution to protect other employees or the public (e.g. if social distancing and PPE is impractical or not likely to be effective): yes. So far, no employee has been successful in an unfair dismissal claim. | In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an "asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause". O'Connor in her concurring opinion further states that "There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths", but this falls short of a ruling that a person has a protected liberty interest in seeking medical care. Cruzan v. Director affirms that "[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment" (also noting that "informed consent" may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease". There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure. Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard. It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA. | Gaining UK citizenship at birth would not count, the law stipulates "after having attained the age of 18 years", so it is explicitly ruled out. (Also, gaining UK citizenship at birth involves no formal declaration.) The scout promise would not count. It doesn't involve swearing allegiance to the Queen, only promising to "do your duty to the Queen"; and an American could argue they have no duty to the Queen. (Also, you might well not have repeated it after 18.) On the face of it, the Oath of Allegiance for the OTC would count - it looks pretty much exactly what the law-makers had in mind. On the other hand, the oath is almost exactly the same as that taken by Members of Parliament, and Boris Johnson took it first in 2001 - but didn't renounce his American citizenship until 2017. (Perhaps it wasn't until 2017 that he finally drew the American authorities attention to the fact he had taken the oath.) | No. The government generally has no duty to protect private citizens from each other. It was different facts but basically the same question in DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989), where the Supreme Court held: A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. |
Can a person be held liable for copyright infringement for sharing a meme on social media? This has been a topic of debate in recent years, as memes often include images or videos that are copyrighted. Some argue that sharing a meme constitutes fair use, as it is typically used for comedic or satirical purposes. However, others argue that sharing a meme is no different from sharing any other copyrighted material and that the person who shares it should be held liable for infringement. The answer to this question is still unclear and continues to be debated in courts around the world. What is international law on it? | Can a person be held liable for copyright infringement for sharing a meme on social media? Yes, unless some other exception applies. There is no specific exemption from copyright law for sharing a meme on social media. Generally speaking, since sharing a meme on social media involves publishing the entire work to everyone in the world with Internet access, "fair use" is not a very strong defense to a copyright infringement claim in this context. A more viable defense is the doctrine of "implied license" which is the idea that the original person to post a meme on the Internet did so with the implied intent that it be shared widely without a further grant of permission. For this reason, copyright disputes rarely arise from the sharing of a meme on social media. But if the original person to post a meme on the Internet did so without permission of the owner of the copyright to the meme, it is an infringement of the copyright of the meme to share it on social media. This is true even if sharing the meme on social media is merely an innocent infringement made in the good faith belief that it was being shared with the permission of the copyright owner. A claim of innocent infringement status for someone infringing a copyright by sharing a meme on social media is supported by Terms of Service for social media sites that turn over copyright to posted material to the social media provider (with an express right to share it on the site) in cases where the material is provided by the author of or owner of the meme for copyright purposes. Also, another Terms of Service states that users promise not to post copyright infringing materials on the site without permission to do so. Both of these terms of service provisions are ubiquitous on social media sites. But, innocent infringers are still subject to lawsuits for money damages for copyright infringement, just not with all of the same remedies as in cases of intentional copyright infringement. Social media sites themselves are immune from copyright infringement liability under Section 230 of the Digital Millennium Copyright Act (DMCA) under U.S. law (where most social media firms are based), however, so long as they comply with takedown notices in the manner provided by the DMCA. Usually, if a copyright infringing meme is taken down by a social media site, the copyright owner will not pursue other users of the site who innocently infringed their copyright by sharing a meme posted by someone else, although the law does not require them to do so. What is international law on it? Copyright law primarily arises under the domestic laws of a country. There are some treaties such as the Berne Convention that seek to standardize copyright law internationally, which many, but not all countries, have adopted. But, in every case, analysis of the specific instance of sharing a meme on social media is not specifically addressed by international treaties, in part, because the practice did not exist when the vast majority of these treaties were entered into by the countries that are parties to them. Facebook, for example, didn't come into existence until October 28, 2003, and the widespread practice of sharing memes on social media is more recent than that. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | Copyright is held by the person who puts the content out there in fixed form. If A reads a prepared text and B talks extemporaneously, A has copyright to his fixed text. Whoever then records the debate holds copyright to B's talk (not a typo). If that person is B, A can point out that A's copyright was infringed, presumably leading B to an equitable arrangement that would avoid copyright violation litigation. However, if the recorder is A, then B is hosed. On the other hand, if neither party has a prepared text, then the guy who does the recording has all the rights. And if both parties have prepared texts, nobody gets to record without a copyright agreement. | You cannot safely rely on the US doctrine of Fair Use, except if the rights-holder sues you in US courts. In France, there are limited exceptions to the authors proprietary rights. Under Art. L-122-5, there are some relevant potential exceptions: 3ºa) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated... 4º. parody, pastiche and caricature, observing the rules of the genre. Your description of the intended use does not fit these criteria. Consulting with a copyright attorney is advised, if you don't want to obtain a license. | I presume from the fact that you mention "fair use" that you're interested in United States law. In that case, the answer is a clear-cut "no". 17 USC 107: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Let's look at your proposed use under these four factors: The purpose of use: Commercial use, selling these movie clips for direct profit. You're not making any sort of transformative use (such as critical commentary), you're just re-using them as is. Big strike against you. The nature of the copyrighted work: a work of fiction; your derivative is also an entertainment product. Another big strike. The portion used: I haven't seen the clips in question, but you mention "famous scenes". That would work in your favor if you were using the clips for something like scholarship, but since you're not, the fact that these are the "important parts" works against you; the fact that they're small is irrelevant. The effect on the potential market for the copyrighted work: This is a huge strike against you: your clips are directly displacing licensed use of the movie clips. If I were a movie company and I caught you doing this, I'd bring out the big guns: I'd sue you for every penny you earned, plus substantial penalties, plus lawyer fees, plus everything else I could think of. And given the strength of the case against you, it's virtually certain you'd lose. You might be tempted to compare what you're doing to animated-gif "image macros", but there's one major difference: the "macros" are generally used to compare a movie situation to an out-of-movie situation, making at least a gesture in the direction of transformative use and commentary. By pre-packinging your gifs, you're not commenting on anything. Your only option for making what you're doing legal is to go to the copyright owners and ask for permission. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. |
Is evidence of rumours of a defendant's racism unhelpful in a defamation case involving accusations of cheating? Defendant accuses Plaintiff of cheating in a competition. Plaintiff sues Defendant for defamation. Plaintiff has heard rumours that Defendant is racist. Assuming these could be substantiated in some way: Would it have been unhelpful for Plaintiff to bring this up in the lawsuit (given that Plaintiff did not do so)? Would it be unhelpful for Plaintiff to bring this up later on eg in depositions or actual trial? | Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding. It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant. | How are such no-show-no-tell boundaries established They largely stem from the rules of evidence which are complicated, vary from state to state and knowing which is a big part of what litigation attorneys are paid for. Parties to litigation become aware of all the evidence/topics that their counterparts wish to broach in the courtroom well in advance — during discovery. They will usually disagree whether some bits and pieces can be presented to the jury. In this case the court will hold admissibility hearings — again, well in advance before the trial. Despite all the preparations, some of these disagreements arise during the trial, and then they are resolved in place by way of voiced objections. The attorneys and the judge talk about them using professional jargon of the rules of evidence — having themselves seen all the evidence in advance. does the jury get to know them No, the jury doesn't need to follow the professional talk. In fact, they should hear as little as possible of it — which is the reason why admissibility disagreements are resolved in advance as much as possible. If serious issues arise during the trial, the judge will ask the attorneys to speak to them in chambers — away from the jury. Or they will ask the jury to take a break while the professionals talk. The jury just needs to listen to the evidence that is allowed in, and disregard any evidence the judge say they have to. is this also in the public record somehow? It is in the court record. It may be accessible to the public if the court allows. If someone wishes to see the record they need to apply to the court, provide reasons and a judge will decide if anything can be released. | An appeal may be made by a plaintiff, prosecutor, defendant or other interested party, so the term 'defendant' is not very useful; the party opposed to the Appellant (and served with the appeal) is usually called the Respondent. A contested appeal just means that the Respondent wishes to be represented at the appeal, presumably to fight it; most appeals are contested, but not all. Unlike a first-order case which may go by default, an uncontested appeal will still have to have some sort of a hearing; you are, after all, saying that a court decision should be set aside, and the Respondent's views are not necessarily relevant. It is, though, fair to say that an uncontested appeal will have a greater chance of success. | united-states A similar issue came up in my answer to Can a private person deceive a defendant to obtain evidence?. I don't think the question itself is a duplicate, so instead I'll just copy the relevant section from my answer with minor edits. The short answer is yes, the privilege applies. The case of US v. Tyler, 745 F. Supp. 423 (W.D. Mich. 1990) matches your hypothetical almost exactly. The defendant, James Tyler, shared a prison cell with Melvin Deutsch, who said that he was a lawyer, had what appeared to be a law school diploma on the wall of his cell, and was addressed as "counselor" by other inmates; but in fact was not a lawyer. Nevertheless, correspondence between Tyler and Deutsch regarding Tyler's legal issues was held to be privileged and inadmissible. Tyler was held to have had a reasonable belief that Deutsch was a lawyer, despite that Deutsch had never been licensed to practice law in any jurisdiction, and that the law school diploma was (presumably) fake. Tyler evidently didn't check on either of those things, and the court did not seem to think that he reasonably should have. Also, Tyler apparently did not know the seemingly obvious fact that a convicted felon cannot practice law, let alone while actually in prison. However, this was not felt by the court to be "ingenuous": "To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable." There is also a discussion of such situations in the following article: Grace M. Giesel, Upjohn Warnings, The Attorney-client Privilege, And Principles Of Lawyer Ethics: Achieving Harmony, 65 U. Miami L. Rev. 109 (2015). Available at this link See Section IV.D.2 on page 140: In addition to applying the honest-and-reasonable-belief analysis in the attorney-client privilege setting to the question of representational relationship, courts have also applied the analysis when the person consulted is not, in fact, a lawyer. The courts addressing this issue have stated that the privilege applies to a communication even if the person consulted is not admitted to any bar and has enjoyed no legal training. If the putative client honestly and reasonably believes that the person consulted is a lawyer, and if the other requirements of the privilege are satisfied, the privilege applies even though the person consulted is, in fact, not a lawyer. See the article for additional citations. The article also mentions that certain states make this principle explicit by statute. For instance, the Kentucky Rules of Evidence, Rule 503(a)(3): "Lawyer" means a person authorized, or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair. | This is defamation, a civil matter, where you may sue the person who makes these statements. If you sue them, the question is whether accusing a person of sexually abusing a 2 year old would lower the person in the eyes of others, and the answer is "Yes, you don't even have to prove that there was actual harm" (this is know as per se defamation): it is both accusation of a crime and accusation of reprehensible moral conduct. Making the statement in public is all it takes – "public" means "someone other than the object of the accusation". The only defense is proving that the statement is true. Your attorney can advise you how much money you might awarded in a successful suit, also any downside to suing the ex. If you are playing defamation whack-a-mole, this probably involves getting an injunction against doing this again. |
Is it common/normal for barristers of the same chambers to represent opposing sides in a case? The case of Rakusen v Jepson was recently heard in the UKSC. Appellant Rakusen was represented by Tom Morris of Landmark Chambers, the respondents meanwhile by Edward Fitzpatrick of Garden Court. However, the intervenor on the side of the Respondents were apparently represented by Charles Bishop and Justin Bates, both as well of Landmark Chambers, opposing their colleague Mr. Morris of the same Chambers. Is this at all unusual? I don’t want to restrict the question to insights prompted by the following, but chambers apparently in principle are meant to merely be a logistical arrangement of sharing physical facilities and clerks, while each member is fully independent. However, I have noticed that in practice that is really not how many chambers in fact function. So, whether or not it is an explicit ethical breach, is it not even unusual so as to likely raise eyebrows? | As your question is concerned on English law, a clear answer is yes but is specific for English law. Barristers from the same chamber may represent opposing sides in a case. This is normal and common practice. Barristers are independent practitioners in the British and many other common law systems who represent clients in court but are not in charge of the case as a whole. As a result, they may be instructed to represent clients whose interests diverge, and each barrister is responsible for deciding whether or not to accept a particular case. While each barrister acts independently and is free to take on any case they choose, chambers are groups of barristers who share resources and facilities. Even if they are representing opposing sides in the same case or different cases, barristers are typically required to adhere to the professional code of ethics and maintain client confidence. It is important to note that ethical rules prohibit lawyers from representing opposing sides in the same case, and the concept of barristers and chambers does not exist in some jurisdictions, such as the United States. | A private venue normally has discretion over who may attend their premises, as long as it is not because of membership in a protected class under anti-discrimination law. Note that the communication, as quoted, did not say that the banned person was a threat, but only that one of the performers felt uncomfortable. I do not think that the banned person has any legal recourse, unless they can plausibly assert that this is a case of unlawful discrimination, which the question does not suggest. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | The court's job is to resolve the dispute. The parties are in court specifically because there isn't agreement on what the terms of the contract were or even if there is a contract at all. If one of the parties contends that there is no contract then the court will have to determine if there is or isn't. Even if both parties agree there is a contract the court will need to satisfy itself that there is. This is a jurisdictional matter; in the absence of a contract the court can't make a ruling. Having decided there is a contract, there is something about the contract they don't agree on - if they agree then why are they in court? Each party will state their position on the dispute and provide evidence that supports that position. The court will decide based on the evidence and on the balance of probabilities which version is more correct. It is a given that the parties are in dispute about the exact terms of the contract, whether this was because of an initial misunderstanding, someone didn't read it or someone saw an opportunity to screw someone else doesn't matter. The court will decide what it thinks the parties thought (or should have thought) at the time on the basis of the evidence and the law. | To the title question, yes, of course, Justices are subject to the law same as anyone else is (at least in theory; whether actual practice bears that out is another matter). Chief Justice Roberts (and the rest of SCOTUS, and a good chunk of the judiciary to boot, and then some) was a named defendant in the case Shao v. Roberts that was appealed to SCOTUS. The Justices all recused themselves rendering the court short of a quorum and leaving the prior appellate court decision to dismiss the case sua sponte in place. However, Justices essentially police themselves. As the head of the judicial branch they are largely independent of Congressional or Executive attempts to control how they go about their business. Recent calls to create a legal code of ethics for Justices exist because such a code perhaps cannot, and currently does not, exist under the current constitutional order. As such Justices make their own decisions on when to recuse (see my answer here for further details). Your hypothetical justice would do the same, and the court would proceed as it always does whether they do or don't. | The court clerk was right. A judge is not supposed to interact with a party (at least not in the absence of the adversary) except during court hearings for which the adversary was notified and given an opportunity to attend. Also, there is no need for you to prove the mere fact that you went to court. That in itself is either inconsequential or palpable from the hearing transcripts. When you file in court papers such as a motion or a response to a motion, you may --and should-- bring an extra copy for the clerk to stamp it. That a clerk does with no objections. The stamp reflects the date on which you file your document(s). That stamp incidentally evidences that you or someone on your behalf went to court but, again, that sole fact is inconsequential. There is no such thing as "motion to appeal". A litigant may initiate an appeal, or appellate process, once the judge has decided a case in its entirety or in part. If the ruling to be appealed does not close the case, the upper court might refuse to review the issue(s) appealed until the whole case has been decided (that refusal is known as denial of the appellant's leave to appeal). Your description nowhere indicates that the judge has already made any rulings or that there have been any hearings on your matter. Your mention of prior motions suggests that you should gain acquaintance with the Texas Rules of Civil Procedure and of Appellate Procedure. Those rules cover several aspects of litigation, including motion practice, the allowed methods of service, and the requirements to file an appeal in upper courts. | If you're in the United States, another lawyer in a firm you've hired may or may not be your attorney, but it would not be uncommon for him to have some involvement in the case, and he would be expected to treat you as a client in terms of privilege and conflicts of interest. Just the same, this is something you need to be very direct on. "Are you my attorney?" or "Have we established an attorney-client relationship?" are going to be your best options. | None of the three factors you identify is correct. With respect to reason (1): The belief that a judge is likely to be landlord friendly on the merits, while a factor favoring a bench trial is actually a pretty minor one. Empirically, actual outcomes on the merits are far less different between jury trials and bench trials than you might expect. There aren't a lot of "moving parts" in a typical landlord-tenant case that afford the trier of fact much discretion. Usually there is evidence quantifying the amount of damage to the property in dollar terms and the amount of rent owed is usually just math. It isn't like a personal injury case where pain and suffering damages are highly subjective and even liability which hinges on a common sense assessment of what constitutes "reasonable case" is very vague. There may be some wiggle room in a landlord-tenant case to disagree on the credibility of witnesses and to differ in opinion regarding what constitutes "reasonable wear and tear", but the differences in litigation costs between a jury and bench trial will usually be greater in magnitude than the differences in outcomes on the merits between the two. Of course, in the rare case where the tenant is suing the landlord for a personal injury on the premises, the difference in outcome on the merits does matter quite a bit and a judge is much less likely to enter an extremely tenant favorable damages award than a jury is to do so. But, usually, lawyers for landlords aren't thinking about this scenario very much when they write a lease because it doesn't come up very often. With respect to reason (2): The landlord actually probably has a procedural advantage over the tenant in a jury trial where having a lawyer is more important than a bench trial, but this is pretty irrelevant, because landlords are overwhelmingly more likely to win than the tenant anyway. It isn't hard to prove that somebody didn't pay all of the rent that was owed, or that they damaged the premises. Landlords care more about litigation costs than they do about their odds of winning on the merits. With respect to reason (3): And, the judge interprets of rental agreement for the jury - the jury only decides the factual issues that are disputed with regard to the rental agreement as the judge explains what it means to them. So, confusion isn't a major concern either. Instead, the biggest factors are timing and litigation costs. A jury trial is longer, because it takes time to select a jury, to prepare jury instructions, to instruct the jury, and for the jury to deliberate. A landlord-tenant bench trial might be half a day or one day long, while a jury trial on the same matter might take two or three days. Selecting and charging a jury alone takes about half a day, and instructing a jury and having it deliberate takes another half-day at least. The longer duration of a jury trial means that it takes longer for a case before a jury to be scheduled than a bench trial, because there in any given time frame, there will be more slots available for short trials than long ones. A half day bench trial might be possible to schedule two or three months out, while a two or three day jury trial might not fit into a judge's calendar for five or six months. And, a lawsuit involving a jury trial is more expensive to conduct. It probably takes something on the order of 32 more hours of lawyer time to litigate a case that goes to a jury trial than a case set for a bench trial, which is on the order of $8,000 at $250 per hour. Generally, a tenant who is being evicted or owes rent is either judgment-proof, or at least hard to collect from, so the landlord has an interest in keeping litigation costs low. The out of pocket costs other than attorney's fees are also higher in a jury trial - there is typically a jury demand fee and a need to prepare a juror notebook for each juror. The need for better quality exhibits (e.g. exhibits may need to be blown up and put on an easel, or made into a powerpoint that can be see by all the jurors, rather than just photocopied and put in a single binder for a judge). |
Expungement of Arrest and Court Records after Death If someone with a few criminal arrests and deferred sentences passes away, can a friend or family member have these Misdemeanor and Felony arrest records expunged on behalf of the person who passed away? In particular, how would this situation be handled under Texas law? | Sorry for your loss. It appears that this is generally possible. Texas Code of Criminal Procedure, Title I, Chapter 55, Article 55.011: Art. 55.011. RIGHT OF CLOSE RELATIVE TO SEEK EXPUNCTION ON BEHALF OF DECEASED PERSON. (a) In this article, "close relative of a deceased person" means the grandparent, parent, spouse, or adult brother, sister, or child of a deceased person. (b) A close relative of a deceased person who, if not deceased, would be entitled to expunction of records and files under Article 55.01 may file on behalf of the deceased person an ex parte petition for expunction under Section 2 or 2a, Article 55.02. If the court finds that the deceased person would be entitled to expunction of any record or file that is the subject of the petition, the court shall enter an order directing expunction. | Yes and No Germany has several criminal records. Technically, all convictions lead to a criminal record in that there is a record in the Federal Central Register. However, in common usage, a “criminal record” means a crime that appears on a Certificate of Good Conduct. Which crimes do appear is complicated but basically, if you only have one conviction and the fine was less than a specific amount or had a suspended sentenced less than 3 months that conviction won’t appear. | It's not clear which "they" reported having no records, but you need to check with the court that convicted you. The police often destroy records decades before the courts will. Even if the court has no such record, I would be concerned about a record of your conviction existing in the national databases like NCIC. To address that, I would file a motion to expunge your conviction and then either get an order saying that the motion was granted, or that there is no conviction to expunge. I wouldn't rely on anything other than a court order. Until then, my instinct would be to simply answer honestly any questions put to you when registering as a voter or firearm owner. I don't believe it's illegal to submit an application when you have a criminal record, though I'm confident it would be illegal to lie on the application. (The actual answer to this question would depend on your jurisdiction, which you haven't provided. You should consult a lawyer to get a reliable answer.) It also occurs to me that you may simply be mistaken in believing that you were convicted. Frequently, courts will allow someone to enter some kind of conditional plea but refrain from entering a conviction if they behave themselves or meet some other criteria. If the court is satisfied with the defendant's performance, the charges may be dismissed altogether and eventually automatically expunged. | Sadly, her assets will go into probate, and a judge/probate master will have to rule on how they're disbursed. Typically someone will be appointed as Administrator to the mother's estate. The administrator will contact all creditors, assemble and inventory/appraise the assets (i.e. furniture, car, house, bank accounts, etc.) and pay funerary expenses. Since she died intestate, there will be certain specific rules about who inherits the proceeds. The best avenue for the OP is to petition the court to appoint her as administrator of the estate. | If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question. | You don't know. You can't know. And you can't force the officer to tell you. Detention Status As a practical matter, you have no way of knowing if you are compelled to follow an officer's order because you are being detained unless the officer volunteers that information (your detention status) which they are not compelled to disclose and have every incentive not to disclose. Consider the situation when the officer does not have reasonable suspicion do detain you. If the officer instantly informs you that you are "free to go" then you are likely to leave and end the encounter immediately. However, if the officer says nothing, then you might stay and inadvertently say or do something that would give the officer reasonable suspicion to detain you from that point forward. Your behavior during that detention could lead to probable cause, arrest, etc. Every officer knows they have nothing to gain by being quick to tell you you are free to go. Deceptive Conduct To compound the issue, police encounters are particularly problematic because police officers have a lawful right to engage in deceptive conduct during an investigation including but not limited to lying. You, on the other hand, can be prosecuted for lying to the police conducting an investigation. (See this article for more information.) Hobson's Choice Therefore, all things considered, police encounters present a Hobson's Choice. Either comply with every order in an effort to end the encounter quickly. Or try to press the officer to determine whether you are "being detained" or "free to go." The former course of action voluntarily cedes some of your rights. The latter risks "provoking" the officer into making your encounter more difficult, painful or costly than it otherwise might be. Never Consent to Searches That said, you are never under any obligation to consent to a warrantless search of your home or vehicle. Typically, saying, "I do not consent to searches." is usually sufficient if asked. Evidence obtained from warrantless searches is barred from being used at trial unless you waive this right by consenting to the search. See this question (and answers) if you are concerned about the officer falsely claiming you gave consent if you didn't. Never Talk to the Police As a legal matter, talking to the police can never help your case in court. Anything you say to the police that might help your case (i.e., exculpatory) is not admissible as evidence because it's hearsay. On the other hand, anything you say to the police can and will be used against you. In fact, even if you are completely innocent of all crimes AND you are completely 100% truthful to the police, you can still give the police all they legally need to convict you of a crime simply by talking to them. Whereas, without your statement, they would not have had sufficient evidence to convict. See this Youtube video for more details and examples of how this can and does happen every day. Practical Matters The above analysis presents the reader with some practical concerns. You don’t want to risk being harmed by an officer in fear for his safety. You don’t want to be handcuffed and taken to the police station if you can avoid it. You must obey all unconditional commands of a peace officer. It does no harm to inform the officer that you are willing to comply with all unconditional legal commands and ask him or her if a given command is, in fact, unconditional. Some attorneys go in the opposite direction from the "never talk to the police" rule and advise that, say in the case of a domestic violence dispute, the best course of action is to answer police questions matter-of-factly, never lie and never admit guilt. That course of behavior can avoid a potential trip to the police station in handcuffs in the back of a police car even if you are never ultimately arrested. TL;DR: Police encounters are tricky. It's difficult to know what to do. The best course of action is to educate yourself about your rights and the law and apply judgment and common sense to guide your behavior to achieve the best outcome. I am not an attorney. I am not your attorney. This answer is not legal advice. Please consult an attorney to obtain proper legal advice. | A child is not property, therefore a (deceased) parent cannot transfer ownership. In case the sole custodial parent dies, the court will appoint a guardian for a minor child, and will take into consideration the wishes of the deceased parent, however their primary duty is to protect the interest of the child. It follows from this that objections to nomination of Smith as guardian are more easily sustained, since the requirements for being a guardian (e.g. in Washington) are stricter than the requirements for receiving $100,000. RCW 11.130.090 excludes any guardian who has been "convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian", but such a person is not barred from inheriting property. There are limited formal grounds for contesting a will: testator mentally incompetence, formal failure of the document, (the laws surrounding signatures and witnesses), no clear indication that the document is intended to be a will, forgery or fraud, undue influence (such as a gun to the head), or mistake (for example, mistakenly believing that their child was dead therefore leaving it all to a neighbor). So it is possible, but not so easy, to contest a will. Organ donation takes place under separate laws: you can't wait for the probate process to get finished in three months before donating organs. | The legality of the stop may be somewhat up in the air, but it would seem that the vehicle is not in the Texassure database, so it is reasonable to think that the person driving is not insured, and therefore is breaking the law. And that is all that is required: that the suspicion is reasonable. Until someone makes a sufficiently persuasive legal stink about this, it is probably a legal stop. This article gives some legal discussion. One applicable case is US v. Broca-Martinez, a Texas case where a person was pulled over for being "unconfirmed" w.r.t. the insurance database: the court held that this was a reasonable suspicion. Thereafter, a charitable interpretation is that you misunderstood the request in providing your sister's information when he asked for your license and insurance: but you are expected to understand that when they request your license and proofs of insurance, they mean you the driver, and not the car owner. That they is even more suspicious, although I understand your confusion. At your hearing you cane explain why you didn't comply with the first officer's request, and the judge may they chalk this up to a simple misunderstanding rather than intentional deception. The problem is that you are expected to know – whether or not you've ever been pulled over before – that you have to provide license, registration, and proof of insurance. You will have a hard time making it believable that you didn't understand what the officer told you and what the law requires. |
Economic Duress Induced Illegally Makes a Contract Void or Voidable? This answer explains the difference between a void and voidable contract: Void means it never happened Voidable means someone has the right to declare it void (q.v.) If a contract was signed due to illegal economic duress, I understand the contract can be voided. But is it automatically void or is it voidable by the victim if they choose? Can the victim choose to enforce the contract if s/he so wishes? What if the victim only wants to enforce certain parts of the contract (assume the contract contains a clause stating that if one clause is unenforceable it shall shall not prevent other clauses from being enforced)? Does the victim have the option to enforce specific parts? Update: By illegal economic duress I mean duress that was not induced simply due to one side having better bargaining power but duress that was induced in violation of the law. | If a contract was signed due to economic duress, is it void or voidable? No. Economic duress is not a ground to find that a contract is void or voidable. is it automatically void or is it voidable by the victim if they choose? Some kinds of conduct do give rise to a duress defense to a contract (e.g. a threat of violent conduct directed at the other party to the contract or someone connected to them which also constitutes criminal extortion), and while I'm not familiar with cases specific to illegal economic duress as defined in the question, usually, duress that is an affirmative defense to contractual liability causes a contract to be voidable but not void. I can't recall ever seeing anyone prevail on an affirmative defense of illegal economic duress, although I recognize that such cases exist in circumstances that include the conditions described by the question (i.e. in circumstances where the economic pressure applied arose from or involved illegal conduct by the party seeking to enforce the contract). Can the victim choose to enforce the contract if s/he so wishes? A victim of conduct that makes a contract voidable can generally enforce a voidable contract. In contrast, no one can enforce a void contract (e.g., if it is void due to illegality or because the person who supposedly assented to it didn't execute it knowing that it was a contract which is called fraud-in-the-factum). What if the victim only wants to enforce certain parts of the contract (assume the contract contains a clause stating that if one clause is unenforceable it shall shall not prevent other clauses from being enforced)? Does the victim have the option to enforce specific parts? Generally not. One exception is the "severability" doctrine is applied to arbitration clauses in contracts that are voidable as a whole due to the existence of an affirmative defense. The doctrine will allow such contracts to be subjected to arbitration, unless there is a problem specific to the arbitration clause, even if there is an affirmative defense to enforceability of the contract, such as duress, that otherwise renders the contract as a whole voidable. | Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it. | It doesn't matter. When a contract is left ambiguous the interpretation that is used is the one that is the most favorable to the party that did not draft the contract, under the logic that if the party that did draft the contract chose all the wording and thus, they could have stated their interpretation in the contract just avoided this whole mess in the first place. A similar rule exists in criminal law, where if the law is ambiguous, the interpretation used is the one most favorable to the defendant, since the state could have drafted it in a way that made their interpretation clear. | An agreement to agree is void There is a multitude of case law on this point. If the NDA was not available to you when you signed the employment contract and the term was couched as you describe; then the term would be unenforcable. That is, your employment contract would be binding except for that term i.e. you could not be compelled to sign the NDA. Now, there may be a requirement on you to negotiate in good faith in an attempt to find an NDA you can agree to but if you can't find one you can't find one. You cannot (legally) be fired for this reason. Now, if the NDA was available, and you were told where to find it, and irrespective of if you did or didn't find it, you would be bound to the NDA. | Such a clause must be presented before or at the same time the offer is made. The (somewhat new) law NH RSA 275:70 says Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect The question is whether such an agreement would mean you can't set up shop on your own and take a bunch of customers with you (it seems that such clauses are enforceable), or does it mean you can't work in that trade (competing for new customers, or as an employee of a competitor) – such an interpretation would not be enforced, in the analysis of this article. The clause must be "drafted narrowly to protect only a company's legitimate business interests, like customer goodwill and confidential information". A specific case of this interpretation is Merrimack Valley Wood Products v. Near, 152 N.H. 192, which finds that the law does not look with favor upon contracts in restraint of trade or competition...Such contracts are to be narrowly construed. Nonetheless, restrictive covenants are valid and enforceable if the restraint is reasonable, given the particular circumstances of the case In assessing reasonableness, three tests must be passed (must be answered "no"): first, whether the restriction is greater than necessary to protect the legitimate interests of the employer; second, whether the restriction imposes an undue hardship upon the employee; and third, whether the restriction is injurious to the public interest. As an example of a reasonable restriction: When an employee is put in a position involving client contact, it is natural that some of the goodwill emanating from the client is directed to the employee rather than to the employer. The employer has a legitimate interest in preventing its employees from appropriating this goodwill to its detriment. But restricting a person from working with any customers of the company (not just the employees work-related contacts) is unenforceable, because the company had no legitimate interest in protecting its entire client base from its former employee, because he had no advantage over any other complete stranger, possessing no special hold on the goodwill of the majority of Technical Aid's customers. See also Brian's Fitness v. Woodward for reaffirmation ("valid only to the extent that it prevents an employee from appropriating assets that legitimately belong to the employer"), and additional citations. The question arises whether there is a distinction between the former employee approaching former customers, versus those same customers approaching the former employee. I have not located any case that directly addresses that, but Technical Aid v. Allen, 134 N.H. 1 says A restrictive covenant must unreasonably limit the public's right to choose before it will be found to be injurious to the public interest. I think it is likely that the courts would find it to be an unreasonable limit on the public's right to choose, if a customer were prevented from choosing a different company to provide the desired service simply because the customer happened to have previously had a business relationship with the former employee. This "right to choose" is asymmetrical – the public has a right to choose any service provider, an employee does not have an equivalent right to pursue (seek out, woo) a customer, in light of a restrictiveness covenant. | There is no requirement that the terms of a contract be even-handed The common law position is that parties are free to contract on whatever terms they like: if you agree to sell me your late model car for $1 that's a matter between the two of us. The law allows you to make a bad bargain. Unconscionability There is an equitable doctrine that allows the court to refuse to enforce unconscionable contracts or terms. The California Supreme Court has ruled that "the central idea (of the) unconscionability doctrine is concerned not with ‘a simple old-fashioned bad bargain "… but with terms that are 'unreasonably favorable to the more powerful party.'" In other words, courts will not enforce contracts that are "overly harsh," "unduly oppressive," or "so one-sided as to shock the conscience." However, I would be extremely surprised if the terms you are upset about rising to the level of unconscionability. The basic test of unconscionability, as expressed in official comment 1 to section 2-302, is: whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. . . .The principle is one of the prevention of oppression and unfair surprise. . . and not of disturbance of allocation of risks because of superior bargaining power. They seem to be dealing with risk allocation and moving risks that are normally on the lender to the buyer or requiring the buyer to waive statutory rights and warranties - there is nothing illegal in that unless the law has a "no contracting out" provision. Some laws do and some laws don't. Some laws may not allow contracting out in consumer transactions but may allow them in business transactions. You seem to be talking about some sort of equipment financing arrangement. As such, if you don't like the deal, there's a bank down the street with a different deal. US law recognises that once there is a contract, the parties have to act in good faith to ensure each party gets the benefit of the bargain they made but there is no such requirement in negotiating that bargain. If you can use your economic strength to get a better deal, that's called capitalism. | First of all, there is no breach - they said they would pay it "over the course of the first year"; in what way is the first week not part of the first year? Second, breaching a contract doesn't always allow the aggrieved party to terminate it: in fact, being able to terminate is only for the most egregious of breaches or ones that are specifically spelled out as giving a right to termination. For example, failure to deliver (or pay) on time or in full would not allow termination, only damages. | Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? No. The general rule is that a party is permitted to argue inconsistent positions in the alternative within a brief. When a party does so without expressly saying so, it is assumed that they are arguing in the alternative unless the party clearly indicates otherwise (and is just being illogical). But the law in the context of arbitration is a special case that doesn't align perfectly with the general rule, and makes different distinctions sometimes. Under the substantive law of arbitration clause validity, sometimes a party can be forced to arbitrate even if there is a possibility that the underlying contract is unenforceable, with the arbitrator making that decision. But, a party cannot be forced to arbitrate in every case where the validity of the underlying alleged agreement is in doubt, simply because an agreement, on its face, contains or references an arbitration agreement. Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues. A dispute over which of two significantly different competing arbitration agreements applies to an issue between the parties could be such a circumstance. Thus, a term that provides that "delegates threshold questions such as the 'applicability, existence, scope, or validity' of the agreement to the arbitrator," is partially void as a matter of public policy under the Federal Arbitration Act, although some of its retains its validity. For example, you can't delegate the question of the existence of an arbitration agreement to an arbitrator if that question is disputed, even if the contract says otherwise. In arbitration cases, there is a rather elaborate jurisprudence governing what issues are for a court to decided and what are for an arbitrator to decision when the right of a party to arbitrate, and/or the validity of the underlying contract, are disputed, that makes some very fine distinctions between different kinds of arguments. For example, if a party claims that he never had dealings with a party that presents an unsigned document that is a contract and also asserts that this party is bound to an arbitration agreement, that question can be decided by a court. But, if a party signed an agreement with a plain vanilla arbitration clause but claims it is unenforceable because it was induced by duress or undue influence, the arbitration will usually go forward with the arbitrator deciding the validity of the contract. When a decision is decided by a court, or by an arbitrator, is not easily summarized or manifestly obvious without a review of the relevant case law which is voluminous and intricate. See, e.g., Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); Santich v. VGG Holding Corp., 2019 CO 67 ¶ 6 (June 24, 2019); N.A. Rugby Union, LLC v. U.S. of Am. Rugby Football Union 2019 CO 59, ¶¶ 20-22, 442 P.3d 859, 863-864 (June 17, 2019);;; |
Can I use a celebrity’s likeness in a meme for advertising purposes? Can I use a common meme that contains a celebrity for advertising purposes without the celebrity’s permission? For example, the Jim Halpert Whiteboard Meme. This is a very common meme. Can I use this meme in the format “X is a problem, and My Company is the solution” as an advertisement for my company without John Krasinski’s permission to do so? Here is a link to the meme: https://i.imgflip.com/3rsxfo.jpg | No, you can’t For at least 1 and up to 4 reasons You don’t own the copyright in the photograph. You risk the tort of passing off by implying that Jim endorses your company when he in fact knows nothing about it. While it may be well understood in the memosphere that there is no such endorsement, you are taking it outside that context. In jurisdictions with laws against misleading and deceptive conduct, the same facts that lead to passing off are also likely misleading and deceptive. In jurisdictions which protect personality rights or require model releases, you don’t have consent. | Sound recordings can be, and new ones normally are, protected by copyright. The copyright would usually be held by the person who made the recording, or that person's employer, not by the speaker if that is a different person. Use of such a recording without permission might well be copyright infringement. But more clearly and directly, broadcasting a statement: I am {performer} and you are listening to {song name} on my favorite station {station name } without authorization from the performer would in many jurisdictions violate the performer's right of publicity, giving the performer grounds to sue the station. It might well also be false advertising, implying that the performer had endorsed the station when s/he has not done so. That would depend on the specific laws of the jurisdiction where the broadcast was made. A suit over publicity rights or an action for false advertising would probably be simpler than a copyright suit in such a case. I think that most if not all such announcements are made with the consent of the performers involved, and are probably recorded directly by such performers. (For one thing it is usually in the performer's interest to cooperate with stations and networks that play the performer's work.) If such announcements were somehow artificially synthesized, but with the permission of the performer, and of any owner of copyright in any recording used, I don't think there would be any legal problem. If an AI was trained to create a good imitation of a person's voice with9ut diretly copying a recording, I am not at all sure if there would be any copyright infringemetn under current law. That may be an area where the law will need to change to respond to the technology. But if such an imitation were used without permission to make the kind of statements discussed above, the personality rights issue and false advertising issue would still be there. Those do not in any way depend on whether the announcement uses a copy of a recording or not, those are both about the use of someone's name and reputation without authorization. In fact, even if the announcement did not pretend to use the performer's voife, those woudl still bne an issue. Suppose the announcer saids, in his orm her own voice: {Performer} said to tell you that s/he is glad thit his/her song is being playing on his favorite outlet {station name}. There is no technical fakery there, deep or shallow, but if done without authorization it is still a problem, or would be in some jurisdictions at least. If technology is used to create a plausible imitation of someone's voice, but it was not distributed with any claim, direct or implied, to be that person, then the case is different. I suspect that in most jurisdictions there would be no grounds for legal action, just as celebrity imitators do not need permission as long as they don't fake endorsements. | Tortious publication of private facts is a doctrine that could get a person in trouble. There is no truth-defense to this tort. However, famous people have a hard time enforcing this one because newsworthiness is a defense and courts often find that facts about famous people are newsworthy (and most movies or books about people who are worth the effort of creation are about famous people). Right to Publicity is another. This basically says that people have a sort of trademark over their personality and it is analyzed much like trademark infringement. Of note is that this is a property right rather than a tort. | There are multiple issues with what you are trying to do, including issues with copyright, personality rights, and data protection. You are trying to use other people's content and likeness for your advertisement. Unless you are certain that you can do this in your relevant jurisdictions, without their consent, this sounds like a very bad idea. At least under GDPR, “but they made it public” is not an excuse. Personal data is personal data regardless of how you acquire it. The GDPR also has a very broad concept of identifiability that goes beyond direct identifiers or PII. If you want to use other people's personal data, you need a legal basis, and must provide them notice about your processing. Consent (informed opt-in) is one legal basis, legitimate interest (opt-out) another. You are suggesting to avoid this by blurring PII, but you may also have to blur other content that is indirectly identifiable. Real anonymization that meets the GDPR's definition is a really hard problem. In some cases, a legitimate interest is able to avoid such problems. E.g. if I make a video with commentary about a Tweet, it would likely be OK to show surrounding personal data like the responses including the identities of the various accounts, to the degree that this is relevant to the commentary and/or necessary for proper attribution. However, that commentary likely has strong protections under freedom of expression. At least from an European viewpoint, a tutorial, demo, or advertisement would not have a freedom of expression argument that would shift a GDPR legitimate interest balancing test in your favour. Instead of blurring almost everything in your video or working on GDPR compliance, content licenses, and release forms, you should consider a different solution: create dummy content just for your videos. You can use your own content, and maybe add a dummy profile. | Is it legal to make a video compilation of websites that use our product for promotion of our company? [...] We would only be showing brief clips of client's products, strung together for a short video. This will most probably be both copyright violation and trademark infringement. Copyright is generally violated if you copy a creative work produced by someone else - which is what you want to do. Trademarks are generally violated when you use someone else's trademarks (such as their logo or company name) to promote your product - which, again is what you want to do. There are various exceptions available - copyright may not apply if the work is very simple, trademark use may be allowed e.g. in comparative advertising, etc., etc., but the rules for this are complex, unclear and very different in various jurisdictions. You could risk it and hope no one sues you (and maybe no one will), but the safe route is to ask permission first. | Quoting content may or may not constitute copyright infringement, depending on the various factors that go into the fair use defense. Short quotes which are made for the purpose of discussion, research and commentary and not for copy would be squarely in the domain of "fair use" under US law. That means that the copyright owner would not succeed in suing you for quoting them: under the statutory mechanism for recognizing his right to his intellectual product, there is a limit on how much control he can exert over your behavior (since the two of you have not worked out some kind of agreement -- copyright law creates rights even when there is no contract). As for Facebook, you have a contract with them, embodied in the terms of service. You have been given permission to access material that they host (permission is required, under copyright law), and their permission is conditional. It says "you may access stuff on our platform only as long as you do X": if that includes a clause "don't be nasty", then that limits your right to speak freely and be as nasty as you'd like. If it says "don't quote even a little", that means you cannot quote even a little, even when you would have the statutory right to quote a little (or, to be nasty). Fair use would mean that you can't be sued for copyright infringement of the stuff that you quoted a little of. You can, however, be expelled from Facebook. You probably cannot be sued for "accessing Facebook without permission". There is a federal law against unauthorized access of computer networks, and there was a failed attempt to construe violation of a TOS as "unauthorized access" – it isn't. But accessing Facebook necessarily involves copying (that's how computers work), and there is no "fair use" defense whereby everybody has a fair use right to access Facebook. Theoretically you could be sued for copyright infringement, for accessing Facebook's intellectual property without permission. Also, Facebook can rescind your permission to access their content (see this case), and once you have been banned, it is a crime to further access their network. This assumes that there is no overriding limit on contracts that would nullify a no-quoting condition. There is no such limit on contracts in the US, so such a contract would be enforceable. There is also nothing illegal (unenforceable) about a TOS which prohibits automated methods of access. | The question is not one of copyright law or trademark law, neither of which apply. Instead, it is a question of a common law right of publicity, which in India is recognized in some circumstances, but is not well developed and has many gaps that courts will have to resolve as cases are presented to them. The right of publicity is largely a right to sue if another person without permission profits commercially from someone's likeness without their consent and it is unclear to what extent, if any, it encompasses a right to control the use of one's own image otherwise. It is not in and of itself a crime, even though it is a tort which is the basis for a civil lawsuit for money damages and perhaps injunctive relief. As explained here: In India, the right of publicity is governed by common law and accrues to the celebrity’s individual persona. It is a right to a celebrity’s particular distinguishing and identifying characteristics, features, behavior, likeness, image or other unequivocal aspects. These rights are transferable and are generally used as an individual’s right to control and profit from the commercial use of his or her name, likeness, and persona. . . . The Indian Courts scrutinize the law governing publicity as a right in which an individual’s identity suffers the loss of commercial purpose. Some courts refer to the unauthorized appropriation of an individual’s identity as an invasion of the right of privacy. However, the two bodies of law can be distinguished as follows: while the right of publicity provides the individual with a property right in his or her identity, the right of privacy protects an individual from the publication of private facts that are embarrassing or intimate, or that portrayal of him or her in a false light is offensive. The right of publicity claims usually arise from the publication of information of which the public is already aware; the celebrities thrive on being known and talked about. In Sourav Ganguly v. Tata Tea ltd., Sourav Ganguly returned from an extremely successful tour of England and Tata Tea Ltd., where he was then employed to promote a tea packet, offered the consumers a chance to congratulate Sourav through a postcard which was inside each packet. The company intended to profit from his popularity and his latest success. Sourav could successfully challenge it in the Court before settling the dispute amicably. The right of publicity protects all persons’ rights from birth to death and beyond. When the right of publicity extends after death, it is called the post-mortem right of publicity. However, whether the right of publicity extends beyond life is jurisdiction specific. For example, the post mortem right of publicity has only been recently recognized in the US in California and will soon be recognized other American states too. Legal recognition of post mortem rights of publicity usually permits the deceased’s beneficiaries or heirs to control and financially benefit from the use of a deceased’s image and likeness. The news about the movie Dirty Picture having been challenged by the kin of the deceased actress Silk Smita, claiming that the movie does not depict her personality in the right spirits, is first of its kind in India. The linked examples, showing satirical portrays of a famous U.S. politician, hinge on the issue of what constitutes commercial use, as opposed to other uses. The right of publicity doctrine arose at common law when images of models were used to market consumer goods, when the models for the painting and photographs weren't paid. It has not generally been used to prohibit political cartoons or their 3D equivalent, the basic thrust of which is political commentary or satire that does not suggest endorsement by the subject of the image. In the U.S., such a broad reading of the right of publicity would probably be overcome by the very strong First Amendment protections of free speech. But while India also protects the right to free speech, it, like most former British colonies, tends to be less extreme in the extent to which other generally applicable laws and protections of other individual rights yield to free speech protections than the United States. I doubt that a right of publicity lawsuit by the individual depicted in the linked materials which appear to be basically satirical political depiction would be recognized in India, and it is likely the some of the same considerations that apply to fair use of copyrights or nominative use of trademarks without permission would inform its judgment on the scope of this common law right. But because India's common law in this area isn't very well developed it isn't possible to know with certainty how a case like this one would be evaluated by an Indian court. This said, there are a couple of caveats that should be added. First, it is easy to imagine that the 3D image is obtained by some illegal means which could be tortious (i.e. the basis for an invasion of privacy lawsuit) or criminal. The illegality in obtaining the information could arise not just from common law protections but also, for example, for statutory or contractual non-disclosure requirements. For example, if this was obtained obtained from records maintained for health or educational purposes it could violate laws providing privacy protections in those areas. Obtaining the 3D image surreptitiously and without the knowledge of the person whose image is obtained (e.g. through a secret camera in a changing room) would probably be both a crime and a tort. Second, if the 3D model were used to defraud someone, e.g., by impersonating them on a Zoom call, this would likely be both a crime and a tort under the general principles that apply to fraud in general, as a form of affirmative misrepresentation, even though it is visual rather than verbal. | Yes. The introduction to the license says "You may adapt — ... build upon the material for any purpose, even commercially". (My emphasis). Note that there is an attribution requirement so you need to find a way to attribute each image to its individual author. For the fine details, you certainly need to read the actual license (rather than the introduction) and you probably need to consult your own, paid-for, IP lawyer - but if you are just scoping the project out at the moment, you should be fine. For contrast, here is a Creative Commons licence that does prohibit commercial use. |
Is the reading of website meta tags generally prohibited? Problem: I would like to create a plugin for my website. This Plugin makes it possible to recognise a shared link in a comment field. Afterwards the plugin fetch the link and scrape the meta data of the shared source (link). After successfully scraping the Link will reformat to a nice "Card" with thumbnail and description text (Note 1). A kind of card instead of just a link. Or better the way Google does it. Question: Is it allowed to "scrape" metadata without prior consent of the website operator? My thoughts on this: Since I am only scraping the metadata by machine and it is there to be used by search engine bots, social platforms anyway, that one is allowed to do it. Note 1 : (only pages that are public and explicitly allowed to be crawled by search engines). Update Example for better understanding Below you can see an example of the metadata I read from a page. Below you can see the editing on my page with my own style. <title>Kanada: Abgeschossenes Flugobjekt hatte zylindrische Form - DER SPIEGEL</title> <meta charset="utf-8"> <meta name="viewport" content="width=device-width,initial-scale=1,user-scalable=no"> <meta name="MSSmartTagsPreventParsing" content="true"> <meta http-equiv="imagetoolbar" content="no"> <meta name="apple-itunes-app" content="app-id=424881832"> <link rel="manifest" href="https://www.spiegel.de/public/spon/json/manifest.json"> <meta name="theme-color" content="#e64415" media="(prefers-color-scheme: light)"> <meta name="theme-color" content="#D03D12" media="(prefers-color-scheme: dark)"> <meta name="google-site-verification" content="lwpSnwoyvMkHS9nHmLBZuYOashAHfooOHSHeA_KS7ek"> <meta name="robots" content="index, follow, noarchive, noodp, max-snippet:-1, max-image-preview:large, max-video-preview:-1"> <meta name="Googlebot-News" content="index, follow"> <meta name="copyright" content="DER SPIEGEL, Hamburg, Germany"> <meta name="email" content="[email protected]"> <meta name="author" content="DER SPIEGEL"> <meta name="date" content="2023-02-12T07:08:39+01:00"> <meta name="last-modified" content="2023-02-12T07:08:39+01:00"> <meta name="locale" content="de_DE"> <meta name="description" content="Es war innerhalb von zwei Tagen das zweite Objekt im Luftraum über Nordamerika, das von US-Kampfjets abgeschossen wurde. Nun gibt es erste Angaben der kanadischen Regierung, wie der Flugkörper aussah."> <meta name="news_keywords" content="Ausland, USA, Kanada, Justin Trudeau, Volksrepublik China, Spionage, Luftfahrt"> <meta name="twitter:card" content="summary_large_image"> <meta name="twitter:site" content="@derspiegel"> <meta name="twitter:title" content="Erste Erkenntnisse der kanadischen Regierung: Abgeschossenes Flugobjekt hatte zylindrische Form"> <meta name="twitter:creator" content="@derspiegel"> <meta name="twitter:image" content="https://cdn.prod.www.spiegel.de/images/c431237d-0187-4cc6-95f6-c3bc8c12ede1_w1280_r1.77_fpx59.37_fpy50.jpg"> <meta property="og:title" content="Erste Erkenntnisse der kanadischen Regierung: Abgeschossenes Flugobjekt hatte zylindrische Form"> <meta property="og:type" content="article"> <meta property="og:url" content="https://www.spiegel.de/ausland/kanada-abgeschossenes-flugobjekt-hatte-zylindrische-form-a-8134d1f8-6259-46d3-b1bc-0de4446380fc"> <meta property="og:image" content="https://cdn.prod.www.spiegel.de/images/c431237d-0187-4cc6-95f6-c3bc8c12ede1_w1280_r1.77_fpx59.37_fpy50.jpg"> <meta property="og:description" content="Es war innerhalb von zwei Tagen das zweite Objekt im Luftraum über Nordamerika, das von US-Kampfjets abgeschossen wurde. Nun gibt es erste Angaben der kanadischen Regierung, wie der Flugkörper aussah."> And now a screenshot of my page where the metadata is displayed. What I store in my database? The content from the metatags: title, description, author, sourcelink, tags and the link to the thumbnail. | You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry. | The text and content (including all diagrams and illustrations) of the 1847 work (and of any other work published in 1847) are in the public domain in the US and everywhere in the world. You may freely use them verbatim or in any modified form that you wish. You are not even legally required to credit your source, although not to do so would be unethical, in my view. The version by Nicholas Rougeux that is linked to in the question has the licensing statement: Posters and website design are copyright Nicholas Rougeux. All other content and diagrams are under the Creative Commons Attribution-ShareAlike 4.0 International license (CC BY-SA 4.0). This will not apply to any content copied from the 1847 version, of course. You may use any of the new content and diagrams so released, or make and use derivative works based on those elements, provided that you comply with the CC BY-SA 4.0 license. This has a number of provisions, but the major ones are that you must release your work under the same license, must acknowledge your source work, and must not impose any additional conditions or restrictions on users of your derived work. These are spelled out in sections 3.a and 3.b of the license (linked above). Please read the full terms if you intend to use this license. If this procedure will satisfy your purpose, you do not need any further permission from Nicholas Rougeux, nor to pay any fees or royalties to him. If you do not choose to place your work under a CC BY-SA 4.0 license, then you must not use the diagrams from Rougeux's version, nor modified versions directly based on them, nor an overall design clearly and directly based on the original design of that version, unless you secure permission from Rougeux (or the current copyright holder of Rougeux's version, whoever that may be). Given that Rougeux chose to release under a CC BY-SA 4.0 license, he may well be unwilling to grant permission under a different license, but that is his choice to make. Exception: in the US, you may use content from the Rougeux version to the limited extent permitted by fair use. This is not likely to cover the use of all or a large number of diagrams, particularly for a competing version of the same base work. Without specific information on how much content you would be using from that version, and how similar it would be to the original, no one can reliably determine if fair use would apply or not, but fair use is most likely to apply when a strictly limited amount of content is reused, and particularly when it is used for a different purpose than the original. Also, fair use is a strictly US legal content, and a work that might be held to be fair use by a US court might be considered an infringement by the courts of some other counties. Other countries have their own exceptions to copyright which are different in scope and terms from fair use. Many of them are significantly narrower. Note that a work posted to the internet is in effect published in all countries, and a copyright holder might choose to sue in any country s/he pleases. US courts might well enforce such a judgement even if it would not have been the judgement of a US court. Rogeux (or any other creator of a new edition) can have no copyright in elements already present in Byrne's 1847 work. Any similarity to Rogeux's work that is because of a similarity to Byrne's 1847 work is not copyright infringement. But any new elements introduced by Rogeux (or anyone else), including the manner of adding interactivity to a diagram, may well be protected by copyright (although the idea of having an interactive version of the diagram will not be). Any new or significantly modified text or diagrams introduced in a later version will be protected. As to any other versions of the 1847 "Byrne's Euclid" that may have been published, the publishers gain no copyright over the original 1847 work or any of its elements, including text, diagrams, or color scheme. Provided you do not use any original content newly introduced in such editions, you do not need to secure any permission from, or pay any fee to, the copyright holders of such editions. However, you may not use any such original content, or modified versions clearly based on such original content, without permission, unless an exception to copyright, such as fair use, applies. All that I said above about fair use would then apply. A copyright holder may grant or refuse permission to use a protected work or create a derivative work on any terms that s/he chooses, and charge any fee or royalty rate s/he thinks proper. Lack of response to a request for permission must be treated as if the response was "No". | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | If you do, you will probably be faced with a lawsuit. If the program did something that they don't do, it might be okay (but hire a lawyer to be sure). Perhaps a plumbing app would be safe. They (Meta) do state that Meta is one of their trademarks, and you can verify that here. That means that they have the exclusive right to use the mark "Meta" in the particular spheres where they operate, namely G & S: Identification verification services; Online social networking services; Personal concierge services for others comprising making requested personal arrangements and reservations and providing customer-specific information to meet individual needs; Providing access to computer databases and online searchable databases in the fields of social networking; Social introduction and networking services; Social networking services related to sports, fitness, and coaching activities provided through a community website online and other computer and electronic communication networks; User verification services; Social introduction, networking and dating services as well as Computer hardware; Application programming interface (API) for software which facilitates online services for data retrieval, upload, download, access and management; Computer peripheral devices; Virtual, augmented, and mixed reality software for use in enabling computers, mobile devices, to provide virtual reality experiences; Software for integrating electronic data with real world environments for the purposes of entertainment, education, communicating; Virtual reality computer hardware; Virtual reality software for use in enabling computers, mobile devices, to provide virtual reality experiences; Motion tracking sensors for virtual reality technology; Motion tracking sensors for augmented reality technology; Digital media streaming devices; Wearable computing devices comprised primarily of software and display screens for connection to computers, mobile devices, and in order to enable virtual reality and augmented reality world experiences; Software for tracking motion in, visualizing, manipulating, viewing, and displaying augmented and virtual reality experiences; Software, firmware and hardware for use in visual, voice, audio, motion, eye and gesture tracking and recognition; Hardware and software for operating sensor devices; Electronic sensor devices, cameras, projectors, and microphones for gesture, facial, and voice detection, capture and recognition; Hardware and software for detecting objects, user gestures and commands; Wireless computer peripherals; Computer software for modifying photographs, images and audio, video, and audio-visual content with photographic filters and augmented reality (AR) effects, namely, graphics, animations, text, drawings, geotags, metadata tags, hyperlinks; Computer software, downloadable computer software and mobile application software for facilitating interaction and communication between humans and AI (artificial intelligence) platforms, namely, bots, virtual agents and virtual assistants; Application programming interface (API) software for allowing data retrieval, upload, access and management; Software for organizing images, video, and audio-visual content using metadata tags; Application programming interface (API) for use in developing AI (artificial intelligence) platforms, namely, bots, virtual agents and virtual assistants; Computer software for sending and receiving electronic messages, graphics, images, audio and audio visual content via the internet and communication networks; Downloadable software, namely, instant messaging software, file sharing software, communications software for electronically exchanging data, audio, video images and graphics via computer, mobile, wireless, and communication networks; Computer software for personal information management, and data synchronization software; Computer software for use in facilitating voice over internet protocol (VOIP) calls, phone calls, video calls, text messages, instant message; Communication software and communication computer hardware for providing access to the Internet; Electronic display screens; Computer peripherals for remotely accessing and transmitting data; Computer hardware for displaying data and video; Computer peripherals for displaying data and video; Software to view virtual images in creating augmented reality; Computer software for setting up, configuring, operating and controlling wearable devices, computers, and computer peripherals; Computer software for accessing, monitoring, searching, displaying, reading, recommending, sharing, organizing, and annotating news, sports, weather, commentary, and other information, content from periodicals, blogs, and websites, and other text, data, graphics, images, audio, video, and multimedia content; Computer software for accessing, browsing and searching online databases; Computer software for accessing, monitoring, searching, displaying, reading, recommending, sharing, organizing, and annotating news, sports, weather, commentary, and other information, content from periodicals, blogs, and websites, and other text, data, graphics, images, audio, video, and multimedia content; Computer software for controlling the operation of audio and video devices; Computer software for creating, editing, uploading, downloading, accessing, viewing, posting, displaying, tagging, blogging, streaming, linking, annotating, indicating sentiment about, commenting on, embedding, transmitting, and sharing or otherwise providing electronic media or information via computer the internet and communication networks; Computer software for integrating electronic data with real world environments for the purposes of entertainment, communicating, and social networking; Computer software for modifying and enabling transmission of images, audio, audio visual and video content and data; Computer software for modifying photographs, images and audio, video, and audio-visual content with photographic filters and virtual reality, mixed reality and augmented reality effects, namely, graphics, animations, text, drawings, geotags, metadata tags, hyperlinks; Computer software for processing images, graphics, audio, video, and text; Computer software for sending and receiving electronic messages, graphics, images, audio and audio visual content via computer the internet and communication networks; Computer software for sending and receiving electronic messages, alerts, notifications and reminders; Computer software for social networking and interacting with online communities; Computer software for the collection, managing, editing, organizing, modifying, transmission, sharing, and storage of data and information; Computer software for the redirection of messages, Internet e-mail, and/or other data to one or more electronic wearable wireless communication devices from a data store on or associated with a personal computer or a server; Computer software for wireless content, data and information delivery; Computer software to enable accessing, displaying, editing, linking, sharing and otherwise providing electronic media and information via the internet and communications networks; Computer software to enable development, assessment, testing, and maintenance of mobile software applications for portable electronic communication devices, namely, mobile phones, smartphones, handheld computers and computer tablets; Computer software to enhance the audio-visual capabilities of multimedia applications, namely, for the three-dimensional rendering of graphics, still images and moving pictures provided as updates for or in combination with head-mounted display screen devices; Computer software, downloadable computer software and mobile application software for creating, managing and accessing groups within virtual communities; Computer software, namely, an application providing social networking functionalities; Computer software, namely, an interpretive interface for facilitating interaction between humans and machines; Downloadable computer software for finding content and content publishers, and for subscribing to content; Downloadable computer software for viewing and interacting with a feed of images, audio, audio-visual and video content and associated text and data; Gesture recognition software; Software for detecting objects, user gestures and commands; Software for operating sensor devices; Software to view virtual images in creating virtual, augmented and mixed reality; Interactive entertainment software; Location-aware computer software, downloadable computer software and mobile application software for searching, determining and sharing locations; Messaging software; Mixed reality software; Mixed reality software for interactive entertainment; Mixed reality software for navigating a mixed reality environment; Mixed reality software for object tracking, motion control and content visualization; Social assistant software; Software and firmware for enabling electronic devices to share data and communicate with each other; Software development tools; Software driver programs for electronic devices for enabling computer hardware and electronic devices to communicate with each other; Software for advertisers to communicate and interact with online communities; Software for alerts, messages, emails, and reminders, and for recording, organizing, transmitting, manipulating, reviewing, and receiving text, data, audio, image and digital files and display screens; Software for creating and managing social media profiles and user accounts; Software for creating, editing, uploading, downloading, accessing, viewing, posting, displaying, tagging, blogging, streaming, linking, annotating, indicating sentiment about, commenting on, embedding, transmitting, and sharing or otherwise providing electronic media or information via computer and communication networks; Software for creating, managing and accessing groups within virtual communities; Software for creating, managing, and interacting with an online community; Software for integrating electronic data with real world environments for the purposes of entertainment, education, communicating, and social networking; Software for modifying and enabling transmission of images, audio, audio visual and video content and data; Software for processing images, graphics, audio, video, and text; Software for social networking; Software for streaming multimedia entertainment content; Software and firmware for use in visual, voice, audio, motion, eye and gesture tracking and recognition; Software, namely, an interpretive interface for facilitating interaction between humans and machines; Video display software; Computer software, firmware and hardware for use in visual, voice, audio, motion, eye and gesture tracking and recognition; Computer hardware and software for operating sensor devices; Computer hardware and software for detecting objects, user gestures and commands; Computer software driver programs for electronic devices for enabling computer hardware and electronic devices to communicate with each other; Cameras; Wireless computer peripherals; Video receivers; Sensors for monitoring physical movements and dozens of other also-registered areas. | Copyright law regulates copying of protected material. In the US, there are no laws that specifically prohibit reading anything. It may be illegal to be in possession of something (classified material), but if it is legal to be in possession, it is legal to read. (Do not confuse "read" with "read aloud to an audience" a.k.a. perform, which is a separate copyright protection). It is not illegal to be in possession of material that was copied without permission. | This issue touches upon two distinct GDPR rights: Art 15 right to access: you have a right to receive a copy of all personal data concerning you that are undergoing processing (including storage). Access may only be denied where this would “adversely affect the rights and freedoms of others.” Art 20 right to data portability: if processing is being carried out by automated means, and processing is based on certain legal bases (consent or contract, but not legitimate interest), then you have a right to receive a copy of your personal data in a machine-readable format, for personal data that you have provided to the data controller. Whereas the right to access is fairly straightforward, the right to data portability applies under much more narrow conditions. Basically, it's a right that you can download any data that you've uploaded so that you can move to a different service. Google Takeout is primarily concerned with your right to data portability, and provides your data in a machine-readable format. Any photos that you've uploaded to Google Photos, you'll be able to download. Thus, it could be technically compliant to exclude information that they've inferred about your personal data, such as image-recognition results. Such results would still be personal data under the GDPR definition of the consent, and would be covered by your right to access. Google might argue that you already have access to this data through the web interface. In my opinion the GDPR clearly requires the data controller to provide a “copy”, i.e. the data in some durable form – not merely access through a web interface. Whereas your question is specifically about Google, the same issue applies to other services as well. E.g. Ruben Verborgh has an interesting blog series on trying to get access to all their data from Facebook, though unsuccessful so far. Similar to your scenario, Facebook offers a download for personal data but does not include all personal data in this download. In one of the documents provided by Facebook in the course of the exchange, they note that they allow access to photo tags through the web interface, but do not include this in downloaded data – without providing further justification. | All the CC licenses permit anyone to use the licensed content, and to make copies of it for others. Some of them permit using it for commercial purposes, others (the ones including the -NC- clause) do not. Some CC licenses permit creating modified versions of the original work (derivative works), others (the ones including the -ND- clause) do not. I do not know of any standard license which allows users to create and distribute derivative works, but not to distribute the original. The license used by Project Gutenberg permits re-use and re-distribution, but if a fee is charged beyond recouping expenses requires the removal of the PG name and logo. One problem is that if derivative works are allowed, this would include works which are only trivial modifications to the original, which would have the effect of allowing distribution of the original. If the main concern is about commercial sales, possibly a CC-NC-SA license would effectively serve the purpose? That allows redistribution, including of derivative works, but forbids commercial reuse or distribution without separate permission, and requires all redistribution to be under the same license. Otherwise a new license for this situation might have to be created. It is often a good idea to have the assistance of a lawyer with IP expertise in creating a new license, or the wording chosen may have unexpected effects or include unintended contradictions. Or one could simply place a basic copyright notice along with text such as "Modified versions may be created only with permission from the author. Request permission at [email protected]". However, if the work proves popular, there might be a large volume of requests. | Not having immediate access to the source doesn't preclude a finding of copyright infringement. If you have seen the source material, subconscious infringement can happen. However, in this example, both the short phrases doctrine and the merger doctrine would likely prevent the is_prime function from having copyright. Words and short phrases are not individually copyrightable, so the name would be free to take. Regarding the implementing code, if it isn't an exact copy (i.e. copy and paste), courts will apply the abstraction-filtration-comparision test. They may find that you took the selection and arrangement of instructions from the original source, albiet using different names. That selection and arrangement would probably be considered a substantial similarity and, if not for the merger doctrine, infringement. However, given the limited number of ways to express the prime-detection algorithm means that the expression of that idea has merged with the idea, and thus is not protected by copyright. (Or in some jurisdictions, merger is a defence to infringement rather than a bar to copyrightability). |
Responsibility for a traffic infraction commited by someone else? Let's say Bob owns a vehicle and his wife uses the car. The wife doesn't come to a complete stop at a red light and the traffic camera catches it. They issue a ticket in Bob's name as he owns the car but he did not commit the traffic infraction. Bob has proof he was not driving that day. Would Bob still be responsible for the traffic infraction his wife committed? Can the authorities compel Bob to say who was driving? What happens if he doesn't know who was driving? | Under Florida law (316.0083), an officer can view the infraction and issue a notification of infraction "to the registered owner of the motor vehicle involved in the violation". Thereupon, the owner has the right to remedies under §318.14, which include arguing that the owner did not commit the infraction. The camera evidence may sufficiently prove that an infraction was committed, but not necessarily that the vehicle owner committed the infraction. This is a civil matter, so the official who disposes of the appeal must determine whether it is more likely than not that the owner committed the infraction. That effectively means that in the face of evidence that the owner committed an infraction, some evidence is needed to show that the owner did not commit the infraction. Thus proof that he was not driving (I suppose witnesses to his whereabouts in Timbuktu on the day in question) would suffice, and there is no requirement that the owner prove someone else did the deed. | In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving. | 40km/h There is no ambiguity. The speed limit on the through road is clear and the speed limit on the side road is irrelevant. The fact that Bob may be legitimately unaware that this is the speed limit doesn’t matter either. If you want to ask if Bob has a defence if issued with an infringement notice, please feel free to post a new question. | Can someone be compelled to prove they are complying with a contract? In this context, yes, since its apparent breach is evident. The other answer rightly explains the notion of preponderance of evidence, which pertains to the procedural aspect. Here, I will mainly address the substantive standpoint as per the situation you describe. The HOA rule most likely is intended to serve one or more purposes, such as preserving the prestige of the neighborhood, and to avoid safety hazards. The prolonged presence of an abandoned vehicle --just like any piece of junk--- tends to contravene those purposes. Regardless of the vehicle's true state, the effect of its apparent abandonment is visibly detrimental to the neighborhood, and it frustrates the ultimate purposes of the HOA rule: to preserve safety conditions in the neighborhood as well as the value of the properties. Also, the presumption that an abandoned vehicle is inoperable seems reasonable. The most straight-forward way to disprove the board's allegations of inoperability is to actually move the vehicle at least once in a while. Accordingly, the owner's inexplicable reluctance to take that simple step reinforces the supported suspicion that the vehicle is indeed inoperable, and thus in breach of the HOA rule. | The reason an at fault driver is liable for damage in a collision is due to the tort of negligence. To be liable under negligence one of the many factors that the plaintiff (that's you in this case) must prove is that the damage you suffered was a reasonably foreseeable consequence of the defendant's (that's the U-turner) acts or omissions. This is where your case would fall down: a collision is a reasonably foreseeable outcome, damage to your braking system in normal operation is not reasonably foreseeable given that an emergency stop is something a breaking system should be able to do. This is simply a maintenance issue. | Yes, the police can give you a ticket for not having insurance/registration in the vehicle, even if they know it is registered/insured. The requirement is not just that you must have it, but you must carry proof of it in the vehicle. California Law (CVC §16058) requires that insurance companies electronically report insurance information to the DMV, which the officer has access to and can verify insurance. From the California DMV Page: Financial responsibility (commonly known as insurance) is required on all vehicles operated or parked on California roadways. You must carry evidence of financial responsibility in your vehicle at all times and it must be provided as specified below when: Requested by law enforcement. Renewing vehicle registration. The vehicle is involved in a traffic collision. The reason it must be in your vehicle is that when you are involved in a collision, you have to be able to provide that to the other party. And yes, you can receive the citation even if the vehicle is not yours. It is your responsibility as a driver to abide by the laws and verify that the vehicle is legal to drive. California Vehicle Code (CVC) §4000(a)(1) requires registration: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. I'm not advocating that you should just "suck it up and pay" this ticket. I would certainly bring proof of registration/insurance at the time of the ticket to your court date and provide that you are not the registered owner of the vehicle (you don't say, but I assume you were borrowing a friends vehicle). The court should look at that evidence and issue a warning or dismiss the ticket. | There is no hard and fast rule to determine what constitutes proof beyond a reasonable doubt. In the first instance, the judge (or jury, when there is a jury trial) decides this on a case by case basis. If the officer testifies that the matters recorded in the ticket are true because it was the officer's practice to always record accurately what happened in a ticket, this would ordinarily not be grounds for reversal of a conviction on the ground of insufficient evidence, unless other evidence somehow put the officer's testimony in serious doubt (e.g. a social media post clearly putting the officer in another location at the time that the ticket was allegedly issued). Normally, the only kind of evidence that would not result in a ticket being upheld on appeal would be the failure of the officer to testify at all. | Your attorney can file a lawsuit against the other driver, and legal liability can be determined in court. Your want to let an attorney do this, because the one thing that keeps you from being (expensively) counter-sued for defamation is that you didn't name the driver and insurance company. It is extremely unlikely that the other driver accused you of liability ("liable" is a legal conclusion, not a fact). Instead, there is a dispute over the facts. During the trial, both sides get to present their evidence and the judge will determine who is actually liable. If you are found liable, your insurance company may have to pay up. If the other guy is found liable, his company will have to pay up. Or, fault can be split 50-50 (in which case you will be out of luck because you don't have collision insurance to cover your losses). If the insurance company believes that the facts support their client and that you will lose in court, they are not going to volunteer to pay your losses. If they believe that the facts support you, or are closer to 50-50 w.r.t. fault, they are unlikely to volunteer to give you money. If the driver makes a material plainly false statement to his insurance company, they might have recourse against him. Lying under oath is perjury which is a criminal offense. But mis-remembering facts or having incorrect beliefs is not a crime and won't lead to any legal problems for the driver. The belief that you are not at fault is not a lie. If the facts are as cut and dried as you make them out to be, the matter will be easily sorted out in court. |
Why is Rakusen v Jepsen cited in that order? Rakusen v Jepsen is a high profile Rent Repayment Order (RRO) application case, in which the Applicant’s name typically comes before that of the respondent when the case is referred to. In this one, Rakusen is the name of the landlord (ie respondent party), yet their name seems invariably to be cited in front. Why is this? | Rakusen was the appellant at the Court of Appeal. Many, but not all, appellate courts adopt the norm of listing the appellant as the first party in the style of cause, even if they were the respondent or defendant in the underlying matter. This style decision can vary between courts within the same country and can even differ between courts within the same appeal hierarchy. E.g. in Canada different provinces do it different ways, and not all of them match the Supreme Court's style. | In appellate cases, the party appealing is called the "petitioner", and the other party is called the "respondent". These cases are listed Petitioner v. Respondent. In your example, Twombly was the original plaintiff, and Bell was the defendant in a class-action. This initial action would have been referred to as Twombly v. Bell. The case was dismissed by the trial court. Twombly appealed to the 2nd Circuit Court of Appeals. This action would have been still been called Twombly v. Bell, since Twombly was the party petitioning for the appeal. The 2nd Circuit agreed with Twombly, and reversed the district court's decision. Bell, then on the losing side, decided to appeal to the US Supreme Court. Because Bell was the petitioner in this action, Bell gets listed first. | One option is to bring a civil lawsuit to obtain a court order for the return of your property, something that usually proceeds on an expedited schedule (often one to three weeks from filing to an order). The traditional name of such a lawsuit is "replevin" although the modern and minority terminology for this kind of lawsuit is civil action for "claim and delivery." You could ask the police to intervene, and they might do so, but are not required to do so without a court order. This can take the form of a criminal theft charge, or could take the form of what is called a "civil assist" when the individual comes to the place where the property is held in the presence of law enforcement which assures a peaceful transfer. Sometimes a court in another matter such as a divorce, or domestic violence criminal case, will enter an order authorizing or directing that a civil assist take place. The appropriate remedy depends to some extent upon the reason given for not returning the property. One valid defense to not returning property is that a lease created a lien in the personal property left at the premises for unpaid rent, or a lien for moving and/or storage charges. The availability of such liens varies from jurisdiction to jurisdiction and based upon the precise details of the situation. Another valid defense would be that the person in possession of the property was not satisfied that they knew who owned it. | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. | I am not sure what the claim in the textbook means, and have been unable to find any other reference to support or explain it. Headnotes are always “presumptively correct” in the sense that they are professionally authored, so you can generally presume them to be correct, unless they conflict with the full text of the decision. But I’m not aware of any statute or case law that creates a formal presumption in relation to headnotes. Perhaps you could write to the author and ask if that’s what she means. What is unique about England and Wales, as the origin of the common law and the associated tradition of law reporting, is the preeminence of the Incorporated Council of Law Reporting. The ICLR was established in 1865 and publishes all official law reports in England and Wales. Arguably unlike the official or authorised reports of other common law jurisdictions, the ICLR’s reports are considered to be more authoritative even than the judgment published by the court itself. The ICLR’s website explains: However important the case, the transcript of a judgment does not have the same value, as a record of the decision contained in it, as a full text law report. Where, therefore, a law report is available, particularly where the case has been reported in one of the official series, The Law Reports, published by ICLR, it must be cited and referred to in that version in preference for any other: see Practice Direction (Citation of Authorities) [2012] 1 WLR 780 … the combination of a summary report and a transcript does not enjoy the same status as a full text law report where one is available, for reasons which will become clear once one appreciates the amount of careful editorial work that goes into preparing the full report. In other jurisdictions, the official law reports are treated with less reverence, although it is still normal for courts to require them to be cited in preference to primary sources such as slip opinions. Nonetheless, further down the page the ICLR makes clear that the full text of the judgment takes primacy over the headnote, just as in other jurisdictions: Although the headnote adds value to the report of a judgment, it is the judgment itself which sets the precedent and binds subsequent decision-makers. Nevertheless, a good headnote is a work of meticulous legal draftsmanship and can withstand the closest of textual scrutiny. Accuracy is all. Make the proposition too general, and the principle appears either so watered down as to be meaningless or, more dangerously, misleadingly wide in its application. Draw it too narrowly, and it fails to express the principle on which the court based its decision. At its best, a headnote is a precious distillation – the single malt of legal learning. | The legal position You are quite clearly not running a business and if the matter went to court you could easily prove this be e.g. getting testimony from the people at the party, your testimony etc. In any event, your landlord can’t “fine” you. Fines are a punishment and only government can punish people. They can sue you for breach of contract for damages (which are restitution not punishment) or to seek specific performance. The practical position Take the listing down. Rightly or wrongly, it's souring your relationship with your landlord and their relationship with their HOA. Is having this mildly amusing joke worth damaging these relationships, particularly if you might want to renew your lease? The landlord might feel that they are better off with a tenant who doesn't cause them grief with their HOA. Even if your landlord understands, the HOA might not. If they sue your landlord, they will have very little choice but to join you. Yes, you will almost certainly win your day in court but you will not get reimbursed for the time and effort you had to go to. this includes taking the day off work, subpoenaing all your friends to give testimony etc. Who has time for that crap? Further, whenever you go in front of judge or arbitrator who has the power to force a resolution of your dispute, you are rolling the dice. Sure, you may think you have great evidence and the other sides' is completely bogus but if they present theirs with skill and confidence and you screw yours up then they can walk away with a win. Real court cases depend on who the judge believes. If they believe your landlord's reasonable story about running an illegal bar and they don't believe your crazy tale of it all being a joke - you lose. Remember: free speech can't be restricted but it does have consequences. Further, anyone who bases relationships on legal rights and responsibilities is going to have very shallow relationships. | This practice varies depending on the court and/or judge's own style preferences and is often a judgment call based on what the author is trying to communicate with a citation. I'll give a few reasons why a judgment might provide multiple layers of citations: because the "deeper" source is a well-used precedent for a particular point, so it is meaningful for readers to know that the shallower source cited the well-accepted leading case on an issue to show that a particular proposition has been long-accepted in a jurisdiction (your example might show that whatever proposition that is being cited has been used in this district over a 25-year period) to show that a decision from a lower-level court is consistent with historical jurisprudence or with higher-level jurisprudence One example: [12] It is common ground between the parties that reasonableness is the applicable standard of review for the Independent Chairperson’s decision. I agree (Perron v Canada (Attorney General), 2020 FC 741 ("Perron") at para 45, citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 ("Vavilov") at para 23; see also Schmit v Canada (Attorney General), 2016 FC 1293 at paras 19-20, and the cases cited therein). Here, the author is trying to say this point is well settled. What is the standard of review for decisions of the Independent Chairperson? It is "reasonableness." This was stated in Perron, which itself cited Vavilov, Canada's leading case (since 2019) on how to select the standard of review. It is important to know that Perron relied on Vavilov rather than an obsolete framework for selecting the standard of review. In your particular example, it seems that Albert E. Price, Inc. v. Metzner is or was a leading case in the 3rd Circuit on what constitues irreparable harm when seeking a preliminary injunction in copyright infringment cases (based on my very brief skim of how other judgments tend to use it). By noting that a judgment cited Metzner, this is a form of shorthand that is quite meaningful to practitioners in this area of law. | The author of the passage is telling you where the quotation comes from, using a formal case citation. Lawyers usually don't use footnotes, endnotes, or parentheses to set off these citations. Case citations are a sort of shorthand developed by lawyers and judges over the past few centuries. The goal is generally to identify the name of the case, where to locate it, when it was decided, and what court decided it. Although there are a few different styles for formal citations to cases, you don't need to learn much to cover the basics for common types of cases. How to Read It Case name Brown v. Bd. of Educ. Case names usually have a "v." in the middle. Most of the time, the plaintiff goes on the left and the defendant goes on the right. But United States Supreme Court cases are different. Almost always, the Supreme Court reviews decisions of lower courts. They do so in an unusual way: the loser in the lower court asks the Supreme Court to change the outcome. Because the loser, more formally called the "appellant," is the one initiating proceedings in the Supreme Court, they go on the left. (To learn more, look into "writ of certiorari.") Since Brown is a Supreme Court case, we can guess that Brown lost in the lower court; and indeed that's what happened in this case. There are some arcane rules about abbreviating case names. The full name of this case is "Brown et al. v. Board of Education of Topeka." If you're a law student, especially if you're on the law review, you get to learn all about these rules. If you're not, thank your lucky stars and try not to worry about it. Volume, reporter, and page number 347 U.S. 483 This is the bit you want to copy and paste to find the case. It's a lot like a URL: the idea is to clearly identify and locate a case. If you just want to find the case on the Internet, you don't need to understand how it works, and you can skip to the next section. These three parts tell you where to find the beginning of the case in a good old-fashioned printed book. You know those yellow books in the background of lawyer advertisements? That's what we're talking about. They're called "reporters," because they originally contained somebody else's reports of what judges said in court. Now, of course, the judges write down their own decisions; but the name stuck. The middle part, here "U.S.", identifies what set of books the case is in. You can learn something about the court from this: U.S. -- United States Reports -- United States Supreme Court F., F.2d, F.3d -- Federal Reporter -- Federal Courts of Appeal F. Supp -- Federal Supplement -- Federal District Courts (trial courts) The first number is what volume the case is in. This is the number printed on the spine of the book. The second number is what page the case begins on. Pinpoint citation , 495 When somebody wants to refer to a specific place in a case, they just put the page number or range right after the case page number. Remember, "483" was the page the case starts on; "495" is the page where the court actually say what we're talking about. If you flip to page 495 of volume 347 of the U.S. Reports, you'll find the quoted sentence. Remember: usually when you see two numbers separated by a comma, like "483, 495", the first one is part of the citation to the case as a whole, and the second one says what page to look at. Date and court name (1954) This part varies a lot between the different formal styles. In "Bluebook" style, which most law journals use, the year the case was decided is enclosed in parentheses, along with anything necessary to identify the court. Here, there's no court name, because we already know from the "U.S." that it's a Supreme Court case. For lower appellate cases, this might be "(9th Cir. 2005)", meaning that it's a decision of the Ninth Circuit Court of Appeals from 2005. Dealing with short citations You may also see something like "Id. at 495". This is a short citation; "Id." means "the last thing I cited." Go back to the nearest previous citation and look that up, going to the page cited. How to Use It (aka "tl;dr") The key to actually finding a case on the Internet is to copy the three numbers in the middle--the volume, reporter name, and page number. Here, "347 U.S. 483". Don't include any pincite after a comma; Google and many search engines may be clever enough to figure out what you mean, but they may not. There are a bunch of free online services providing case texts. I prefer Google Scholar; just paste the citation in, being sure to select "case law". Other people like CourtListener, FindLaw, and Justia.com. Commercial databases like Westlaw or LexisNexis have a lot more than just the case; most importantly, they list citations to the case. Your local public law library might have a terminal for one of the services that you can walk in and use. Be sure you're reading the actual case, not a summary or "annotation." This is especially true if you're writing an answer here on Law.SE. Many case summaries, especially for famous cases, are written for first-year law students; some of them are probably written by first-year law students! They're often helpful, but they focus on what the student needs to know for class, which often isn't what the case actually said. If I find you quoting a case summary as if it's "the law," I will not be very nice to you. |
How can consent-banner as a service be GDPR compliant? A couple of months ago I've read that hosting google fonts on your own server is a better but maybe slower solution as loading content from google servers is already something that the users must be informed about due to submitting your IP to google. Now I am realizing that basically the same thing is true for consent services that host the entire experience on their servers and give users only the service, am I right? They all claim they are safe to use, but I fail to understand how so. I was testing a consent service that requires me to basically load their cloud hosted javascript code: <script type="text/javascript" charset="UTF-8" src="https://cdn.cookie-consent-provider.com/<SOME-ID>.js"></script> Now I can't get my head around whether this is already some sort of non-compliant GDPR behaviour because even if this provider would do everything to protect the data and be compliant, etc, I still would have to establish a connection to their servers first, in order to be able to inform the users because in some cases self-hosting this service is not possible due to a paywall or not-available at all. So basically loading my website script loads cookie consent from remote server cookie consent is displayed would be invalid because the user could not decide, nor decline step 2? He or she would send their IP to the remote address without consent. The fun part is: What if the consent banner has no way of declining step 2.? I mean, this is weird because you would decline consent to access the consent servers. §6 https://gdpr-info.eu/art-6-gdpr/ states that consent is required and if this is true, then no consent service unless self-hosting would actually be compliant? Where am I wrong? | The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed. If the embed-provider acts as your data processor, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes. With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google promises that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers. So we have to consider the scenario when the embed-provider is an independent data controller. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU Fashion ID case), and we need a legal basis for this data sharing. In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted. (Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway). Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service. Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user. | Building off @DigitalFire's answer, I looked into the TOS related requirements that Google Analytics puts out and I found this on Google Analytic's TOS: You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your websites. You must post a privacy policy and that policy must provide notice of your use of a cookie that collects anonymous traffic data. Apparently, Google themselves also requires you to notify users when you are using their service to track people (That's pretty good of Google). Here is a simple example of what a privacy policy would look like. There doesn't appear to be any issues with laws in other countries either. For my purposes, I'll just implement an agreement that pops up during installation that users will have to accept. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | You wrote: As far as I believe, it is permitted under GDPR to record and store non-anonymized web server access logs, as these can be useful for security reasons. True, Recital 49 GDPR: The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. You asked: My question is whether this anonymization process counts as processing personally identifiable data under GDPR? IP addresses are personal data in some cases, so yes, you're processing personal data. Then, these anonymized logs will be fed into an analytics tool to provide stats on unique visitors, page hits, etc. These are purposes considered compatible with initial purposes according to Article 5.1.(b): Personal data shall be (...) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for (...) statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); As a matter of fact, you might be required to anonymize the data for those purposes, see Article 89.1: Processing for (...) statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner. If I were to anonymize the logs and continue to use them exclusively for security reasons, would that change anything? No, you would be processing data in a manner compatible with initial purposes (ensuring network and information security). Or does it not matter what I do with them once they are anonymized? Yes, it does. If you're not using them for "archiving purposes in the public interest, scientific or historical research purposes or statistical purposes" then you're using them for purposes incompatible with initial purposes. You would need to find new legal basis for processing. does this extra anonymization process on top then take it over the line meaning that consent and a privacy notice would be required? It depends on what you want to do with anonymized data. In your case, for security purposes or security and statistical purposes, you don't need the consent and there is no requirement for the privacy notice (but sure, it would be nice to publish one). For other purposes it might be different. | This issue touches upon two distinct GDPR rights: Art 15 right to access: you have a right to receive a copy of all personal data concerning you that are undergoing processing (including storage). Access may only be denied where this would “adversely affect the rights and freedoms of others.” Art 20 right to data portability: if processing is being carried out by automated means, and processing is based on certain legal bases (consent or contract, but not legitimate interest), then you have a right to receive a copy of your personal data in a machine-readable format, for personal data that you have provided to the data controller. Whereas the right to access is fairly straightforward, the right to data portability applies under much more narrow conditions. Basically, it's a right that you can download any data that you've uploaded so that you can move to a different service. Google Takeout is primarily concerned with your right to data portability, and provides your data in a machine-readable format. Any photos that you've uploaded to Google Photos, you'll be able to download. Thus, it could be technically compliant to exclude information that they've inferred about your personal data, such as image-recognition results. Such results would still be personal data under the GDPR definition of the consent, and would be covered by your right to access. Google might argue that you already have access to this data through the web interface. In my opinion the GDPR clearly requires the data controller to provide a “copy”, i.e. the data in some durable form – not merely access through a web interface. Whereas your question is specifically about Google, the same issue applies to other services as well. E.g. Ruben Verborgh has an interesting blog series on trying to get access to all their data from Facebook, though unsuccessful so far. Similar to your scenario, Facebook offers a download for personal data but does not include all personal data in this download. In one of the documents provided by Facebook in the course of the exchange, they note that they allow access to photo tags through the web interface, but do not include this in downloaded data – without providing further justification. | This question shows a misconception of GDPR. GDPR creates an obligation not just towards the data subject but also towards the authorities of the relevant state(s). The data subject cannot waive your responsibility to safeguard data, document internal processes, etc. GDPR is not a blanket ban on the handling of personally identifying information (PII). Informed consent is one of the ways to get permission to process and store this data. If your data subjects are prepared to give your sweeping permissions, ask for consent (informed, revocable, etc.), document the consent, and go from there. The data subject does not get to decide what classification data falls under. If you collect, say, medical data, then you are subject to increased restrictions and safeguards. | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | The data processor is not responsible for complying with the GDPR. You are ultimately responsible, since you are the data controller. The data processor is merely required to assist you, but it's unclear what that means in the presented scenario. Per Art 28(3)(e) GDPR, the DPA must require the data processor to provide reasonable assistance: That contract or other legal act shall stipulate, in particular, that the processor: […] taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; However, per Art 28(1) you can only engage processors that you deem sufficient to protect the data subject's rights: the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. Here, it seems that your company failed to ensure that the processor provides the features you need for compliance. Many companies claim to be GDPR-compliant, but that doesn't mean that your use of their services will be GDPR-compliant as well. Depending on how the Art 28(3)(e) requirement was implemented in the DPA you may have a right to assistance even if the processor doesn't implement necessary features in their software, but enforcing this contract could require a lawsuit in a foreign jurisdiction (but that's par for the course for international B2B contracts). It is worth noting that the GDPR right to erasure doesn't always apply. In a processing activity where no erasure right is likely to arise, it would be perfectly fine to use a data processor that doesn't offer any possibility for erasure. Similarly, it can sometimes be legal to use technologies like Blockchain or Git that make erasure difficult or impossible. However, it is the responsibility of the data controller to analyze the impact of such a choice up front, before commencing the processing activities. In some cases, this could require a Data Protection Impact Assessment (DPIA). Note that transfers of personal data into the US are illegal or at least questionable in the wake of the 2020 Schrems II ruling. The Privacy Shield is no longer a legal basis for such transfers. Standard Contractual Clauses (SCCs) are technically allowed, but only “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” (cf Art 46). The ECJ's judgement calls this into question. This could be a further incentive to migrate to a more GDPR-compliant service. |
Is sharing image images from OnlyFans revenge porn under English law? This is a hypothetical question about behaviour that would, at the very least, be copyright infringement, and isn't very nice, so shouldn't be done, but I'm specifically interested in the 'revenge porn' aspects. V is a young woman who sells naked pictures of herself on OnlyFans. D purchases those pictures and posts them online to forums for pornographic images, with no apparent motivation to harm V (though V finds this distressing). Has D committed 'revenge porn' under English law by posting these intimate images without V's consent or does the fact V consented to the commercial sale of these images mean this is 'just' copyright infringement? | It depends, in part, what is meant (and what can be proven) by D's intent: no apparent motivation to harm V Revenge porn, or more accurately, "Disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress" contrary to section 33 of the Criminal Justice and Courts Act 2015 which states: (1)A person commits an offence if— (a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears, (b)by so doing, the person intends to cause distress to that individual, and (c)the disclosure is, or would be, made without the consent of that individual. If there is no intent, then the offence is not committed. If there is intent to cause distressto V, then setion 35 needs to be considered, especially subsection (2): Meaning of “private” and “sexual” (1)The following apply for the purposes of section 33. (2)A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3)A photograph or film is “sexual” if— (a)it shows all or part of an individual's exposed genitals or pubic area, (b)it shows something that a reasonable person would consider to be sexual because of its nature, or (c)its content, taken as a whole, is such that a reasonable person would consider it to be sexual. I cannot find and caselaw or guidance on the particular issue - i.e. whether or not V's commercial sales of her own images would fall within this definition - and as D's intent is not clear, it would probably be a matter for a jury to decide. | canada Bob is not committing any standalone copyright infringement unless he needs to make a further copy of the material in order to receive it (such as a download). However, Rob is committing an offence punishable by indictment by making for sale an infringing copy (s. 42(1) of the Copyright Act. If Bob, knowing that Rob is selling infringing copies, buys one of them, then Bob commits the offence of possessing a thing while knowing the thing was derived from the commission of an offence punishable by indictment (Criminal Code, s. 354). (Credit to jcaron, who noted this and provided a similar answer for France.) | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." | There is no such law; copyright secures exclusive rights for the copyright holder (and related rights sometimes secure certain rights for the author which cannot be sold or given away except through death), but it cannot be used to force them to spend money to distribute it in a form that you can conveniently use. Such a rule would defeat the purpose of copyright law, which is to give the copyright holder control over the use of the work, not take away their ability to do so. You can certainly request that they release the work, and can offer to pay them for doing so. But someone who does not own the copyright or any related rights cannot use copyright law to force the person who does own the copyright to spend their own money to convert a show into a new format. | A copyright notice like that could mean the authors are claiming copyright in different portions of the work, or claiming a joint copyright. With the former, standard copyright law applies with respect to each part, so I'm going to examine the joint copyright aspect. Broadly speaking, joint works tend to be an unclear and internationally inconsistent area of copyright law and you haven't specified jurisdiction. Since this is an English language site and the US and UK are polar opposites on most of these issues, those will be the jurisdictions I examine. US Definition: To qualify as a joint work, each author's individual contribution must be inseparable or interdependent, and the authors must intend to be joint authors (17 U.S.C. s 101, Childress v. Taylor, Erickson v. Trinity Theatre, Inc.). Rights of use: Joint authors can independently exploit and license a work without consent of other co-authors, but have a duty to account profits to co-authors (House Report No. 94-1476 (1976), Goodman v. Lee, Community for Creative Non-Violence v. Reid, etc.). UK Definition: To qualify as a joint work, each author's individual contribution must not be distinct, they must work towards a common design, but no specific intention of joint authorship is required (Copyright, Designs and Patents Act 1988, Art. 10(1), an 11-factor test was articulated in Martin v. Kogan para. 53 by the E&W Court of Appeal). Rights of use: Joint authors must seek consent of the co-authors in order to exploit and licence a work (Cescinsky v. George Routledge & Sons, Ltd., Hodgens v. Beckingham). For further information, see this excellent paper by Elena Cooper comparing how US and UK law diverged on this point. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | It is hard to say: this article sketches the legal landscape. So-called deep linking that bypasses the main page for a site is not believed to be infringement, following the reasoning of Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146. The URL itself does not have the bare minimum of creativity required for copyright protection, and storing a URL on a computer is not storing the contents that it refers to, so no copy was made in violation of copyright law. It is unlikely that competing theories would develop in other US districts (there don't appear to be any at the present). However, such a link could create secondary liability for infringement, see Erickson Productions, Inc. v. Kast, where a party "has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement". If I link to a file on a pirate website, I am secondarily liable for that infringement. However, if I link to a legally-uploaded file which the author did not intend to make public, there is no infringement. Copyright law requires permission of the copyright owner, which is more than just "explicit denial". The problem is that a person can put a file out there and not say one way or the other whether you have permission to copy the file. The US Copyright office says that "A copyright owner must have expressly or implicitly authorized users to make retainable copies of a work by downloading, printing, or other means for the work to be considered published" (let's not care at the moment whether it is important to be "published"). The court may infer implicit permission from a copyright owner's conduct, but there is no rule "if it's on the internet, you've granted permission". A rights-owner may make a valiant but insufficient effort to block access to the work (except via a password), so in that context, the courts would infer that the rights-owner had not given permission, therefore the copying is infringing and you have secondary liability for your direct link to the material. |
Is rendering Markdown to HTML considered an "adaptation" under CC BY-SA 3.0? Title pretty much sums it up. Are the rights given to adaptations granted if someone renders Markdown? | Usually not, usually Translating literary works is generally regarded as an adaptation, but I don't think translation programs—and HTML and Markdown, two markup languages with similar principles—are adaptations. According to the description on Creative Commons, Merely changing the format never creates a derivative. So changing WAV to MP3 is not considered an adaptation, nor is changing DOC to PDF. As for HTML and Markdown, it seems a bit vague, but it can be said that although their encoding methods are different, the results presented are very similar. According to https://creativecommons.org/faq/#when-is-my-use-considered-an-adaptation, a modification rises to the level of an adaptation under copyright law when the modified work is based on the prior work but manifests sufficient new creativity to be copyrightable Adaptation produces a derivative. A derivative contains both the will of the original author and the adapter. Creation involves choice, the painter chooses the colors to use, and the translator chooses the words to translate. There are inherently fewer options to create a program. Rendering markdown to html can be done directly through other programs, and it is difficult to see the shadow of the adapter. Editorial originality is very import. Yet one more thing is important: legal definitions. This is what it says in the https://creativecommons.org/faq/#what-is-an-adaptation FQA page What constitutes an adaptation depends on applicable law So, the laws of where you live still matter. We all know that there is a large gray area in copyright law, which often makes everything depend on the actual situation. This is just a little bit of my personal thoughts for your reference :) | What happened is that you created a legal mess. You are obviously on the hook for copyright infringement. The maintainers of the project will scramble to replace your code with newly written code. They will likely ask your company which code they are complaining about - that puts your company into the problematic situation that they shouldn't identify code that isn't theirs, that it will be hard to sue for infringing code when they didn't give the project maintainers a chance to fix it, and that everything they identify will be replaced. Since it is your actions that caused the trouble, anyone suffering damages from your actions can sue you. | You can read it, you can examine it to the point where you understand it, and then you can get inspired by the code and write your own code, without copying the code on the website, which does the same thing. If there is no license, then you can do what copyright law allows you to do. You are not allowed to copy the code, or create derived works by taking the code and modifying it. | You can't Under clause 7(b) of the CC-SA-BY 3.0 the licence is irrevocable providing that the licensee complies with its terms. However, ... It appears that your work is part of a Collection (as defined and under clause 4(a), the licensee has this obligation: If You create a Collection, upon notice from any Licensor You must, to the extent practicable, remove from the Collection any credit as required by Section 4(c), as requested. While you cannot have your work removed, you can have the attribution removed so that no one knows that it is your work - this would seem to meet your desire of having no association with the website. "To the extent practicable" should include anonymising you. As a bonus, if they don't do this "to the extent practicable" then they are in breach of the licence and it's automatically revoked - you can then proceed with DCMA takedown notices and/or sue for copyright breach. | The terms transfer IP rights only for the New IP, meaning that Customer would own the new stuff. Developer will still own their old stuff, but Customer will have the right to use the old stuff, depending on the license terms. If the license is as in your link, then it is forever (but this is a stub, so I assume that the license will be more specific and possibly restrictive). You retain all your rights to old stuff, customer will not pay royalties for the old stuff, and they can transfer or extend the license, or part of the license, to others. | The first thing that people need to do is to quit over thinking it. That being said, I'm going to see if I can tackle your problems one by one, before summarizing and providing my own opinion: Many users don't care if their code is copied. I'm like that. I left a couple comments on Shog9's post that read this: Good point: Licensing does not prevent careless or malicious use. I'm surprised about how many people are thinking that this license will let them steal their code, because it's already happening right now. I don't want to sound pessimistic, but when thousands of people break a license/law/contract, it's a bit of a lost cause. You're not significantly damaged in a direct way, so honestly, let it go. All I want is to make sure that no one can come up to me if something of mine screwed something on there side. Aside from that, I don't care about people who don't attribute me: chances are, they have no moral sanity, and I will appreciate the people who do, and help me out. As it is, I'm 16, I share what I know with a good heart, and in a well-spirited manner, and at the end of the day, knowing that I was able to help someone out makes my day. I don't mind if my code is copied. I know that people will copy my code whether I like it or not, but I also know that there will be people in the world who will say "thanks", and will try to attribute me where possible. I feel good about that. That being said, I don't care. But the person who uses my code does. The license that affects all Stack Exchange posts are licensed under the Creative Commons Attribution Share-Alike license, or CC BY-SA. Code contributions don't fit well with this. This excellent post on Open Source explains why it's discouraged for code. What these people want is a code-friendly license, so that they can stay in the clear when it comes to copyright issues. The next thing they want, is for someone to come after them over some licensing issue. You may think that people are good, but you never know the world around you. They can be evil. For other users, they don't mind their code being copied to another post, as long as there is a link to the post and a mention of the original author. Most people post with good intention. There's not that much of an issue from a legal perspective either: The license allows people to copy and paste into answers of their own, and since the license remains the same, there's no issue to get into. The license allows it, and contributors kind of have to acknowledge it. I don't think anyone cares what happens to code that is less than 3-4 lines at least. I can probably agree. Such code probably wouldn't be eligible for copyright anyway, since it's so trivial. Many jurisdictions have a "Threshold of Originality," which means that simple things can't be under copyright. Stack Exchange does not probably want people to own the code they submit. For example, Stack Exchange has (and probably wishes to retain) the right to keep even deleted posts in the visibility of the high rep users (even if the author is against it). Wait what? You may be right that it is in Stack Exchange's interest to host content. After all, they get hits, which helps them as a business. It is illegal for companies to host illegal content. If somebody sees objectionable, copyrighted content hosted on Stack Exchange that they would like removed, then they need to file a DMCA Takedown Request. This is also why moderators, like myself, cannot process legal requests. The reason why Stack Exchange doesn't act themselves, even if they see something that is copyrighted and objectionable, is because it's a form of liability. When YouTube began removing copyrighted content themselves, they received a wave of lawsuits (If you remove some, you need to remove all. Why didn't you remove mine? being the argument). The plaintiff's won those, and when YouTube did nothing, they weren't liable at all. If a user wants to have their content taken down, it's tricky. You need to look at the Terms of Service for Stack Exchange: (quoting Section 3) You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange When Stack Exchanges gets your content, you grant them an irrevocable license to your contribution. This is pretty standard across a lot of sites: it's just a way to secure data and stay in the clear of licensing issues. At the same time, it doesn't seem fair for SE to acquire complete ownership of the content. The user must still have the final say, if the content is to be used for purposes not already agreed upon in the licence. They don't. What users have done is that they have provided a license of their content to Stack Exchange. This is done, again, through their Terms of Service: You grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so in any medium now known or hereinafter developed (“Content License”) in order to provide the Services, even if such Subscriber Content has been contributed and subsequently removed by You. The user grants a license to their content to Stack Exchange, but they do not assign or relinquish copyright. The code still belongs to them. It's important not to conflate the user contribution policy, with copyright assignment. You are still free to add an additional license to your content (known as dual or multi-licensing), and have a copy for your own use. Stack Exchange will always host a copy licensed under the CC BY-SA license. Stack Exchange can expect a high level of decorum and respect for laws from its users. At the same time, it cannot expect redundant attributions anywhere and everywhere, because one of its main aims is to not waste the users' time. Not only Stack Exchange expects it, but many copyright laws in various jurisdictions require it too. There's a concept known in many jurisdictions known as moral rights. These are rights that are irrevocable, whether you like it or not. Generally, these include attributions, disclaimer of liability, and other rights as well. Even if your work is in the public domain, you still retain these moral rights. If memory serves me right, the right to be attributed is revokable under United States copyright law. Therefore, attribution becomes more a courtesy, when the right is revoked. Licenses such as CC BY, and CC BY-SA still require attribution as a part of their licensing terms. What defines attribution is generally up to the person who uses the content. If memory serves right again, one can not demand how to attribute. There should be a clear-cut way to determine what is code and what isn't. The code formatting indicators on SE may not be adequate because some users simply use backticks, or 4-space indented text for other not-so-codey text. Personally, I feel like making the entirety of a post under both the Creative Commons license and whatever proposed code license they use is the best option, and allow people to use moral judgement to determine the most appropriate license. The concern comes about people who lack such judgment. I bet these same people don't follow the existing license anyway - and are a lost cause. We made it through! There will always be debate on the license of choice. Some people want the GPL, a license that's apparently closer to the status quo of Creative Commons license (I disagree that it's a good match), while other's want permissive licenses, such as the MIT or the Apache licenses. I'd prefer the permissive type, since it allows use in closed-source applications, and grant more rights (i.e. less restrictions) to the people that use them. I'm not going to right much because my hands are tired, but I'm sure if you've got more questions about the open source licenses themselves, you can probably ask on Open Source Stack Exchange. | You automatically have copyright protection for what you create. A collection of numeric answers to math equations probably would not qualify (lack of requisite creativity), but certainly anything that counts as a "paper" is protected. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. |
What laws regulate the use and ownership of firearms by British-flagged ships? Firearms are heavily regulated in the UK, especially handguns and automatic weapons, after several horrific shootings in the late 20th century. Long-guns, such as shotguns and rifles are also tightly controled, one or more licenses being required. One exception that there seems to be for this regulation is for British-flagged vessels. There are also a document which publicly available on armed guards for ships, but it is not clear to me if this includes otherwise illegal weapons. In order to better explain question, here's a scenario - ACME shipping has a cargo ship that frequently travels round the Horn of Africa, a known high-risk area for piracy. ACME decide that in order to safeguard their ships, crew and cargo, they must have a contingent of armed guards on board each ship. What firearms would these guards be allowed, under British law, to carry? (Only Rifles and Shotguns, or could these guards also be authorised by the Secretary of State to carry Assault rifles and handguns as well?) | Authorisation under section 51, Firearms Act 1968 is required but only if the criteria in the Home Office Guide on Firearms Licensing Law at Chapter 28: Authorisation of armed guards on UK registered ships is met: The policy to allow the use of armed guards applies only in exceptional circumstances: to ships transiting the area at risk of attack by pirates within the High Risk Area (HRA) which is bounded: in the Red Sea: northern limit: Latitude 15°N; in the Gulf of Oman: Northern limit: Latitude 22°N; Eastern limit: Longitude 065°E; Southern limit: Latitude 5°S; when ‘Best Management Practices’ to deter piracy is being followed fully but, on its own, is not deemed by the shipping company and the ship’s master as sufficient to protect against acts of piracy; AND the use of armed guards is assessed to reduce the risk to the lives and wellbeing of those on board the ship. The policy applies to internationally trading passenger ships and cargo ships of 500 gross tonnage and above. The policy only applies in relation to the protection of UK registered ships. The assurance process for the authorisation of private maritime security companies is to ensure that as far as possible public safety is not endangered by the use of armed guards. Private Maritime Security Companies (PMSCs) wishing to employ armed guards on board UK registered ships in these exceptional circumstances must be authorised to possess a range of firearms (which may include section 1 and section 2 weapons), including those requiring an authority from the Secretary of State for the Home Department under section 5 of the 1968 Act, and be able to deploy them as necessary. All PMSCs wishing to employ armed guards on UK registered ships must receive clearance via the Home Office section 5 authorisation process. It is an offence for a person to have in his possession, purchase, acquire, manufacture, sell or transfer, or possess, purchase or acquire for sale or transfer, a weapon prohibited under section 5 of the 1968 Act without the authority of the Secretary of State. It is also an offence not to comply with any condition of the authority. [...] 28.14 The PMSC must provide details of the number and type of section 5 prohibited firearms they wish to possess on board the UK registered ship, and why this number and type of weapon is necessary. All PMSCs must be authorised to possess section 5 firearms. The High Risk Area covered by this policy is shown by the red/orange hatching on this map, sourced from UK War Risks (no affiliation): 1Section 5(3) of the 1968 Act states: In this section “authority” means an authority given in writing by— (a) the Secretary of State (in or as regards England and Wales), or (b) the Scottish Ministers (in or as regards Scotland). In this instance, the authorisation would presumably be given by the Home Secretary | The image is almost surely protected by copyright. The model used in the game would probably be a derivative work of the original image. As such, permission from the copyright holder on the original image would be required. In the absence of such permission, the copyright holder could sue for infringement, and have a reasonable chance of winning. Whether such a holder would choose to sue cannot be predicted. It would depend on whether the holder ever learned of the infringement in the first place, whether it could be proven, and the degree of damages that might plausibly be claimed. It would also depend on the holder's attitude toward such circumstances. In addition, the gun makers might claim trademark infringement. This would depend on how recognizable the guns are, and what trademarks the makers have secured protection on. If a logo is visible and recognizable, that would strengthen a claim by the maker. On the conditions described in the question, trademark infringement seems a bit unlikely, but exact details will matter in such a case, so one cannot be confident in any generic answer on that point. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | Civil forfeiture typically pits the government against property, not the government against an individual, and in the US (also anywhere else), only people have rights: property has no rights. The first relevant instance to reach the Supreme Court was an early case, The Palmyra (25 US 1), where a ship was confiscated because it had been used in privateering against the US. Although the owner had been convicted of nothing, the court still allowed the confiscation since The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se The defendant here is the ship itself, not the owner of the ship (known as in rem proceeding). The case law is replete with cases like "US v. $500,000", and such forfeitures have long been part of the arsenal to be used against wrong-doing, a law authorizing this having been one of the first acts of the US Congress, especially applicable to ships and cargo involved in piracy. The courts have repeatedly allowed such confiscation, at least in certain circumstances. In one more recent case, Van Oster v. Kansas, 272 U.S. 465, the court stated that It has long been settled that statutory forfeitures of property intrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment followed by a huge list of citations. Because of the doctrine stare decisis (courts respect prior rulings in similar cases), once a pattern is deemed constitutionally acceptable, it is very hard change that interpretation of the law. It should be noted that J. Thomas recently hinted in a dissent that there is a Due Process problem with civil forfeiture, raising strict scrutiny type objections to civil forfeiture, specifically that forfeiture was typically more narrowly applied – limited to customs and piracy, and justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts also observing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts Essentially, the reason why civil forfeiture (in its current revenue-generating incarnation) hasn't been ruled unconstitutional is that a persuasive argument has not been made to that effect. The court can't just decide this on its own, and in the most recent case, the constitutional issue was only raised at the Supreme Court, not in the Texas appellate court where it should have been raised. The most significant problem is that it isn't clear what constitutes "due process of law". There is, in all jurisdictions, some kind of legal process (see this report for an overview of the kinds of process involved). The standard of proof that allows forfeiture is pretty low (being a civil case, it is not "beyond a reasonable doubt"), and there are various impediments discouraging anyone from suing to prevent forfeiture (which until 2000 included a substantial bond requirement and the threat of having to pay the government's attorney's fees if you lose). Since there is a process whereby forfeiture can be challenged, a more sophisticated argument is needed, based on Due Process. | As @DavidSupportsMonica says, you can't go back in time to fix the problem. As a rule regulators are more interested in obtaining compliance than throwing the book. There are no sentencing guidelines for health and safety offences, but most convictions lead to a fine. However HSE Policy is that enforcement should be proportionate to the degree of non-compliance and the level of risk created. 5.2 In our dealings with duty holders, we will ensure that our enforcement action is proportionate to the health and safety risks and to the seriousness of any breach of the law. This includes any actual or potential harm arising from any breach, and the economic impact of the action taken. 5.4 Applying the principle of proportionality means that our inspectors should take particular account of how far duty holders have fallen short of what the law requires and the extent of the risks created An annual inspection that was overdue by one day is a very minor failing, and the principle of proportionality means that you are most likely to get verbal advice not to let it happen again. You say "if anything happens", presumably meaning if there is an actual incident or serious risk, such as a fire or CO poisoning. Its true that in such a case they will certainly want to look at your records, but the proportionality rule still applies. They would need to be able to make a causal link between your failing and the actual incident to make any more of it, which wouldn't be the case here. | For purposes of criminal law, in practice, airports in the United States are treated as part of the territory of the state (or district or territory) that they are a part of and of the United States. The scope of maritime criminal jurisdiction is defined at 18 USC 7. It states: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard. (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. (9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act— (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title. Often, law enforcement at an international airport is provided by a county sheriff or municipal police department in addition to the TSA (including air marshalls) which has narrower jurisdiction, in contrast to places like Indian Reservations and federal parks, which while within a state are outside state and local law enforcement jurisdiction (although the assimilative crimes act applies state law in many such circumstances). They are definitely not subject to maritime jurisdiction in the United States. Duty free status usually arises from a definition particular to tax treaty and not a global sovereignty definition. | Federal law bars possession of guns by felons and also bars the use of straw purchasers. The primary statute involved in 18 U.S.C. § 992(g). Being in a gun show would not be per se illegal, absent an atypical parole or probation condition. But, in this case it looks like the individuals held the guns which would constitute possession, and it looks like they also arranged for a straw purchase. Merely touching a gun with a single finger would probably not constitute possession of a gun for this purpose, although the incentive not to test the boundaries is great, because the sentences are so severe. (Incidentally, there are more convictions for this offense in Missouri than anyplace else in the United States). | That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D & E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small. |
It is really illegal to plug in a device to watch BBC iPlayer or Live TV in a Starbucks? Please note: it is unlawful to plug in your device in our stores if you are watching live TV or downloading or watching programmes on demand on BBC iPlayer.By using the WiFi, you agree to the terms of use This is the warning that appears in Starbucks' Wi-Fi network captive portal (this is not in the UK (this is in France, but this very much looks like a generic worldwide warning than anything else, BBC iPlayer is geo-blocked here), tagged united-kingdom because it seems to more suit the warning) What law are they referring to? The plug in your device in our stores Is watching iPlayer/Live TV on battery legal, then? | I suspect this relates to the UK TV Licencing provisions as listed here, Specifically : Can I watch TV on my mobile phone without a TV Licence? If you’re using a mobile device powered solely by its own internal batteries – like a smartphone, tablet or laptop – you will be covered by your home’s TV Licence, wherever you’re using it in the UK and Channel Islands. However, if you’re away from home and plug one of these devices into the mains and use it to watch live on any channel, TV service or streaming service, or use BBC iPlayer*, you need to be covered by a separate TV Licence at that address (unless you’re in a vehicle or vessel like a train, car or boat). I've said "I suspect" as I don't know for certain what Starbucks are doing, but it looks like this is means that either they are not providing you with use of their Licence at those premises, or that they don't have one for those premises (particularly likely if they're not in the UK, also possible if they are). Without mains power connection (ie. batteries only) it would be the user's home Licence that was relevant. TV Licencing is covered by Part 4 of the Communications Act 2003. [Edit : The official source of the summary at my first link can be found at Schedule 1 paragraph 2(c) of the Statutory Instrument. Thanks to Carcer for the comment.] | The law of each country where you offer the app for download applies, and you have to consider: Privacy Policy (GDPR in EU, CCPA in California, APPI in Japan, LGPD in Brasil, and more - check each country to be on the safe side) Disclaimer versus AGB/Terms and Conditions (e.g. Germany), not required but recommended Impressum (Germany, Switzerland, Austria) Value Added Tax (VAT) which is taken care of e.g. by Google Play for most countries but not all (e.g. not for Japan) in case the app is not free Consumer Protection Law - applicable (and different) everywhere There might be more, but these are the important ones I am aware of. | 'Is it legal?' could mean one of two things. Does it break the criminal law; could I be arrested? There is no law criminalising photography or filming in a private place (assuming you're not doing something amounting to harrassment, or making something inherently illegal like child pornography). The act of filming per se is therefore not illegal in a criminal sense. However, the proprietor of a private place can ask you to stop filming or demand that you leave; if you fail to comply then you will be trespassing. Trespass is not a criminal offence (although the police will undoubtedly remove you if called). However, if your intent was to intimidate, obstruct or disrupt activity within the premises, you could be charged with Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994. Could the owner, or someone else, have a civil claim against me? This is more difficult to answer. Trespass is a tort, so the owner could in theory have a claim against you if you were filming against his wishes. However, he would have to prove some measurable amount of damage, and this is why few trespass cases come to court. The occupants of the premises may be able to sue if you breach their right to privacy (Article 8 ECHR, incorporated into UK law by the Human Rights Act 1998); however, a court will balance this against your Article 10 right to freedom of expression. A court will consider all circumstances: for example, if you were filming in the toilets of a nightclub, the occupants' right to privacy may well outweigh your right to freedom of expression. A copyright owner may have a claim against you if you include their work in your film; for example, if you film inside a nightclub and substantial parts of songs are captured on your film, this may give rise to a claim. I am not a lawyer. Don't rely on free advice from strangers on the Internet. | united-states There is no general rule against one company or person buying both broadcasting rights and merchandising rights to a particular piece of content in the US. There are anti-monopoly/anti-trust laws, but those generally only apply if a particular entity holds a monopoly or a commanding market position in a whole market sector. If one firm held the rights to 80% of all online games, for example, an anti-trust action might well be warranted. But a single game or property is not generally considered to be a market sector for anti-trust purposes. Exactly what the proper market sector is in such cases is often a complex, technical, and highly disputed issue. The "original owner of the IP" can decide who s/he wishes to sell that IP to -- nothing requires, or forbids, that different sets of rights be sold to the same buyer. The original owner will attempt to get the best deal available. Sometimes that is a very lucrative deal, and sometimes it is far from that. As long as unlawful methods are not used to induce a sale, whatever bargain the parties make is generally acceptable to the law. I do not know who did, or did not, buy any of the rights to Squid Game, and that info might not be publicly available. But there is no law that I know of against the same party having both broadcast and marketing rights to it, and perhaps other rights as well. | Yes, this is a viable option. And no, it doesn't need to be perfect. The use of such a filter is a technical means, but it also serves to communicate that Small Town News explicitly does not envisage to provide service to Europeans or others resident in the EU. If a user chooses to use a VPN to do visit Small Town News webpages, it's reasonable to expect that this would be comparable to buying the Small Town News paper in print while physically in the USA. It's a common principle that courts have to decide on jurisdiction, and actions of a party can factor in this decision. | There are several Official Secrets Acts that are in force in the U.K. The one relevant for your question is the Official Secrets Act 1911. See Section 3: For the purposes of this Act, the expression “prohibited place” means ... any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty ... [and there are other things that can be prohibited places, including places declared by order] To be in violation of the Act, it is not enough to merely be in the area. See Section 1: If any person for any purpose prejudicial to the safety or interests of the State... approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act... he shall be guilty of felony There is a bill before Parliament that would redefine prohibited place (but still capturing the base you have photographed) and create additional offences in relation to prohibited places. See this factsheet and the current text of the bill. Importantly, Section 5 would create a new offence of "unauthorized entry etc to a prohibited place," which would make it an offence to access a prohibited place without authorization while knowing (or while one reasonably should have known) that the access was unauthorized. No purpose prejudicial to the U.K. would be required. However, given the lesser severity of the wrong, the maximum punishment would be six months in prison or a fine. | It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say "these things are illegal". For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law. | The law doesn't work like that. You don't need a law to allow you to send someone a letter, just as you don't need a law to allow you to do anything at all. You are free to do anything you like unless there is a law which says you can't do that thing. There is no law which specifically says that TV licensing cannot write to unlicensed properties. More generally, there is Section 1 of the Protection from Harassment Act 1997 which provides at sub-section 1: A person must not pursue a course of conduct — (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. Sub-section 3 provides that the above rule is not breached if "in the particular circumstances the pursuit of the course of conduct was reasonable." Section 7 provides that "course of conduct" means there must be at least two occasions of that conduct, and that harassment includes alarm and distress. It is a fast and straightforward matter to notify TV licensing that you don't need a TV Licence. You are free to do that at any point before or after you receive a letter. If you do so, they will stop writing to you for two years. It seems unlikely therefore that a court would make a finding of harassment. It is reasonable conduct for TV Licensing to write to properties which its records show are unlicensed given that they will stop doing so if you ask them to. "What is the worst that can happen due to ignoring these seemingly empty threats?" If you do not do any of the following: Install or use a television receiver. Have in your possession or control a television receiver which you intend to install or use or which you know or believe someone else intends to install or use, then you can safely ignore the letters free of consequence. If you do any of the above then you will commit an offence under Section 363 of the Communications Act 2003 and you can be prosecuted. |
How is a wealthy criminal expected to get a good lawyer? Say Carl the criminal is a bad guy who's rich. One day, he gets caught. They confiscate his phone and lock him up and deny bail. How is Carl supposed to find a good lawyer? He's locked up and doesn't have access to the internet or even his phone contacts. To be clear, he has tons of money that the very best lawyers would work for. But it means nothing if he can't search online for who's good, etc. Or is it the case that they let Carl use a laptop and access Yelp or something to look for good lawyers? | If Carl is rich, he already has a lawyer. Even if he doesn't already have a lawyer, he can hire the first lawyer he finds to find him another lawyer more to his liking. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | Sounds like you are doing this search surreptitiously. If not, the process is the same, except for asking the lawyer himself. Regardless of the actual value of knowing a lawyer's trial experience - the value and knowledge of an attorney is much more than trial experience, and the best indicators of experience and judgement are the least public aspects of a lawyer's work - there are two major sources of information: public search engines and court record systems. Your searches will yield a lot of raw data in terms of personal names, case names and legal documents that you will need to use your own judgement when analyzing. Google: Best thing to do is start with Google and the lawyer's name. That may sound simplistic, but a simple Google search will give you any firms he is associated with, any news articles with his name in conjunction with trial cases, professional affiliations, and more. Once you find any references, you will find case names, names of past clients, and more. Search again. Follow all the rabbit trails. Google doesn't typically show search results from commercial databases and library catalogs. Most public libraries have access to commercial journal and magazine databases that cover thousands of titles, including law journals, as well as databases of historical newspapers; if not, university libraries do. You may need to go to a state or provincial law college to access legal journals. Contact the people - past clients, etc. - you find and ask them about the lawyer and the trials in question. I doubt very much any lawyer will have anything more to say that you need to talk to him yourself. Bear in mind that if you misrepresent yourself to people you contact about the lawyer - you say you're looking for a long lost cousin on the pretext of finding out information about the lawyer and his cases - you're treading a fine legal line called pretexting. Pretext is legally defined as a reason for an action which is false while offered to cover up the true intention. If you pretext, it can come back to bite you. Court records: Find the court record system for your jurisdiction. These will greatly vary, and vary between civil and criminal courts. Google will lead you to the website of the court jurisdiction in question; there will be different methods of access to the court records systems. The big problem you're up against is that many cases are settled out of court, and there will be no records in court systems. And if there are records, you will have to parse the decisions to find out if the lawyer in question was actually involved. As a last resort (other than asking the lawyer himself), hire an unemployed just-graduated law student to research for you :) | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | The physical cash in the bank is not your property, at least not in US law (according to Scalia). It becomes your property when the withdrawal is performed by some means specified in your contract. A deposit gives you a contractual right to demand money from the bank. Bank robbery is a crime. Having money deposited with the bank doesn't change that. The only possible chance a robber has at trial is jury nullification. I haven't found records for that in Lebanon, but it does have jury trials. Impartial review classifies Lebanon's justice system as somewhat corrupt, but generally compliant with the basic principles. So it might be possible to get away with it at trial, but a very long shot. | Note that an essential element of the offense here is "with purpose to use it criminally." The specifications in B allow a presumption of such purpose, but such a presumption is rebuttable. The tools of a locksmith are somewhat different from those of a criminal "cracksman", I understand, and would probably not be considered "designed or specially adapted for criminal use". But even if they were, proof of regular employment as a locksmith would tend to rebut the presumption of criminal intent. Possession of tools with the intent of lawfully opening one's own lock would not be criminal intent, but a judge or jury might not be convinced of that. | My best guess would be that they're recommending that you get a lawyer if you're trying to get your money back from the thief. A criminal prosecution may not be able to do that. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. |
At what point is it "legal" to overthrow the government? It has been argued that the point of the 2nd amendment is to overthrow a tyrannical government. In the Declaration it states that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.” At what point "Legally", are we allowed to overthrow the government? | Think through the logical combinations of two questions: The government is tyrannical or just, the revolution is successful or not. Tyrannical government, revolution successful: The revolutionaries will congratulate each other, and of course they are not persecuted by the new government they install. Just government, revolution successful: The revolutionaries will congratulate each other, and of course they are not persecuted by the new government they install. Tyrannical government, revolution not successful: The legal system will find the justified attempt illegal (because they are the legal system defending a tyrannical government), the would-be revolutionaries are persecuted. Just government, revolution not successful: The legal system will find the unjustified attempt illegal (because they are the legal system of a just government), the would-be revolutionaries are prosecuted. So 'legal' is the wrong category for your question. The 2nd Amendment allows the citizens to stockpile arms, which helps both justified and not justified revolutions. Finding the justification for a revolution is a moral category, not strictly a legal question. | I think that is not a "reasonable" interpretation of the order, but that's separate from the question of what will be enforced. Focusing on the word of the order, No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer What does it mean to "compel" a person to do something? A court can compel a person to stay in jail for some period of time, and can order the police to use force to enforce that requirement – that's the classical example of compulsion. Nobody except the police can compel a consumer to do anything. All of the words of the order have to be given meaning, and it is not reasonable to say that "compel" is limited to "actions backed up by police action". The government does not separately compel "consumers" and "employees" to do things. In order to sensibly interpret "compel" and "consumer", this has to interpreted as including things other than "pointing a gun at a person". The only sensible interpretation is one that includes denying service to those who do not comply. In addition, the series of "Whereas's" clearly indicate a ban on "no shots, no service" conditions. It remains to be seen in court whether this is found to be enforceable (via the "failure to comply" clause, exactly analogous to other emergency powers allowing restrictions on gatherings etc. previously). | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | No state can amend the US Constitution by itself. Technically, an amendment to the Constitution can be proposed a constitutional convention that is called for by two-thirds of the State legislatures (though this is has never happened; all 27 amendments have been proposed by the Federal Congress, which is the alternative path). This can be done without any kind of Federal approval what so ever. After proposal, an amendment must be ratified by three-fourths of state legislatures. EDIT: Regarding how to "get a convention started": This hasn't been tested, since a non-Congressional amendment has not, to my knowledge, been attempted, but I would imagine a Convention would be called if 2/3rds of the states submitted requests to Congress (which would probably either be a law or a joint-resolution, which is like a law without executive approval, but the form would probably be governed by each state's respective Constitution). Alternatively, it may be sufficient for state legislatures to designate delegates who meet up somewhere (as that is essentially what happened with the Constitutional Congress, i.e. the delegates who met and drafted the US Federal Constitution). A point has been raised in another answer that there may be an issue; however, I'm not convinced of this being a bar to a Convention. The delegates at the Constitutional Congress were original chosen to discuss changes to the Articles of Confederation, but wound up throwing the whole thing out and starting from scratch instead. Therefore, I do not see calls for a convention with differing but related objectives to be a problem; the whole point of a Convention in the Constitutional Amendment process is to discuss and compromise; otherwise, why require it before skipping to the 3/4ths of states ratifying, if the 2/3rds of states already have to agree on exactly what is being proposed before sending delegates. | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | Prior to the 14th and 15th amendments, the US Federal Constitution and the Federal laws passed under it neither allowed nor denied anyone the right to vote. The decisions on who would and would not be allowed to vote, including for members of Congress and for President, was wholly in the hands of the sates, and were regulated by the various state constitutions and laws. A few states permitted women to vote, and at least one permitted free blacks to vote, at least for a period of its history. The Federal government had nothing to say on the matter. In at lesat one case the US Supreme Court refused to consider such a question. That was the case of Luther v. Borden, 48 U.S. (7 How.) 1 (1849) which grew out of the Dorr Rebellion The state of Rhode Island, had retained its pre-revolutionary charter (dating from 1663) as its constitution, and required the ownership of a significant amount of landed property as a qualification to vote. The Wikipedia article on the rebellion (linked above) states: By 1829, 60% of the state's free white men were ineligible to vote (women and most non-white men were prohibited from voting). In 1841 a group led by Thomas Wilson Dorr held a convention to draft a new state Constitution, (known as the "People's Constitution"), and held ratifying votes on the draft. They declared that it had been approved by a majority of those qualified under the old laws as well as a majority of those voting and qualified under the new rules, and that it was therefore the valid constitution of the state. The old (charter) government said this was invalid and illegal. Attempts to establish the new government by force failed. However, a revised state constitution that greatly expanded voting rights was passed and took effect in 1843. Luther v. Borden was a case of trespass against members of the militia acting under the charter government, brought by a supporter of Dorr. The plaintiffs brought extensive evidence (over 150 pages) intended to establish that the Dorr or "People's" constitution had been validly ratified by a majority of voters, and that the old constitution had improperly restricted voting rights. The case went to the US Supreme Court, where Chief Justice Taney wrote in the majority opinion: The plaintiff contends that the charter government was displaced, and ceased to have any lawful power, after the organization, in May, 1842, of the government which he supported, and although that government never was able to exercise any authority in the State nor to command obedience to its laws or to its officers, yet he insists that it was the lawful and established government upon the ground that it was ratified by a large majority of the male people of the State of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the State. ... The point, then, raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State, and the well settled rule in this court is that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. Besides, if the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision. {emphasis added} Thus, until the passage and ratification of the 14th and 15th amendments, which forbid states to deny the vote based on race, national origin, and a few other grounds, the Federal Constitution had nothing to say on the point. States were required to grant the right to vote to women by the 19th amendment in 1920, and the 26th (1971) prohibited denial on the ground of age to anyone 18 or older. The 24th (1964) prohibited denial for failure to pay a poll tax or any other tax. The 14th amendment has been held to guarantee the equal weight of votes, in what was at first known as the "one man, one vote" rule (later "one person, one vote") and has been used to overturn individual and group denials of voting rights. But there were no federal voting rights in the years before 1865. I am not aware of any writings by any of the "founding fathers" (say the members of the Constitutional Convention) that seriously discuss the possibility of a female President. But they did consider and endorse the possibility of a person being elected president who might not be qualified to vote in some of the states. They declined to impose, or permit Congress to impose, a property, or other variable, qualification on the president, even though many of the original states had property qualifications for voters. Options for this were proposed and voted down in the Convention's drafting process. | This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic. The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task. On threats, he says: Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful. On blackmail, he says: [...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected. In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey. | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. |
Is it unethical to file a claim against an attorney who lied? Is it unethical to file a claim with the American Bar Association against the attorney of the opposing party when the attorney lied in court to tip things in his favor (e.g, made a false statement of fact)? What if the Judge ultimately rejected the attorney's claim? Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)? | Is it unethical to file a claim against an attorney who lied? No. It is actually encouraged if the claimant can submit proof of attorney's misconduct. The grievance is to be filed in the claimant's jurisdiction rather than with the American Bar Association. An attorney's lies may be severe enough to constitute fraud on the court and possibly warrant disbarment. See Matter of LaRosee, 122 N.J. 298, 311 (1991). The real question from a practical standpoint is whether the Disciplinary Review Board and related entities will follow through or be unduly lenient about that attorney's misconduct. What if the Judge ultimately rejected the attorney's claim? That does not reduce the impropriety of the attorney's misconduct. The so-called "zealousness" with which lawyers advance their clients' position does not justify indulging in dishonesty devised to result in miscarriage of justice. Is it wrong to bring it to the attention of the judge or do judges frown on such things (since the attorney is representing the other party)? No. Judges generally are not up-to-date about attorneys' misconduct. Putting them on notice might frustrate a crook's further attempts to mislead the court in that and other cases the judge presides. By not reporting a crook, the public remains exposed to risks from that lawyer's pattern of misconduct. | Your lawyer must act in your best interests; not follow your directions Lawyers are professionals and they are supposed to use professional judgement in how they run a case. While a client can suggest a course of action, the lawyer is not only not obliged to follow it, they would be committing malpractice if they unquestioningly did so. Just like a doctor would be if they unthinkingly implemented a patient suggested treatment plan. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. So, a group of Monday-morning quarterbacks who weren’t chosen and don’t know all the facts would have done it differently? Perhaps it was a mistake. Or, perhaps the lawyer judged that there was nothing he could say that would help and considered that sounding desperate about the video would elevate its import in the minds of the jury. | NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory. | Suborning perjury is a criminal offense, at the federal level under 18 USC 1622, and is especially bad for a law firm to do. An attorney has a duty to not allow a client to lie in a legal proceeding, so instructing a client to lie is worse. Legally speaking, you are not compelled to turn them in to the (local US) authorities, unless your country has some odd law requiring citizens to report crimes in foreign countries. Two things can possibly come out of forwarding such an email to the authorities. One is that they will gain access to privileged communication, which they may not be able to use against the client. The other is that they will have evidence of the attorney committing a crime, which is not privileged. See Clark v. United States, 289 U.S. 1: There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. We take no stance on moral questions as to whether you should or should not. | user6726's answer about civil action is good, as you appear to have lots of evidence that document-based in terms of bank records, etc. And media shaming would work; but you could be sued in retaliation, even if you're right. But try calling a prosecutor - such as a county attorney - rather than an arm of law enforcement. The police are always overworked and can be reluctant to try and put a case together for the local prosecutor. Contacting a county attorney is free and doesn't require you to get a lawyer, and it can be a surprisingly effective tactic against a criminal. A phone call or a detailed letter to the county attorney for the person's county of residence that explains the criminal activity may be the key to getting some movement in the situation. You have lots of hard evidence to hand the attorney about an individual who is committing fraud, and that evidence may make simply make the case for the attorney, as it is documented evidence they can immediately verify and use, either at the county level, or be passed to the district (state) prosecutor. A loss of $4000 is significant, and may be a felony in that state. But the "$6,000 in products that were not shipped" is intent on the criminals' part and is not a loss to you. If it is a county with a large population, the attorney will have many assistants who may have time to pursue the case. An attorney for a small county may be looking for an easy case. And who knows? The attorney's office may already know the person - if it's a county with a small population, or if that person already has a criminal history (which you could research yourself in that county's records) - and that makes the case even easier for the attorney. | Generally speaking, no. Assuming your lie did not cause some "legally cognizable harm" -- as in the case of perjury, defamation, fraud -- it is almost certainly protected by the First Amendment. United States v. Alvarez, 567 U.S. 709 (2012). | Based solely on what you've described, what the lawyer did is inappropriate if, in fact, it occurred without any prior permissions. However, since you are not the actual client, it may be that you lack pertinent info, because this would be exceedingly rare behavior. Lawyers are allowed to make procedural and "expert"/professional decisions about your case without your consent, and do so all the time. As a general rule: we decide who to depose, what expert(s) are necessary to prove your claim, what questions to ask in discovery, what to say and when to say it when attempting to settle, and what witnesses to call vs. not to call at panel or trial. All of that is in the purview of the attorney's general discretion and work product. However, attorneys cannot diminish, amend, or settle your claim without your permission, unless you've signed a limited representation agreement and/or a prior authorization to do these things with a waiver of consultation on issues relating to settlement. (It is not uncommon for a client to say, "My bottom line is X; hence, you have my permission to settle the case for anything over that amount.") A client may also, subsequently, give verbal consent, saying things like "just do your best and get what you can". Contingency and Total Award Strategies Since you aren't the one having entered into the contract, you may not be privy to the existence of these types of contingencies. Agreements like this are very common when an attorney takes a weaker med mal claim. It may be that the lawyer will only take the case to the extent that they will try to settle, and may even file the case, with the understanding that they will never try the case. It is a way to try to get you as much as possible when all facts come to light, without agreeing to the expense of a trial. This happens a lot. In these situations, when you are trying to settle a claim that ends up being much less valuable than the attorney thought when he took the case, the insurance carrier will often say, "We will pay X on the claim if Doctor Doe is dismissed out," or something like that. Often lawyers intentionally over-file, in hopes there are two carriers (the more insurance the more money to make you go away) that they can try to settle with. When it turns out both docs are covered under one insurance carrier, then the weaker claim will often get dismissed out. It is a strategic decision to add them, and to dismiss them – and this is very common. Proving malpractice against one doctor is hard enough; trying to prove that you are the victim of double malpractice, back to back, is nearly impossible. All of that said, even if a client has entered into these types of limited or decisional authority-granting agreements, the lawyer still has a duty to keep the client apprised of what's going on. The client may decide later they don't like how little the attorney is stating the claim is worth (despite being forewarned this may happen, it happens all the time that when it actually occurs the client is not happy). In that case, they have the right to find a new lawyer, but that will be very difficult to do for a few reasons: (1) the original attorney is entitled to get paid for the work done under a theory known as “quantum meruit,” so other attorneys will be hesitant to get involved; (2) they will put a lien on any recovery for the amount of time and expenses, to be paid from any settlements or awards (and they get paid first, before the client or the new lawyer); (3) if a client gets angry and says they want to just drop the case rather than have the lawyer make more than the client, even after a year or more of work, all of the costs will still be owed by the client; (4) the potential new attorney will call the one who has the case and ask about whether the client has unreasonable expectations, if their case has any value, etc. Keep mind, if an attorney is doing the things you've described, they probably would suffer no love loss if the case went away. Malpractice in Context It very often happens, especially in medical malpractice cases, that a client will come in and describe the case one way, and then when the medical records arrive and the attorney and/or the paralegal/nurse-para review them, and all the facts get flushed out, it turns out things occurred a bit (or a lot) differently than the client described or recalled in the first place. This is typically not a matter, 99% of the time, of the client lying to the attorney, but rather it is merely the phenomenon of memories being based on their perception of the events/their care, rather than verifiable fact and established medical standards. (This is why eye-witness testimony is so notably unreliable: 10 people can witness the same event and there will inevitably be 10 different descriptions.) One thing all clients should be told by their lawyer (and you should only hire an experienced medical malpractice lawyer for these cases) is that bad outcomes do not equal negligence. Lay people often think that if something bad occurred while under the care of a doctor, this is the case, but it is not the measure of malpractice. Sometimes, even when the doctor does everything according to their specialty/industry standard, bad outcomes happen. Malpractice/negligence only occurs when they have deviated from this standard of care - outcome notwithstanding. The inverse is also true, when it comes to a bad outcome. The doctor may have breached the standard of care, but this cannot be determined by the patient - the law requires expert testimony to establish this. Sometimes bad outcomes are just the risk of the procedure. This is why patients sign (but rarely read) the informed consent forms, that describe in detail, and state the patient is aware, of all the potential bad outcomes that may occur during the procedure. Negligence, or a "breach of the standard of care" occurs when the typical physician (not the best expert in the world, just the normal, typical doctor in that field) would have found the actions to be unreasonable and never acceptable given the totality of the circumstances. Once you prove that, you then still need to prove that is what caused your damages (not the disease, or the ailment itself). Unfortunately, even with the best physicians, bad outcomes happen all the time. It is very common, to the point of being almost predictable, that a medical malpractice claim's value will depart from the original ballpark estimate of value that an attorney tries to "best guess" at the outset. When your attorney tries to value a case, they roughly estimate your "special damages", which consists of medical bills, lost income, lost earning capacity, and other quantifiable sums. Then, they must try to assess the market rate award for pain and suffering for the type injury you've sustained. This is only guesswork, based on jury verdict reports, reported settlements, and the jurisdictional leanings toward large or small verdicts (comparatively). As the case evolves, as facts come to lights, as experts are consulted - this is when these estimates can largely deviate from the original guesstimate based on very limited information. Risks of Contingency Representation At any rate, when a lawyer takes a case on contingency (when they agreed to get paid only if they recover, and not until they recover, aside from out of pocket expenses), they do this because they've relied on the client's account of what happened, as well as their initial assessment of the records, usually prior to hiring an expert (if they even intended to hire one because they agreed to take the case all the way through trial). You must understand that attorneys don't like when a case loses value any more than the client; in fact, probably less as they are the ones who've invested often hundreds of hours in the case at that point. This is how they make their money. Thirty-three percent of a small amount is not the same as that of a large amount. And many, many hours go into these cases. An attorney can make far more than their hourly rate on a great case, but this is balanced by making far, far less on cases whose values plummet as facts come to light. When a case appears to lost much of it's initially estimated value, the attorney will still try to maximize recovery; however, it may not seem that way to the client because after they take their third, and then recoup their expenses (which is on top of the third and is the responsibility of the client win-or-lose), clients can end up with almost nothing. This is because the expense of these cases is enormous and it is the problem with that area of law and the system in general. It is not uncommon for a medical malpractice case to cost, out of pocket, $200,000 or more! This is why so few people are able to get a lawyer to take these cases, and often when they do, it's on the very limited basis I described. Med Malpractice Primer Med Mal cases are some of the hardest cases to win and they are by far some of the most expensive cases to try. This in not accidental. Depending on the state you live in, tort reform (a legislative effort to limit the amount of medical malpractice claims filed and tried overall, as well as limiting their total recovery) can range from limits on damages, to very short windows for statute of limitations, to the requirements (like where I practice) where you must literally try the case twice – once before a med mal screening panel, who hears all your witnesses just as a jury does, and then decides whether the case should (and in some cases can) go forward. In some states (I happen to practice in one) the findings are admissible in court (not the evidence but the finding). So, if the MMPT screening panel finds the doctor was not negligent, or was, but the damages were within the standard disclosed potential outcomes, so there was no causation, or myriad other things, if you decide (or in some states, if you even still get to go to court) the defense gets to say to the jury that the legislatively enacted Med Mal Pre-trial screening panel found X (no negligence, causation, or damages – or all three). These panels are usually comprised of a lawyer (75% defense lawyers) or a judge, and two doctors who are biased against these types of cases in the first place). Also, if your expert gets torn apart on an issue during panel phase, anything they admit can be used against them in the trial. I say all this to help you understand that these cases are made, by the legislature, to be very hard to even find a lawyer to take, very hard to win, and exceedingly expensive to litigate. This is based on the (fallacious) theory that medical malpractice claims should be limited to the most serious claims because this litigation is so costly, and so impactful on the rates all citizens pay for insurance, that the legislature has seen fit to make them very difficult to prosecute, thereby weeding out weak claims. Bottom Line If the client truly feels their lawyer did something they did not have permission (either explicitly in writing, or verbally) to do, they need to talk to the attorney, explain their discomfort with the situation, and figure out why it occurred and if it was truly in the best interest of the case and the client. If the lawyer cannot adequately answer those questions, they should get a second opinion. The client can demand that anything the attorney did be undone, if it was the type of thing that is in the client's control. One would need to see the engagement letter and retention agreement, and also be privy to the conversations. It is, unfortunately, not uncommon for a client to say they understand what the lawyer is proposing when they don't. If you find that's the case, you may have them ask that all determinations be put in writing, with an explanation as to why. | Comments here and here suggest that "irreconcilable differences" can be used to explain "withdrawal when the client fails to compensate the attorney", but it can mean many other things. The point of the phrase is to not divulge the reason. Amidst the various scenarios discussed under Rule 1.16(b), subsections (3) and (4) permit withdrawal when the client fails to compensate the attorney [...] When it comes time for an attorney to prepare the motion for withdrawal for such reasons, however, [...] an attorney may consider citing the ubiquitous “irreconcilable differences” in the motion to withdraw, rather than divulging pernicious information about the client. However, it can mean many other things as well. The point of the phrase is to not divulge the reason for withdrawal. |
What will happen if many people commit one crime? For example, if 100 or 1000 participants plan and murder someone in such a manner that they are equally guilty for example, they mutually came with the idea and willingly participated and so on, you get the idea. Will all be convicted of murder? | If the act and the evidence is sufficient, they will all be convicted. It would not be necessary, for example, to prove that it was Brutus's stab that killed the victim. It is not guaranteed that all of the participants committed the act knowed as 1st degree homicide (picking Washington law), some may be guilty of conspiracy to murder. Liability for a crime can extend to others besides the person who "did it": (3) A person is an accomplice of another person in the commission of a crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he or she: (i) Solicits, commands, encourages, or requests such other person to commit it; or (ii) Aids or agrees to aid such other person in planning or committing it | Why should they? If a person is accused of a crime, say murder, why should more evidence be needed to convict them if they are a high ranking government official than if they are just an ordinary person? Why should their trial be conducted differently? If convicted, why should their punishment be different? Yes, you can run societies that way and people have and do but it isn’t very fair is it? Equality before the law does not imply any other sort of equality People high up in the government have more power and authority than others but if they are alleged to have broken the law they are treated the same as anybody else. | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. | In England and Wales, under section 2 of the Suicide Act 1961 (as amended by section 59 and Schedule 12 of the Coroners and Justice Act 2009) it's a criminal offence to do an act capable of encouraging or assisting someone to commit suicide. I think that applies to Scotland too, and there is similar law in Northern Ireland. Encouraging suicide is also a criminal offence in some other common law jurisdictions, e.g. in Australia. While in other common law jurisdictions, if there isn't such a law, the person might instead be prosecuted for manslaughter - or not at all. The minimum, maximum and recommended penalties may well differ between jurisdictions. I don't know what you mean by "vengeance rampage" but I'm not aware of any jurisdictions where it is lawful for a person to cause harm to someone for revenge. States tend to reserve for themselves a monopoly on the use of force. | We're missing a lot of facts that would help drive the analysis. The first question I'd ask was whether this was part of an actual or attempted sex offense. If that's the case, the suspect could be facing particularly serious charges. Other information is also missing, such as the drug involved, whether it's on the list of controlled substances, her knowledge of the drug, her relationship to the suspect, and so on. Still, based on the information we've got and the inferences we can make from them, I could reasonably see the following charges being filed: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual Sec. 12-3.05. Aggravated battery. (g) Offense based on certain conduct. A person commits aggravated battery when, other than by discharge of a firearm, he or she does any of the following: (1) Violates Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another and any user experiences great bodily harm or permanent disability as a result of the injection, inhalation, or ingestion of any amount of the controlled substance. (2) Knowingly administers to an individual or causes him or her to take, without his or her consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance, or gives to another person any food containing any substance or object intended to cause physical injury if eaten. Sec. 12-4.5. Tampering with food, drugs or cosmetics. (a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics. Sec. 12-5. Reckless conduct. (a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person. Sec. 21-1. Criminal damage to property. (a) A person commits criminal damage to property when he or she: (1) knowingly damages any property of another Sec. 11-1.20. Criminal sexual assault. (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and: (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent; Sec. 11-1.30. Aggravated Criminal Sexual Assault. (a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim, except as provided in paragraph (10); (3) the person acts in a manner that threatens or endangers the life of the victim or any other person; (4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony; (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim's consent or by threat or deception for other than medical purposes; Sec. 11-1.50. Criminal sexual abuse. (a) A person commits criminal sexual abuse if that person: (2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Sec. 11-1.60. Aggravated criminal sexual abuse. (a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim; (5) the person acts in a manner that threatens or endangers the life of the victim or any other person; (6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim's consent or by threat or deception. Sec. 9-1. First degree Murder (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Sec. 9-3. Involuntary Manslaughter and Reckless Homicide. (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly Sec. 9-3.3. Drug-induced homicide. (a) A person commits drug-induced homicide when he or she violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance. Sec. 9-3.4. Concealment of homicidal death. (a) A person commits the offense of concealment of homicidal death when he or she knowingly conceals the death of any other person with knowledge that such other person has died by homicidal means. Sec. 9-3.5. Concealment of death. (b) A person commits the offense of concealment of death when he or she knowingly conceals the death of any other person who died by other than homicidal means. | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | How deterministic is the legal system? It depends. And less than we might wish. It depends on the case. How complex is the fact pattern? How strong is the evidence? How clear is the law? How compelling are the legal precedents? Questions of that nature. The only generalization I might make would be that "lower level" cases seem more deterministic than "higher level" cases. By higher level, I mean those heard by a supreme court making constitutional decisions. Here is a web site that has created a prediction market out of supreme court cases. Many have written on this topic. Read this answer. It is an excellent treatise on the subjectivity of the legal system. Written by a real attorney. Read this answer too. My advice: If you seek a deterministic system, don't look to the legal one. | As of present moment, under no circumstances. That said, the law may and probably will change around that. But the time has not come just yet. Trying to predict what the law will be is out of scope of this site. |
Can a policeman have his service weapon on him in a building that does not allow guns? I am French, so the US regulations about who can hold a gun where are complicated for me, I apologise if the question is obvious in the US. YouTube brought me to a 2019 case (the TV News version and the bodycam version with more details) where a policeman in uniform (and with his service weapon) entered an IRS building for personal business. He was then stopped and "chased" by a security guard because he did not want to remove his service weapon. The policeman was being asked whether he was on official duties (in which case I assume that the service weapon is fine, having all the right paperwork or situation), he said no and wanted to leave. He was stopped by the security guard and finally, it is all the security guard's fault. My questions: Can a policeman enter a no-gun building with his service weapon while on duty, but for personal business? Can a policeman enter a no-gun building with his service weapon while not on duty (again, for personal business)? Can a security guard stop someone who entered the no-gun building by all reasonable means awaiting for police to intervene? (the rationale being that someone broke the law) | A follow-up story appears on the local ABC television station, indicating that the security guard pleaded no contest to simple assault. The fact that the security guard was convicted of a misdemeanor does not necessarily indicate that the deputy was allowed to have the gun in the IRS office, only that the security guard's response to the situation was not acceptable. I am not able to locate any firearm policy for the Lucas County, Ohio' sheriff's office. Many US law enforcement agencies have a policy that their officers carry their firearms essentially at all times, so that they can respond to unexpected incidents even when they are off duty. At the same time, owners of private property ordinarily can admit people, or not, for any reason at all. Unless the officer has an official reason for entering a property when the owner doesn't want the officer there, the officer isn't allowed to enter. It appears that in this case the officer had no official law-enforcement reason to enter. But this case doesn't involve private property, it involves federal property. A digest from the FBI states "Federal laws or regulations are not superseded by LEOSA. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property." | Aiden4's answer about Winconsin's statute 948.60 is correct, but incomplete and the complete reason is interesting/funny, so I'll expand on it: The statute reads: 948.60 Possession of a dangerous weapon by a person under 18. (1) In this section, “dangerous weapon" means any firearm, loaded or unloaded; any electric weapon, as defined in s. 941.295 (1c) (a); metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles; a nunchaku or any similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather; a cestus or similar material weighted with metal or other substance and worn on the hand; a shuriken or any similar pointed star-like object intended to injure a person when thrown; or a manrikigusari or similar length of chain having weighted ends. (2) (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor. (b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony. (c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another. (d) A person under 17 years of age who has violated this subsection is subject to the provisions of ch. 938 unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183. (3) (a) This section does not apply to a person under 18 years of age who possesses or is armed with a dangerous weapon when the dangerous weapon is being used in target practice under the supervision of an adult or in a course of instruction in the traditional and proper use of the dangerous weapon under the supervision of an adult. This section does not apply to an adult who transfers a dangerous weapon to a person under 18 years of age for use only in target practice under the adult's supervision or in a course of instruction in the traditional and proper use of the dangerous weapon under the adult's supervision. (b) This section does not apply to a person under 18 years of age who is a member of the armed forces or national guard and who possesses or is armed with a dangerous weapon in the line of duty. This section does not apply to an adult who is a member of the armed forces or national guard and who transfers a dangerous weapon to a person under 18 years of age in the line of duty. (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. 2 things to note: (1) takes care to include, in the list of dangerous weapons: nunchaku, shuriken and manrikigusari. While the first 2 are more or less familiar to everyone knows anything about Japanese martial arts, the last one had to be looked up by everyone following the case to discover that it's the "secret weapon of the Ninja"(even more than the shuriken). (3.c) says that the whole of this entire section applies[adding the brackets to make following the formal logic easier] only if (the person under 18 is in violation of 941.28[barrel length under 16 inches]) or (is not in compliance with ss. 29.304[Restrictions on hunting and use of firearms by persons under 16 years of age] and 29.593[Requirement for certificate of accomplishment to obtain hunting approval]). In programming terms(for those so inclined), 3.C could be written as: IF ((barrelLengthInches < 16) OR (huntingUnder16Applies AND huntingCertificateApplies)) THEN statute948.60Applies ELSE statute948.60DoesNotApply Since the barrel length is over 16'' and Rittenhouse is over 16 and no hunting permit was required for his activities, the whole section of the law did not apply. Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. In essence, that the legislators drafting that law spent too much time watching cheesy early 90's action movies and thinking of how to save Wisconsinites from the Ninja threat, to draft the law properly, so it should be read according to its intent from the title of the section. However, there is a binding Common Law precedent, dating back from the 16th century called the "Rule of Lenity", also called "Strict Constructionism" in the US, whereby if the legislature screws up, it's the legislature's problem. In the original case, the law in England forbade "felonious stealing of Horses, Geldings or Mares". A thief was caught, but argued that since he only stole one horse and the law specified horses, the law didn't apply to him. He was let off and the law hastily rectified. Pre-revolutionary Common Law precedent is binding in the US and it was re-affirmed multiple times, e.g. United States v. Wiltberger, where a US sailor got off with killing another US sailor in a Chinese estuary, because the law only applied on the "high seas". So, the charge was tossed and the defense didn't press the issue further. However, the really interesting bit is that even though it didn't get to be argued since Rittenhouse was 17, the way the law is actually written, this section only applies if (huntingUnder16Applies AND huntingCertificateApplies). That means that there is literally nothing in Wisconsin barring a 12 year old(under 12 is separately forbidden in the 29.304/huntingUnder16Applies section) from possessing and using an AR-15(or AK-47), as long as the barrel is >16'' and a hunting license isn't required for the activity. I think that the legislature will amend the law with haste, before it can be tested on 12 year olds. P.S. the other guy who gave him the gun will get off with this precedent too, since the statute for his charge is: This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. i.e. the same 3 sub-sections as for Rittenhouse. | An obvious example would be a contract that gives possession of something to someone else. It's normally legal to use some reasonable amount of force to protect or prevent trespasses against property you own, but if you give possession of that property to someone else you can lose that right. For example, you can use force remove a guest who refuses to leave real property you own, but can't use force to remove a tenant even if they broke the terms of your contract. In most jurisdictions you'd need to get a court order and have the police use force if necessary remove the tenant. | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. | Of course not. If the owner/tenant needed to be home I could rent a house in my name, and then never occupy it (my associates live there) the cops could never enter. Wilson v. Arkansas, 514 U.S. 927 (1995) - Cops executing a warrant need to knock. If no one answers they must wait a reasonable time for an occupant to let them in. It's the knock and announce rule. By implication it might lend authority to what is an obvious answer. | Under current federal law, we would have to wait for some legislative body to change the law. If ATF changes the federal regulations, they might be classed as "machine guns" (under the "frame designed for converting" clause), which are banned. As the above Docket No. 2017R–22 (from December 26, 2017) says, DoJ expects to plan to discuss changing the rules. They might then be outlawed by executive action (though a court test could be necessary, since executive wish is not the final word on interpreting statutes). The relevant part of the definition of machine gun, which could apply to bump stocks, is: The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. But "such" weapon is one that shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger The definition does not say anything about a single finger action, so there is a reasonable probability that including bump stocks within the scope of existing legislation would be held to exceed congressional authority. | The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion." For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID. A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc. The nature of the suspicion doesn't have to be shared with you until you challenge it in court. A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future. | This helpful video gives the answer, and it's no, you don't have to open your door unless they have a warrant. If you've committed an indictable offence (those considered most serious, such as murder, manslaughter, causing really serious harm (injury) and robbery) they have the power to enter without a warrant (see 17 b of the PACE Act). In the case I saw there was no indictable offence and so the lady didn't (shouldn't!) have opened her door. You can speak to them through a closed door or window and if they try to break in it is they that are breaking the law. |
Locked room double murder Consider a hypothetical room with in it two murder victims. Two people are both suspects of both murders. There is overwhelming evidence to show that the victims were not killed by the same person. It can also be proven that no one besides the two suspects could possibly have commited the murders. We can deduce logically that both suspects committed precisely one murder, but we don't know who killed who. Can the suspects be found guilty of murder? | Yes Now, murder needs a definition because they are all subtly different. Let’s use the one in the new-south-wales Crimes Act 1900: Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. The only real difficulty is in the phrase “causing the death charged”. So a sensible prosecutor would charge both defendants with both deaths. A jury would find them guilty beyond reasonable doubt of one of the “death[s] charged”. The case is similar to Rogerson and McNamara who took a live Jamie Gao into a storeroom and came out with a body. Each accused the other of the murder - the jury didn’t believe either of them. | So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification. | First we should be more specific about a person being "accused" – we should disregard lunatic rantings, and limit our attention to a person who has been officially, legally accused of a crime (which is the class of acts to which the concept "guilt" applies). In all jurisdictions, a formal accusation must be supported with some evidence. In light of that, by definition it is possible that the accused is guilty. The fact-finders will then weigh that evidence and conclude that the evidence meets the standard of proof for guilt, or does not. It is then logically incoherent to deny that guilt is a possibility, unless the intent is that all accused persons should be found innocent irrespective of the evidence. The finder of fact must allow both possible outcomes. The reason for the "innocent until proven guilty" viewpoint is that it puts a specific burden of proof on the government: the government has to not just knock down all of the accused's defenses, it has to conjure up a certain level of sufficiently-convincing evidence proving guilt. This is to avoid the situation that characterizes totalitarian regimes where the tyrant can accuse a person of a random crime, offer no evidence, then insist that the accused somehow prove their innocence. | "Double jeopardy" applies to a criminal proceeding, that is one that needs to be proved "beyond a reasonable doubt," and involves criminal sanctions such as jail time. Once OJ was acquitted of criminal charges, he couldn't be tried again as a "criminal." The second trial was a civil trial, with a "lesser" standard of proof (preponderance of evidence), and lesser "damages" (money, not jail time). So even though the facts were the same, OJ was accused of violating a different standard, that is a different "law" so to speak. He could be tried for a "tort" just not a crime. Or put another way, "wrongful death" is not the same as murder. The latter requires intent. Wrongful death suggests "tortious" negligence, but not necessarily intent. | If I remember the case correctly, he didn't make his home look uninhabited (that is nobody is living there) but as if the inhabitants had left (gone shopping etc.) to make it look attractive to burglars. He then waited inside, armed with a gun, with the intent of shooting any burglars that might arrive. He shot the first burglar in the legs, and then proceeded to kill the unarmed and now defenseless burglar, who was lying injured on the ground and was in no position anymore to hurt him. He then did the same with a second burglar, shooting her in the legs, then shooting her multiple times, and when he found she was still alive, he shot her point blank in the face while she was lying on the ground. You are asking the wrong questions. You are asking "is it illegal to remove a truck". It's not. What is illegal is to intentionally create a situation where you shoot people and try to claim "self defence". It can very well be argued that by luring burglars into your home with the intent to kill them, they are not actually illegal in that home, because you wanted them to be there. You can do many things that are each completely innocent but add up to a crime. Actually, for everyone interested, I posted a question maybe last week or the week before whether you can be convicted for both first degree murder and second degree murder for killing a person, and it was exactly this case that inspired the question. What should he have done? If he hadn't lured the burglars in, I believe the case would have still been a double murder, since he killed both unarmed teenagers when they were absolutely no threat. It might not have been first degree murder since it would not have been premeditated. But he intentionally lured them in, making it premeditated (first degree) murder. If he had only injured them, the fact that he lured them in could very likely have made this an assault. You asked: "Now that the burglars are in his house, what should he have done? " Well, he got himself into a dangerous situation. Remember, he was convicted for premeditated murder. So just before he shot the girl in the head, he should have instead put the gun away and called police and an ambulance. It would have been one murder instead of two. Just before he shot the boy, he should have put the gun away and called police and an ambulance. It would have been just attempted murder. When he heard the first person entering, he should have called the police and waited. When the burglar came in sight, he should not have shot and injured him. It's a similar question to "if I try a bank robbery and there is an armed guard, what should I do". The only legal thing to do is to drop your weapon and wait to be arrested. If an armed burglar had appeared instead of two unarmed teens, well, he would have put himself into a dangerous situation. Just as the burglar would have no right to shoot even if a home owner points a weapon at him, he had no right to shoot, no right to self defense, since he had intentionally created the situation. Tough shit. That's what you may get if you plan a murder. Responding to some comments: @J.Chang Are you being serious? You are not allowed to make your house inviting to burglars, while waiting inside with the intent of killing them. Self defense only applies when a reasonable person would believe they are in danger. Reasonable persons don't think that a burglar comes in with the intent of blowing themselves up and taking the home owner with them. And no, you don't get to "assume the worst". Not when the worst is something no reasonable person would expect. Thanks to Dale for pointing out that even for soldiers in a war situation, where different rules apply, deliberately killing a helpless enemy combatant is murder. | The most important rule for an extradition from Germany is this: If the role of the countries were reversed, would the person be convicted in Germany according to German law? You say the link claims that he couldn't be convicted now, because he would have been convicted twice for the same crime. So he wouldn't be convicted in Germany if the roles of the countries were reversed, therefore no extradition. (The next important rule is this: There must be enough evidence that the person would be prosecuted in Germany, not necessarily convicted. You also need to convince the court that the accused will get a fair trial when extradited, that there will be no cruel or unusual punishment, including death sentence, and lastly there is no extradition for small crimes when the extradition plus having to appear in a foreign court can be considered worse punishment than the actual punishment for the crime. All these irrelevant in this case, I think). "Auslieferung unstatthaft" just means "extradition inadmissible" or "extradition illegal". PS. Ludl asked "shouldn't there be some law that if someone cannot be extradited from Germany because of extradition law, they can still be prosecuted in Germany". That would be completely unnecessary. Let's say one US citizen murders another one in Germany, the USA asks for extradition (they wouldn't, because it is a German matter, but they could ask of course), and Germany rightfully refuses. Then since it is a murder on German ground, it will be prosecuted in Germany. It would be absurd to think that a failed extradition request could protect a murderer. | So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because "a reviewing court resolves neither credibility issues nor evidentiary conflicts." People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you. | Intent matters here, but yes. Alice could be considered guilty of either Second-Degree Murder or Manslaughter, though the latter is far more likely. Texas has no laws condoning assisted suicide that could absolve Alice. Second-degree murder requires the following: The defendant intentionally and knowingly caused the death of another person The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual This is tenuous, but it could be argued this way if Alice intended to cause Bob's death. It certainly meets the second criteria: shooting oneself constitutes serious harm and giving a firearm to someone who has stated an intent to kill themself is reckless. It's more likely that Alice would be charged with manslaughter. The only definition is: A person commits an offense if he recklessly causes the death of an individual. As discussed above, giving someone who has announced an intent to kill themself a loaded gun is reckless. Alice's actions resulted in Bob's death. |
To what extent can Disney restrict Actively commissioned police officers from carrying firearms on Disney property? A friend I know told me of an incident where he was approached by several security officers at Disney Springs outdoor shopping area. At the time, he was an active duty police officer that always carried off-duty. Not thinking there would be restrictions in an outdoor shopping area, he carried his off-duty weapon (concealed). He went to a restaurant with his 3 children and sat down to eat. After he sat down, he was approached by, at least, 5 security officers (uniformed and plain clothed). They asked him if he was carrying and told him that he is not allowed to carry his weapon on the property. Embarrassed and upset about the encounter, my friend identified himself and said "yes, I carry.". He was told that he had to store his weapon at there facility and was escorted by the squad to their security office to fill out paperwork and store his weapon. He told me that he never exposed or talked about his weapon at any time before this encounter. Also, he was embarrassed about being treated like a criminal and that he had to leave his children (unsupervised) at the restaurant until he filled out his paperwork and stored his weapon (approx. 40 minutes). | Disney World is a private entity and private property, and they are free to impose and enforce their own security procedures and requirements, and that includes restricting guns. It doesn't matter how Disney security found that the person was carrying, and it doesn't matter if he was a police officer who happened to be off duty. https://disneyworld.disney.go.com/park-rules/ Also see https://thefirearmfirm.com/carrying-a-firearm-at-disney/ Some states do have laws that allow for firearms on private land and in private businesses, but Florida is not one. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3789216 | Generally, it is forbidden on Santa Clara County property. Santa Clara County Ordinances section B19-10 (a): It shall be unlawful for any person to bring onto or possess a Firearm, loaded or unloaded, or Ammunition, or both, on County Property. This subsection shall not apply where the possession of Firearms or Ammunition is prohibited by State law. There is, however, an exception at B19-11 (n) that may be relevant: Subsection B19-10(a) does not apply to the following: [...] (n) A person lawfully possessing an unloaded Firearm or Ammunition, or both, in the locked trunk of, or inside a Locked Container in, a motor vehicle; So the prohibition would not apply if you keep the firearm unloaded and locked in your trunk the entire time you are on county property. It isn't clear whether that is what you had in mind. As for parks specifically, there is B14-31.1 (a): No person shall set, leave or deposit, or have in his or her possession, any weapon, spear, missile, sling shot, trap or hunting device, air or gas weapon, throwing knife or axe, or any other weapon or device capable of injuring or killing any person or animal, damaging any property or natural resource, except in areas established for such use or while in direct transit to or from such areas and available parking. It's not clear to me whether this would prohibit a weapon in the trunk. You'd be well advised to ask the park officials for their interpretation; they might also be able to tell you if there are other relevant regulations. | This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best. | Aside from the law regarding trespass, ORS 498.120 specifically forbids hunting on another’s cultivated or enclosed land. The land need not be fenced or posted with "No trespassing" signs: For the purpose of subsection (1) of this section, the boundaries of “enclosed” land may be indicated by wire, ditch, hedge, fence, water or by any visible or distinctive lines that indicate a separation from the surrounding or contiguous territory, Apparently hunters have some obligation to be aware of private land boundaries in the areas they hunt. The degree of this responsibility is something that is still regularly disputed in court. In the linked case of State v. Hinton, a hunter was convicted of criminal trespass with a firearm. This was prosecuted as a violation rather than a misdemeanor which reduced the state's burden of proof to a preponderance of the evidence. The hunter moved for a dismissal, claiming that the state hadn't proved that a reasonable person would have known they were on private land: The evidence presented at trial shows that there was nothing about the border between BLM land and the GI Ranch where defendant walked that would cause a reasonable person to believe that permission was required to enter. The landscape was the same. There was no fence. There were no signs posted. The border between the GI Ranch and the BLM [land] was in the middle of thousands of acres of the high desert of central Oregon. The circuit court denied the dismissal, and the hunter appealed. The Oregon State Appeals court affirmed the circuit court's rejection of the dismissal: Specifically, the record provides ample evidence that, using maps, people in this area can determine generally where they are and whether they are on GI Ranch land or BLM land. To be sure, they may not be able to know "the very second" that they cross onto private land. But, viewed in the state's favor, the record establishes that reasonable people can know generally once they have made the crossing. | Law Enforcement can return a firearm to its owner so long as the owner is not prohibited from possessing firearms, as defined in 18 U.S.C. § 922(g). A person can demand the return of property seized as evidence, if both: The property is not needed for evidence in a criminal trial. The property is not "contraband" (meaning illegal for the claimant to possess). If Law Enforcement does not agree to return the property then the owner can petition a Court of jurisdiction for an order that it be returned. | Utah has a lot of public parks, so to point in the right direction, I will assume that this is a public park in Salt Lake City, it's just a plain old grassy field, and it's not during a special event. A person is suspected of some crime like selling drugs, not arrested, but told by a police officer to go away and never come back. This is way beyond the power of the police. After due legal process, a proven (not just suspected) public menace could be ordered by the court to stay away from the park. A police officer can, of course, order a person to leave a park when they violate a park rule, in fact rule number 1 is "It is unlawful for any person to do or to allow or permit any of the acts prohibited by this chapter in any park in Salt Lake City", so the police cannot legally turn a blind eye to rule violations. Violation of park rules is an infraction which can earn you a ticket of up to $299. However, the officer can tell you to go away, rather than giving you a ticket or arresting you. But an police order cannot issue a unilateral restraining order. Apart from city laws, there are general state laws regarding trespass and destruction of property. The state criminal trespass law says that A person is guilty of criminal trespass if...knowing the person's... entry or presence is unlawful, the person enters or remains on to which notice against entering is given by...personal communication to the person by the owner or someone with apparent authority to act for the owner In this case, the owner is the city, and the officer has apparent authority to act for that owner. In the case of private property, the owner or his agent has very broad authority to give notice requiring you to leave (e.g. if you don't like their politics or their shirt); but in the case of public property, the government has more narrowly circumscribed authority to kick you out. | In general property owners and employers can impose any rules on their property and employees (respectively) that are not prohibited by law. Granted, there are extensive statutes and regulations to protect "employee rights." I have not heard of protections that include "possession of prescribed medications," but that does not mean they don't exist in your jurisdiction. If you really want to know whether you have a legal right as an employee, and you can't find it in written law or regulation, you would have to consult regulators or employment law attorneys in your jurisdiction. (As a practical matter, of course, it might make sense to first find out whether one's employer wants to assert a policy infringing the right in question.) | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). |
What does it mean that one may go by whatever name they like by English law? It seems to be a long-standing and fairly fundamental perception in English law that people may assume or use any name they so like. I’ve seen this discussed in House of Lords decisions, possibly also court of appeal ones, and it further came up last night in a discussion with an English person on the history of personal monikers in England and the proposition that all English surnames come from one of four origins (patronymic, locative, profession, personal characteristic). In any event, what is the basis and/or rationale for that doctrine, and what are the particular terms of its functioning? Has it changed and evolved over the centuries? What did it mean in the past? Was there an expectation that one maintained a consistent identity across all of the spheres and contexts in their life over any one period? Or could one assume one identity in their work, another at university, and then marry under yet another name? And maintain all of these identities simultaneously? Or is it more to say that any time one wishes to change their moniker they are allowed to so long as they assume that new identity in all aspects of their life? To what extent and how has that doctrine changed over the years, and did the domesday book play a pivotal role in the situation changing? | The common law is permissive That is to say that, in a common law jurisdiction, the law is about what you must not do rather than about what you must do. Now, particular statutes may be phrased as requiring certain actions but, if you read them the “common law way” to coin a phrase, they are really imposing sanctions for doing the prohibited thing that falls outside those parameters. Since there is no legal prohibition on using multiple names (simultaneously or sequentially) you are free to do so. Now, there are common law prohibitions of, for example, fraud or tax evasion. So, if you use different names for the purpose of doing those prohibited things, then that is illegal but it is the specific criminality that is sanctioned, not the use of the alias in perpetrating it. The UK has a law that makes it a crime to not register the birth of a child. It also imposes some (and by most country’s standards, very few) restrictions on the name a child can be registered under. But there is no legal obligation on the child or their parents to use the registered name in any particular circumstances. There may be difficulties (amounting to impossibility in some cases) in obtaining a passport, opening a bank account, or claiming social security under a non-registered name but that is due to the necessity to identify the individual for which the name serves as a proxy. However, outside the requirements of specific statutes or administrative procedures, the common law position is that your name is what people call you and you identify as your name. The second part is important - I have been called dickhead on many occasions but I do not consider it to be my name. The UK has a patronymic tradition for surnames so, usually, on marriage, the female adopts the surname of the male and that, through the marriage certificate, becomes her registered name. However, it is extremely common for women to continue to use their original (and now not registered) name in their professional life and her new name in her private life. This can be problematic. My wife, has on server all occasions been refused permission to board a plane because the ticket (booked by others) was in her maiden name - a name for which she has no official identification. However, that’s a procedural problem - she didn’t do anything illegal. | No. In formal writing, you refer to people by name. After you use their full name you can just use their last name in future references, but you don't refer to them by their initials. Even in informal writing, you normally don't use initials unless the person is commonly known by their initials (e.g. JFK) or unless you're using shorthand. | It is not clear to me how you "use" a mythological entity, and I take no position as to the divine consequences of any unauthorized uses, but you are entitled to incorporate then in your own intellectual creations for two reasons. First, any imaginable copyright on original texts (e.g. the Bhagavad Gita) has long since expired. Not all texts are of such certifiably ancient provenance, so there may be contemporary texts created by a practitioner of Ásatrúarfélagið which is protected. Second, names (Amitāyus, Zaraθuštra, Ngai) are not protected by copyright, so you can use names. | Under the present constitution . . . Are there any consequences of the fact that the Constitution of Massachusetts and the Constitution of the United States use two different names for that state? No. Lots of the language in the United States Constitution is no longer in place or in common usage or is invalid due to subsequent amendments, and that language is still effective as originally intended. The U.S. Constitution has never been "amended and restated" and can't be understood properly without annotations to its raw text. Might a federal statute be needed for some states (e.g. Vermont, because of what is noted above) but not for others, because of differences in the federal statutes that admitted the state, or because of the lack of any need for admission by Congress in the case of the original thirteen states? Not really. Every state's name is embedded in myriad federal laws and regulations in addition to the statute that admitted the state to the United States, e.g. laws assigning names to post offices, laws allocating judgeships, laws purchasing property, laws appropriating funds, laws assigning states to various districts for purposes of executive branch departments and the judiciary, tax laws (e.g. the Obamacare tax credit), etc. Would a state statute suffice? Would a state constitutional amendment suffice? Would a federal statute suffice without a state statute or a state referendum? Would a federal constitutional amendment be needed? A federal constitutional amendment would not be needed. The Constitution vests Congress with the authority to admit states and to change their boundaries with the permission of the affected states. This would be within the power over states that could be inferred from those powers. A state and the federal government could each pass a statute to call itself something different for various purposes. For example, the official name of the state of Rhode Island is "State of Rhode Island and Providence Plantations" but various state and federal statutes authorize the use of the short form of the "State of Rhode Island" for most purposes. As a practical matter a state constitutional amendment would probably be desirable on general principles to officially change the name of a state, whether or not it was strictly required, in part, because a state constitution usually sets forth an official name of a state in its body text. It would be possible for a state to change its constitution and statutes and change its name in a move that the federal government did not accept, and if that happened, the federal government and its officials would probably continue to use the old name and the state government and its officials would probably use the new name. I think it is as a practical matter, unlikely that a standoff like this would persist, but I think that this is the most likely outcome. A federal government move to change a state's name without its consent proactively, however, would probably be struck down as violating federalism concerns. Of course, all of this is speculative, because there are really no precedents for disputes over the changing of a state's name. Context would influence the outcome of any such case. | Are there any laws or regulations in place to prevent companies from using deceptive names or branding? united-kingdom Yes. The applicable legislation may be found in the Companies Act 2006. Section 1198 states that: (1) A person must not carry on business in the United Kingdom under a name that gives so misleading an indication of the nature of the activities of the business as to be likely to cause harm to the public (2) A person who uses a name in contravention of this section commits an offence. [...] Also a further provision at Section 54 states that: (1) The approval of the Secretary of State is required for a company to be registered under this Act by a name that would be likely to give the impression that the company is connected with— (a) Her (sic) Majesty's Government, any part of the Scottish administration, the Welsh Assembly Government or Her Majesty's Government in Northern Ireland, (b) a local authority, or (c) any public authority specified for the purposes of this section by regulations made by the Secretary of State. [...] The Regulations referred to above are the Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2014 which lists, at Schedule 1, a host of words and expressions that are prohibited or require approval as the case may be. This list is far too long to reproduce in full, but by way of example it includes: Bank Charity Child support Police Royal Stock exchange University | See Attorney at law, is there any other kind? As expatiated on English Stack Exchange, Attorney-At-Law can be distinguished from Attorney-In-Fact. I quote from the University of New Mexico's Judicial Education Center Attorney-at-Law – A licensed advocate or counsel authorized by the courts to prepare, manage and try cases in court, to prepare legal documents, or otherwise represent the interests of citizens. Attorney-in-Fact - A private person (who is not necessarily a lawyer) authorized by another to act in his/her place, either for some particular purpose, as to do a specified act; or for the transaction of business in general, not of legal character. This authority is conferred by an instrument in writing, called a letter of attorney, or more commonly a power of attorney. Grammarphobia dated August 23 2012 answers your question. Q: Why is a lawyer called an “attorney at law” and not an “attorney of law”? Doesn’t “at” refer to a place? An MD is a “doctor of medicine” not a “doctor at medicine.” A: In American English, the terms “lawyer,” “attorney,” and “attorney at law” are pretty much interchangeable, according to Garner’s Dictionary of Legal Usage (3rd ed.). All three refer to “a licensed lawyer.” The legal dictionary, written by Bryan A. Garner, says “lawyer” and “attorney,” the most common of these terms in the US, “are not generally distinguished even by members of the profession.” However, these three terms have had different meanings in different places and times. In England, for example, an attorney used to practice in common-law courts and a solicitor in equity courts. But the term “attorney” developed “an unpleasant smell about it,” Garner writes, and “in the nineteenth century it was supplanted in England by solicitor.” (As the Oxford English Dictionary explains, the word “attorney” was often used reproachfully to mean something like “knave or swindler.”) In the US, on the other hand, the term “attorney” has become a somewhat tony (or, as Garner puts it, more formal and less disparaging) version of “lawyer,” while “solicitor” has taken on an offensive whiff, as in signs like “No Peddlers or Solicitors.” Why, you ask, is an attorney “at” law rather than “of” or “in” law? Doesn’t “at” refer to a place? Well, all three prepositions were used in the past, according to published references in the OED, but they referred to the place where the attorney practiced, not to the practice of law itself. The Oxford editors say “attorney-at-law” (they hyphenate the term) originally referred to a “professional and properly-qualified legal agent practising in the courts of Common Law (as a solicitor practised in the courts of Equity).” Interestingly, the earliest OED citation for “attorney at law,” from William Blackstone’s Commentaries on the Laws of England (1768), refers to lawyers at admiralty and ecclesiastical courts, not courts of common law: “An attorney at law answers to the procurator, or proctor, of the civilians and canonists.” (A procurator, or proctor, used to be a legal representative in English admiralty or ecclesiastical courts.) Why, you might wonder, has the term “attorney at law” survived when “attorney” and “lawyer” can do the job just as well with two fewer words? Well, we could be cynical and say that the kind of lawyer who feels it’s classy to be called an “attorney” would probably feel it’s even classier to be called an “attorney at law.” But there’s a more respectable reason for the survival of the longer term. It distinguishes an “attorney at law” (a licensed lawyer) from an “attorney in fact” (someone with a power of attorney to act for another). In fact, when the word “attorney” entered English in the 1300s (borrowed from Old French), it referred to someone “appointed or ordained to act for another; an agent, deputy, commissioner,” according to the OED. Here’s an example from Shakespeare’s The Comedy of Errors (circa 1594): I will attend my husband, be his nurse, Diet his sickness, for it is my office, And will have no attorney but myself; And therefore let me have him home with me. By the 1400s, the word “attorney” was being used to mean a lawyer practicing in the common-law courts in England. But around the same time it took on its negative sense. Here’s a later example from Alexander Pope’s essay Of the Use of Riches (1733): “Vile Attornies, now an useless race.” And here’s one from The Life of Samuel Johnson (1791), by James Boswell: “Johnson observed, that ‘he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney.’ ” The word “lawyer,” which entered English around the same time as “attorney,” has roots in the Old English word for law, lagu. From the beginning, according to the OED, it meant what it does now: “One versed in the law; a member of the legal profession.” We’ll end with this proverb from The Arte of Rhetorique (1553), by Thomas Wilson: “The lawyer never dieth a begger. The lawyer can never want a livyng till the yearth want men.” | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | Most of your examples don't seem to be so much self-contradictory, as limited to a subset of the obvious meaning for purposes of a particular law. When a term has a specific meaning within a particular field or context, it is often called a "term of art". For example "Fair use" is a term of art in US Copyright law, and "Under color of law" is a term of art in US civil rights law. "Standing" is a term of art in most common-law jurisdictions. But a term of art is usually somewhat broadly understood, and is not limited to one particular law or section of law. I would just call such a thing a "specially defined term" or just say "Q as defined for purposes of the XYZ law". |
The Social Action Responsibility and Heroism Act (England and Wales) Is there an equivalent law in SCOTLAND and NORTHERN IRELAND to The Social Action Responsibility and Heroism Act 2015 (England and Wales)? | just found this when I had a similar question of my own so thought I would share the response I got: no there isn't a Scottish equivalent to the English SARHA. And there has been some criticism of it: https://www.modernlawreview.co.uk/january-2017/my-legislation-copy-4/ https://www.bristollawreview.com/single-post/2018/06/12/is-sarah-heroic-at-all https://www.lexisnexis.co.uk/blog/dispute-resolution/whats-the-point-of-the-social-action-responsibility-heroism-act | Let's break it apart: The police has an union or charity. That's legal in most jurisdictions. The union or charity accepts donations from non-police. Also legal in most jurisdictions. The union communicates who the donors are. Generally legal in most jurisdictions. Keeping it secret would be just as problematic. Police officers have some discretion if and how they charge incidents. That's just common sense. Otherwise you get cases like 8-year-olds being arrested. (You get those anyway when the police don't use their discretion, or if the laws are too rigid.) Police officers let themselves be influenced by the donor card in how they apply their discretion. That's usually illegal on the part of the police officer. The Brits use the catchphrase 'without fear or favour.' But it is difficult to prove, even if it is systematic. The union issues donor cards to facilitate the effects of the previous bullet point. That sounds at the very least unethical. Some might argue that it is organized corruption. On the other hand, you can assume that the police unions have some decent lawyers on staff, and that they made sure that the words on their cards are not blatantly illegal in the jurisdiction in question. It might take something like a whistleblower, a sting operation, or an internal affairs investigation to prove corruption. | It looks to me as if "money laundering" is a misunderstanding; though any organization has a duty to prevent this, charities have no special responsibilties. However, charity law does in general terms prevent a charity from giving money to a cause that does not further the charity's aims. The Charity Commission's guidance says "Charities can only spend their money on projects or activities that support the aims stated in their governing document" (and although it goes on to outline exceptions, you still need to obtain the Commission's agreement to return a gift from a source you find objectionable, for example). The rationale is that people gave money to the University to further the cause of education; the researchers have no right to divert that money to Shelter (or another charity like the Roman Catholic Church) without the giver's consent. My experienced but non-expert view is that these payments would be a breach of the law, though they would probably be treated as a de minimis exception; you can't blame the University's legal team for insisting they should not be made. | The answer to this depends very much in which country you are in, and how you go about implementing it. First of all, this might seem obvious, but copyright only applies if you copy something that is covered under copyright. If you copy an idea - that having a library that solves problem X is useful - and that is the only aspect you copy, then under U.K. Copyright law, there is no copyright infringement, as ideas are not copyrighted. However, if you copy aspects of the library interface, or the object model of the original library, then it's a derived work, and the copyright of the new work is only partly yours. If you translate the source into a new language, then the copyright is largely still with the original author. Every country implements copyright law in their own way. One of the principle differences are in the available "fair use" clauses. You may find that you are entitled to a fair use clause for creating a "compatible" library, or you may be allowed to quote small aspects of the original in your new work. You need to check up on your countries laws. | england-and-wales No. This type of approach is a breach of the Solicitors Regulation Authority's (SRA) Code of Conduct for solicitors, Registered European Lawyers, and Registered Foreign Lawyers Paragraph 8.9 of the Code states that: You do not make unsolicited approaches to members of the public, with the exception of current or former clients, in order to advertise legal services provided by you, or your business or employer. This requirement is clarified by SRA Guidance that says: ...advertising to the public is permitted, subject to certain conditions... ... Specifically, you are allowed to advertise your services to the public so long as this is done in a non-intrusive and non-targeted way. This means, for example, that you may place an advert on the radio or TV, on billboards, in a local newspaper, online or on a social media platform. However, this advertising is limited... Paragraphs 8.9 and 7.1(c)1 of the Standards and Regulations prohibit unsolicited approaches to members of the public which, even if permitted by law, may feel unwelcome or intrusive. ... This means you cannot make direct or specifically targeted "approaches" to members of the public in person, by phone or via other means which target them individually. (My emphasis) This guidance goes on to give an example of prohibited advertising of the sort suggested by the OP: Firm A identifies from online media a list of people who have recently been involved in a major road traffic accident. The firm sends them a letter saying that it can help claim compensation. We [i.e. the SRA] would consider this a breach of our standards as it involves a targeted approach to specific members of the public which may feel intrusive to those who receive it due to the particular circumstances that they find themselves in. 1Paragraph 7.1 (c) of the Code of Conduct for Firms applies the same standard to firms. | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | In the United States, there is no potential liability for the municipality or the police department. There is no legally enforceable duty of police to act to prevent either violations of the law, or apprehend criminals, or to prevent suicide of people who are not in police custody. Other countries have different laws on this subject. | Yes, in england-and-wales the Criminal Finances Act 2017 introduced 'Unexplained Wealth Orders', which compel the respondent to provide a statement: (a) setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made, (b) explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met), (c) where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and (d) setting out such other information in connection with the property as may be so specified. There a few requirements set out in section 362B, for example, the property must have value of over £50,000; there should be "reasonable grounds" for suspicion that the respondent would have been unable to obtain the property using their lawfully obtained income; the respondent or their connections must have either been involved in serious or organised crime, or be a politically exposed person, and so on. If the respondent refuses to make such a statement, the police may apply for a Civil Recovery Order to confiscate the property, with the property in question "presumed to be recoverable property" (section 362C(2)). Giving false information in such a statement is a criminal offence. |
If a rift expands the surface of one's land (e.g., resulting from an earthquake), who owns the new land? Looking at the geological pictures of the 2023 Turkey–Syria earthquake made me wonder: If a rift expands the surface of one's land, who owns the new land (i.e., the rift)? I'm mostly interested in the United States. Example of a rift that significantly expanded someone's property: | california The relevant parties may go to court for an equitable solution. See the 2010 California Code of Civil Procedure Chapter 3.6. Cullen Earthquake Act: 751.50. If the boundaries of land owned either by public or by private entities have been disturbed by earth movements such as, but not limited to, slides, subsidence, lateral or vertical displacements or similar disasters caused by man, or by earthquake or other acts of God, so that such lands are in a location different from that at which they were located prior to the disaster, an action in rem may be brought to equitably reestablish boundaries and to quiet title to land within the boundaries so reestablished.** (my emboldenment and embedded link) | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | The terms transfer IP rights only for the New IP, meaning that Customer would own the new stuff. Developer will still own their old stuff, but Customer will have the right to use the old stuff, depending on the license terms. If the license is as in your link, then it is forever (but this is a stub, so I assume that the license will be more specific and possibly restrictive). You retain all your rights to old stuff, customer will not pay royalties for the old stuff, and they can transfer or extend the license, or part of the license, to others. | In the general case, when a company is dissolved any assets still belonging to it becomes bona vacantia under Section 1012 of the Companies Act 2006 which means that it belongs to the Crown. The Crown can then choose to disclaim its rights to the asset under Section 1013, and typically will do this where there are risks involved (e.g. leasehold land). The effect of dislaimer, per Sections 1014 and 1015 is that the "property is deemed not to have vested in the Crown" and it terminates "the rights, interests and liabilities of the company in or in respect of the property disclaimed". In the case of freehold land that is disclaimed, it escheats (transfers) to the Crown Estate and the freehold interest is extinguished. According to Practical Law (paywall): Note, if the land is registered, the registered title will remain and the Land Registrar may enter a notice on the Land Registry title if notified (rule 173, Land Registration Rules 2003). The notice will recite the fact of the liquidator's disclaimer or Crown disclaimer but will not otherwise specify that the land has passed by escheat. The Crown Estate then becomes entitled (but not obliged) to take possession of it. The Crown Estate will not assume any liabilities as owner of the land unless it does take possession or exercises control over the property. The result of this is that the only action the Crown Estate will generally take as regards escheated land is to sell the whole of the land to a suitable buyer who approaches the Crown Estate. You can read more about how the Crown Estate subsequently deals with such property (including if and how it sells the property) in their FAQs. | What a lovely question! US Copyright law is clear: the author of a creative work owns the copyright unless it is work for hire. In this instance, the photographer is not doing work for hire so they own the copyright. However, the photographer does not own a copy of the photograph – that is owned by the owner of the camera. The photographer cannot demand that they give him a copy but the parties can agree on such a transfer on whatever terms they like. As the owner of a “physical” copy they can do what they like with that copy but they cannot duplicate it except as fair use or as licensed. They could sell the memory card to whomever they like but the new owner couldn’t copy it either so it would seriously limit publication. Similarly they could move the file provided there was only one copy. Arguably, they could make a print of it providing they deleted the electronic version without copyright violation. Which brings us to who owns the copyright now. The camera owner can argue that the photographer has gifted the copyright to them. This is quite a strong argument as the parties' intentions at the time of arranging the taking of the photograph is that the photographer would have no further interest in it – after all he probably doesn’t want to hang a photo of some strangers on his wall. However, in many jurisdictions, including the united-states, copyright transfers must be in writing. As a fallback position the camera owner can argue there is an implicit license given even if copyright was not transferred. The scope of the license then becomes an issue. It is probably indisputable that the license is perpetual and royalty free. What is arguable is if the license allows commercial exploitation or only personal use. This is where the battle lines would be drawn and I don’t know how it would play out. Other jurisdictions are different For example, in Australia, copyright in a photo commissioned “for valuable consideration” for a “private or domestic purpose” vests in the commissioning party, not the photographer; even though this is not work for hire by an employee. For the circumstances you describe, the purpose is “private or domestic” but there is no “valuable consideration” so the photographer owns the copyright in this case. However, if there was an agreement to “pay” the photographer (even one as simple as “I’ll take your family photo if you’ll take mine”) then the person who asked for the photo to be taken owns the copyright. | I find the "is collapsing" statement troubling. Companies grow, shrink, and restructure all the time. Nelnet might be coming apart, or somebody might be trying to generate clicks for a news story. The normal situation, when a company goes into bankrupcty proceedings, is that a trustee tries to recover as much of the assets as possible to pay out creditors. This would suggest an increased, not decreased, attempt to collect repayments. | There is no "theft" without a law that defines what "property" is and what "theft" is. Laws derive from the state that has the power to enforce them. A state may issue the laws and decrees and stablish who owns the lands. It can later make changes to that ownership. When the Normans invaded England, Willian I became the legal authority and with that he could award, confiscate and keep lands as he saw fit, without that being considered "theft" in any legal sense of the word. The English government (and all others) still have the authority to take away, redistribute and otherwise change the ownership of lands as they see fit, and nothing of it would be theft. Internally most of them have chosen to stablish some procedures to ensure that this is only done when needed by meeting some tests (eminent domain), but even if they didn't have those (again, self-imposed) restrictions they still would be able to change ownership as they saw fit. That does not mean that a government using that power to punish political opponents or ethnic minorities would not face internal and external protests. |
Is it legal for police to travel with a film crew and publicize arrest footage without consent? Am I right to assume that police bodycam footage is only allowed to be released as part of a court order / as evidence? If this were true, than wouldn't a news crew accompanying the police officer be illegal? I'll explain this further: I recently saw a video on Youtube where a person is being arrested by a traffic officer for a minor violation. Accompanying the officer is a videographer who apparently works for a news network. The traffic stop is being filmed as part of a Cops-type series called Bad Drivers or something. If the news crew were to have simply stumbled upon the arrest, I can understand their right to publicize. But this situation happened on the side of the freeway, and it's clear the news crew was either following or being transported by the police. Furthermore, as the stopped driver is basically under arrest, the cop is the only one in this situation who can command the filmers to stop. Since the filming would not occur without the cop's support, it seems like the cop should be responsible for the filming (and the same laws as body cameras should apply). I am in San Francisco, California, USA, but interested in other areas' laws as well. | It's really the other way around: film crews can legally travel with the police. This is very similar or identical to what you saw on YouTube. From http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html (dated 4/18/2014) "Cops" will soon begin a 10-week filming stretch in San Jose, California, for the first time in the show's 26-year history, reports the San Jose Mercury News. The "Cops" crew will hit the streets alongside San Jose's finest to provide a window into what these men and women do in America's 10th largest city. More from that link: When the officers on "Cops" arrest most of their suspects, the circumstances leading up to the arrest are out in public. However, in order to avoid unlawfully appropriating the images of those caught on "Cops'" cameras, the crew asks the arrestees to sign a release form. The "news crew" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public. This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered. The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change. Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions. ...the cop is the only one in this situation who can command the filmers to stop. Even if the "news crew" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that. But https://photographyisnotacrime.com/ is a good resource. In the US, you pretty much have no expectation of privacy while in public. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. | You have no right to privacy in public What you do and say in public is … public. In general, in common law jurisdictions, anyone and everyone has the right to record you unless you have a “reasonable expectation of privacy”. Where the exact line on that is situational but if you are shouting racist slurs, you don’t have it. The person who made the recording owns the recording and none of the people in the recording have a say in what they do with it. However, under privacy laws like the GDPR, a person’s image and voice are personal data so any data processor must have a legal reason for processing it. However, such laws do not usually extend to private individuals acting in a private capacity. So images captured on a private phone are unlikely to be caught while images on a corporate CCTV system will be. | Note: I am not familiar with Washington law, but I can make an educated guess as to what is happening here. I am guessing that the couple in question are the joint registered owners of the motor vehicle. In many jurisdictions, motor vehicles are treated differently from "normal" things, they are treated as inherently dangerous and thus ownership carries a certain set of responsibilities. (Similar to e.g. owning a firearm, which carries with it certain restrictions on how it can be stored, for example.) One of those responsibilities is to keep track of who is operating the motor vehicle. Therefore, unless the operator of the motor vehicle can clearly be identified without incurring unreasonable cost, tickets for traffic violations are generally addressed to the registered owner, who can then forward them to the responsible operator. (Note that "unreasonable cost" does not have to be monetary. It could also be an invasion of privacy: it is less invasive to just ask the owner to identify the operator than to e.g. surveil the owner's property to find out who is using the vehicle or run facial recognition against the owner's family, friends, and colleagues.) In many jurisdictions, there is a form attached to the ticket (or downloadable from some website) which will look something like this: I accept the ticket: [ ] I do not accept the ticket [ ] because … I was operating the vehicle, but I did not run the red light [ ] I was not operating the vehicle [ ] … the vehicle was operated by: name ___, address ___ … I do not know who was operating the vehicle at that time [ ] If you claim not to know who was operating the vehicle at the time in question, that might have other consequences. In some jurisdictions, you can then be ordered to keep a logbook, for example. If the vehicle then gets caught again and you again claim to now know who was operating it, or you cannot produce the logbook, you might get fined for violating the court order to keep a logbook. | If you recorded the clip, you have copyright on it, and distributing it (which includes posting it) without your consent is copyright infringement. However that is not a crime. You could sue, but that would be expensive and not quick. You could, if this is in the US, send a DMCA takedown notice. That this clip was recorded in your apartment or other dwelling would only matter if an invasion of privacy claim would apply. That depends on which US state is involved. In most states if it is available at all it applies only if the content would be "highly offensive to a reasonable person". Also, that is again a civil suit, not a crime. | Retaining video from the buffer period advances law-enforcement and accountability purposes by making it more likely that the camera will retain footage of whatever caused the officer to turn the camera on in the first place. If a police officer says you ran a red light, the dash camera will show what actually happened if the officer turned it on within 30 seconds of you passing through the intersection. If a corrections officer says he had to use force because an inmate jumped him, the buffer period allows the camera to capture not just the officer hitting the inmate, but also whatever happened immediately prior. According to Axon, which seems to have largest market share in the BWC space, the lack of audio is meant to protect the officers' privacy: Cops feared they might tell a joke or discuss a personal situation like a divorce before they double-pressed the large button on the device to activate it. They didn’t want their private conversations to become public along with the buffer that preserves 30 seconds of video before the device is activated | To be very straightforward, yes, a police department would very likely have records of their past interactions with you in the form of police reports. They cannot just throw them away because it's been scrubbed from your public record. They detail the interactions the police officer had with you. That being said, those records would not show up in a general inquiry into your record, because those records are meant to protect the officer and the department as a reference point they can go back to in case some dispute arose in the future. If a police officer really wanted to find them, they'd have to do a bit of digging for them. The difficulty in finding them would depend on what system the particular police department uses to store those records. Smaller departments may just file them in a cabinet somewhere, whereas larger ones may actually have their own searchable database. But a traffic cop out on the street is only gonna see what you're seeing at the DMV - nothing. There is also a formal NCIC database, but traffic violations would never end up in there. That is a national database that basically stores red flag persons of interest (think stolen vehicles, sex offenders, and gang members). Sometimes multiple departments within a state will share their information with each other, but a department's database is usually kept to that department only. Also keep in mind court records. The court case that had a violation removed under such and such conditions is still gonna be a public record. Those records would generally be available to a judge overseeing your case so if you repeatedly end up in court for the same thing, they're gonna know and they're gonna stop scrubbing it from your record or offerring certain options because you're clearly not learning your lesson. Many laws allow you to have one offense stricken per year and similar stuff like that, but that kind of stuff doesn't just permanently disappear. They have to keep record of it in order to know you've already had your once per year etc. Also a note about parking violations: not all of those are actually issued by police. If it was issued by a private firm then that is not something that would ever show up on your record. It would just be in a database somewhere with whatever private firm issued the fine. Those kind of tickets get sent to collections and hurt your credit score if you don't pay them, rather than affecting your driving record. | UPDATE On 24/07/2023, Assistant Commissioner Matt Twist, a senior officer in the Metropolitan Police Service (the "Met"), released a statement giving the police's account of the incident and the "legal basis for her arrest" as requested by the OP. It is quite lengthy but I have resisted editing or redacting it to ensure the whole statement is available to those users (like me) that would rather not follow anonymous links. I have also resisted emboldening any of the text to allow users to make up their own minds without any unconscious bias on my part. Finally, I have left my original answer as is for posterity. The statement in full reads as follows (with the description of what caused the arrest bolded): “It is clear from the video that has been shared online that this incident was distressing for the woman involved and particularly for her child. We understand why it has prompted significant public concern and we want to be transparent about our position and the role of our officers. “Officers from the Met’s Roads and Transport Policing Command were supporting TfL ticket inspectors on a pre-planned operation in Whitehorse Road, Croydon on Friday, 21 July. As buses pulled into the stop, TfL inspectors would check the tickets of those onboard and also those getting off. “Anyone without a valid ticket is required to provide their details to a TfL inspector so a penalty fare can be issued. This is not a policing matter. Officers only become involved where details are not provided or where someone tries to leave when challenged. “The woman involved in this incident was asked to provide her ticket as she got off the bus, but did not do so. She was spoken to by a TfL inspector, then by a PCSO and finally by a police officer. She continued to try to walk away and did not provide her ticket for inspection. “She was arrested on suspicion of fare evasion and was handcuffed. When officers were able to take her ticket from her so that the TfL inspectors could check it, they were able to confirm it was valid. She was immediately de-arrested and her handcuffs were removed. “Throughout the incident, the child was comforted by a PCSO who immediately recognised his distress. Anyone seeing how upset he was would be moved by this, and we regret any impact it may have on him. “We recognise that the use of handcuffs can be a cause of concern, particularly given the context of this incident and the type of offence involved, but when a person is trying to physically leave an incident it is an option officers can consider. All uses of force must be proportionate and necessary in the circumstances. “Ticket inspection operations of this nature are difficult. They place police officers in direct confrontation with frustrated members of the public and could escalate what would otherwise be civil matters to a different level. “This incident raises questions about the extent to which officers are having to intervene in this way when supporting TfL in their operations. We will now work with TfL to ensure that the balance is right between officers tackling the most serious crime on the transport network and supporting their own operations to ensure revenue protection. “An initial review of the officers’ actions did not identify any conduct matters but we will reflect on it carefully, in discussion with communities locally, to urgently identify any opportunities to do things differently. “Given the level of community concern generated we believe it is in the public interest to voluntarily refer the matter to the Independent Office for Police Conduct to review.” ORIGINAL ANSWER YES A breach of the Regulations is a summary offence. As such, a suspect may be arrested if all the relevant conditions at section 24 Police and Criminal Evidence Act 1984 are met. See section 67 Public Passenger Vehicles Act 1981: Penalty for breach of regulations. Subject to section 68(1) of this Act [i.e. reasonable excuse], if a person acts in contravention of, or fails to comply with, any regulations made by the Secretary of State under this Act and contravention thereof, or failure to comply therewith, is not made an offence under any other provision of this Act, he shall for each offence be liable on summary conviction to a fine not exceeding level 2 on the standard scale. And see Paragraph 7 Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990: (2) ... every passenger on a vehicle being used for the carriage of passengers at separate fares shall– (a)declare, if so requested by the driver, inspector or conductor, the journey which he intends to take, is taking or has taken in the vehicle; (b)where the vehicle is being operated by the driver without a conductor– (i)save as provided in (ii) below, immediately on boarding the vehicle, pay the fare for the journey he intends to take to the driver or, where appropriate, by inserting in any fare-collection equipment provided on the vehicle the money or token required to pay that fare; or (ii)if otherwise directed by the driver, an inspector or a notice displayed on the vehicle, shall pay the fare for his journey in accordance with the direction; (c)where the vehicle is being operated by the driver with a conductor, pay the fare for the journey which he intends to take, is taking, or has taken in the vehicle to the conductor immediately on being requested to do so by the conductor or an inspector; (d)accept and retain for the rest of his journey any ticket which is provided on payment of a fare in accordance with sub-paragraph (b) or (c); (e)produce during his journey any ticket which has been issued to him either under sub-paragraph (d) or before he started his journey for inspection by the driver, inspector or conductor on being requested to do so by the driver, inspector or conductor; and (f)as soon as he has completed the journey for which he has a ticket, either– (i)leave the vehicle; or (ii)pay the fare for any further journey which he intends to take on the vehicle. Paragraph 7 covers numerous alternative scenarios and as I have not seen the video, nor know the surrounding circumstances, I have emboldened the more likely alleged breach(es). I will review this if/when more details become available. |
US: Is it legal to jam radio/cell communications if entirely confined to your own private property? In the US, is it legal to jam radio/cell communications if such jamming is entirely confined to your own private property? And does it matter whether you are in a building or not? Imagine now that you have constructed a Faraday cage on your property so that external radio/cell signals cannot enter and internal radio/cell signals cannot exit. If you are inside the Faraday cage, is it legal or illegal to operate a radio/cell jammer? These questions are intended to ask about the legality of a private citizen doing this without knowledge or approval by any governmental authority. If the jurisdiction typically matters let's say New York, New York, USA. | Yes, if it works. FCC regulations allow operation of interfering equipment (for tests and experiment) provided the interference is fully contained in a Faraday cage. You must still "comply with the general prohibition against causing harmful interference to other spectrum users". | Yes you can, subject to your equipment meeting applicable FCC Part 15 regulations. Ricochet Wireless did exactly what you proposed, running a mobile data network at 900 MHz. Currently, carriers including Verizon run LTE in the 5 GHz Wi-Fi band. However, there's a potentially better choice, the Citizens Broadband Radio Service. This is a "lightly" licensed service, with cheaper and free licenses that are coordinated in shared spectrum. Companies run private CBRS LTE and you can buy small base stations like Wi-Fi access points. More importantly, many commercial handsets support this frequency band, like newer iPhones. | As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to "private communication": therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication. You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are unaware of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits recording it. An unavoidable sign may aid you in your quest to not get sued. | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). | Can you be trespassing on public property for no reason at all? Yes. When the government owns property, it can direct you to leave for any reason (even a legally invalid reason), and you are trespassing if you don't leave. When you are present on land you don't own with permission, but without a lease, you have a "license" to be there which is a contract-like right and is not a property right. A license doesn't give you the right to stay on the property over the objections of the owner or an agent of the owner. You might be able to receive money damages for an improper termination of your license to be present at the property (e.g. if you are told for no reason to leave a movie after paying for a ticket), but you don't have the right to simply stay there. If you stay there over the objections of the owner or the owner's agent, you are trespassing. The law applicable to government property owners and private property owners is basically the same in this regard. Realistically, on government property, furthermore, the standard by which the government employee may legally terminate your license to be there and exclude you from the property is low. Basically, it must merely not violate any constitutional right you may have, and you do not have a constitutional right to be present on government owned property, except in a quite narrow subset of cases (e.g. the "town square"). More exactly, you do not have a right to be on government property per se, but you can't be excluded from it for a constitutionally impermissible reason. The government gets to decide what parts of property it owns are available to the general public and for what content-neutral purposes. Thus, the right to be present on government owned "public" property (which doesn't include private areas of government owned property) can be subjected to reasonable and content-neutral time, place, and manner restrictions. For example, a town could legally decide that the town square is closed from midnight to eight a.m. every day. The quoted material from the case Chicago v. Morales, 527 U.S. 41, 53-54 (1999) cited in the answer by bdb484 is narrower than a plain reading out of context would suggest. In that quotation, the term "public place" is being used in a sense much more restrictive than in the broader sense of property that is merely government owned. It is referring to places where the government has expressly or implicitly allowed members of the general public to be present on land that it owns (as opposed, for example, to a government office area of a building, or a maintenance facility in a government owned park, or a conservation area in a government owned park). This narrow sense of the word resolves what would otherwise seem to be a contradiction in the law. But, the government has the authority to make something that once was a public place into a non-public place going forward. For example, historically, the Civic Center park in front of the capitol in Denver, Colorado has been a public place. But, the government can and did close it off to the public for many months for maintenance and out of public health concerns when heavy use of it by homeless people and drug dealers caused the premises to be seriously damaged and created a public health risk from it being used to dispose of dirty, used, injection-drug syringes, and for people to defecate. A Hypothetical Suppose that Chris is the sole librarian in one of the towns of College Corner, which is on the Ohio-Indiana border, which are in different time zones. In that capacity, Chris has the authority to set library policies including the hours of the library and the rules for its use without the approval of anyone else. Chris has a hot date at 5:30 p.m. But, at lunch time, Chris learned that the hot date was at 5:30 p.m. in Ohio and not an hour later at 5:30 p.m. in Indiana, but the library's official closing time is 5 p.m. in Indiana, because Ohio was observing daylight savings time, but Indian was not, at the time when this happened. Chris, as the sole government official in charge of the library, decides to close the library before its posted closing time at 4:00 p.m. Indiana time (5 p.m. Ohio time) in order to be able to make it to the hot date. Chris quietly asks everyone left in the library to leave at 4 p.m. Indiana time, and everyone but you does. But you, who are homeless, really want to stay the extra hour before getting out in the cold and finding a bridge to sleep under, so you refuse to leave saying that the library is still open until 5 p.m. Indiana time, as stated in its posted hours. Chris orders you to leave and warns you that he is calling the police to remove you if you don't do so voluntarily. The police arrive and restate the complaint of Chris. The police arrest you for trespassing and you are charged with this crime in the appropriate court by the appropriate prosecuting attorney. You had done nothing wrong whatsoever prior to being asked to leave and refusing to do so. But, Chris has not violated your constitutional rights by ordering you removed for some unconstitutional reason. Chris then goes on the hot date; it is love at first sight, and Chris gets married the next week. As an apology for putting you out for the sole convenience of Chris, Chris invites you to the wedding. Do you have a valid defense to the criminal trespassing charge on the grounds that the librarian's actions were unconstitutional? No. You might have a "good faith claim of right" defense, however, to the criminal charges. Do you have a valid claim for money damages for a violation of your constitutional rights? No. Indeed, ordering you removed for "no reason" that has anything to do with your conduct, as in this case, is probably more likely to be legal and constitutional, than having you removed for "some reason" other than just "because I the librarian say so" that doesn't involve wrongdoing on your part. A Variation In The Hypothetical If instead, your were being ordered to leave the library because you were wearing an National Rifle Association cap (and the library didn't prohibit wearing caps), this affirmative reason, which is contrary to the First Amendment freedom of expression, would be a violation of your constitutional rights, which would definitely be a basis for a civil lawsuit against the librarian and police involved in you being arrested. I don't know the details of constitutional defenses in criminal law well enough to know if the violation of your constitutional rights would be a valid defense to the criminal trespassing charge (or a failure to obey a police officer's order to leave charge) resulting from you failing to leave in that circumstance, and I can see legitimate arguments both ways. This is also a situation where the non-constitutional claim of right defense to a trespassing charge would be a strong one. | someone I spoke with said "there is to be no recording of this or any other calls". Must I follow this instruction? Although, in Canada, there is no requirement on you to obtain consent to make recording, this explicit objection creates a hurdle. If you simply ignore the objection and record the conversation anyway without letting the objecting party know, you may give them a ground for a claim under the breach of confidence doctrine. The safest move would be to reply: No. There will be recording of this and any other calls. It will be then up to them to hang up. If they don't, they lose all grounds for any claims. | Your description of the facts is vague enough that we can't offer an informed judgment, but to remedy this, I will paraphrase your account of the facts (you can decide whether this is what you were trying to say). I was sitting outside of the Sprint store today waiting for my step daughter to come out. While waiting, two police officers walked up to my car and asked me to turn off my vehicle and come inside. When I voluntarily went inside, the store staff said that they called the police because they had had some sort of problems with people applying for service and absconding with the phone to resell on the black market, and they thought that was part of some such criminal plan. Because of that, they refused to give her a phone or service contract. But then they also told us to never come back, threatening arrest for trespassing. I have never been in that store before. Were my rights violated? No, neither by the police nor by the manager. The police, or the store manager, can legally request you to come in for a conversation: what matters most is whether you were forced to come in against your will. By your report, you were not, so your rights were not violated. The police are irrelevant to the remainder of the question. What remains is whether your rights were violated because the manager told you to go away and never come back under pain of prosecution. The store is private property, meaning that the owner has wide latitude to grant or deny permission to enter. If they hate pink hair and your hair is pink, they can legally "ban" you. If they suspect you of involvement in a criminal activity, that can most certainly legally ban you. That does not mean that it was a righteous or justified decision on their part, or a good business choice, but it is their legal right. So, no, your rights were not violated. |
Is it a crime in the United States to say "the people want to bring down the regime"? Link The said law says: Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons. (June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 2, 70 Stat. 623; Pub. L. 87–486, June 19, 1962, 76 Stat. 103; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.) Reference My question is, Does saying, "the people want to bring down the regime" constitute knowingly or willfully advocating the "overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession"? | It is not a crime to say, "The people want to bring down the regime." This specific tweet is almost certainly not illegal. Even if this guy is subjectively trying to overthrow the government, this would probably be an impossible prosecution for a lot of reasons. First: 18 USC 2385 deals with "overthrow or destruction of the government." Does "regime" mean the government or does it just mean the Trump administration? I'm guessing it just means the administration, and if that's the case, you're dealing with a matter of public concern rather than a true threat of overthrow. Especially because this comes right after the election, you've got strong arguments that this is commentary on a matter of public concern, e.g., "the people want to end the Trump regime," or maybe "the people wanted regime change and therefore voted for Trump, or that you need a change in the constitutional form of government to do away with the Electoral College." Whatever it means, commentary on a matter of public concern cannot be punished under Section 2385. Rankin v. McPherson, 483 U.S. 378 (1987). Second: 18 USC 2385 deals with overthrow by "by force or violence." To say you want to bring down the regime says nothing about how you want to bring down the regime. Third: The invocation of the Arab Spring could sort of cut in either direction, as it involved regime changes effected both through nonviolent protest and violent revolution. Fourth: Even if we interpret this as Ayloush saying that regime change would be good, that he personally wants regime change, or that other people should want or work toward regime change, that's still not enough to get you into the conduct prohibited by Section 2385, which does not prohibit "doctrinal justification of forcible overthrow." Here's some relevant language from Noto v. United States, 367 U.S. 290 (1961): [T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material. This seems like pretty solidly First Amendment-protected political speech. | Most people would refer to this as "defense of others." In North Carolina, though, the relevant statute, G.S. 14-51.3, formally refers to this as "Use of force in defense of person." The statute allows a defense against criminal and civil liability for non-deadly force used "against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force." Note, however, that the statute does not allow you to invoke the defense when the victim "is a law enforcement officer ... was lawfully acting in the performance of his or her official duties and ... identified himself or herself in accordance with any applicable law." This raises the question of whether the officer in this case was "lawfully acting in the performance of his official duties" when the relative intervened. If he was, the defense would likely be unavailable. | The constitutional provision quoted in the question has been interpreted to require that a jury trial be available to a person accused of crime by the US Federal Government. Then accused is free to waive this right, and be tried by a judge only if s/he so chooses. The accuse is also free to waive the right to a trial altogether, and plead guilty (or "no contest" which waives a trail without an admission of guilt). The provision could reasonably be interpreted to require that if there is a trial, it be by jury. But I don't see how it could reasonably be read to require trials in all cases, and forbid guilty pleas. | The restrictions of the First Amendment have been made applicable to the states via the Fourteenth Amendment. For the right to assemble, this was recognized in De Jonge v. Oregon, 299 U.S. 353 (1937). But note that the right only protects peaceable assembly. When it is alleged that improper violence or other properly unlawful action has occurred, the state may make that criminal, and indeed laws against rioting have existed throughout the history of the US. Whether a law is criminalizing peaceful assembly or prohibiting unlawful violence is a question that depends on th wording of the law, and the way it is applied In the De Jonge opinion the Court wrote: The broad reach of the statute as thus applied is plain. While defendant was a member of the Communist Party, that membership was not necessary to conviction on such a charge. A like fate might have attended any speaker, although not a member, who "assisted in the conduct" of the meeting. However innocuous the object of the meeting, however lawful the subjects and tenor of the addresses, however reasonable and timely the discussion, all those assisting in the conduct of the meeting would be subject to imprisonment as felons if the meeting were held by the Communist Party. ... While the States are entitled to protect themselves from the abuse of the privileges of our institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect revolutionary changes in government, none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application. In Gitlow v. New York, 268 U. S. 652, under the New York statute defining criminal anarchy, the defendant was found to be responsible for a "manifesto" advocating the overthrow of the government by violence and unlawful means. Id. pp. 268 U. S. 656, 268 U. S. 662, 268 U. S. 663. In Whitney v. California, 274 U. S. 357, under the California statute relating to criminal syndicalism, the defendant was found guilty of willfully and deliberately assisting in the forming of an organization for the purpose of carrying on a revolutionary class struggle by criminal methods ... Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. Gitlow v. New York, supra, p. 268 U. S. 666; Stromberg v. California, supra, p. 283 U. S. 368; Near v. Minnesota, 283 U. S. 697, 283 U. S. 707; Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 243, 297 U. S. 244. The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental. As this Court said in United States v. Cruikshank, 92 U. S. 542, 92 U. S. 552: implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316; Powell v. Alabama, 287 U. S. 45, 287 U. S. 67; Grosjean v. American Press Co., supra. | The comments have already pointed out that the President of the United States is still a citizen, and all of the rights of a citizen are still protected for them. Additionally, the Administration is allowed to take policy positions which are antagonistic to a person or group's cause, even if that group is practicing their rights to express their views legally. To give a different example, the President and his administration may denounce the position of a group of Neo-Nazis marching legally. So, any argument that the President is acting in an official capacity while making antagonistic comments also probably fails, as the Administration is allowed to take a position on any issue they deem worth taking a stand on. As noted in another answer and in comments, the applicable laws appear to be 18 U.S. Code § 227, which provides for punishment of government officials who attempt to influence employment decisions through official acts for political purposes, and 42 U.S. Code § 1983, which provides for civil action when a person deprives, or causes the deprivation of, another person's rights under color of law. 18 U.S. Code § 227 likely does not apply for two reasons The President may show that his conduct was not purely for political purpose The official statements made do not qualify as official acts per McDonnell v. United States, as they are not a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official 42 U.S. Code § 1983 might apply if the official statements were found to be acting under color of law, but I think the statements made so far will fail to meet the qualifications for this statute. Blair v. Bethel School District gives three qualifications for conduct that would allow recovery under this statute: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. The President's and Administration's official speech appears to fail the second criteria. First, it is questionable whether it qualifies as an "Adverse Action" - in Blair, as well as Hartman v. Moore and Gibson v. United States, the adverse action against the Plaintiff caused actual damage or indignity. However, even if we assume the official speech qualifies as an adverse action for the purposes of the statute, it still appears to be permissible for effectively the same reasons as the first and third arguments presented in the decision: First, the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one's speech do not give rise to a First Amendment claim. The actual effect of the Administration's speech has a minimal direct effect on the players it speaks against. The decision further states: The most familiar adverse actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory in nature” and have the effect of punishing someone for his or her speech Official speech by the Administration is not "regulatory, proscriptive, or compulsory in nature." While this is not a complete definition for "adverse action," it gives a sense of severity, which official speech does not appear to meet. Additionally, the President's right to speech, and the Administration's authority and need to make official speech as directed by the President is a competing interest in this case, as was the interest of the Board in Blair: Third, it is significant that Blair isn't the only party in this case whose interests implicate First Amendment concerns. To the contrary, we assume all of the Board members have a protected interest in speaking out and voting their conscience... The decision does note that: The point isn't that the vote against Blair was protected speech simply because it was expressive. Almost all retaliatory actions can be said to be expressive, including those that are manifestly unconstitutional. But, while Blair certainly had a First Amendment right to criticize Seigel and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board. Similarly, it's probable that a court would find that the President's right to speech and their Administration's corresponding authority to speech against the players' right to protest is equally weighted or even weightier, such that stifling the official speech is as bad or worse than the alleged chilling effect of the speech. Some examples of things that clearly would fall afoul of 42 U.S. Code § 1983 would be the President or the Administration misappropriating funds to use to pay NFL teams not to hire players who kneel during the national anthem, or signing an Executive Order preventing players who kneel during the national anthem from playing - in both cases, they are taking actions which fall outside the powers of their office, which would qualify as acts made under color of law and clearly chill the players' First Amendment rights. | This is interesting because things get extremely different on state and federal levels. Quoting this, Under modern U.S. law, suicide is no longer a crime. Some states, however, classify attempted suicide as a criminal act, but prosecutions are rare, especially when the offender is terminally ill. The "some states" part is much more important than was emphasized there, however. A case that reached the Virginia Supreme Court, Wackwitz v. Roy (referred to in Wikipedia) pivoted about the legality of suicide. From the decision: We are aware of only one legislative enactment that addresses suicide as a crime. Code § 55-4 provides that "[n]o suicide ... shall work a corruption of blood or forfeiture of estate." Thus, although the General Assembly has rescinded the punishment for suicide, it has not decriminalized the act. Suicide, therefore, remains a common law crime in Virginia as it does in a number of other common-law states. See, e.g., Southern Life & Health Ins. Co. v. Wynn, 29 Ala.App. 207, 194 So. 421 (1940); Commonwealth v. Mink, 123 Mass. 422 (1877); State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961); State v. Carney, 69 N.J.L. 478, 55 A. 44 (1903); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C.1991). To constitute suicide at common law, however, a person who takes his own life "must be of years of discretion, and in his *865 senses." 5 William Blackstone, Commentaries *189; accord Plunkett v. Supreme Conclave, 105 Va. 643, 646, 55 S.E. 9, 10 (1906) ("`To constitute suicide at common law the person must be of years of discretion and of sound mind.'"). This common law rule comports with a contemporary definition of suicide. Suicide is defined as "the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind." Webster's Third New International Dictionary 2286 (1981). I believe that the "only one legislative enactment" refers merely to Virginia state law, not nation-wide law. Thus, in Virginia, and other states, suicide could be treated as a common-law crime. However, in United States v. Hudson, it was ruled that such common-law convictions are not allowed at the federal level. I'm not always a fan of Google Answers, but the last one here provides a fairly well-documented section on common-law rulings about suicide. Note that in many states, this is not enforced, as common-law rulings are increasingly rare. | Charged: yes. Another answer has mentioned incitement to riot in 18 USC 2101. There is also incitement to insurrection in 18 USC 2383. This carries with it upon conviction a prohibition on holding office under the United States, both in the federal law itself and also via Amendment 14 of the Constitution of the United States. There are laws under which charges could be brought, and there is certainly no impediment to bringing them after M. Trump's term of office ends. Bringing them before then raises questions of presidential immunity, but I strongly doubt that speaking at the start of a "Save America March" can be construed as an action in any official Presidental capacity. Convicted: only maybe. M. Trump's statements have to extend beyond what is protected by Amendment 1 and actually be incitement to insurrection. Although there is a strong case that seeking to kill the Vice President of the United States ("Where's Mike Pence?" as people shouted) and the Speaker of the House of Representatives ("Tell Nancy we're coming for her!"), seeking to obstruct the function of the Congress, and seeking to remove the Electoral College certificates, are indeed insurrection; as possibly is whatever the woman who refused to stop brandishing a knife at the door of the building was intending to do; reading the transcript of the whole speech given at the start of the "Save America March", it is difficult to point to where M. Trump specifically incited any of those things. One can make circumstantial arguments, but the words actually uttered then and there merely encouraged marchers on a "Save America March" to march to the Capitol and cheer people on, "demand" that congresspeople "do the right thing", and "make your voices heard". This is in contrast to M. Trump's son and daughter in law who explicitly mention "fight", "fighter", and "fighting", 7 times by Eric Trump by my count and 4 times by Lara Trump. And of course Rudy Giuliani not only said "fight" but also proposed "trial by combat". In more potential criminal trouble than even them is lawyer and prominent Trump supporter, L. Lin Wood, who explicitly called, without equivocation, several times over a period of days, on Twitter and on Parler, for the Vice President of the United States to be executed by firing squad. There will certainly be mixed fortunes in the Trump family from this. Whilst there may be a case against Eric and Lara, and possibly Donald Sr.; Ivanka Trump did not speak beforehand that I know of, and is reported afterwards to have asked her father to go and speak to the mob about stopping, which she also did directly, albeit ineptly ("American Patriots — any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful."), herself via Twitter for a short while. | united-states Simply insulting someone without saying something false is not defamation in the U.S. (historically it was the subject of criminal defamation liability to might light of someone's disabilities or call them out in an insulting way, but later U.S. constitutional law jurisprudence interpreting the First Amendment in the late 20th century rendered these laws unconstitutional). If a statement might damage someone's reputation if taken literally, and the statement is false, it can be defamatory and give rise to civil liability (or criminal liability in the few states that still have criminal defamation statutes), if the people to whom the statement is "published" (i.e. the audience of the statement) could reasonably believe that the statement was intended to be taken literally. Whether a statement can be taken literally is an "all of the facts and circumstances" analysis. Statements meant only as hyperbole or parody or metaphorically, if a reasonable audience person would understand the statements in that sense, do not impose liability based upon what they would mean if taken literally. Other Countries As noted in the question itself, not all countries treat statements like this the same way. Germany imposes criminal liability for all manner of insults. England and Wales imposes defamation liability in many circumstances when U.S. law would not. And, many countries in Asia are closef to the German model of liability for insulting speech than they are to the U.S. model. |
What does the phrase "in this act unless context requires otherwise" mean? Various Commonwealth countries, like Malaysia, Singapore and India, use this phrase in sections which include definitions or explanation of a law. What does it mean? E.g., Article 13 of the Indian Constitution has the phrase in this article unless context requires otherwise: law means any rule, order or custom established by a competent authority Can this be used to broaden or narrow the scope based on the context? | what does the phrase "in this act unless context requires otherwise" mean? It means that the provision or statutory definition is not to be imposed where its application would make no sense or would lead to an absurd outcome. Using the example point out, statutory or judicial references to "laws of physics", "law of supply and demand", and so forth are not to be construed as enactments or rulings issued by some authority. Accordingly, such laws are not susceptible to violation, enforcement, or repeal. | The general rule is that you must comply with all laws. The first thing that means is that you are required to know what the law is, thus ignorance of the law is not a defense for not complying. There are some special circumstances regarding notice, so a law must have been published. Second, whatever the law requires you to do, you have to do it, regardless of any difficulty you might encounter (e.g. you have to pay your taxes even if you don't have enough money). Suppose that a law is so onerous that it is literally impossible to obey it: you still have to obey the law. You have to file a lawsuit against the government challenging the constitutionality of the law, to get the law overturned. Frequently, more requirements are imposed on businesses than on individuals, but there is no legal difference between impositions on individuals and impositions on businesses in terms of laws being difficult to comply with. | Art. 19 of the Indian Constitution states that (1) All citizens shall have the right (a) to freedom of speech and expression... from which is follows that you may advance any argument that you want in support of an idea. The courts have never questioned this. There is a potential grey area regarding verbal acts that cause the use of violence, but in terms of presenting reasons that such-and-such acts are good (or bad), that form of expression is absolutely protected. The grey area comes from clause 2: Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence whereby a law against inciting to violence might pass constitutional muster. "Justification" of an action is very different from "inciting" to do an act. | "Necessity" is a defense against criminal prosecution in many jurisdictions. However, what counts as "necessary" is situation dependent. The essence of an action being "necessary" is an action is necessary if there is no other means of preventing a crime. In your scenario, there are many non-criminal alternative means of preventing the theft, such as calling the police, moving your car, or locking it, so stealing a person's car is not necessary. The conclusion that a crime "will be committed, but for..." also has to be clearly supported by reason. | england-and-wales northern-ireland General rule It doesn't make any difference. Section 7 of the Interpretation Act 1978 provides: Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Provided you meet the following elements: Properly addressing Properly pre-paying Properly posting, then you can take advantage of the above deemed delivery rule. It also makes no difference whether or not the recipient "might or might not bother to open" it. What matters is when it was delivered. The rebuttable presumption is that the notice is effective when it would have been "delivered in the ordinary course of post" (e.g. next day for first class, etc.). To rebut that, the burden of proof shifts to the recipient, who must prove (on balance of probabilities in a civil case) that it was delivered late or not at all. In practice that will be extremely difficult in the majority of cases. You might try to make an argument that "letter containing the document" implies an envelope. However, in my view, the ordinary meaning of the word letter means a piece of paper with some written words on it. A letter is still a letter even when it isn't inserted in an envelope. "Contains the document" suggests to me that the document is found within the words written on the piece of paper. Exceptions The phrase "unless the contrary intention appears" means that if a particular Act contains its own rules of service which contradict Section 7, then Section 7 will be overridden. | There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both "English Law" and "English and Welsh Law", usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as "Welsh Law". | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | It may "seem[] normative" that "a law cannot enumerate any specific persons or companies to be included or excluded from its provisions." But in fact it is not generally the case. There are various kinds of laws that traditionally have named specific people or entities to define their scope. These include: In nineteenth-century England, a divorce could only be granted by a specific law passed by Parliament, naming the persons to be divorced. I am not sure when the practice stopped. In the US during the nineteenth century (and I think the early twentieth century also) a corporation was normally formed by a specific law granting a charter of incorporation to the named company. In the US during the period 1866-1870 there were a number of laws passed permitting former Confederate officers and officials who were presented by the 14th amendment from holding office under the US or any state to hold office again, as the amendment provides for. Eventually Congress passed a more general amnesty. It was once common for the English Parliament to pass bills of attainder. These were legislative declarations that a particular person was guilty of a particular crime, generally without any trial or other process. Sometimes the specific sentence was also imposed by such a bill. This was sufficiently resented that the US Constitution specifically forbids Congress or any state from passing such a bill. It was once common for actual laws to grant payments to specific people for specific purposes. This is no longer common, but there is no legal bar to it in either the UK or the US that I know of. The UK Copyright, Designs and Patents Act 1988 contains a provision enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan" whose author, J. M. Barrie, had given his copyright to the hospital in 1929, later confirmed in his will. This right is to persist even after the expiration of ordinary copyright for the play, but is not a full grant of copyright. Laws or ordinances invoking eminent domain to take the property of particular individuals for particular purposes are common, mostly at the local level. In the US, the Equal Protection Clause generally forbids laws which treat people, or groups of people, differently unless there is some rational basis for the distinction. But in some cases a plausible basis is asserted and such laws are passed. |
Is the Wilhelm scream copyrighted? The Wilhelm scream originated in a 1951 movie called Distant Drums. Since then, it has become a ubiquitous sound effect used in countless movies, TV shows, and video games. It seems to me that a movie made in 1951 would still be under copyright. Does this mean that Warner Bros could potentially sue practically every production studio for copyright infringement? Would this be considered "fair use"? On the one hand, it is not a very transformative usage, which is one of the most important components of fair use. But it is a very small portion of the movie. I have no idea how to analyze the sales impact. Even if it is fair use in terms of the original movie, is there an argument that Ben Burtt would hold a copyright since he is credited with isolating and popularizing the sound? | The "Wilhelm scream" is (of course) copyrighted. It has been released as part of multiple sound effects libraries. While the licensing of these libraries vary, in general a person or organization will pay a single flat fee for a copy of the sounds in the library and a license to use them as sound effects mixed with an a/v work (a "synchronization" license). The license may be time-limited or perpetual (though works created with the effects within the time limit would still be licensed after it had expired). Sound effects libraries are not particularly expensive, and any studio would likely have several of them available, so presumably the majority of the uses of the Wilhelm Scream were licensed. | In general this kind of brief literary reference is not unlawful, and such things occur in both novels and commercial games with some frequency. Making such a reference a major part of the plot, such as by using a name from a previous work as a major character, particularly if other aspects of that character are also used, is far more likely to cause a problem. In the united-states this would be a matter of fair use. In general, when only a very small part of the source work is used, such a a single name; where the use is "transformative", that is used for a rather different purpose than in the source work; where the use does not harm the market for the original work; and where the use does not serve as a replacement for the original, it is likely to be held to be fair use. But fair use decisions are always fact-dependent, and are made case-by-case, so it is hard to be absolutely sure of one in advance. But the kind of literary reference described in the question is very unlikely to be held to be copyright infringement. | The images as displayed are quite similar, similar enough that one could violate the copyright of the other. But that is not enough to know if there was in fact a copyright infringement. There are several possibilities: Although using different names, the developers could in fact be the same company. One developer might have obtained permission to use the image from the other. Both images might be based on the same 3rd-party image which both are using with permission. Both images might be based on a public domain image. Copyright is only infringed if a protected work, or a derivative version of the work, is used without permission from the copyright holder. Without knowing who the rights-holder is, and if permission has been obtained, one cannot know if an infringement has occurred. There is no independent or 3rd-party entity that checks for copyright infringements. By the way, the similarity here is close enough that there might also be an issue of trademark infringement. But again, infringement requires use of a protected mark without permission, and so some of the same possibilities arise. (The source of a trademarked logo doe not matter. On the other hand there cannot be trademark infringement unless the mark has been registered, or actually used in commerce. If the same image is used on products in very different industries, say games and hammers, there may or may not be infringement.) | Sound recordings can be, and new ones normally are, protected by copyright. The copyright would usually be held by the person who made the recording, or that person's employer, not by the speaker if that is a different person. Use of such a recording without permission might well be copyright infringement. But more clearly and directly, broadcasting a statement: I am {performer} and you are listening to {song name} on my favorite station {station name } without authorization from the performer would in many jurisdictions violate the performer's right of publicity, giving the performer grounds to sue the station. It might well also be false advertising, implying that the performer had endorsed the station when s/he has not done so. That would depend on the specific laws of the jurisdiction where the broadcast was made. A suit over publicity rights or an action for false advertising would probably be simpler than a copyright suit in such a case. I think that most if not all such announcements are made with the consent of the performers involved, and are probably recorded directly by such performers. (For one thing it is usually in the performer's interest to cooperate with stations and networks that play the performer's work.) If such announcements were somehow artificially synthesized, but with the permission of the performer, and of any owner of copyright in any recording used, I don't think there would be any legal problem. If an AI was trained to create a good imitation of a person's voice with9ut diretly copying a recording, I am not at all sure if there would be any copyright infringemetn under current law. That may be an area where the law will need to change to respond to the technology. But if such an imitation were used without permission to make the kind of statements discussed above, the personality rights issue and false advertising issue would still be there. Those do not in any way depend on whether the announcement uses a copy of a recording or not, those are both about the use of someone's name and reputation without authorization. In fact, even if the announcement did not pretend to use the performer's voife, those woudl still bne an issue. Suppose the announcer saids, in his orm her own voice: {Performer} said to tell you that s/he is glad thit his/her song is being playing on his favorite outlet {station name}. There is no technical fakery there, deep or shallow, but if done without authorization it is still a problem, or would be in some jurisdictions at least. If technology is used to create a plausible imitation of someone's voice, but it was not distributed with any claim, direct or implied, to be that person, then the case is different. I suspect that in most jurisdictions there would be no grounds for legal action, just as celebrity imitators do not need permission as long as they don't fake endorsements. | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | No, you misunderstand Fair use and infringed copyright Fair use only exists if enough of the four factors are given for it: The Transformative Factor The Nature of the Copyrighted Work The Amount and Substantiality of the Portion Taken The Effect of the Use Upon the Potential Market You fail on all of them: Cutting the video does not alter the meaning or expression. which means it is nontransformative and thus against OP. Music is usually with fictional works, the best you can get here is "neutral*. but I would weigh against OP. Your Video took the total of the video and nothing else. Against OP. The full-length Video has a potential market that does include underage children. Your video tried to infringe on that market. Against OP. ERGO You are not enacting Fair Use but infringe copyright. Similar case: Vidangel Vidangel had been offering films in a censored fashion without the approval of the copyright holders. A court ruled that this is not fair use and it was sanctioned for 65 Million US-dollar. | You cannot safely rely on the US doctrine of Fair Use, except if the rights-holder sues you in US courts. In France, there are limited exceptions to the authors proprietary rights. Under Art. L-122-5, there are some relevant potential exceptions: 3ºa) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated... 4º. parody, pastiche and caricature, observing the rules of the genre. Your description of the intended use does not fit these criteria. Consulting with a copyright attorney is advised, if you don't want to obtain a license. |
concept of exchange in a donation contract In a hypothetical scenario, Mr. Peter intends to donate a car to Mr. Joe. There has to be a contract, a piece of paper, signed by both of them. According to the contract law, every contract is an exchange of something. What is being exchanged in such a contract, if the car is to be donated? Thank you. | The "contract" (sometimes called a charitable pledge or a pledge to make a donation) is not enforceable under contact law because there is no consideration. From a contract law perspective, it isn't really a contract at all. This fact pattern is literally the "standard" example of a "contract" that is unenforceable for lack of consideration. The promises made in the charitable pledge might be enforceable under an equitable doctrine called promissory estoppel, if someone detrimentally relies upon the promise made in the contract and it is not inequitable to do so. As a practical matter, however, donees almost never sue to enforce a pledge to make a donation. A donative pledge should also be distinguished from a transfer document, which is also not a contract. In a transfer document, the donor is unilaterally giving something to someone, and the recipient is signing merely to affirm that they accept the transfer being made to them, rather than rejecting the donation and disclaiming it. | The part of the statute (which is part of an article of the Uniform Commercial Code model language applicable to the sale of goods) that you are discussing reads as follows: 1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though (a) the transferor was deceived as to the identity of the purchaser, or (b) the delivery was in exchange for a check which is later dishonored, or (c) it was agreed that the transaction was to be a "cash sale", or (d) the delivery was procured through fraud punishable as larcenous under the criminal law. I have put the critical language of (1)(c) for the purpose of understanding what they are talking about when they are talking about "cash sales" in bold. You are asking: Please explain it to me and tell me what a "cash sale" has to do with voidable title. Doesn't cash sale just mean you are paying cash for something? That sounds perfectly innocent to me. Items (1)(a), (1)(b), (1)(c) and (1)(d) involve circumstances which are examples of transactions in which a buyer of goods obtains voidable title from the seller. This means that the sale can be undone if the seller acts promptly enough, but the sale can't be undone if the buyer in turn sells the goods to a good faith purchaser for value (i.e. someone who pays a meaningful price for the goods without knowledge that the seller only has voidable title). If the goods have been sold to a good faith purchaser for value, however, then the seller who could otherwise undo the sale entirely can now only sue the buyer for damages (usually the agreed purchase price, or fair market value if no purchase price had been agreed upon yet). When it says in (1)(c) that "it was agreed that the transaction was to be a "cash sale"," what the statute is describing is a transaction where the original deal was that you will deliver goods to me with the understanding that I will pay you for the goods in full with currency or other "good funds" (like a wire transfer), roughly contemporaneously. But, what actually happens is that you deliver the goods to me and instead of promptly paying you the cash you are owed for the goods, I don't actually pay you anything. This could happen because I was trying to cheat you and get something for nothing, in which case I would have also committed fraud which also falls under (1)(d). More innocently, suppose that I run a small grocery store and you run a dairy that delivers milk for resale to my grocery store every morning at 5 a.m. before banks open, in time for the morning rush of innocent customers milk to put in their coffee on their way to work, before the banks open, and then I go to the bank when it opens every day at 9 a.m. and take out some cash and hand it over to your money collector, when your money collector stops buy my grocery store around lunch time. But, today, I was stunned to discover that all of the money in my bank account had been frozen due to a garnishment on a money judgment against me that I hadn't been aware of because the process server who was supposed to give me notice of the lawsuit against me instead threw the court papers in the sewer and lied on the return of service saying that he'd delivered the court papers to me, so that unbeknownst to me, a default judgment was entered against me. The sale would be voidable in both cases, the one where I was trying to cheat you while telling you that it would be a "cash sale" and the one where I innocently found out that I didn't have the money to pay you that I had no reasons to think that I wouldn't have available to me. And, in each situation, if my grocery store sold half the milk that was delivered to me in the morning rush, those sales would be valid and irreversible, even though I completely stiffed the dairy owner and there was a total failure of consideration in what was supposed to have been a cash sale transaction. But, the dairy owner would have a right, when he found out that he wasn't getting paid at noon and the sale turned out to have been a voidable one, to take back all the milk that hadn't been sold to my customers yet in the hope that he could sell it to someone else who was actually willing and able to pay for it instead. In general, under circumstances when a sale is voidable, if I haven't resold the goods to a good faith purchaser for value, then you can legally force me to return the goods and have the sale invalidated. But, if I have sold the goods to somebody else for a more than nominal price, and the person who bought the goods from me doesn't know that I cheated you by not paying for the goods, then you can't undo my sale of the goods that I didn't pay for to the good faith purchaser for value. Situation (1)(c) is very similar to situation (1)(b), in which you give me the goods and I give you are personal check for the purchase price, but the check is then dishonored by the bank (something that could been my intentional plan to cheat you, but which could also have been my failure to keep track of the balance in my bank account as I wrote checks). Both of these situations involve broken promises which may or may not have been made with no intent to honor those promises in the first place. Situations (1)(a) and (1)(d), in contrast, involve out and out fraud and deceit, but not "fraud in the factum". In other words, what (1)(a), (1)(b), (1)(c) and (1)(d) all have in common is that the goods were voluntarily delivered by you to me, even though your voluntary delivery was obtained by improper means such a deceit regarding who is buying the goods. ("Fraud in the factum", which is also void, involves situations when, for example, I ask you for you to sign what I tell you is a birthday card, when what I have actually done is have you sign a letter authorizing your delivery man to deliver lots of goods to me, and then I use that letter to have goods delivered to me.) In case (1)(a) this would often be a sale on credit or open account to someone you believe to have good credit but who is in fact someone else with bad credit. For example, you make a sale to George Shrub, thinking you will be delivering goods to George Shrub, Sr. who has good credit, but instead you are tricked into delivering the goods to George Shrub, Jr. who has multiple bankruptcies and never pays his bills on time. In case (1)(d) there are myriad possible examples. For example, I may have given you counterfeit money to get you to deliver the goods to me. Or, I may have purchased your cow in a barter exchange for beans that I told you were magic beans, but that were really just ordinary beans. But, in both (1)(a) and (1)d), as well as in (1)(b) and (1)(c), you are voluntarily delivering the good to me and then not getting what you thought you had bargained for in the deal, sometimes with evil motives and sometimes for innocent reasons, so voidable title arises. In contrast, suppose that I snuck into my stockyard one night and stole the goods from you. In that situation, you would have a right to get your goods back not only from me, but even from a good faith purchaser for value to whom I sold the stolen goods, because out and out theft that does not even involve consent procured through fraud or a broken promise, doesn't give me any title to the property, not even voidable title. Similarly, suppose that I pointed a gun at you in your shop and insisted that you deliver the goods to me or else I will kill you. Again, in that situation, you aren't giving me even voidable title to the goods, and you can sue a good faith purchaser for value from me to get the goods that I never had any colorable claim to have ever owned back. The language in the first sentence of (1) goes along with the language about voidable sales of goods in the rest of (1), because the first sentence of (1) covers situations when I may not have 100% ownership of goods that I sell to some else. For example, suppose that I have a pedigreed male dog that I have purchased the pet rights in from a breeder, while the breeder has retained the stud rights in the dog. (Yes, these transactions really happen. I've litigated them.) Under the first sentence of (1), I can sell the pet rights I have in the dog to you, but I can't sell the stud rights that I don't own to you because I don't own them. And, unless I am a pet store owner to whom the dog has been "entrusted" (and I'm not a pet shop owner), I probably can't destroy the stud rights through a sale of the dog to you when I am purporting to be selling you both the pet rights and the stud rights, even if you are a good faith purchaser for value, because I am not a merchant to whom the "entrusting" doctrine applies. So, if I sold the dog, the owner of the stud rights could still enforce those rights against the person to whom I sold the dog. Parts (2) and (3) deal with an exception to the general rule in the first sentence of (1) called "entrusting" which is quite similar to voidable title. Entrusting involves you leaving your goods with a merchant who is in the business of selling those kinds of goods. So, if I leave my nice clothes with a consignment shop or a pawn shop and the consignment shop or pawn shop sells my clothes to someone and give the buyer good title, and I can't undo that sale even if you didn't actually have my permission to sell the nice clothes that I had entrusted to the consignment store or pawn shop (e.g. perhaps they were only allowed to sell my wedding dress for a minimum price of $100, but instead sold it to someone for $30 which they didn't have permission to do, then the buyer of my wedding dress for $30 would still have good title to the wedding dress and the sale couldn't be undone). But, on the other hand, if I leave my nice clothes with an automobile parts shop or a grocery store or a stationary store, and they don't actually have my permission to sell the nice clothes that I left in their care, and then they sold my nice clothes to one of their customers, that sale made without my permission would be void and could be undone, even if their customer paid more than a nominal price for my nice clothes and had no knowledge that the merchant didn't have my permission to sell my nice clothes. This is because we don't believe that someone who buys, for example, my wedding dress from an automobile parts shop or grocery store or stationary store, can legitimately say that they really believed in good faith that the seller really had your permission to sell my wedding dress, because that is not an ordinary merchant-customer transaction for them. | If the space were owned by a charitable organization, the money left by each individual would be a charitable gift reduced by the fair market value of the food taken, and the proceeds would not be taxable income for the organization because it is tax exempt. As an individual, treating it as income subject to a deduction for cost of production (not including your labor), but with the loss not being deductible as there isn't an intention to profit, would probably be the correct treatment as that treatment is what is usually what is applied to a "pay what you can" arrangement that apart from the price, resembles a business transaction. If no money were collected, it would probably be characterized as a gift by you to the persons taking it, which if less than $16,000 per person per year for all gifts made to that person, would be exempt from gift taxation. You could argue for bargain sale treatment, with the value of the produce taken net of the money left as a gift, and that would be a potentially arguable position if the money left is less than the value of the produce taken. But this characterization would probably not hold up if the amount of money left exceeded the out of pocket cost of growing the produce, in which case treating it as a low value sole proprietorship would be much more defensible than treating the money left by people as a gift to you. Generally speaking, when one person makes a gift and another person makes a counter-gift in a related action, treating each donation in isolation as gifts is not an appropriate tax treatment. I'll see if I can find authority, but, of course, cases with such tiny amounts in controversy almost never result in formal appellate decisions or regulatory action, so any binding authority wouldn't be four square on point factually, which matters in the law where reasoning by analogy and logic often doesn't produce the legally correct result. | Probably A valid gift requires: Intention of donor to give the gift to the donee (donative intent) Delivery of gift to donee. Acceptance of gift by donee. As the legal guardian, parent could refuse acceptance on behalf of the child. Again, in the same capacity, they could limit or restrict use of the gift providing while the child remained a child. | Possibly In most contracts, the parties sign in their capacity as people (or agents for other people). However, some contracts are signed in the capacity as the owner of a piece of land and the contract transfers with the land. The liability rests with the current owner and, if unpaid, creates a lien over the property. These are particularly common in contracts with utilities or where the contract involves the a structure on the land. Surprise, surprise, the situation you describe involves both. You need to refer back to your contract for the land as these types of contracts are usually disclosed (unless they are a function of local law because everyone just knows - I don't know anything about Pa. law on this) and the original contract with the gas company. Your settlement may have also involved you paying a figure to purchase the gas in the tank as at the date of settlement. For example, in new-south-wales, council rates and water rates attach to the land as a matter of law and the vendor pays the purchaser for any amount they have paid in advance (or vice-versa if they are in arrears). Electricity and piped gas don't; the vendor ends their account on or before settlement and the buyer opens a new account on or after settlement and each pays for their own use. Propane for portable bottles doesn't but for fixed installations does as a matter of contract with the gas company. | Very briefly in terms of contract law, by hiring this person to haul away your trash, you're entering into a contract with him/her for the disposal of the trash. The fact that he says he has a legal place to dispose of the trash is part of your contract. That fact - either verbal (or in writing) in that contract - should really absolve you of any responsibility of what happens to the trash. You don't need to actually know all the details of his legal dumping place, but you can hold him/her to the agreement if it happens that they do illegally dispose of the property they have been hired to remove. In reality, this person is advertising this service as a business (on Facebook) and has been operating for some time, so they are probably legally disposing of refuse in a landfill while making some money from whatever might be valuable. The trash hauler probably depends on some of your trash being valuable, in terms of recycling or repairing or selling collectables ("old toys"), and not all of that will be disposed of in a landfill. I suppose it's possible a municipality could accuse you of illegally disposing of the trash if it was somehow tracked back to you, i.e. personally identifiable items or papers in the trash that was found illegally dumped. But you have the contract with the trash hauler to show you acted in good faith. Ask in the Facebook group if indeed this person disposes of trash in a legal manner, or ask others who have hired him/her. Clearly outline your stipulations for legal disposal with them. You can even ask to see their business license from the city/county. | From a legal perspective co-signing a loan isn't the same thing loaning the money to the other co-signer. When you co-sign a loan with someone else both you and the other person are equal parties in the loan, both jointly responsible in fully paying off the principle and interest. If loan is defaulted on, the bank can pursue legal remedies to try to recover its money against either or both of you. If you end up having to pay part or all of the loan, then whether or not you can recover any of that money will depend on whatever agreement you made with the other person. Given that you probably wouldn't a have a signed written agreement with the other signer in case like this, it'll probably come down to whether or not you can prove (on the balance of probabilities) that the other party promised to you to pay off the full amount of the loan. It will help if the loan is specifically tied to a car, a house or other property that the other party benefits from but you don't. Note that you'd have to give serious consideration to whether the other party can actually pay the amount owed. There's no point going to court to obtain an unenforceable judgement. I also should say that from a financial perspective it does make some sense to think of it as if you were loaning out the money yourself. While there's a big and significant difference between the two, in that your bank account isn't affected unless the other person defaults, if they do the result is going to be pretty much the same. Indeed in that case it's not much different than just giving the other person the money. When co-signing a loan you really need to trust that other person. | There is a form, which both parties to the sale sign. Note that it does entail paying sales tax. There are other aspects to the sale which reinforce the "It's not my car anymore" message, such as returning the plates and getting a receipt for the plates. Even doing the sale in a DMV lot would not help you. |
Is parent allowed to use child support money on himself/herself in Arkansas? State Arkansas: Parent “A” works full time. Parent “B” is unemployed. “A” and “B” are divorced. “A” pays $1,000 in child support to “B” monthly. Joint custody, week on week off. Parent “B” spends $1,000 in the following way: $400 on all monthly household expenses. $600 on monthly rent. Question: Is Parent “B” allowed to use the child support money to pay for rent? The child only stays in parent “B”’s house half of any month (week on week off). Therefore parent “B” is essentially using $300 to pay for rent while child is not there, and $300 for rent when the child is there. Is this legal? Also, is parent “B” allowed to use child support money on himself/herself? If possible are there any links to the official legal sites quoting the law | canada* What you describe is completely acceptable First, one of the goals of child support is to provide a similar standard of living in each household, so spending an amount on rent that happens to be a large portion of the child support amount is understandable. Second, the fact that the child only spends part of their time at Parent B's home is already accounted for in the computation of the amount owing. Child support in Canada is based almost exclusively on the income of the parents, taking into account the proportion of time the child spends with each parent. And this is all subject to any specific hardships of the paying parent. Only where a portion of child support is based on a special and extraordinary expenditure (e.g. a specific extracurricular activity, or medical insurance) is it expected the claimant make that specific expenditure. If they stop making that expenditure, then the child support add-on associated with that expenditure is removed. * I understand the question is directed to Arkansas, but I have provided an answer for those interested in Canadian law, in line with the guidance here ("Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions. If you do this, please tag your answer using the tag markdown: [tag: some-tag]"). | The fundamental question is whether children can own property: they clearly can. See Cyclopedia of Law and Procedure (I improved the link so it can be more easily read). As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent McClosky v. Cyphert, 3 Casey (27 Pa.) 220 The right of an infant to be the owner of property is as clear and as well protected as that of a person who has arrived at full age. When anything is given to an infant to be held by him in his own right, he has the title to it, and the parent, guardian or master has in law no more right to take it (for any purpose beyond safekeeping) than a stranger. Wheeler v. R. Co., 31 Kan. 640, 3 P. 297, 300: As a matter of law a minor may own property the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in the way of support, such as clothing, for instance, would still belong to the father and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would, undoubtedly, become the property of the child. Banks v. Conant, 14 Allen 497, the father has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority. Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant. However, a parent does have the right to prevent their child from using or acquiring a computer, car (also prohibited statutorily in Washington), television, cell phone; they can also prevent a child from spending their savings. Parents do retain their property right in things that they give to their children for general support and maintenance, such as a pair of shoes, or books. There can also be specific statutes such as the Uniform Transfers to Minors Act (Washington version) which partially recognize this right, making it easy for a person to transfer property to a minor, where the property is in the care of a custodian, but not owned by the custodian. | You understand the business of landlording before you get started. You don't landlord for the purpose of evicting someone. You landlord for the purpose of exchanging keys for a duration for money, specifically by creating a leasehold estate that you sell to your tenant. Your tenant has the leasehold, you don't have the money, in part because it sounds like you didn't collect any before you handed over the keys or confirm your tenants' ability and history of paying. You now want to nullify the leasehold. In general this is the eviction you ask about. You are now reliant on a court in your jurisdiction to enforce the contract law with respect to the lease language and prevailing local ordinances. I cannot speak specifically to NY courts but they have a reputation as tenant friendly so you need to demonstrate your professional approach and locally required paperwork such as a certificate of occupancy, business license, etc. All lined up to make it easy for a judge to agree with you. You have an uphill battle. Turning off utilities (as mentioned in another post of yours) is not a professional move and will bias many judges against you. No certificate of occupancy may mean your original lease contract created a leasehold contrary to a public policy of NY which could put a judge in a bind if they found your case compelling. If a competent lawyer would cost $15k then it sounds like it might be cheapest to offer the tenant a couple thousand for the keys and a signed release to walk away–spend a couple hundred on the lawyer for this. Do not give them the money until they are out and give you the keys. This is called cash for keys. | Minor children can, in theory, sue their parents, in many countries, as long as they can prove a cognizable harm. The simplest case is where a parent commits a crime against the child, such as rape; this would also include embezzlement. "Abuse" is a term used in laws, for example RCW 26.44.020 (Washington state), but that sense of "abuse" doesn't include e.g. "overbearing behavior" or "obnoxious politics". If a child is disabled and the parents taunt the child for that disability, it is possible that the child could sue to terminate parental rights. The case is even clearer if the parent fails in their parental obligations to the child. Lgbtqia child rights are less well-defined. The background assumption is that the parent has the exclusive right to determine the child's upbringing, which includes things such as political beliefs, religion, and matters touching no family and sex. Norway is one of those countries with relatively few restrictions on "how you live your life", and they are considering a law against "conversion therapy", but there is presently no law prohibiting a parent from denouncing their child's lifestyle. It is possible that Barnevernet (child protective services) could intervene in a particular case, but they would not sue a parent on behalf of the child unless the parents actually violated the law. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. | It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in "household situation" within 10 days. There isn't an exception allowing you to give a false address "in case it costs more to report truthfully". The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more. | Assuming that the age of criminal responsibility in your jurisdiction is more than five (I don't know any jurisdictions where it isn't), then you can't be arrested for this. It is possible that the therapist will have to report the information, and it will appear on your record if you apply to work with vulnerable people. On the other hand, if your parents put you up for adoption aged five (but kept a sister), they will have had to explain why - and that is likely to have been recorded (unless this is so long ago that record keeping was much more lax in those days). I would recommend finding a different therapist that is more comfortable being told about these things. You might also need to consult a lawyer for a short while (they will often offer a 30 minute free consultation). | If one day the child goes around to the father's house, perhaps in a state of upset, and says, "That's it, I'm staying," what is the legal position of the father? An eleven year old child really has no say in the matter. A judge in a custody case may consider what the 11 year old has to say but is unlikely to give it much weight. (In contrast, a judge is likely to give a lot of weight to the views of a child who has a job, who is doing O.K. in school, and is a year or two from becoming a full fledged adult.) This is up to his parents to resolve absent circumstances not present here (e.g. the child has made bona fide allegations of child abuse, or the parents are both incarcerated). And, if the parents can't resolve the dispute, it is up to a court in a case where parenting time is at issue (probably either a legal separation or a divorce in this case). For example, while (as noted below) the police will not generally drag a child kicking and screaming to the other parent without a court order, if the child is at his father's house, the father can absolutely drag the child kicking and screaming to the child's mother's house, no matter how much the child doesn't like it. Moreover, while the father will not be violating any law, if he does not do that, a child custody judge is likely to look dimly upon a parent who intentionally withholds visitation from another parent without good cause, when the court considers what kind of child custody arrangements to put in place. And, the court has extremely great discretion in these matters. The judge is also likely to be pretty unhappy with both of the parents for failing to be capable of communicating or cooperating over child rearing related issues, because they are apparently so focused on not getting along with each other over their issues with each other. In particular, if the mother calls the police claiming "child abduction," what will be the police position? Will they come to the door of the father? Will they drag the child kicking and screaming back to mother's house? It is not generally illegal for a married parent in a situation where there is no child custody order in place to have that parent's child with them over the objection of the other married parent. Absent a court order to the contrary, the police will probably call this a "civil matter" and will be unlikely to take any action until there is court guidance, absent exigent circumstances like evidence of recent not previously adjudicated claims of child abuse or neglect. The way to resolve this would be with a court filing of some sort seeking to resolve the parenting time issue, if necessary, on an emergency basis. Post-Script Whether or not the parents want to end the marriage, this situation is long overdue for court intervention. I've had couples who "pull the trigger" too soon, but this would not be a case of that type. Either the father or the mother needs to find a solicitor (if at all possible to afford that) and get the court system involved. If there is a breakdown in communications over matters related to the child, and the child is not cooperating in the face of an ambiguous parenting situation involving two parents who can't communicate about their child, the situation is out of control. Prompt court action could prevent a more negative outcome in the future by creating stability and structure in the situation. |
Is it possible the free contracts I find online are actually superior to the ones lawyers are paid to write? Without going into details - you could figure them out if you really tried :P - I often deal with people wanting a contract to cover a rather obscure situation. It is one where most states don't have precedent yet, but of the few that do some states don't respect these contracts and at least one does. The net result is that in most cases we don't really unknown rather or not a contract will be respected until/unless it ends up in court but my advice is that it's always better to have one in case it will be respected then to have none if a situation comes up where you end up in court. Yes I'm aware of the obvious danger of a contract that may not be respected, but it's a situation that's happening anyways, often does happen without issue, and the contract is just meant as a backup. People will be doing this rather or not a contract exists. I do try to stress to everyone the potential risks and the fact that contracts are on average more likely not going to be respected then respected even as I tell them I think it's better to have something then nothing. I have found a few places that have provided free standard contracts for this situation online, and looked through them to find the one I felt was best written. I've also seen a number of people who went to a lawyer for a contract and got one written for them. Looking at the two types of contracts, the free and the paid ones, from my mostly-layman perspective the free ones actually look substantially better. They tend to be longer, better cover potential issues, and have more fallback statements; which is to say they have three or four slightly different ways getting to approximately the same end goal so that if one line is deemed unenforceable there are still other lines that the court may rule enforceable and thus ensure the main point of the contract stands. For most of these contracts I see they are for a state that I know does not have precedent for these types of contracts. I imagine things may be different if one is in a state that does already have a precedent. Then again so far precedent seems to be "yes we respect them" or "no we don't" with little nuance so I imagine even in a state with precedent you are no worse off with a free contract; worse case you think you have a backup that won't be respected but people should already be going in knowing that's a possible outcome. In short, even ignoring the expense, It seems like people are better off not going to a lawyer because the free contract is the better one. I imagine the reason for this is that a lawyer can't be bothered to become an expert in such an obscure situation required to figure out all the edge cases they may want to cover, and knowing both that the contract is unlikely to be tested and ultimately will usually end up being just as likely to be respected, or not respected, rather they throw together a quick generic one or go all out trying to make the best contract they can so they go for the quick easy contract as a 'good enough' solution. Whereas the free ones online are written by experts in the field who have really tried to create the best contract they possible can. I'm wondering two things, is my layman perspective correct and the free contracts likely are better to use then the very generic paid ones I see. Second if the free ones may be superior is it common that this sort of situation comes up, that you can find prewritten contracts that have more effort put into it then a randomly selected lawyer is likely to put into one? Or is it only because of the lack of precedent that using one contract regardless of your state might make sense? Slightly off topic bonus question, assuming the free contracts really are superiors why aren't paid lawyers using them as a basis for creating paid contracts rather then writing inferiors ones themselves? I always see these contracts made available but without explicitly spelled out licensing agreements that I can find, is it going to be presumed a lawyer can't charge for a contract they get from somewhere else, even if they vetted and potentially modified it? | It is possible that a free online contract is superior to one specifically written for your situation, and it is possible that the opposite is true. It is more likely that a curated paid contract is superior, if (a) it is drafted by an attorney who is experienced and specializing in that area, (b) you discuss your goals with the attorney, (c) the issue is complex and jurisdiction-specific. It is more likely that the free contract is superior if (a) the attorney you hire doesn't listen to you, (b) doesn't know the area (e.g. specializes in DUI cases and has never touched a contract), (c) if there is already a well worked-out standard contract form (leases and real estate sales contracts come to mind), (d) deals with a very stable area of law where there is negligible state-to-state difference and (e) isn't powered by ChatGPT. | If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get. | Are there any underlying reasons behind the nonsensical structure of U.S.C. titles? Is it simply a case of "This is how it's been for awhile, don't fix what isn't broken." or is there more to it than that? First of all, the United States Code is generally not designed to be used by non-lawyers. Second, one of the main ways to research case law interpreting a statute is by doing a boolean search on the code section of that statute. Every time you change a title or section number, you impair the ability of people doing legal research (both judges and lawyers) to find previous case law interpreting the meaning of the statute. Third, you make it much harder to determine when the substance of the provision was originally enacted (e.g. if you want legislative history or to determine which of two conflicting statutory provisions was enacted first) since an annotated statute will often show when the current section was enacted but will not explain what it was derived from. Fourth, the location of a statute within the context of other statutory sections often informs its meaning. Machine gun may have one definition in two or three laws, and a different one in two or three other laws, and there may be yet other laws where machine gun is an undefined term. Moving a statutory section from one part of the code to another could influence the default definition that one uses for an undefined term changing substantive law. Fifth, usually a new codification will also involve some drafting standards, for example, to add gender neutrality or to avoid notoriously ambiguous constructions (like 250 word sentences). But, it isn't at all uncommon for very slight changes like the position of a comma or the formatting of a section with multiple indents, to result in a change of the likely meaning of a somewhat ambiguous statute and it is pretty much impossible to know a priori when a statutory section is ambiguous until you are confronted with a fact pattern that makes the ambiguity in that context clear. This isn't confined to obscure laws of little importance. For example, the question of whether Obamacare applied in states that hadn't set up their own exchanges hinged on these kinds of issues. None of this is to say that you should never recodify the statutes. But, a basically aesthetic motivation that mostly matters to people who make up a tiny portion of the main users of the product (non-lawyers) that poses multiple threats to how statutes will be located using legal research tools, and how it will be interpreted once located, means that reorganizing statutes is not something to be done lightly. In short, there are a lot of serious, substantive costs that can accompany a recodification of a law. As a result, re-codification is most often done only as part of an overall omnibus reform of an area of law on the merits where the interest in being able to track prior interpretive caselaw and determine the original meaning of a statute enacted long ago is at its lowest. Barring the even more ridiculous case of Congress repealing everything and passing the exact same laws again, just under different Titles/Chapters/etc, This is not so ridiculous. Most states have done exactly that one or two times in their history (sometimes more for older states). Also, many newly admitted to the union states also do something similar. For example, the basic template for the statutes in Colorado was the statutes of the state of Illinois. Basically, the first time around, somebody started with an Illinois statute book, eliminated Illinois specific laws and laws that they didn't like, rearranged them and adopted them as the original statutes of the State of Colorado (it may have actually been version 2.0 after a stopgap set of statutes, I don't recall which). Also, most states completely repeal and readopt all of their statutes in codified form on the recommendation of the codifier to a legislative committee, to reflect the acts passed in the previous session, every year. This doesn't involve overhauls really, but in principle is a complete repeal and reenactment. While the federal government has never overhauled the entire U.S. Code in this manner, it has been done at the level of individual titles of the U.S. Code. For example, the most recent major reorganization and overhaul of the structure of the Internal Revenue Code (Title 26) was in 1986. The copyright laws were overhauled in the late 1970s. Both of those accompanied major substantive changes in those areas of law. Another major recodification of many parts of the U.S. Code took place following 9-11 in connection with the creation of the Department of Homeland Security, which reorganized both the bureaucracy and the associated U.S. Code language associated with dozens of federal agencies. would it be possible for Congress to arbitrarily merge, combine, and delete Titles, and to rearrange the location of laws, definitions, etc? Are there laws/regulations governing this? Yes. Congress can do so any time it wants by passing a bill (it would be the longest bill ever - dozens of volumes long) doing so, and getting the President to sign it. The legislative process would be exactly the same as any other bill. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | There Is Little Pressure To Improve Contract Drafting One piece of the puzzle is tradition and habitual writing style. A customary writing style for legal documents evolved over time, some of those conventions have evolved overtime (e.g. "Party of the first part, party of the second part"), others have not. Archaic vocabulary is slowly being weeded out, but again, it is almost never the goal of someone drafting a contract to reduce the reading level of the document. As long as the judge, or other lawyers, know what it means, it is an aesthetic stylistic issue more than it is a substantive issue of importance. Contract drafting is highly decentralized and change happens only when there is a powerful impetus for change. Does this mean that legal writing can't be improved? No. Some lawyers are excellent writers in both contract drafting and in court documents. A well drafted contact can reduce litigation costs when there are disputes. It can also increase compliance with the intent of the parties by preventing disputes over what the contract means from arising in the first place. But most lawyers are mediocre contract drafters, and there is little selective pressure in transactional legal work to weed out their sub-optimal writing styles. Bryan A. Garner, who among other things is the editor of Black's Law Dictionary, is pretty much the leading figure in the United States pushing for a more modern, more readable, less flabby legal writing style. This is exemplified, for example, in his book "Legal Writing in Plain English" (2d ed. 2013). But even then, a lot of the impetus for his stylistic decisions was primarily driven by the need to get across ideas clearly, in a minimum of words, when writing appellate briefs with word limits. This is also the main context in which legal writing is taught in law school and continuing education classes. In contracts, in contrast, in our current era of the word processor, long documents are easy to deliver, and long passages of writing can be cut and pasted. So, the same outside pressures to limit word counts and persuade judges who will read legal briefs cover to cover in order, are not present when drafting contracts. So, the pressure to have a succinct plain language writing style in contracts is less strong. This said, when there has been regulatory pressure to write consumer contracts in a way that an average consumer can understand, it can be done. For example, most credit card agreements are written in very clear plain English with a very low reading level compared to other contracts. But those easy to read credit card agreements are drafted by committees of many lawyers and senior executives, each charging hundreds of dollars an hour, over many meetings over a period of weeks of debate and refinement, and a cost of many tens of thousands of dollars each to draft. The flabby and clunky character of legal writing also reflects client imposed budgetary constraints. It takes much more time and effort, with multiple rounds of rewriting and editing, to write a clean, easy to read contract than it does to write a kludgy one. Lawyers bill by the hour and clients want the job done at a price that they can afford. There is little incentive in contracts that will not be used many times as forms, to take the effort to produce a clean, easy to read final product. This kind of beautifully drafted contract costs much more to draft for the client, but provides little additional legal benefit to the client. Few contracts are ever litigated at all, and when they are, the legal drafting tends to focus on only a handful of key provisions that are carefully drafted. Boilerplate language, which is often less carefully drafted, is very rarely litigated, so the quality of that writing doesn't matter much. Capitalization As far as capitalization goes, I agree with @user6726 that all-caps writing is often required by law. These requirements were based upon the previous legislative assumption that it was more prominent and more likely to be read, which has since been proved to be false empirically. But new empirical discoveries about readability haven't changed the relevant laws requiring certain language in contracts to be "prominent" and in all caps. I would also add that there is a legal writing convention that defined terms have capital letters (although not necessarily all caps), which is a pointer to when one needs to look for a definition, that relaxes the need to put the definitions of capitalized words in the actual sentence where those terms are used. Weird capitalization can facilitate shorter sentences. The Relevant Audience I'd also agree that the primary audience for contract language is often not an unsophisticated non-lawyer consumer. While it's true that the average American reads at about the 5th grade level and can't do algebra, that person isn't the target audience. In the same vein, you don't write scientific journal articles for an audience of the average American. When push comes to shove, written contracts are interpreted as a matter of law by judges who are legally trained, and not a matter left to a jury of non-lawyers to decide. Most business to business contracts are negotiated by lawyers. Most business to business contracts have as additional audiences sophisticated senior managers of business with some limited formal business law training in college, who also have great familiarity with the class of contracts involved. Even in consumer contracts, when consumer protection regulations and statutes do not compel another approach, the intent is frequently a MEGO effect (My Eyes Glaze Over) in the hope that the consumer, who often isn't at liberty to negotiate the terms anyway, won't decide to read the fine print. The only language in a contract that needs to be clear to the consumer is the actionable part like the price that needs to be understood by the consumer to perform it. And, often those parts of a contract are provided in a separate short summary document with the full contract available for future reference but not intended to be routinely read in full. Furthermore, characteristic legal writing styles can convey a sense of importance and official authority. It sounds like it is and is intended to have legal effect. It's the same reason that fictional magical spells are far more often in Latin or Greek or Sumerian than they are in plain English. Language too ordinary conveys the false impression to a client that anyone could write the contract even if legal skill is implicated in drafting it, and can even cast doubt over whether a document was intended to be a legally binding contract in the eyes of a non-lawyer encountering it. Long Sentences, Definitional Clauses, And Pronouns One of the key factors that is identified as making legal writing hard to read is the use of internal definitional clauses within sentences and the use of very long sentences. It is possible to draft without those. But, often including it in the same sentence reflects the drafting lawyer's thought process. It can also reflect a negotiated contract drafting process. Even if an initial draft of a contract has simple sentences clearly laid out, it may be easiest to clarify a bargaining point in contracting negotiations by complicating the sentence in question to make it reflect the other side's preferred interpretation, even if it is stylistically ugly. And, changing that language in a final draft to make the contract look pretty is viewed with the suspicion that a subtle substantive change in the meaning of the contract from the haggled term was intended. As an aside, some contract provisions in hotly negotiated contracts are also sometimes intentionally ambiguous. This is because resolving the ambiguity could result in a fight over a side issue that could bust the deal if each side insisted on their own interpretation. Leaving the term ambiguous allows a judge evaluating a dispute that actually arises, if a dispute even arises over that term (which it often doesn't), in order to do what makes sense under the circumstances instead. Also, lawyers are wretchedly afraid of an adverse party quoting a sentence in a contract without including the related context that clarifies its meaning (e.g. by omitting definitions that are not obvious from the plain language of the contract). Unlike most prose, contracts are rarely read front to back the way you would a court opinion or a newspaper report or a short story. Normally, someone using a contract quotes only the relevant portion of the contract in isolation from the larger entire document. When ideas are broken into separate sentences, lawyers are very worried, rightly or wrongly, that different sentences in a paragraph or section modify each other, rather than being isolated islands of legal propositions. So lawyers are more comfortable when as many connected ideas as possible are all contained in the same sentence in which everything must be related somehow. Lawyers feel more comfortable and secure arguing about the meaning of a single sentence, than they do arguing that a simple short sentence should have a particular meaning based upon the larger context in which it is found. Similarly, lawyers are quite wary about using pronouns that aren't defined terms in the contract, for fear that the person that the pronoun refers to will be incorrectly assigned, even though this is an unnatural way of writing. Common Law Contracts v. Civil Law Contracts Also, as an aside, contract drafting is an area where common law legal drafting styles differ materially from civil law country legal drafting styles (e.g. in continental Europe). This is because in civil law countries there is a great effort made to provide for what would usually be boilerplate language in U.S. contracts as default statutory rules that match the default choices that are usually made in contracts negotiated between third-parties. Far less can be taken for granted in common law countries. A lot of the operative language in a common law jurisdiction contract, including much of it the most difficult to read legalese in contracts, is simply implied in law unless specifically disavowed, in many civil law countries. As a result, civil law country contracts are usually much shorter and more focused on the deal specific terms than a common law jurisdiction contract. A civil law business agreement that runs to five pages might typically take 30-40 pages to write saying exactly the same thing in a common law jurisdiction. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | If you say something twice, eventually they’ll be in conflict Law codes are vast. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere. My first boss taught me that. The fired was engineering rather than law but the principle is the same. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. |
Requirement to sign debt acknowledgement with date and amount in blank, to be filled later Question Are there other countries than Chile where private institutions and government alike require people to sign a debt acknowledgement with date and amount in blank (sometimes validated at the notary), to be filled some time after the signing? Related: I posted a distinct but similar question on https://academia.stackexchange.com/questions/193376/research-funding-conditionned-to-the-signing-of-a-debt-acknowledgment-with-amoun about such debt acknowledgments used as a prerequisite for researchers to receive state research funding. Context In Chile, private hospitals routinely require their clients to sign a debt acknowledgment with an amount in blank before being admitted to the emergencies. It is considered as a (desirable) way to speed-up the admission process, permitting to people in pain to skip a long administrative process in order to insure that the cost of their medical treatment will be covered. The institution distributing state research funding ANID (formerly known as CONICYT) via various "Fondecyt" competitions ("Fondecyt Initiation" for young researchers, "Fondecyt Regular" for other researchers, etc.) is doing the same, requesting researchers who "won" the competition to sign at a notary's office a debt acknowledgment with both the amount and the date in blank, as a condition to get access to the research funding. Only a few notaries accept to validate such documents, but only because they normally compute their fees for validating such a document based on a percentage of the amount of the debt acknowledgment (which they cannot do when the amount is left blank). Motivation I thought that this would be illegal: signing a document is supposed to mean that one has read the terms of the documents and agrees with them, which is of course does not mean that one will agree with the terms of the documents once it has been modified. I was told that such document was indeed legal in Chile. As an academic in Chile, I am expected to apply for state research funding, and to sign such debt acknowledgment if awarded such funding (and told "not to worry, as such debt acknowledgment is never enforced by the government"). I find this the most note worthy example of systemic corruption, in the sense that the very meaning of a signed contract is corrupted. I would like to gather arguments in order to try to convince higher instances of the inadequacy of such a policy. | This Reconocimiento de deuda is a real and standard thing, and they also use them in Zimbabwe, but it says that the amount should be stated exactly ("Se debe indicar con exactitud la cuantía de la deuda que se reconoce"). Unless you fill in an amount that you are willing to accept as your debt, you are trusting that the various people who come to be in possession of the document are trustworthy. The document basically deprives you of the right to oppose the debt. | The "SS" is a standard part of a the notarization language on a document which is known as the "jurat" of a document. The “SS” stands for the Latin term “scilicet” which means "in particular" or "namely" and simply indicates that the place where the document was signed is described in the preceding bracketed portion of the jurat. You do not have mark anything or fill in any additional information on the “SS” designation itself. Completing the areas marked "State of ________" and "County of _________" with the location where the notarization takes place is where you enter the necessary information for the venue portion of this form. You are no doubt confused because one of the possible jurats for the form (the one for an individual petitioner) has a fill in the blank line which I have screen shotted below: The inclusion of a line to fill in following "ss." on the form is a drafting error in the form, which is not repeated in the other jurats on the form, probably because the person who drafted the form didn't know what it meant. Another Flaw In The Form The same portion of the form also has another drafting error although a less innocent one and it appears in all of the jurats on that form. It should have omitted the words "New York" because it is not mandatory to actually notarize the Petition at a location that is physically within the State of New York, even though usually this is what will be done. On the other hand there was a requirement to sign the document in New York State, in contrast (which there isn't) then the fill in the blank line following "New York" should have been omitted. This is a case of someone gratuitously including an apparent extra-statutory requirement in a form (probably because they often have to reject forms if the state isn't filled in at all), without an explanation that "New York" may be crossed out and replaced with another state in the space following the name of the state. | What awards can I expect? In what ways would a judge's decisions about awards be legally limited? $500? Interest? Time spent pursuing collections? Filing fee? Anything else? My research so far suggests $500 plus reasonable (less than credit card) interest. Your lawsuit would be for breach of contract, probably filed in California small claims court for this small dollar amount. An award for breach of contract includes: the amount not paid pursuant to the contract, pre-judgment interest from the date that payment was due at the statutory rate in California (the legal rate specified in the contract applies until the contract is superseded by the verdict, but if the prejudgment interest rate is not specified in the contract, the rate is ten percent per annum from the date of the breach, California Civil Code § 3289), post-judgment interest at the statutory rate in California (10% per annum in a contract if not otherwise specified), and out of pocket costs incurred in filing the lawsuit (typically, the filing fee, the service of process fee, postage, copying costs incurred for trial exhibits, and any court fees incurred to collect the judgment if it is entered). Attorney fees are not available unless the contract says so. You are not entitled to any recovery for time spent pursuing collections. Often you have have a collections agency collect it for a percentage of the amount recovered (probably 50% in a claim of this size) plus a small fee, although they might not accept such a small dollar amount debt to collect. The main virtue of this is that it hurts the credit of the person who owes the money, a harm to the non-paying customer that is often far worse than not paying the amount owed on time. Are there any other legal disincentives for this behavior? A well drafted contract can provide for an award of attorney fees incurred in collecting the debt, can set a non-usurious interest rate and late fees for non-payment, and can take steps like requiring a deposit up front, or consenting to service of process by mail, to make collection more likely and to create stronger incentives to pay. Also, if the non-payment rate is low enough and the value of your time doing what you normally get paid to do is high, it may not make economic sense to pursue bad debt which takes some time and some money to get a small potential recovery, as opposed to letting it slide and doing more work that does pay. A small claims lawsuit is probably ten to thirty hours of work for which you will not be compensated even if you win. Depending upon your average hourly rate for your labor, and the percentage of your billings that go uncollected, it may not make economic sense to collect the unpaid bill, or you may want to delegate the job to someone else whose effective hourly rate of labor value is lower. Courts are cost effective places to collect large debts, and can be cost effective if many people owe you money and you can mass produce your collections process (as, for example, credit card companies do). But courts are often not cost effective for collecting one off small dollar amount debts, despite the streamlined process and reduced filing fees that are available in small claims court. if only a fraction of contractors seek justice, and the award never exceeds the originally agreed upon amount, then the rational decision would seem to be, don't pay the contractor. Consumers are not purely rational actors on a transaction by transaction basis in these matters. The vast majority of the time, people pay as agreed even though they could get away with paying less by forcing the person who did business with them to sue them to get paid. On a case by case basis, this is often not rational, but as a long term strategy for all transactions that a consumer enters into, it often does make rational sense. In small dollar transactions, blacklisting people from future business and harming their credit records is usually enough of an incentive to make uncollectible invoices an acceptable cost of doing business. But a good business person does evaluate every customer to whom trade credit is extended for creditworthiness if the customer does not pay in advance. On the other hand, as a business person, you may have a strategic interest in pursuing every unpaid invoice even if it isn't cost effective to do so when considering that unpaid invoice in isolation, in order to instill in your customers the knowledge that when you say you will sue them if you aren't paid, that you are making a credible threat. This may discourage people from not paying you in the first place. | The written document is given very high priority, so parties will be held to what is in the document. Both parties sign at the bottom, as a way of signalling their agreement with the terms specified in the document. If conditions are added or subtracted (by crossing out), especially with pre-printed forms, the "customer" (person who didn't write the contract) can initial such modifications, as a way of clearly signalling that they indeed agree to the deletion of such-and-such clause. Since both parties have a copy of the signed agreement, this is not strictly necessary. The potential issue would be that an unscrupulous person could cross out a clause after the contract was signed, and claimed that they aren't bound by that clause. A comparison of the two copies would then reveal that the unscrupulous person was attempting fraud. There is nothing special about handwriting in or crossing out conditions, except that it poses a potential evidentiary problem as to what exactly was agreed to, if for example one party threw away their copy and then maintained that the crossed-out clause had not been crossed out. (So, keep your copy). In case you are proposing a scenario where one party is unaware of a change, i.e. at the very last minute Smith crosses something out and signs it, and Jones did not see that happen, then both copies would be the same and Jones would be legally bound to what's in the paper. Smith should announce to Jones that a clause was being deleted. We might suppose that there are innocent reasons why Smith made changes without making an announcement to Jones, in which case the parties do not have an agreement. There may be amicable ways to deal with that situation, but push could come to shove, in which case the written form of the document is generally taken to be the most important piece of evidence (though not always the only admissible evidence, unless you're in Colorado, Florida or Wisconsin). | You are entitled to at least see, and probably get a copy of, any document you sign. If you insist, they will have to show you or give you a copy. It may well be that they are supposed to give you a copy even if you do not ask. But if you are going to insist, allow a bit of extra time at such appointments. If they describe the document, even in rather general terms, your signature is probably binding, unless they have significantly misrepresented the document. If they tell you it is consent to be treated and it is actually an agreement to purchase a timeshare, that would be fraud and the document would not be valid, but that would be very unlikely. There might be some provision that you do not like, but such agreements are usually fairly standard, and also usually not very negotiable if you want service at that office. Still, it is better practice to at least look over and get a copy of any document you agree to. | If the translation is correct, an assignment or pledge is an irrevocable pre-dispute grant of a property interest in future wages, and such an arrangement will not honored by the employer in the absence of a specific exception to the general rule of law prohibiting such arrangements (these arrangements are functionally equivalent to indentured servitude which is just a short step removed from slavery). An assignment is an irrevocable transfer of the right to future income that will be paid to the assignee that is a property right in that income. A pledge grants an irrevocable property right to future income to the beneficiary of the pledge in the event that a debt is not paid as agreed without the need to resort to filing a lawsuit (it is functionally equivalent to a confession of judgment paired with a garnishment). Assignments and pledges of income from property or a business is allowed, but you can't generally do that with wage or salary income as a matter of public policy. For example, you cannot make an irrevocable transfer of 25% of your future income for five years or until the car is paid off to pay for a new car. You can sign a promissory note to pay a certain amount of money that happens to be equal to 25% of your income, and can receive the money from your employer and pay it to the creditor. But, that is a contract right and not a property right, which means that you can unilaterally breach it subject to being sued for non-payment, that the contract debt will not survive a bankruptcy, and that a lawsuit has to be commenced and won to collect that debt involuntarily. If the car loan is not paid as agreed, and you don't go bankrupt, the creditor can sue you, win and garnish your wages after winning, but only then. But, there are exceptions to the general rule prohibiting the assignment or pledge or future wage and salary income, however, on various legal theories (e.g. that future wages and salary are community property of spouses). For example, sometimes this kind of wage assignment is permitted in the context of a divorce settlement. And, if it is permitted by law, the company will charge you to set it up, just as it would if your wages were garnished to collect on a post-dispute judgment. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | The Bank of England actually makes this pretty clear with the following line: Legal tender has a very narrow and technical meaning, which relates to settling debts. It means that if you are in debt to someone then you can’t be sued for non-payment if you offer full payment of your debts in legal tender. Essentially, if you are in debt (frequent examples are a taxi ride or a meal at a sit-down restaurant) then you can use legal tender to pay off that debt. But that doesn't necessarily mean they have to accept it. It only means that they cannot sue you if they do refuse to accept it. But the refusal wouldn't itself alleviate the debt either. They could technically return to you at some point and say "ok, fine, we'll take the cash" and you'd still be obligated to provide it to pay off your debt. It's also worth emphasizing that this only applies to situations where the payment is to alleviate a debt, for services that have already been provided before you are billed. It would not apply while buying groceries at the supermarket. Even restaurants where you pay for your food up-front and then receive it afterwards can refuse cash payment. In those situations the services are prepaid and you are not ever alleviating a debt. |
GDPR: Do I have to IP log "every" login for a customer? IP addresses are personal data according to GDPR as far as I know. Whenever customer registers, I log IP address, timestamp, other details which are given by the customer such as name, address etc. After that, when customer logs in again with the same IP address, do I have to log that login with new timestamp? If I don't log every login and when customer asks for GDPR data, I will only be able to provide IP addresses he/she was having with only one timestamp, not subsequent logins' timestamps. Is this a good implementation or wrong/inadequate in terms of regulation/law? | The intention of the GDPR is to minimize the amount of personally identifiable information (PII) you store. So the GDPR never tells you that you have to log certain events. The simplest way to make sure you comply with the GDPR is to simply not store any PII at all. But that might of course conflict with legitimate business interests and with other legal obligations you might have. So when you do store PII, then the GDPR regulates under which conditions you are allowed to store PII, for how long and what you are allowed to do with that PII. So when you receive a GDPR request from a customer to see their data, then you can say that you only have that one timestamp of their registration, because you didn't log their subsequent logins (assuming this is the truth). I hope your privacy policy says that you store all that PII on registration and that you have some good arguments why storing that information is a "legitimate interest" of your organization. | The GDPR is about "processing" not "storing", so your actions definitely fall under the GDPR. Also you have stored the email address and the email you sent in your "Sent" folder. You need to reply with all the information you have associated with that email address. This will at least be the email you already sent. If you scraped the email address from GitHub then you have it in a table with (presumably) other information such as the repository where you found it, in which case send that row of the table with the associated column headers. If you really just have a list of email addresses then say so. If you merely saw the email address and then typed a fresh email then say so. | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | If the GDPR applies, then the e-privacy directive (EPD) (formally Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002) almost surely also applies. However, this being a directive rather than a regulation, the implement6ing laws may vary in different countries. The relevant provision is Article 5 paragraph (3) which reads: Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia [among others] about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. This governs cookies and any other local data, that is, data stored on or read from the user's equipment. What this means is: A site operator must disclose, in detail, what cookies or other local data the site stores on or reads from the user's device. Even strictly required data (cookies) must be disclosed. A site may not store or read any local data until after consent has been obtained. The user must have the option to consent to or refuse consent to individual data items separately. Giving consent may not be a condition of permission to use the site. Consent must be opt-in, not opt-out, that is the default must be "No consent". Local data (including cookies) that is "strictly necessary" for the operation of the site is exempt from the requirement of consent, but not from the requirement of disclosure, and that means specific disclosure. It must be at least as easy to cancel consent later as it was to give consent initially. Do my Stripe cookies count as essential cookies? If the Stripe cookies count as essential, is it legal to provide no option to turn them off? Have I met my legal requirements in terms of disclosure? The terms and conditions and privacy policy were generated by Termly. I don't know stripe well enough to be sure, but they might. What do they do that is essential for operating the site? Yes. No, not if the disclosures in the question are the only ones you make. As I understand it, you must provide at least a link to a page that shows each specific cookie that you read or set, and what data is stored in that cookie, even for strictly required cookies. Update: I should mention t6hat although the above describes my understanding of the current legal requirements, I have read that enforcement of those requirements does not seem to be a priority for the relevant authorities at this time. Other aspects of data protection, such as proper security to avoid data breaches, and having a proper legal basis for processing, and other GDPR requirements, as opposed to e-Privacy requirements, seem to get more attention and resources from the relevant authorities. Having read the comment by the OP, it does seem that at least some of the stripe cookies are strictly required and need not have consent. The stripe cookie policy linked to is better than many sites currently offer. It does not go into fully specific detail, but it may be that the dashboard does, and that together the two are fully compliant. Linking to this policy (and if possible directly to the stripe cookie dashboard) would seem to me to cover most of the issues here. | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. |
What is a sure shot way of proving citizenship of India? According to a ruling by the Bombay High Court in 2013, an Indian passport cannot prove citizenship. Also, in 2019, the Government of India claimed that 'common documents' were enough to prove citizenship. What are the documents or paperwork which can prove someone is an Indian citizen? Reference: https://theleaflet.in/indian-citizenship-law-a-mess-proving-citizenship-even-messier/ | What are the documents or paperwork which can prove someone is an Indian citizen? As is often the case, it depends on the context: who is seeking to prove the person's Indian citizenship? For what purpose? How did the person become an Indian citizen? For example, if the person became Indian by naturalization, a naturalization certificate would usually be necessary. If a person became Indian by birth then evidence establishing the relevant facts will be needed, and this evidence will typically include a birth certificate. We can see that a passport isn't necessary to prove citizenship because a first-time passport applicant needs to prove citizenship in the application. Whatever documents are acceptable for this must therefore constitute proof of citizenship. But there is always the possibility that an Indian citizen in possession of any document, including a passport, does something that causes the automatic loss of Indian nationality, such as naturalizing in a foreign country. At that point, the former Indian citizen will be in possession of documents that appear to show Indian citizenship without actually being an Indian citizen. Therefore, we can establish that no document or set of documents can be conclusive proof of Indian citizenship. Depending on the context, the person who needs to be convinced of a person's Indian citizenship may or may not need to take into account the likelihood that the person has somehow done something that would cause loss of citizenship. An airline agent boarding a passenger for an international flight to India will be satisfied by the passport. The immigration officer processing the passenger on arrival might however make a brief inquiry into possible expatriating acts. A judge in a court case may go as far as to undertake an intensive legal-factual analysis in which documents play a limited role, if any. Thus, the answer to your question What is the sure shot way of proving citizenship of India? is that there is none. There is always the possibility that a good-faith attempt to prove the citizenship of an Indian citizen will fail. There is always the possibility of a noncitizen having documents that were issued legitimately and purport to show that the person is an Indian citizen. In the 2013 case, it appears that the passports were issued in error. The court did not rule that passports cannot be used to prove Indian citizenship but that it "may not be enough to prove you are an Indian citizen if you were born after July 1, 1987" (quoting the Times of India here, not the court). | The short answer, is "it's complicated". I can think of situations where any of the above options you listed might be true. (Another possible option is "The baby has no nationality at birth", and would therefore be considered stateless, and would fall under the birth country's rules regarding statelessness). To find a definitive answer for your specific situation, I would start with Wikipedia: British nationality law Spanish nationality law Although Wikipedia is not authoritative, it does give you a good overview of the situation for both countries. There are then links to authoritative sources in each article. In the case of a British and Spanish couple, their baby would probably be both British and Spanish at birth. Additionally, if the baby is born in a country (such as the US) which follows the jus soli rules, then the baby would also acquire the citizenship of their birth country. | Yes, in most jurisdictions citizenship or residency is not a pre-requisite for standing. However, be aware that there are plenty of jurisdictions where the practical effect of being non-native gives you effectively no chance of winning. "Fair" in some countries means their citizens always beat foreigners. | 1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged. | Legally you face no problem. The section 66A of the Indian IT Act, which used to be previously misused for penalizing anyone who dared insult a politician, has been struck down as unconstitutional by the Supreme Court of India. But the police could still detain you for 48 hours (legally) without giving any grounds; they are required to do that, but the police are seldom held accountable. The supporters of the said politician can vandalize your home and office without fear of legal action. I am not a lawyer. Whatever is posted above is my opinion and data that I believe to be true to the best of my knowledge and resources available to me. Please contact a lawyer for professional advice. | It is legal, unless the laws of that state say otherwise. Governments are allowed to charge different tuitions to residents vs. non-residents. They can also require proof of residence (not just your say-so). Being physically present in a state for a couple of years is not proof of being a resident. That doesn't mean that the interrogation that you are getting is allowed by law, but it's at least consistent with the general pattern of out of state tuition laws in the US. If you have contradictory elements of "proof" (voter registration in another state), they can demand more evidence. It really depends on what the state laws are, so you could name the state. Also, the full financial disclosure may in fact not be related to tuition rates but to financial aid, where they can demand all sorts of things by way of proof. | When traveling abroad, how does a nation state know that a couple is married? Usually by accepting the couple's verbal statement. Some countries include a remark in a married person's passport with the name of the person's spouse, which is obviously more likely to be accepted in case of doubt, but not all countries do this. The usual formal proof of a foreign marriage is a certified copy of the foreign marriage certificate with an apostille or similar legalization whereby the foreign ministry of the country where the document was issued (or, in some federal contexts, of a constituent entity) attests to the legitimacy of the official who certified the copy and to the authenticity of the certification. This is a fairly burdensome process that is normally associated with proving family relationships in connection with establishing residence in a foreign country. Nobody is going to expect visitors to have such documents. For a casual or temporary purpose such as hospital visitation rights, the certified copy might be helpful even if it is not legalized. On the other hand, in a country where homosexuality is criminalized, the certificate could be used as evidence against the couple. What laws are in place regarding hospitalization and next of kin? This will be governed by national law. Human rights treaties probably have something to say about it, at least indirectly, but if your spouse is in the hospital that's not going to be of much use. Local law and the hospital's policy will control. What happens to a same-sex couple traveling to a nation that is not amicable to same-sex unions, say India? This is rather too broad, especially as it will depend on the sympathy of the people involved as well as on local law. The outcome could be anywhere from according full spousal visitation rights to the arrest of both spouses followed by conviction, imprisonment or possibly worse, deportation, and a ban on reentering the country. | American citizens can have dual citizenship , but if an american citizen who has his/her citizenship renounced (even though the person was originally an american citizen) , then what is a way of obtaining the citizenship back? Possibly, by the same means that a non-citizen could be naturalized. But, immigration and nationality officials have broad discretion and would probably refuse to grant citizenship to someone who had previously renounced it. And can an american citizen without dual citizenship (Meaning that he is only an american citizen), renounce his/her citizenship? Yes. For example, Prince Harry's financee plans to renounce her U.S. citizenship and contemporaneously be granted U.K. citizenship (the paperwork goes through really easily when the Queen is your grandmother in law). Renunciation of citizenship is not necessarily tied to gaining a new citizenship, but leaving yourself stateless would be a foolish thing to do. |
Is it possible to plead 'indifferently'? I'm aware of the concept of non-standard pleas, but I'm unsure about how they operate in practice. What might happen if a person were to plead something to the effect of 'I plead indifference to/non-recognition of the proceedings and judgement of the judiciary'? Would this simply be regarded as a type of not-guilty plea? Can a person be compelled to select a standard plea under the threat of being found in contempt of court? | canada Section 606 of the Criminal Code says that "[a]n accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part." One of the special pleas is res judicata, but there is no special plea amounting to indifference. If an accused "refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty." | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | The 1975 ban by the attorney general prohibited prosecutors from offering to reduce charges, dismiss counts, or request a particular sentence in exchange for a guilty plea. (Ad hoc exceptions were allowed, initially only by the AG, later by the head of each local office. For a while, there was also judicial bargaining). The AG's ban was on quid pro quo arrangements by his office, and the AG has absolutely no power over the plea by an accused, so that is how an accused could still plead guilty. The following quote is from the first page of Rubenstein & White: On July 3, 1975, the Attorney General of Alaska, Avrum Gross, issued written instructions forbidding all district attorneys and their assistants from engaging in plea bargaining. This prohibition extended to all felony and all misdemeanor prosecutions filed as of August 15. They could not offer to reduce charges or dismiss counts in multiple-count complaints, informations, or indictments as a quid pro quo for guilty pleas. Nor could they request the court to impose any stated sentence; they could only recite the facts. I can't locate a copy of the actual memo, but also see this quote, esp. "...negotiations with defendants designed to arrive at an agreement for entry of a plea of guilty in return for a particular sentence...". A guilty plea is much cheaper for a defendant than paying an attorney and getting convicted, so if you're actually guilty and the evidence is good, it could be a wiser move to plead guilty. There is little reason to engage in a futile act. It apparently also caused a change in the prosecutorial standard for charging, from probable cause to beyond a reasonable doubt – consequently, the chances that the accused is actually guilty goes up. The re-evaluation study also found evidence some evidence that sentencing was lighter in the case of a guilty plea, and it would be sufficient for the accused to believe that he could get a lighter sentence as a reward for a guilty plea to nudge a person in the direction of a guilty plea. | A courtroom is not a podium A court is a forum for resolving a specific dispute. Testimony is restricted for a number of reasons the most all encompassing of which is relevance. For testimony to be admitted it has to go to the issue in dispute. For a person charged under the laws of, say, India, it cannot be in any way relevant what the laws of, say, China have to say about the issue. Similarly, for a person charged with a Federal crime, state law is irrelevant (and vice-versa). There is no free speech issue here because testimony is given only for the purpose of resolving the case. If it’s not relevant to that you can’t introduce it and, if you persist in trying the court can hold you in contempt. | When it says "any e-filed document submitted in support of, in opposition to, or in connection with any motion or application must be delivered to the courtroom clerk assigned to the Department in which the motion or application will be heard" this appears to apply to motions and other requests and not to complaints. This said, the easiest way to determine the answer would be to call the clerk of the court's office and ask. An answer from a clerk of the court would be definitive and easy to secure. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. |
Liability when using content from third party content distributor There are sites that offer images and music that is supposedly usable without paying any royalities (for youtube videos, placeholder images, and so on). The content is uploaded by third party (from my point of view) users to this site and the site is supposed to vet that it is indeed usable without having to pay royality. Recently on one of those sites I have had the impression that there are some content producers that are pushing the limit especially in the music area. If you know the original song you can clearly connect the dots and it really sounds similar, yet they are listed on the webpage as usable without restriction. I am no expert in copyright law but several times I thought it is definitely at least in a gray area. Am I as the user of this site in any way liable if the music turns out to violate copyright? For original music I know I can steer clear to avoid any issues, but I dont know every original piece of music. /EDIT: I did not add a special location tag because I do believe the answer is probably quite similar in various jurisdictions. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned). | Under the DMCA(United States Federal Law: Digital Millennium Copyright Act) and its Safe Harbor provisions, yes, Youtube is protected from copyright claims, provided they comply when they receive a notice. But....the DMCA that gives Youtube (and its parent company Google/Alphabet) this shield is US law, but Youtube does large amounts of business in other countries, making it liable in those countries, which don't necessarily have the same protections. Case-in-point, the EU. Under some other nation's law, Youtube may be liable for infringement if they wait to be notified. Alternatively, part of the agreement that was being hammered out between Youtube and the content companies might very well be some sort of indemnity agreement, that protects Youtube from the content companies so long as they uphold their end of the agreement. Additionally, even if Youtube isn't liable for the copyright infringement itself, since they serve ads on such videos, they could conceivably be sued under the theory of "unjust enrichment". (Similar to the logic that the EU is currently trying to get Google to pay their "link tax" for Google News on). There are also non-legal considerations to consider: Benefit to Self: Youtube is now selling/renting copyrighted content such as movies and TV shows as well. By becoming a distributor, it's in their interest to not also allow free versions of what they are selling on their platform. Cost-to-implement: As Ron Beyer points out, a call center/email center/mail room to receive the DMCA notices would be an enormous cost. What's more, it's a continuous, recurring and likely-growing cost. Youtube/Google is also not short on software engineers. It's much cheaper to pull some devs off of their current project for a couple days, implement a solution and call it a day, with occasional maintenance, especially as they are going to be paying those engineers' salaries anyway. Business Relationships: Youtube/Google make most of their money from advertising (and off of user data, but that is often tied to advertising in the other direction). The content companies are often their customers. Angering your customers is generally not a good idea. Ultimate Desires/Future View:Youtube doesn't care about the lost content. They don't care about the fight. If the copyrighted material is blocked, their users are far more likely to find something else than leave the site; if the material is blocked before uploading, most users won't even realize it was ever there. As such, Youtube doesn't care if copyrighted content is blocked, as that is not their main market. | A matter of terminology, what you want is not the copyright, but a license to use the copyright, presumably a non-exclusive license. You would probably need to approach a licensing department at Disney. They will ask lots of questions, and if they are open to the possibility, will quote a fee, which will, i would think, be sizable. Anyone should be able to ask, but I suspect that most requests are refused. It would probably be well to have a business plan laid out, and exactly how the images would be used in your plan. Disney can refuse any license, or offer one on whatever terms it pleases. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | The commentators are just making stuff up when they say that you can freely infringe on copyright as long as it is for personal use. It is true that "personal infringers" are less likely to suffer the legal consequences of any infringement (partly because it's easier to avoid detection and partly because the hassle to award ratio involved in suing a personal infringer is too high). It's a misunderstanding of "fair use", based on the legally erroneous assumption that anything is okay until you make a business out of it. | It is, in most jurisdictions, not a crime to download YouTube videos. For criminal law, the answer is that it is not illegal. In many jurisdictions, downloading music or video of any kind from the internet is not a crime. Thus, police has no power to punish you for downloading, and even less power to shutdown such "downloader" websites. YouTube's Terms of Service seem to disallow such downloads so YouTube has the right to terminate the agreement with the downloader. They may prevent you from viewing any more videos, for example. However, I think Google does not even have a technical measure in place to do that. Google is not interested in preventing you from using YouTube (its servers can handle that) and that is pretty much the only punishment it can use. Google could use the Terms of Services to say that the downloader-websites are breaking them and thus should not have access to YouTube. The websites could be sued for breaking the Terms of Services (and the court could order them to stop) and Google can block those websites from accessing YouTube by technical measures. It appears it did so in at least one case. Google could sue you (or the websites) for advertisement revenue loss, but it is unlikely. In theory, Google loses advertisement revenue from the video playbacks you would have done on YouTube but did not play because you downloaded the video and played it offline (contrary to the Terms of Service). Google might attempt to sue a downloader website on this basis and try to make it give it money. It would be difficult for Google to prove that it deserves such money, though. I cannot imagine how it would prove that "you would have played the video online, again, with advertisements, if you didn't download it. Note that when you replay a video from browser cache, advertisements do not replay. Why Google doesn't sue downloader-website more often? It's expensive. Google could pay a lot of money to shut down a website via court order but if it really wants to do so, they can apply a technical measure (such as IP block) instead. It is much cheaper and has the same effect. This may change in the near future. There's a some talk around about European court rulings and directives that may change this. It is quite possible that in the near future, even viewing illegally uploaded music on YouTube will be criminal. I find this doubtful because of the difficulty of proving knowledge ("How was I supposed to know that it wasn't an official clip?"). As for whether downloading to a file (as opposed to downloading to the browser cache) will become criminal, I really doubt that. | There's usually at least a little wiggle room for a fair-use argument in copyright law, but as you're describing it, this sounds like a pretty straightforward copyright violation. A copyright holder's exclusive rights include the rights to make copies, create derivative works and publicly perform the work. Whichever way you want to characterize the podcaster's conduct, he's running afoul of at least one of these rights. |
Is it illegal to threaten to present criminal charges in a civil lawsuit? New Jersey Rule of Professional Conduct 3.4(g) provides that an attorney “shall not … present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” Doing so “is a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.” I have two questions: Is this illegal or only unethical? Does the above apply to a ProSe plaintiff/defendant or only to an attorney? | The Rules of Professional Conduct apply only to lawyers and are the foundation for a lawyer to be suspended from the practice of law or disbarred or receive other license related professional discipline. They are neither criminal offenses, nor on their own, a grounds for a civil lawsuit (although they may be relevant to an element of a civil cause of action giving rise to a lawsuit). The Rules of Professional Conduct also prohibit using a non-lawyer as a sock puppet to violate the Rules of Professional Conduct. But, the Rules of Professional Conduct themselves are not applicable to pro se parties or even to non-lawyer parties who are acting fully independently of the lawyers they have retained. In some circumstances, a violation of Rule of Professional Conduct 3.4(g) could also constitute the crime of extortion, or could constitute duress such that an action taken in the course of litigation or a business deal is not actually legally considered to be voluntary and making it potentially voidable. But this would not always, or necessarily even usually, be the case. Incidentally, Rule of Professional Conduct 3.4 is one of the Rules of Professional Conduct with the most state to state substantive variations and it also has multiple differing interpretations even in cases where the language is verbatim identical between states. The appropriate scope of this rule as a matter of policy is one of considerable controversy. And, it isn't unusual for the converse to happen (i.e. for a criminal prosecutor or an attorney regulation system official to force the hand of a civil litigant in the course of negotiations about those charges). | When a complaint is first file, per case law, courts have a duty to believe each allegation you make on information and belief as long as they are each not contradicting any other statement or other evidence present at the time of filing. This isn't true. The court doesn't have to actually believe you. The court merely has to assume for sake of argument that the things said are true for the narrow purpose of evaluating whether they describe a legal wrong in a formal sense. Also, under modern federal pleading rules in the U.S., the judge doesn't have to believe you and can dismiss your complaint if it is not "plausible." Your attorney has a duty to not merely assume that everything that a client tells the lawyer is true. In federal court, the governing rule is Federal Rule of Civil Procedure 11, which states that when an attorney files and signs a document in court that the attorney: certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. The California state law obligations is more or less identical in substance, although the procedural rules of California are codified differently than the federal rules. So, a lawyer is required to reasonably inquire into whether the client is telling the lawyer the truth about the client's motives and about the facts. It is a breach of the lawyer's duties to the court and the profession to simply take what a client tells the lawyer at face value, accepting it uncritically. | "Without prejudice" does not, of itself, create an obligation of confidentiality What it does do is prevent the contents being used against the author in any future proceedings - by this litigant or anyone else. The purpose of civil litigation is to resolve disputes. There is another, better, cheaper and more commonly used mechanism - parties agreeing on their own resolution through negotiation. The purpose of the without prejudice rule is to allow parties to have a full and frank negotiation without the risk that what they say will bite them on the ass in court. If they do not settle, then the court cannot and will not know about any concessions or negotiating positions that either party made or took. Adding "save as to costs" means that after the case is resolved, a party may introduce any offers they made that were better than what was won in order to show that costs should be mitigated - basically that because there was a better offer on the table the litigation was needless and the costs unnecessary. You can share it with whoever you like - they won't be able to use it in court. | Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding. It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. | Section 4A of the Public Order Act 1986 (which was amended by section 154 of the Criminal Justice and Public Order Act 1994). [F14A Intentional harassment, alarm or distress. (1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— (a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress. (2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling. (3)It is a defence for the accused to prove— (a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or (b)that his conduct was reasonable. (4)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.] | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. |
Involving a witness in the settling of an objection In the trial of Jodi Arias, during direct examination, the prosecutor objects to the details of some evidence. As a result both the prosecutor and the defence ask questions of the witness* about the validity of the evidence. Move to admit evidence resulting in objection: https://youtu.be/1ABR8glQeG4?t=8751 I have never seen this before - is it common practice? standard procedure? *At this point it is the defendant who is on the stand | It’s a foundation objection The basis of a foundation objection is the witness does not have first hand knowledge of the physical evidence sought to be introduced. It’s perfectly normal for the court to establish if they do or do not have such knowledge. In the linked case, the objection to the document is that it contains annotations that the witness did not make i.e. the witness did not have first hand knowledge of this annotated document. There are also some objections to parts of the document on the grounds of relevance because they deal with other people. | If no one objects to a leading question, then the judge does nothing. A judge does not generally pro-actively police the rules of evidence at trial. Also, there are circumstances when a judge has discretion to allow a leading question even when it wouldn't ordinarily be allowed to move the trial along on largely undisputed points or to allow in inarticulate witness to testify. The exception to judicial passivity in the absence of an objection at trial is "plain error" that is not "harmless error", which a judge has a duty to prevent or address even if no objection is raised by a party. But, offering a leading question when one is not allowed by the rules of evidence almost never constitutes plain error, and would almost always be considered "harmless error" even if it was objected to and the judge ruled incorrectly, unless the use of improper leading questions was pervasive and there was a contemporaneous objection by counsel. For example, allowing a prospective juror to serve as a juror, despite that juror saying in the jury selection process that he can't be impartial because the defendant committed adultery with his spouse, because neither the prosecution or the defense attorney moves to strike the juror for cause, rather than striking that juror for cause of the court's own accord, is the kind of conduct that would often be considered "plain error" that is not "harmless error." | The court clerk was right. A judge is not supposed to interact with a party (at least not in the absence of the adversary) except during court hearings for which the adversary was notified and given an opportunity to attend. Also, there is no need for you to prove the mere fact that you went to court. That in itself is either inconsequential or palpable from the hearing transcripts. When you file in court papers such as a motion or a response to a motion, you may --and should-- bring an extra copy for the clerk to stamp it. That a clerk does with no objections. The stamp reflects the date on which you file your document(s). That stamp incidentally evidences that you or someone on your behalf went to court but, again, that sole fact is inconsequential. There is no such thing as "motion to appeal". A litigant may initiate an appeal, or appellate process, once the judge has decided a case in its entirety or in part. If the ruling to be appealed does not close the case, the upper court might refuse to review the issue(s) appealed until the whole case has been decided (that refusal is known as denial of the appellant's leave to appeal). Your description nowhere indicates that the judge has already made any rulings or that there have been any hearings on your matter. Your mention of prior motions suggests that you should gain acquaintance with the Texas Rules of Civil Procedure and of Appellate Procedure. Those rules cover several aspects of litigation, including motion practice, the allowed methods of service, and the requirements to file an appeal in upper courts. | Can defense request findings of fact before resting? Is it possible for the Defense to avoid presenting affirmative defenses (like Self Defense) before the Court has found beyond a reasonable doubt that the Defendant committed the crime? If so: How? No, no and not applicable. A verdict is a singular declaration by the jury (or judge) that the state has or has not proved their case. Affirmative Defence These are all affirmative defenses which defeat or mitigate the consequences of the unlawful conduct and the onus of proof lies with the Defence, not the Prosecution. An affirmative defence must be pleaded in a timely manner. If the Prosecution fails in their burden to prove the unlawful conduct the affirmative defence does not get engaged. This is a threshold decision point for the trier of fact and the judge should so instruct the jury. Of necessity, affirmative defences require some admission of fact, however, these facts may not be in contention anyway. Where they are in contention, it requires a strategic choice by the defendant as to whether to use the affirmative defence or not. Is there some theory or principle that illuminates why this is not considered a violation of the Defendant's fifth-amendment rights? Because the defendant is not compelled to make these defences. | The defense lawyer has the duty to do the best for his client. The client will be convicted if he or she is guilty beyond reasonable doubt. If the lawyer can create a reasonable doubt and manages to free his client then he has done a good job. So yes, if the lawyer knows that some other person might have committed the crime, to the degree that it creates reasonable doubt, then the lawyer must raise this. Of course if it turns out that there is just some phantasist making wild accusations, that might not be helpful. | Your ability to assert your Fifth Amendment right against self-incrimination is not limited to cases where you are on trial or have been accused of a crime. Your ability to assert that right is also not an absolute bar against being ordered to testify: if you are given immunity, you can be forced to testify. Alice cannot hold Bob in contempt – only the judge can. Bob can explain to the judge why a simple truthful "yes" or "no" answer is not possible, if he knows how to do that (does he understand the notion of a false presupposition, or unclarity?). He could for example assert truthfully that he does not understand the question (pointing to the distinction between "Charlie's body falling on the vase, causing it to fall and break", and "Charlie acting with apparent intent to break the vase", since it's not patently obvious that the former scenario constitutes "breaking the vase"). However (changing the scenario a bit), he has to understand that if the question is "Did Charlie shoot Delilah?" and the fact is that Ethan forced Charlie to shoot Delilah, saying "No" based on a theory of blame is not reasonably interpreted as truthful testimony. Taking the 5th, without setting forth your basis (not understanding the question) runs the risk that the prosecution will grant immunity from prosecution, and therefore you don't get to avoid answering the question. Immunity covers various things except that it does not cover prosecution for perjurious testimony. See US v. Apfelbaum, 445 U.S. 115: the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Immunity is conferred under the control of some applicable statutory law, such as 18 USC 6002 which says that no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | How can a person with a similar experience with the defendant, help the plaintiff in a lawsuit? You may bring Joe as witness or present some sworn testimony from him. That could be in the form of affidavit, deposition transcript, or by testifying in court. In what way can I use Joe's story? Joe's testimony will be relevant to the extent that it proves the defendant's pattern of conduct or system for doing a thing. Many (if not all) jurisdictions in the U.S. had a provision similar to Michigan Rule of Evidence 404(b)(1): Evidence of other crimes, wrongs, or acts [...] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act [...] when the same is material, whether [they] are contemporaneous, or prior or subsequent to the conduct at issue in the case. Thus, Joe's testimony would not prove your entire claim, but it can discredit important aspects of defendant's foreseeable denials in your matter. In some way the suggestion in the other answer makes sense, but I would discourage you from bringing suit together with Joe. That is because, despite all similarities, your claim are Joe's claim are different instances: Each cause of action stemmed from a separate contract; each contract/cause involves a different plaintiff; the statute of limitations of each wrong started running at different times; and your history with the defendant might differ from Joe's history with him on relevant aspects in a way that could prejudice you. Furthermore, if the defendant requests that the suits be separated, you and Joe would have no persuasive arguments on why your matters should remain consolidated. Lastly, the mere fact that a complaint is filed by two or more plaintiffs will not prompt a judge to act with honesty or with competence. |
Legality of the right to refuse admission by a privately owned restobar A friend of mine recently tried to go into a restobar in India, and to his surprise, was informed that he couldn't because he was a male who was not accompanied by a female. Admittedly shocked, he spoke to the manager of that restobar to find out why, and was informed that due to other peace-disturbing, presumably single males (who caused fights and such), they had to implement such a rule. This restobar is privately owned, but is open to the public without restriction (i.e. doesn't require membership like a club, and such). I understand that almost every place of entertainment across the globe displays this "Rights to admission reserved" disclaimer. However, the second clause of Article 15 of the Constitution of India says: No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to - access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. And then clause three of the same article goes on to say: Nothing in this article shall prevent the State from making any special provision for women and children. Thus, by my understanding, the above-mentioned restobar's rule of not allowing single males in is illegal according to the Constitution of India. Am I correct to arrive at this conclusion? Or are there any additional relevant laws that I may have overlooked? | Article 15(2) of the Indian Constitution prohibits restriction to any citizen of India on entry to a public hotel, restaurant or place of entertainment on the grounds "only of religion, race, caste, sex [and/or] place of birth". It is a fundamental right guaranteed to all citizens of India. The Supreme Court of India has held a "public place" to mean any place which is open to the public and to also include private places functioning to serve a non-exclusive group of people. Hence, a club or premise opened only to serve its affiliates or members shall not be considered a public place for the purpose of this provision of law. Hence, if a citizen of India is not denied admission purely on the basis of his/her religion, race, caste, sex or place of birth, his admission to a restaurant or a hotel owned and operated by the government or private concerns may be prohibited as the rights of admission may be reserved with the management of the premises. Just to conclude you can sue the hotel for denying entry | No. The government generally has no duty to protect private citizens from each other. It was different facts but basically the same question in DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989), where the Supreme Court held: A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. | I have a really good pizza place near my home but the bastards won't deliver when I go interstate! Now, that's discrimination! Yes, it's discrimination. However, it's not unlawful discrimination. Discrimination is not unlawful unless it is on the basis of a protected class. Geography isn't a protected class of itself. It can be if it's used as a proxy for a protected class, such as excluding certain neighbourhoods which correspond with racial or religious groups, but that's not the case here. | tl;dr: If you are not satisfied with the service provided by the restaurant, you should take your business elsewhere and write negative, but honest reviews of the establishment. That will over time solve the problem as well without legal intervention. To answer your question if the restaurant can refuse service if you don't tip is actually a much more difficult question than it might sound. I can't find any case law on this subject, such practice is however perhaps more widespread than commonly expected and my interpretation of the law is that they in most cases actually can, at least if they demand payment up front as take-away services often do. It is for example a 'well known fact' that if you don't tip the waiters at the Oktoberfest, they will usually ignore you and don't take any further orders. It is a dirty and unfair way to conduct business, but not necessarily a violation of law. Even if a tip indeed is legally defined as a voluntary donation by the customer, there is in German law also the concept of 'freedom of contract'. Contrary to popular belief, restaurants and other businesses in Germany are not obligated to serve or accept a customer as long as they don't violate other laws, e.g. anti-discrimantory laws and they don't even need any particular reason for doing so. If you want to enter a club or fancy establishment and the bouncer doesn't like your face, he will make use of this right, refuse you entry and be fully within his legal rights to do so. When you order food for take-away, your order must first be interpreted as a contract offer and the restaurant can, albeit with some restrictions, in most cases freely decide to accept your offer and enter a contract which binds them to deliver food, or they can simply refuse your offer and return any payment you may have done in advance. | Untouchability refers to social practices with respect to those who are avarna, referring to the ancient 4 occupational classes identified by the varna system as exemplified by the Mānavadharmaśāstras. Anyone who is not kṣatriya, brahmin, vaiśya or śudra is avarna ("outcaste; dalit; untouchable"). Article 17 simply asserts that "Untouchability" is forbidden, leaving it to ordinary interpretation to figure out what that really means. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. "Scheduled Caste" is invoked in Art. 341 of the constitution, which simply says (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification Leaving aside the further definition of those in a Scheduled Caste, the act lists numerous specific actions which are prohibited, the Offenses of Atrocities in Ch II, for example (a) puts any inedible or obnoxious substance into the mouth of a member of a Scheduled Caste or a Scheduled Tribe or forces such member to drink or eat such inedible or obnoxious substance You can summarize this as "you cannot commit crimes against a member of a Scheduled Caste". The membership question is reduced to lists, for example The Constitution, (Scheduled Castes) Order, 1950. There are about 7 such orders for caste, and as many for tribes. Note that only Hindus can be in Scheduled Castes, and Sikhs are dealt with by listing relevant caste members as Hindus irrespective of their religious profession. It is unclear what the law says about the indigenous Christians e.g. Malankara Nasrani, who seem to be likewise treated as Hindu. | The police can arrest and charge anyone if they have a reasonable belief that a crime has been committed so: yes. However, if the question is: can they secure a conviction the answer is a resounding no. North Carolina law has three prohibitions on minors and alcohol: supplying to, possession of and buying. Possession is easily dealt with: the minor never possessed the alcohol. Supplying is also dealt with perfunctorily: the supply went from the restaurant to a person 21 or over. This only leaves buying. Now, buying something requires a contract (or since the object is illegal, what would be a contract but for that). Did the minor have a contract with anyone? That is, were they under an obligation to pay for the alcohol? No. If the pair had skipped out on the bill, the restaurant would pursue the adult for payment because that is who they have a contract with. Any arrangement between the diners as to how they will split the bill is a private, unenforceable arrangement, not a contract. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | Farmer's Market is private property, which means that the owner gets to set the rule according to which you are allowed to enter and remain on their property. There is no fundamental right to be in a business, either under the US Constitution or California's. While you have a constitutional right to put a soapbox on the public sidewalk and denounce or extol whatever you like, there is no such right on another person's property. You also have a right to express racially and sexually abhorrent content on the street. Your right to express your viewpoint ends at the store's doors. The manager has a property right to withdraw the implicit permission to enter and remain that is implicit in running a publicly accessible store. Your constitutional right to say whatever you want has to do with government action,not private action. You have no right to compel individuals to listen to your viewpoint on private property. It is a business decision, well within the rights of the property owner, for him to find your conduct unacceptable and grounds for expulsion. You do have a recourse: shop somewhere that doesn't care what you say to their customers. |
Is marriage rejection on the basis of caste a criminal offence? I am a Brahmin and my girlfriend is Schedule caste, and my parents are denying our marriage because of caste. Will it be considered a criminal offence under Indian caste discrimination law, if any? | The applicable law of India is The Scheduled Castes And the Scheduled Tribes (Prevention of Atrocities) Act, 1989 plus the 2015 amendment. There are various prohibited acts, the majority of which are already crimes, such as numerous kinds of assault, trespass, unlawful eviction, also including knowingly making obscene gestures at a woman belonging to a Scheduled Caste or a Scheduled Tribe. It also includes social and economic boycotts, to some extent (as a means of preventing such a person from voting). Parents can freely refuse to sanction / support the marriage of whoever they chose, but they cannot forcibly interfere, for instance by kidnapping one of the participants. | england-and-wales Q: Is it an offence if the target of racism only appears to be of/from a different race, colour or national or ethnic origin? Yes Q: If someone carries out an alleged act of racial discrimination / intimidation / abuse (verbal or physical) against someone they believe to be a target person, would it be a defence (or would it not be an offence), if it turns out that the other party was not actually a target person, but just gave the appearance of being a target person? No Short answer: The victim's actual, or perceived, race is not important in this context - it's the actions and intent of the offender that creates the various offences which carry a higher sentence due to the racist element being an "Aggravating Factor" Long answer: (Just in the context of race-related "hate crimes") DISCRIMINATION falls within the Equality Act 2010 which primarily relates to unlawful discrimination within employment, or the provision of goods or services on the grounds of a person's protected characteristics defined by s.4: The following characteristics are protected characteristics — ... race ... s.13 creates the offence: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ... (5) If the protected characteristic is race, less favourable treatment includes segregating B from others ... s.26 of the 2010 Act also creates an offence of harrassment (although it is primarily concerned with unwanted and unwarranted sexual advances it is not exclusively so): (1) A person (A) harasses another (B) if — (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ... (5) The relevant protected characteristics are — ... race RACIALLY AGGRAVATED OFFENCES are created by s.28 of the Crime and Disorder Act 1998 and carry are greater maximum sentence than the equivalent non-aggravated offences: An offence is racially ... aggravated for the purposes of sections 29 to 32 below if — (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial ... group ... s.29 relates to certain assaults under the Offences Against the Person Act 1861 s.30 relates to certain offences under the Criminal Damage Act 1971 s.31 relates certain to offences under the Public Order Act 1986 s.32 relates to certain offences under the Protection from Harassment Act 1997 OTHER OFFENCES fall within s.145 of the Criminal Justice Act 2003 which captures those not dealt with by the 1998 Act and requires the court to, for example, impose a sentence greater than it would for a comparable offence that lacks a racist element: (1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 ... (2) If the offence was racially or religiously aggravated, the court— (a) must treat that fact as an aggravating factor ... | The relevant bit of legislation — Human Rights Act 1993 s22 — protects applicants and employees: Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful .. to refuse ... offer .. terminate ... retire ... by reason of any of the prohibited grounds of discrimination. So, if you never advertise but always invite people (i.e. offer them job straight away) then there are no applicants (as at no point does anybody apply for the job), and hence no employment discrimination. If you invite them for a "non-discriminatory screening interview" then there is no discrimination by definition of "non-discriminatory" :) behavioural / relational / mental / spiritual I'm pretty sure these criteria would be discriminatory in a advertised position. None of those criteria are prohibited grounds of discrimination (s21). However, it would be a good idea to clearly define them as "a genuine occupational qualification for the position" by drafting a job description and explaining why those traits are crucial for the business. | The answer is a clear maybe. See https://www.gov.uk/discrimination-your-rights/types-of-discrimination Discriminating on the basis of sex is illegal, however, applying different rules on uniforms is probably not discrimination under the law. To be discriminatory it must put the class of person at an unfair disadvantage, be harassment or victimisation. You would have to demonstrate that refusing to allow females to wear trousers puts them at an unfair disadvantage (and vice versa because these are separate discriminations) - victimisation is not an issue here, harassment might be but it would have to be actually happening. You should look at things like comfort, practicality, sports, play etc.; the problem is that the better your argument for girls the worse it is for boys.😓 The steps you can take are spelled out in the link, starting with communicating with the organisation. So marshal your arguments and write them a letter and then move on to mediation. At the very least you should get an insight into why they oppose your position. If you deal constructively with their concerns you may get what you want. | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | canada You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes. Criminal Code, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group. It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning "any section of the public distinguished by colour, race, religion or ethnic origin"). What matters is a strict mens rea requirement that the communication was done with the intent of promoting or inciting hatred against such a group. If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group. See generally, R. v. Keegstra, [1990] 3 SCR 697. Hypothetical laws If instead you are asking about what a hypothetical law could require (since you ask, "If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism..."), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence. E.g. "Any person who assaults another, knowing that the other person is X, commits an offence..." This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault. E.g. "Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence..." Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter. However, Canadian law has constitutional minimum mens rea requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the mens rea from the element relating to the target's status would be unconstitutional. | Yes. The charge in that case is solicitation of assault. Usually, solicitation of a crime carries the same punishment as the underlying crime. On the other hand, if a daughter tells her father what you did to her and he unilaterally decides to assault you, out of defense of his family's honor and outrage, the daughter has not committed a crime. | The law does not criminalize "having more than 1 legal spouse", it criminalizes specific behavior. The polygamy statute is here. It says Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. That is, if you behave like you're married to multiple women, you've committed a crime. |
Reservation category of people born out of inter-caste marriages Background In India there is reservation (for government employment and admissions etc) based on caste and income among other types. For caste based reservation mainly following categories are there — Reserved categories SC (scheduled caste) ST (scheduled tribe) OBC-NCL (Other Backward Class — Non creamy layer) General-EWS (Economically Weaker Section) Non-reserved categories OBC-CL (Creamy layer) General-others (non EWS) My questions — Is there default caste of child born out of inter-caste marriage? Or parents get to choose caste for child from among castes of theirs? What will be the reservation category of a child when— One parent belongs to non-reserved category and other belongs to reserved one. Both parents belong to different reservation categories. | Is there default caste of child born out of inter-caste marriage? Short answer The child normally takes the father's caste, but it may be contested if it can be shown that the child is brought up by the mother. Long answer The case law has been evolving in recent years, the latest findings by the Supreme Court of India can be found at Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012 [T]he legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. | Some are, some aren't. For instance, Title VII of the Civil Rights Act prohibits all employment discrimination on the basis of race, including discrimination against whites. On the other hand, the Age Discrimination in Employment Act explicitly only protects people who are at least 40, and the Supreme Court held that it only applies to discrimination against older workers in favor of younger workers in General Dynamics v. Cline. While both laws forbid discrimination on the basis of X, the Supreme Court held that Congress clearly meant to limit ADEA to discrimination against older workers. You specifically use veteran status as an example. Veteran status is protected by the Uniformed Services Employment and Reemployment Rights Act. The point of the law is explicitly to make it easier for people to serve in uniform without messing up their career. The law specifically bans discrimination against veterans (or a couple other service-related categories) on the basis of service. It does not ban discrimination in favor of veterans. In fact, the federal government (which is supposed to be a model employer under USERRA) gives veterans a preference in hiring decisions. Congress's goal in enacting Title VII was to make race a non-factor in employment; their goal with USERRA was to encourage military service. | Civil registration of births, marriages and deaths in the United Kingdom is a nineteenth-century innovation, based on the previous practice of keeping parish records of baptisms, marriages, and burials. The history is different but parallel in England (and Wales) and Scotland. What the churches were originally trying to do was to record information about their own ceremonies, because there are religious consequences to being baptized, married, etc. Civil law follows: you might have to prove in court that you were validly married to such-and-such a person, now deceased, and therefore had the right to live in his home as his widow. The parish system, because of its general utility, was regulated by legislation. In England, it was made mandatory in all parishes in the middle of the sixteenth century (although in practice, this happened at different rates in different places). Legislation in the following centuries covered the manner of keeping records, penalties for non-compliance, and fees for registration. For example, by the late seventeenth century you would have to pay sixpence to register the birth of each child, and a massive 40 shillings if you failed to do so within five days of the event. Registration also served as a device to give nonconformists an incentive to join the established churches, as there was no secular way to prove age, and few ways to marry. With liberalisation of religious strictures in the nineteenth century, the civil system began in England and Wales in 1837, and in Scotland in 1855. Under the Acts (6 Will 4 c.33, 17&18 Vict c.80), records were kept by governmental authority, with no religious qualification required. This was helpful for non-Anglicans or non-Presbyterians wanting to live their lives, and helpful for the government for having a more complete set of records for the population in general. Currently, registration of births is free, but there are various penalties for not doing it in time, and it costs money to get copies of birth certificates. The fees are not based on any estimate of lifelong earning power or anything of the kind. There was a very brief period (1695 to 1706) where in order to fund a war with France, the government levied a variable rate tax on parish register entries. The rates depended on the degree of the person registered. It was abolished due to its considerable unpopularity, also resulting in low rates of compliance and therefore revenue gained. The law, An Act for granting to his Majesty certaine rates and duties upon Marriages Births and Burials and upon Batchelors and Widowers for the terme of Five yeares for carrying on the Warr against France with Vigour, 6&7 Wm&Mary c.6, now called the "Duties on Marriages, etc. Act 1694", set out the following for births: Paupers: Free Most people: Two shillings Aristocrats: Between twelve and thirty pounds depending on rank, and with a surcharge for the eldest son, in addition to the two shillings. Baronets, knights, lawyers, academics, gentlemen and senior clergy: Between one and five pounds, plus the two shillings. Anyone not included in the above but who is rich: Twelve shillings. Similar fees were charged for marriages and so on. I believe this is the only time in UK law when there were differential fees for registration depending on the status of the parents. The scale was presumably based on the idea that wealthier people could afford to pay more. There were no legal consequences for the child as a result of the different fee paid, except insofar as they would be disadvantaged later in life if they were not properly registered. The law was repealed and the "Warr against France" has also been over for a long time. As usual, the "sovereign citizen" conception is completely bogus. There is not, and has never been, any notion of a birth certificate being a financial instrument. The confusion may be due to the word instrument being used for lots of different kinds of official documents, as well as a general boneheadedness about how the law works. A birth certificate is a convenient way to prove the circumstances of your birth, and for the government to collect statistics. Indeed, a paper copy of a certificate is just a way to make the management simpler - you can get many copies or none, at your option - since it saves effort compared to inspecting the centralised registers themselves. | The law is not settled and will shortly be before the High Court (sitting as the Court of Disputed Returns) but theoretically: yes! The provision on Disqualification is s44, specifically subsection (i): Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. Which, on the face of it, makes eligibility to sit in the Australian parliament dependent on the citizenship laws of every other country in the world: all 195 of them. Indeed, right now, any citizen of Australia (which is itself a qualification by virtue of s16 or s34), is allowed to live and work in New Zealand, and to vote after a year's residence - that is they are "entitled to the rights or privileges of a subject [but not a citizen] of a foreign power". Therefore, interpreted that way, no Australian is entitled to sit in parliament. Of course, a simple referendum1 could change the Constitution to fix that - except, a referendum must be called by parliament and we no longer have one. Personally, I think it is unlikely2 that the High Court will rule in such a way that would plunge the nation into a constitutional crises by deciding no one can sit in parliament or that who can sit is determined by the laws of foreign nations. Notwithstanding, at present there are 5 MPs who have been referred to the High Court (2 of whom have already resigned), 2 more who will be referred when parliament resumes in September, 21 known to have been born overseas who have not confirmed that they have renounced any foreign citizenship they might have and an unknown number who may have foreign citizenship by descent. Each of the cases is distinct: some were born overseas, some have foreign citizenship by descent, one is a 3rd generation Australian whose mother registered him as an Italian citizen when he was a child (17) and he claims he never knew. How the High Court will rule will almost certainly vary with the particular circumstances but its anyone's guess what they will decide. However, it appears that the drafters of the constitution intended that it should capture all dual-citizens, not just those who sought dual-citizenship by a deliberative act. If a person is found to be ineligible then different things happen depending on if they ware a Senator or a Member of the House of Representatives. For a Senator, the High Court would recount the results of the election - because of the strange way voting works for the Senate, only educated guesses can be made about who would replace whom (especially since the same citizen issue may apply to other candidates on the ticket). For a Member of the House of Representatives, a by-election would be held - because the Liberal/National government has a majority of 1 and 3 of their members are in the gun the results will be ... interesting. 1 Referenda in Australia are not simple. The Australian Constitution is specifically designed to be difficult to change while at the same time granting broad powers to parliament. It takes a nationwide vote and must be carried by a majority of voters nationwide and a majority in a majority of the six states (i.e. 4 or more). Since federation in 1901 there have been 44 referenda of which only 8 have been carried. In is generally accepted that a referendum is impossible to pass unless it has bi-partisan support: and sometimes not even then. 2 And by "unlikely" I mean "impossible" - a conclusion that the constitution must be read in such a way that parliamentary democracy becomes impossible would be contrary to law. Update in light of the High Court’s ruling: No Providing a potential parliamentarian has taken “all reasonable steps” to renounce foreign allegiance they are permitted to serve even if the foreign power refuses to allow them to renounce citizenship. In practice, this means writing to the foreign embassy and renouncing citizenship. | For starters you might want to read fundamental rights in India. FUNDAMENTAL RIGHTS General Definition. Laws inconsistent with or in derogation of the fundamental rights. Right to Equality Equality before law. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Equality of opportunity in matters of public employment. Abolition of Untouchability. Abolition of titles. Right to Freedom Protection of certain rights regarding freedom of speech, etc. Protection in respect of conviction for offences. Protection of life and personal liberty. 21A. Right to education. Protection against arrest and detention in certain cases. Right against Exploitation Prohibition of traffic in human beings and forced labour. Prohibition of employment of children in factories, etc. Right to Freedom of Religion Freedom of conscience and free profession, practice and propagation of religion. Freedom to manage religious affairs. Freedom as to payment of taxes for promotion of any particular religion. Freedom as to attendance at religious instruction or religious worship in certain educational institutions. Cultural and Educational Rights Protection of interests of minorities. Right of minorities to establish and administer educational institutions. [Repealed.] Saving of Certain Laws 31A. Saving of Laws providing for acquisition of estates, etc. 31B. Validation of certain Acts and Regulations. 31C. Saving of laws giving effect to certain directive principles. 31D. [Repealed.] Right to Constitutional Remedies Remedies for enforcement of rights conferred by this Part. 32A. [Repealed.] Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. Restriction on rights conferred by this Part while martial law is in force in any area. Legislation to give effect to the provisions of this Part. Then read this PDF for above mentioned topics. The eight fundamental rights recognised by the Indian constitution are: 1. Right to equality: Which includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2. Right to freedom: Which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3. Right against exploitation: Which prohibits all forms of forced labour, child labour and traffic of human beings 4. Right to freedom of religion: Which includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5. Cultural and Educational rights: Preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. 6. Right to constitutional remedies: Which is present for enforcement of Fundamental Rights. 7. Right to life: Which gives the right to live with human dignity. This includes rights such as right to education, health, shelter and basic amenities that the state shall provide. 8. Right to education: It is the latest addition to the fundamentals rights. 9. Right to Information:RTI stands for Right To Information and has been given the status of a fundamental right under Article 19(1) of the Constitution. Remember - you will have to keep updating your knowledge on Laws India's parliament and state governments pass. One such place is PRSIndia. Read this question on Quora. Google search "Police laws and acts, india" - you will get lucky. About beating and mistreating, any body can do that. You do not have to be in police for doing so. You do not have to be weak, old or poor for getting beaten. Examples: Poor people beat their kids and wives. Frustrated wives beat their husbands. Salman Khan slapped Aishwarya Rai. And so on. All you can do is read about the law, gain information and use it. Edit: Adding an image (for visual stimulation) None of this constitutes a legal advice. These are opinions. | Your options are generally limited by where you have (or can establish) residency, along with where your communal property is held. There are (decreasing numbers of) jurisdictions known as "divorce mills" that have notoriously lenient rules for establishing residency and completing divorces. | You haven't actually asked a question, but I presume that you want to know how the 11-year-old son could accompany his mother to the US if she moves to the US as the fiancée or spouse of a US citizen. The US Department of State has a page about this on their site. It says: Overview: What Is a K-1 Visa? The fiancé(e) K-1 nonimmigrant visa is for the foreign-citizen fiancé(e) of a United States (U.S.) citizen. The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The foreign-citizen will then apply for adjustment of status to a permanent resident (LPR) with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). Because a fiancé(e) visa permits the holder to immigrate to the U.S. and marry a U.S. citizen shortly after arrival in the United States, the fiancé(e) must meet some of the requirements of an immigrant visa. Eligible children of K-1 visa applicants receive K-2 visas. Later, it says: Does My U.S. Citizen Fiancé(e) Need to File Separate Petitions for My Children? No. Your eligible children may apply for K-2 visas based on the approval of Form I-129F, Petition for Alien Fiancé(e), that your U.S. citizen fiancé(e) filed on your behalf, but your U.S. citizen fiancé(e) must list the children on the petition. Separate visa applications must be submitted for each K-2 visa applicant, and each applicant must pay the K visa application fee. After your marriage, your children will need to file separately from you for adjustment of status. They cannot be included on your application for adjustment of status. More information about adjustment of status is available on USCIS’s website under Green Card (Permanent Residence). Important Notice: Under U.S. immigration law, a child must be unmarried. In order to file for adjustment of status for your child following your marriage to your U.S. citizen spouse, the child’s stepchild relationship with your spouse must be created before the child reaches the age of 18. (Emphasis and links in the original have been removed.) If she marries before moving to the US, then the process is somewhat different, but it is still possible for minor children to be included. You can read more about that at Immigrant Visa for a Spouse of a U.S. Citizen (IR1 or CR1). | Very briefly, holding political views or having political party affiliations simply do not give a person inclusion in a protected group (Wikipedia) when it comes to federal law. Protected classes do include • Race – Civil Rights Act of 1964 • Religion – Civil Rights Act of 1964 • National origin – Civil Rights Act of 1964 • Age (40 and over) – Age Discrimination in Employment Act of 1967 • Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964 • The Equal Employment Opportunity Commission interprets 'sex' to include discrimination based on sexual orientation and gender identity • Pregnancy – Pregnancy Discrimination Act • Citizenship – Immigration Reform and Control Act • Familial status – Civil Rights Act of 1968 Title VIII: Housing cannot discriminate for having children, with an exception for senior housing • Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990 • Veteran status – Vietnam Era Veterans' Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act • Genetic information – Genetic Information Nondiscrimination Act (Many state laws also give certain protected groups special protection against harassment and discrimination.) In the US, political beliefs are one's own to choose and participate in, mostly due to the First Amendment to the United States Constitution (Wikipedia): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble... |
Is hiring a dominatrix legal in Canada? According to Wikipeidia it is illegal "to purchase or advertise sexual services". This statement seems very broad and would include more than copulation. I noticed on a dominatrix website, they asked for photo ID and payment by credit card. If the activity was illegal I would have thought they would avoid leaving a paper trail. I heard the ID is to make sure the clients are not minors. Is this true? I had once gone to a dungeon party. Personally I found many activities not at all sexual. Just for example's sake some people pretended to be dogs. Since there was no money exchanged this wouldn't break the law, but if someone paid a dominatrix to treat them like a dog, would it? Would details like if they were nude or if genitals were touched make a difference? Does the law define what is meant by "sexual"? In general "BDSM" refers to something sexual and from a quick search most definitions of dominatrix refer to BDSM. So in this sense would they be illegal? | The closest possible prohibition is found in s. 286.1 of the Criminal Code, which makes it an offence to pay for the "sexual services of a person." "Sexual services" is not a defined term. The Department of Justice provides its opinion about what this term might cover, but that is not determinative. In relation to a charge of the previous version of this prohibition (which also used the term "sexual services"), counsel was unable to direct the judge to a definition of the term, and the judge was unable to find one (2015 ABPC 241). The judge adopted a test that requires the service to include "some sexually suggestive physical act on the part of the person providing the sexual service". This is a test somewhat stricter than the one proposed by the Department of Justice in that in addition to merely being "sexually stimulating or gratifying," there physical act itself must be "sexually suggestive." [50] What is a “sexual service”? Counsel have not directed me to, nor have I been able to find a definition of the term “sexual services”. [51] Sexual services” would clearly include any type of sexual intercourse, or physical contact for purposes of masturbation. It would also include posing for nude photographs. A request “to touch or feel the breasts of the [female] complainant” is an attempt to obtain the sexual services of the complainant. In my view, “sexual services” would also include dancing in a sexually provocative or stimulating fashion. In terms of a general definition, I think the phrase “sexual favours rendered ...for the sexual gratification of the customer” is sufficient. [52] However, I am of the view that the “sexual services” or “sexual favours for the sexual gratification” of a person requires that there be some sexually suggestive physical act on the part of the person providing the sexual service. The sexually suggestive physical act may be many things, such as posing nude, or sexually suggestive dancing, or suggestively removing clothing. That list is not exhaustive, and, with the creativity of the human mind, I doubt one could ever create an exhaustive list. However, the common element is that some sort of sexually suggestive physical act is necessary to constitute the sexual service. [53] In the case at bar, the accused had M.C. engage in what one might call “fantasy role playing”. If the role playing involved M.C. performing a sexually suggestive physical act, then the definition of “sexual service” might well be satisfied. However, in the case at bar, M.C. took on the fantasy role of being the slave in a master/slave relationship. M.C. did not perform any acts as a slave. The “slave role” was one in the mind of the accused (and perhaps M.C.), and had its expression in the content of emails and text messages between Mr. Peterson and M.C., but M.C. did not engage in physical acts for the sexual gratification of the accused. ... [54] M.C. was cast in the role of a slave in fantasy role playing, but the playing really only occurred in the heads of Mr. Peterson and M.C. That does not constitute the act of Mr. Peterson obtaining the sexual services of M.C. [citations removed] But this was a lower trial court's reasoning that has not been adopted by others yet, and no other court has needed to develop the definition at the margins. | Is it true that I cannot buy a puppy and smash it deliberately for my perverse amusement (regardless of whether it's in front of them or not)? If I cannot, can you point me to the relevant laws? Is it true that I cannot buy a cow or a pig and throw it into a woodchipper similarly for my perverse amusement? If I cannot, can you point me to the relevant laws? You can't do either of these things. Every state has some sort of law banning cruelty to animals. For example, in Colorado, the laws prohibiting cruelty to animals are codified at Sections 18-9-201 to 18-9-209, Colorado Revised Statutes. The core language of the statute is codified at Section 18-9-202(1)-(1.5) (as of July 1, 2014) which states (in language that is not atypical nationally) that: (1)(a) A person commits cruelty to animals if he or she knowingly, recklessly, or with criminal negligence ovedrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or having the charge or custody or ay animal, fails to provide it with proper food, drink or protection from weather consistent with the species, breed, and type of animal involved, or abandons an animal. (1)(b) Any person who intentionally abandons a dog or cat commits the offense of cruelty to animals. (1.5)(a) A person who commits cruelty to animals if he or she recklessly or with criminal negligence tortures, needlessly mutilates, or needlessly kills an animal. (1.5)(b) A person commits aggravated cruelty to animals if he or she knowingly tortures, needlessly mutilates, or needlessly kills an animal. (1.5)(c) A person commits cruelty to a service animal if he or she violates the provisions of subsection (1) of this section with respect to a service animal . . . whether the service animal is on duty or not on duty. The rest of the statute mostly spells out sentences and other remedies and definitions applicable to these offenses. For what it is worth, the laws against cruelty to animals, and the now obsolete laws prohibiting cruelty to slaves that existed when slavery was legal in the U.S., were quite similar. So, yes, an animal (pet or otherwise, there is almost no formal legal distinction between pets and non-pets, even though in practice, people evaluate what is cruel to a pet and to a farm animal differently) is property. Yes, someone who owns an animal may intentionally kill it or maim it, or have someone acting at the owner's instructions do so. But, an owner must do so humanely under the circumstances and must do so for a good reason (such as for food, to put down a sick or injured or dangerous animal, or for experimental research). Ranking states is a bit difficult. There are some states that have felony cruelty to animals statutes and some that don't. I don't have the time to look for an exhaustive survey of the law state by state (one summary is here). There are some states that are quite specific (like Colorado) and others that are more general in language. Idaho has an express provision that killing animals that are harrying livestock is an acceptable reason. Some of the difference boils down to how the law is applied in practice, rather than to the language of the statutes on the books. The overall gist of the statutes, however, is pretty similar: don't be cruel in how you do it, and don't harm animals if you don't have a good reason for doing so. There is also a lot of conduct (for example, separating mothers and young children, amputating body parts such as claws or tails or reproductive organs without consent, or confining and leashing them) that would cause emotional harm to animals and which would be grave human rights abuses, that is not prohibited as cruelty to animals. Similarly, there are many farming practices that are accepted as not violating these laws like the process of creating veal or foie gras that could be characterized as cruel but are accepted as not violating the laws against cruelty to animals. To a great extent, these exceptions, which are rarely codified, are simply a matter of custom and practice and tradition, rather than having any well reasoned logical derivation from statutory language. | A CC0 license granted by party A only waives their rights, and not those of unrelated party B (i.e. Marvel). And while Marvel might have granted the cosplayer a limited right to depict their persona's, that almost certainly does not constitute a sublicensable right. This is especially the case if the rights are implicitly granted (by Marvel not acting). | Criminal Code 293 outlaws polygamy and bigamy, and identifies as an offender Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii) In other words, it is against the law to go through the ceremony with multiple partners, and to "enter into a conjugal union", even if not solemnized in any particular fashion. "Common law marriage" is broadly recognized in Canada (except in Quebec), with specific details governed by the province. This too is a case where people who "act as if" married are treated as actually married, given certain circumstances (which exist in a polygamous marriage). The question of having children is not relevant to the law, indeed having sex is not a requirement for something to be deemed a polygamous marriage, and the law against polygamy also says nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse. In this particular case, we do not know the specific details, but it is reasonable to assume that there was no posturing or faking, and there were multiple solemnization ceremonies, so the polygamy is overt. The claim is that it is constitutionally protected. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | Sexual contact that is not consented to is a crime. Physical contact where the receiver is under the apprehension of imminent risk is the crime of battery. However, spanking in the context of a consensual sexual encounter does not have that apprehension and is therefore not battery. It is akin to the consent given by people who take part in a contact sport. Contracts cannot permit criminal actions. The permission given by the submissive in this agreement would be valid only at that point in time that the contract was made and could be revoked at any time: such revocation could be explicit or implicit. As continuous consent is required for a sexual act and revocation of permission would introduce the apprehension of harm. Whenever the permission was revoked the agreement would be unenforceable. At best, you have a agreement that is enforceable when the permissive wants it to be and not otherwise: more likely, you have a totally unenforceable agreement. More generally, contracts that involve sex acts as consideration are enforceable to the extent that prostitution is legal in the jurisdiction. However, an order for specific performance would not be granted where either of the parties was no longer consenting to the sex act because that would be a court order to commit a crime. Other remedies for breach like damages would be available. For example, if you contracted with a prostitute and refused to pay for services delivered, you could be successfully sued for the fee, any damages, costs and interest. | Yes, it is illegal in North Carolina, which defines your sex as what's on your birth certificate. At any point in your transition, even when it's long complete, you'll still have to use the restroom for the gender on your birth certificate (hypothetically assuming the law is still in place). See e.g. this CNN coverage and this followup. Will you actually be arrested? Probably only if there's a complaint. The police haven't yet figured out how they're supposed to enforce this law. |
Would it be / have been unhelpful for Hans Niemann to bring up Magnus Carlsen's own cheating? This is about the Carlsen–Niemann controversy asked about previously: Why don't courts punish time-wasting tactics? How can Magnus Carlsen, a Norwegian, be sued for defamation by Hans Niemann in Missouri? Update: Are (evidence of) rumours of a defendant's racism unhelpful in a defamation case involving accusations of cheating? Unlike Magnus, Hans never (provably) cheated OTB (over the board), cheated as an adult or cheated against a minor. In all of the following, Magnus cheated as an adult. Magnus cheated online twice against GM Danya Naroditsky in lichess. 1 was in 2021 by getting help from SGM David Howell (aka GM HansSchmidt) on lichess. Magnus cheated OTB against then-minor 16yo prodigy Alireza Firouzja in 2019 blitz world chess championship See here 8:18 - 8:22. Initially, Magnus talks on own time after Alireza moves. That's fine. But later after moving and then punching clock Magnus still continues to make noise. It is talked more about there. Poor kid. Alireza even wrote this appeal: It was denied because Alireza did not call arbiter during the game. Probably kids are too afraid to call arbiters on world chess champions like how Judit Polgar was afraid to call an arbiter on Garry Kasparov in 1994. Magnus cheated OTB against SGM Ian Nepomniachtchi in the 2021 world chess championship by touching a piece without saying 'adjust' and then not moving it. Magnus definitely intended to move the piece according to SGM Hikaru Nakamura (yet strangely co-defendant of Magnus in this lawsuit. Traitor). Unfortunately, Nepo was not in the room and so could not claim a touch move rule violation against Magnus. As per FIDE rules, unless you announce adjustment, you MUST move the piece you've touched. Of course it's the responsibility of the opponent to claim it, but it's a violation of the rules nonetheless. This is why I view it firmly as a fair play issue. 'Magnus Carlsen admitted to breaking Chess.com's fair play rules "a lot" in a Reddit AMA' Questions: Would it have been unhelpful for Hans to have brought this up in the lawsuit? (Not sure of my grammar?) Would it be unhelpful for Hans to bring this up later on eg in depositions or actual trial? Response from a lawyer (Brodie Butland aka BMB_Esq on twitter - Oct 24, 2022) Let’s assume for sake of argument that’s all true. At most it would show that Magnus is a hypocrite. It doesn’t show actual malice as to the specific defamatory statements that the lawsuit is based upon, which was the focus of my analysis. | Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be "relevant to a live, material issue in the case" (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say "A did X." Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case. | Possibly The game company has almost certainly excluded liability under the contract you entered. There may be some consumer protection that you have that they cannot exclude - I don’t know enough about German law to meaningfully comment. Notwithstanding, if you were to initiate legal action against the, as yet, unknown wrongdoer, you could subpoena the relevant records from the game company with a court order. No matter what privacy or other protections the other person has, the game company must obey the order or be in contempt. Without such an order the game company is right that they can’t disclose details of other users. As a practical matter, it will cost several hundred € to initiate legal action and several thousand to pursue it to the end. And you might lose. A better response is to treat the lost €80 as a relatively cheap life lesson - many people lose a lot more learning to recognise scams. | There are three main aspects to this: Its their website, and their terms of service. They can enforce those terms, or change them (in some appropriate manner). You have no recourse if they remove you, block you, or delete your account, for example. That's the measure that you would probably have, virtually every time. To claim damages, or litigate beyond just website access control, requires a legal claim. But there's a catch there. To claim damages, they need to show actual damage, which they wish to be compensated for. If you misused their website but no actual harm can be shown, the total damage claimable is zero, whether or not you followed their rules. Merely entering dishonest information isn't by itself harm. So they would have to show they suffered damage/harm because of that, which is directly attributable to your behaviour, was foreseeably harmful etc, or similar. They also need to consider legal costs, and ability to enforce, especially if you are in a different country. If for some reason the computer use was also illegal, then a criminal act could be committed and they could notify law enforcement. For example suppose you did this in the little known country of Honestania, where the law says that to prevent trolling and online abuse, anything posted on social media under any but your own legal name is a crime. Or suppose you'd been banned from the system and ignoring/evading such a ban was criminal computer use or criminal trespass due to the forbidden/unauthorised access (which can happen in several places). But this is purely for completeness; I guess you'd know if you were taking it further, into criminal computer use. | A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | A party to a civil suit in a US court generally has wide latitude on discovery. If it is not completely implausible that one of those text messages might contain something helpful to the other side, then they might well be able to demand and obtain them. This would be true even if Jan has no plans to use any of them. If Jane thinks that there is something in some of those messages which should not be disclosed, she could, normally with the advice of hr lawyer, file a motion to limit discovery in some way. Whether there is good grounds for such a motion will depend on very specific details of the facts, and is beyond the scope of an answer at this forum. It is true that Jane is only required to produce the messages if the judge in the case has in fact ordered this. It would be highly unethical for Jane's lawyer Arnold to lie to here about this. If he did so and got caught, it might cost him his license to practice law, plus additional penalties. If Jane seriously suspects that he is outright lying to her, and colluding with the opposing party, she needs to take steps to confirm or disprove this, or if she can do neither, to obtain a different lawyer. | I've had a good look at the Vagrancy Act, and I have to say that i can't find the text that you're looking for. It's possibly been repealed, in which case it's not, in fact, the law - even if it were, it is unlikely that this provision would have applied to most games, as it appears to be Games or pretended Games of Chance that it targets. |
What happens to the possessions of a convicted person? What happens to a person's assets, such as a vehicle, house, or company, when they are given a long prison sentence, such as several years or life? Are these items automatically turned over to the state, or does the individual retain the right to determine how their property is distributed? P.S. What about when a person has been arrested but not yet convicted, do most jurisdictions impose a temporary freeze on their assets, or does the principle of "innocent until proven guilty" apply and they still have complete control over their property? | A person's property cannot be seized in the US except by due process of law. There is no law that declares the property of a convicted person to be forfeit to the state. A person who is convicted might be subject to a fine, in which case a court could order seizure of property to pay the fine. Your property might also be seized as a result of a civil forfeiture proceeding (where the government sues your property for being the fruit of an illegal enterprise), but that only applies to property believed to be connected to a crime (e.g. purchased with the proceeds of a crime). Civil forfeiture doesn't even require that you be arrested. Barring that circumstance, the person retains their rights to their property. It is then up to them to make suitable arrangements for the protection or disposition of their property. | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. | There is no absolute rule in such cases. It is often a matter of negotiation between the state and federal authorities, and failing agreement, a matter of which authority has the prisoner in custody. Often the question of which crime is more serious or carries a longer sentence is an issue in such negotiations. | Assuming that the police have a warrant to seize your cell phone, the scope of what can be seized is specified in the warrant. It is not automatic that seizing a phone entails seizure of some or all online accounts (e.g. automatic backups, collections of passwords in a Google account) and it does not automatically "freeze" or block a person's access to their accounts including phone accounts. It's not that it is impossible to seize an account, it's that it is not automatic: it has to be in the scope of the warrant. Here is a collection of petition templates, asking the court to allow the seizure of various things for various reasons (mostly electronic), including access to bank accounts. If the police suspect that information might be available online after it has been deleted from a phone, they would need to include online accounts in the scope of the petition(s). There is even a template for "give me everything", called "Frankenstein". | The precise details (and citations) will vary with jurisdiction, so this answer deals only with principles. If you pick up and "take possession of" property belonging to somebody else, you are a thief. [Note that 'taking possession' rather than picking up to restore to the owner/correct place is what makes the difference, which is why in real life nobody who cannot prove your intention will take action; but your question explicitly concedes the point.] If the property does not belong to the supermarket, you are not stealing from them, but from the currently unidentified owner: this makes no legal difference. You might conceivably have a defence if you can prove that the owner has abandoned the property, whatever the definition of "abandoned" is in your jurisdiction (note that it is up to you to show this, and possibly that you knew it before you picked up the property). If it belongs to the supermarket, this cannot be true; if a box of matches has fallen out of someone's pocket, it might possibly be (whatever the laws are, it is very unlikely that they have ever been applied in such a trivial case, so there may be some uncertainty). in any case, the shop is undoubtedly allowed to throw you out, ban you from returning to their premises, and inform other shops and the police that they believe you to be a petty thief, based on their experience. | Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court. | I think the key word here is "assume". A person, N, who is clearly the next of kin of a recently deceased person D may not assume that s/he is D's sole heir, or indeed is D's heir at all. N must wait until D's will (if any) is known, and an executor or administrator is lawfully appointed. Only the executor may lawfully dispose of D's property, by conveying it to specified beneficiaries, selling it, giving it away, or by any other means. Anyone who does so without the proper executor's authority is probably technically guilty of theft, although in a case like the one in the question, a prosecution would be very unlikely. But N would be liable to any heir H for the value of items properly left to H but disposed of by N. H might not choose to pursue such a claim, but would be legally able to. N should remember that the value, monetary or sentimental, of objects may not be known to N, and may be much greater to H than N is aware of. I suppose that in the case of objects of slight value which must be dealt with promptly, such as perishable food on D's premises, reasonable steps would not be objected to. | There's the question whether something is lost property or abandoned property. You'd be allowed to keep abandoned property, but keeping lost property without looking for the owner is in many places considered theft. A car on your land is quite likely abandoned by the last driver (people don't usually lose cars). But the question is whether it is abandoned by the owner; if the car looks like it has some value then it is unlikely to be abandoned by the owner and more likely that it has been stolen. I'd report the car to the police; then it's up to them to find the owner or not. If they can find him, and the car was not abandoned, but actually lost (unlikely) or stolen (more likely), you have the satisfaction of being an honest person helping either a very stupid car owner or a crime victim to get their property back. If they can't find him, usually the property will then belong to the finder. |
Does a counter claim stop an eviction for non payment of rent? In NJ (and most other states), when a landlord attempts to evict a tenant due to non payment of rent, the tenant can raise the defense that the landlord did not properly upkeep the premises and use this to offset from the amount of rent owed. Can the tenant also raise a defense that the landlord owes the tenant money for some other reason? For example, the tenant mistakenly overpaid for certain months or that the tenant paid multiple security deposits? What if the landlord owes the tenant money for an entirely different reason that isn't directly related to their LT relationship (such as a overdue loan payment etc.)? For the purpose of this question, assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter-sue and that it should not be raised as a defense for non payment / stop the eviction. This question is different than the question asked here, because that question doesn't specifically ask whether it would stop an eviction. It merely ask whether it is classified as a counterclaim or not. In this question, I am specifically asking whether a claim such as the above is sufficient to stop an eviction for non payment of rent. | Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction. | In general, and in particular in New Jersey, a new owner takes possession subject to existing rental agreements, and in particular subject to existing leases, unless there is a provision in the lease to the contrary. This happens automatically, by law. Thus any lease is as enforceable against the new owner as it would have been against the old. But how enforceable is this arbitration agreement? How enforceable would it have been against the old owner O? The basic fact about a month-to-month tenancy is that either party may end it on one month's notice, for any reason or none. Moreover, when a new owner intds to occupy the premises personally, or use them for his or her family, the requirement to honor a previous lease is, in general, not applicable. T might be able to force N to go through arbitration, depending on the wording of the agreement, and on whether the written lease applies at all after the end of the first year (which it may well not). But on the facts as stated in the question, T would lose in arbitration as well as in court, and if there is any increased expense because of the arbitration, T would be obliged tom pay it. Let us look at the actual NJ law N.J.S.A. 2A:18-53 provides that: any lessee or tenant at will or at sufferance, or for a part of a year, or for one or more years, of any houses, buildings, lands or tenements, ... may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases: a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years. [emphasis added] Section 2A:18-56 provides that: No judgment for possession in cases specified in paragraph "a." of section 2A:18-53 of this Title shall be ordered unless: a. The tenancy, if a tenancy at will or from year to year, has been terminated by the giving of 3 months' notice to quit, which notice shall be deemed to be sufficient; or ? b. The tenancy, if a tenancy from month to month, has been terminated by the giving of 1 month's notice to quit, which notice shall be deemed to be sufficient; [emphasis added] Section 2A:18-57 provides that: If no sufficient cause is shown to the contrary when the action comes on for trial, the court shall issue its warrant to any officer of the court, commanding him to remove all persons from the premises, and to put the claimant into full possession thereof, and to levy and make the costs out of the goods and chattels of the person in possession. No warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession, except as provided for in chapter 42 of this Title. Section 2A:18-61.1 provides that: No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guesthouse or part thereof rented to a transient guest or seasonal tenant; ... except upon establishment of one of the following grounds as good cause ... [emphasis in original] h. The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park But note that good cause is not required for an owner-occupied dwelling with no more than two rental units. T would be wise to consult a lawyer knowledgeable about landlord/tenant law in NJ before attempting to contest the notice or eviction. | Can the seller enter a formal agreement with the tenants in which the seller pays a sum of money and in return the tenants vacate the premises before the closing date, and would such agreement hold over the tenants legal right to remain on premises past the closing date? Maybe. It depends on tenancy law in Nova Scotia. Notwithstanding, given that the tenants are “difficult”, what are your plans if they take the cash and don’t move out? What happens if the sale goes though under the assumption that the tenants have left, and in fact the tenants are still occupying the premises? Why would the buyer settle under an “assumption”? At the time of settlement either the tenants have left (so settlement happens) or the haven’t (so the vendor is in breach, settlement doesn’t happen and the buyer decides whether to rescind the contract and claim damages or affirm the contract and claim damages). What guarantees and proofs can the buyer demand as to the vacant status of the property? They take the keys and walk into it. What other questions should the buyer be asking? They should be asking: “Will you be in a position to fulfil your obligations under the contract?” | Most leases have a provision allowing a landlord to make entry without notice in an emergency, but the better course of action, as noted in a comment by @BlueDogRanch, is to call the police and ask them to make a "welfare check." You would ordinarily be permitted to cooperate with police by unlocking doors in furtherance of their welfare check. The police are trained to do this properly in a way that properly balances the need to aid someone who is sick or ill, the need to preserve evidence if there was a death or crime that needs to be understood legally, and to protect the legitimate privacy interests of the tenant. You are not. You could incur liability for failing to prevent death or aggravating injury, could be wrongfully implicated if physical evidence from you contaminates the scene or you destroy evidence showing the true cause, and could be sued for invading the tenant's privacy if it was found that you entry was unreasonable and that it wasn't really an emergency, which is always easier to conclude with 20/20 hindsight. As it is, your biggest potential source of liability is delaying in calling the police seeking a welfare check. They often respond quite quickly to these by the way, although it is not the very highest priority for law enforcement. | This is a very difficult situation. Discrimination is not the right frame within which to view this as your roommate doesn't have authority over you the way that an employer or landlord would. The basic legal issue would be whether your roommate is constructively evicting you from you residence without valid justification for doing so. And, the answer might very well be yes. But, even if that is the case, since the roommate is not an agent of the landlord, your roommate's actions probably don't relieve you from your duties under the lease. So, your relief might be to vacate the premises and then to sue the roommate for the rent you have to pay without receiving anything in return. This is expensive relative to the likely returns, and there is no certainty that you would win or that you would get your attorneys' fees if you prevailed. This would also be a slow solution taking several months at a minimum. Or, in the alternative, you could leave and cease paying the rent, forcing the roommates who remain to pay it if they don't want to be evicted as they are probably jointly and severally liable for the rent. (If they sued you for your share of the rent, constructive eviction by one of them would probably be a good defense.) The landlord could sue all of the roommates if they don't pay, causing them to be evicted and you to be on the hook for any rent or other amounts that they owe, including the landlord's attorneys' fees (and hurting your credit). You could probably cross-claim for indemnification of any amounts you were required to pay in that lawsuit against your roommate. But, this too would be an expensive, complex and slow solution if the remaining roommates don't decide to simply keep paying the rent. It would be very hard for you to evict your problem roommate for breaching the lease by denying you your equal rights to the premises, since you are not the landlord, although it isn't impossible that a court would allow this relief and it would be relatively quick. It would also leave open the question of who was responsible for the evicted roommate's rent. The remaining roommates would be liable vis-a-vis the landlord, and would face eviction if they don't pay, and probably couldn't get a new roommate without the landlord's permission. And, the evicted tenant would probably remain on the hook vis-a-vis the landlord, but might not have a duty to indemnify the roommates who stayed. Also, in any lawsuit where you sue the roommate, the roommate would likely counterclaim against you for non-disclosure of HSV2, and while that would probably not prevail in the end, it would make the legal process hellish for you. The trouble is that there are really no good solutions that you could easily impose on them. A mutual agreement between the landlord and the other tenants to release you from the lease so you could find somewhere else, or to release the problem tenant from the lease so that you and your other roommate could replace that person, is probably the best solution, but that takes mutual agreement of multiple parties. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. | Being Evicted Is Not A Crime It is not a crime to be evicted. So, you will not get a criminal record if you fail to pay your rent and are evicted. Failing to pay rent is merely a breach of contract, and eviction is a remedy for this breach of contract. Damage To Your Credit Rating Being evicted will absolutely hurt your credit rating, however. In the U.S., a bad credit rating can be considered by prospective employers and for many other purposes (e.g. as grounds to charge you higher insurance premiums, or to refuse to rent property to you, or to refuse to extend you credit). I am not familiar with all of the purposes for which a credit rating may be legally used in the U.K. and that would probably need to be the subject of a separate question in any case. At a minimum, a bad credit rating makes it harder to get loans in the future. For example, an eviction could result in your application for a mortgage when you want to buy a house being denied, or could cause you to pay a much higher interest rate on a car loan. Other Negative Consequences Of An Eviction There are other negative consequences of being evicted in addition to harm to your credit rating, which may seem obvious but also bear mentioning. These consequences are all very good reasons to voluntarily leave the premises from which your landlord is trying to evict you and to move to a new residence of some kind before a court order evicting you is carried out if it is at all possible to do so. Homelessness First, if you don't have a place to live immediately, when you are evicted, you become homeless and being homeless is not a good thing. The U.K. has a decent safety net, so eventually you may be able to find public housing if you are evicted, but that often doesn't happen immediately, and in the meantime, you are literally on the street. Even if you can't find any place else that you can afford to rent, you can try to find friends and family that can take you in temporarily, attempt to locate places you can legally camp for a while, and can save up enough money to pay for a motel for a few days at least while you are looking for alternative places to live. Your Stuff Is Tossed On The Street Second, if your stuff is in the property you are being evicted from, then when you are evicted, your stuff will be tossed out on the street and in all likelihood it will be damaged or stolen or otherwise lost. Among the things that can be lost or damaged in an eviction are documents that you need which are hard to replace like birth certificates, passports, professional licenses, college applications, report cards for children, health records, financial records, family photos, immigration documents, etc. Even if you can't afford to rent a new place, you can avoid this harm to your property by putting as much of it as you can in a storage unit. At a minimum, try to find some place (maybe friends or family or work) where you can store your most valuable property before you are evicted. Lost Security Deposits And Money Damages Third, if you are evicted, you will almost certainly lose your security deposit and will probably also have a money judgment entered against you by the landlord for any amounts owed to the landlord for damage to the property, back rent, late fees, interest, lost rent while the property is rerented, attorneys' fees, court costs, etc. to the extent that it exceeds the security deposit which it usually will. This money judgment will further hurt your credit rating and could cause your wages and bank accounts to be garnished and your cars and/or other personal property to be seized to collect this debt. Usually people are evicted because they can't afford to pay rent, so there are limits to what you can do to prevent this, but at a minimum, try not to damage the premises which can result in additional amounts owed. Disruption Of Postal Service Fourth, until you can get change of address arrangements made, you will not receive any postal service, including bills you owe on loans and credit cards (or even worse, demands to respond to small claims court lawsuits up to 100,000 pounds). Failing to pay these bills or to respond to notices can lead to more damage to your credit, late payment penalties, default judgments in court cases, and other problems like disrupted efforts to apply to universities or to meet requirements to obtain scholarships. You can avoid this by obtaining a post office box and redirecting your mail there before you vacate the premises. | You need absolute written buy in from the landlord. His agreement is with you, not this new person. If the new person stops paying for whatever reason, then landlord is coming after you. |
Does cascade of ownership indicate ownership? Does cascade of ownership indicate ownership? Person A owns 100% shares of a business entity B. Business entity B owns a business entity C. Business entity C owns a house D. Two questions please: Does the person A own house D, in legal terms? Can the person A live in the house D without a rental contract from the business entity C? Thank you. | Likely not, unless A finds a jurisdiction with sufficiently lax accounting and taxation standards. As described in the question, A, B, and C are distinct legal entitites. For each entity, the tax office would want to know what the revenue, expenses, and net income are. By providing a service (use of the house) free of charge between two entites of the shell construct, profits are moved from C to A. This is usually illegal. The required paperwork might not have to look like a normal rental contract between a tenant and a landlord, since many questions are resolved by the ownership, but it would have to specify payments. The tax office should complain if they differ too much from the going market rate. Consider that C might be a LLC, and that C might be a civil judgement against C. Someone would look at the assets owned by C, and that includes the house D. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Most limited liability companies (LLCs) are small, closely held firms that are owned entirely or in substantial part by active employee-manager-owners with modest capital contributions. LLCs with large numbers of owners typically have a large share of non-employee investor ownership and are most common in oil and gas firms and in real estate firms that either develop, or buy and hold, real estate. Most large accounting and law firms and many other professional service firms are organized as LLCs or LLP (limited liability partnerships), which are owned by the senior employees whose contributions as employees dwarfs their contributions as investors. (Non-lawyers and non-physicians aren't allowed to have ownership interests in law firms and medical practices, respectively). These are the largest firms in the world with significant employee ownership. Start up tech firms organized as LLCs also often give equity stakes to employees even below the senior-managerial employee level. Rank and file employees are sometimes given an ownership interests in firms, but this is more commonly done through an employee stock ownership plan (ESOP) or certain other tax encouraged mechanisms for employee ownership in corporations (e.g., incentive stock options), or in the context of a firm organized as a cooperative (which is taxed essentially like a C-corporation but with an entity level deduction for cooperative dividends paid to members), than it is as an LLCs. One important reason for this is that pass-through taxation (which applies to LLCs not electing to be taxed as corporations) is not workable as a means of imparting ownership to large numbers of rank and file workers, because the compliance paperwork of sending out dozens or hundreds of K-1s to these workers is daunting, and because the prospect of a disconnect between allocated income and loss, and actual distributions (e.g. taxation on "phantom income" of the entity that is not distributed) is problematic. | It is certainly possible to incorporate companies with the same name in two different states. If neither company does business in the other person's state under that name, it isn't actionable for either company. If one company was already doing business under its name in a state where another company is formed under that name, it would usually be possible to force the new company to cease and desist from using that name, either with an action directed at the infringer and the Secretary of State (or other official charged with business incorporations in a state) of that state, or in an action directly against the infringer alone. Also, even if a trademark isn't formally registered, it can arise at common law simply through use of a name in a particular market in a particular place. This is harder to prove and the remedies for violating a common law trademark a more limited, but it is not entirely unenforceable. | Basically, "in the course of your employment" means "while you are working, or should be working, for the employer". If you're not using company resources or time to create or acquire the works in question, and the works are unrelated to company business, they're quite unlikely to become the company's property. (Particularly since the company almost certainly doesn't have an interest in controlling the distribution of your vacation photos.) When you let your personal side projects and the company's stuff get intertwined, that's where the troubles begin. Works made on company time, or using company resources, or to do company-related things, may be claimed by the company, and this agreement basically says you'll cede ownership of the works to them, patents and all, for whatever amount of money they decide it's worth paying you. | Companies have a registry of their shareholders. Anyone with at least one share registered in their name is a shareholder of record. However, the vast majority of people who consider themselves "shareholders" aren't actually registered owners of a stock. Instead, almost all public stock in the US is held "in street name." That means that the stock is formally held in the name of a brokerage. What an individual has is "beneficial ownership:" the brokerage passes dividends on to the beneficial owner, will vote how the beneficial owner tells it to vote, and requires agreement from the beneficial owner before it can sell the stock. To make stuff even more complicated, the broker itself generally holds the stock in street name. Almost all public stock in the US is really owned by the Depository Trust Corporation in the name of Cede and Company (a general partnership of a few DTC officers). The reason public stock is mostly held in street name is efficiency. Transferring the legal owner of a piece of stock is a nontrivial process; until recently, it involved physically shipping stock certificates to the new owner. Even now that stock ownership can typically be transferred electronically, it's much easier to tell Cede & Co. "the new beneficial owner is this person." Because beneficial ownership is just a contract, you can skip all the formalities of updating the company's official register of shareholders. | what responsibilities/liabilities does/will his company have given that it's in possession of my property? None. There is no contract (implicit or otherwise) between the owner and you. The owner receives no consideration from you in exchange for storing your goods, and an essential element of contracts is an exchange of considerations. Thus, he has no obligation to continue storing your goods. Another essential element in contract law is that the agreement --meaning the conditions thereof-- be entered knowingly and willfully. Since the time of making the arrangement and up to now, you were reasonably unaware of the likelihood of an obligation to pay the owner. This preempts the owner's right to start billing you. If anything, you would need to prove special circumstances to avail yourself of a viable claim of promissory estoppel. See Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 171-172 (1994): To obtain recovery in promissory estoppel, plaintiff must establish (1) [a] promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise. However, the viability and duration of any relief pursuant to promissory estoppel seems very unlikely in the situation you describe. The hardship you are undergoing --and which prompted you to store your goods there-- is unfortunate. But generally speaking, a third party (such as the owner) who is unrelated to the causation or prolongation of that hardship cannot be lawfully forced to aid you for free. |
Is a bank account history of transactions considered personal data in the sense of GDPR? For archival purposes, I'm trying to get the full history of transactions on my bank account since I opened it in 2019. I know my bank still has it since it's visible in the mobile app (I can scroll down to the very first transaction). However, there's no way to export it in a processable manner (the online export form only gives one month of transactions, and there's a paid service that can get up to two years). I sent an e-mail to my bank asking for a dump of all the personal data their systems contain about me (as per GDPR article 15), and they provided me with... my name, address, phone number and SSN. In their (the DPO's) response, they wrote that any request about the transaction history is to be made to my bank advisor – this is not what I want, since they then point me to the paid service that only gives 2 years of operations. In any case, I understand that transactions on my account fit the definition of personal data since they're directly attached to my bank account, which is under my name, and that since the transactions are stored on their systems I should be able to get them in a processable format as per article 15. Am I wrong in that understanding? | Yes, your transaction history is your personal data. Personal data is any information relating to an identifiable person. Your transaction history relates to you, and you're definitely identifiable for the bank. You have access to the transaction history to the app, which would probably satisfy Art 15 GDPR. You do also have a right to data portability under Art 20 GDPR which allows you to get your data in a machine-readable format – but strictly speaking this right only applies to data you provided yourself. You could try to explicitly invoke this right. Your GDPR rights must be satisfied without cost. Your bank almost certainly does provide machine-readable API access, in conformance with the open banking mandate from the Revised Payment Services Directive (PSD2, Directive (EU) 2015/2366). The Directive requires your EU member state to have passed a law that gives you “the right to make use of services enabling access to account information”, if you're already using online banking. However, the exact details of that right will depend on the laws in your EU member state. You might already be able to connect to your transaction history via Open Banking software such as GNU Cash. | My interpretation of the GDPR when it comes to a contact form is as long as your privacy notice states that what data you collect in the contact form and what legal basis that data is used for you are fine. Someone submitting a contact form in my opinion is their consent to reply back to them regarding the data in which they have submitted. Another good clause to have in your privacy policy is to basically state if the user submits information about another natural person that they have consent from that natural person for that data and what it would be used for. The internet is the internet. People have been trolling it for years. People have also submitted false information for years. The best a business can do is simply outline what their site does, what data is collected and what it will be used for. That along with what legal basis it’s processed for and following it makes you GDPR compliant in that regard. As to withdrawing consent and the rights given by the GDPR that’s all specific to what infustructure a business has in place. As a developer I know the headaches of the GDPR. Most of it resides in the fact data is not centralized and thus can’t easily be retrieved, modified, or removed. Once you’ve tackled that aspect providing the user their rights under GDPR isn’t to far off. | An app(lication program) is software run on the end-users machine. That does not fall under the GDPR. Any processing (including storage) you do on user data has to be compliant with the GDPR. Allows a user to authenticate via e.g. Facebook and stores some basic data (optional) Authentication via Facebook leaves GDPR compliance to Facebook (AFAIK). It would be a good idea to provide alternative authentication methods, such as Google and an "own account" user name and password so that the user doesn't have to share information with a multinational company in order to use your service. The "basic data" will need to be processed according to the GDPR. As long as the "optional" part is "opt in" (i.e. the user needs to at least click on something) then this means you have permission to process that data. Providing this "basic data" as a JSON or CSV file should meet data portability requirements. Allows a user to upload a GPX file (a route or some other activity) Stores the above file to Google's database Allows the user to analyze that file. Since the user is actively choosing to upload each file you have permission to do this. You should make it clear in your privacy policy that the data will be held by Google. Doing so should not be a problem as Google has set up the legal framework to do this under the GDPR. You don't have to store the information encrypted, but you should use encryption (e.g. HTTPS) for any data transmission. Allowing the user to analyse the file is not an issue; either the user is doing it on their own machine (GDPR irrelevant) or you are doing it under user instruction (meaning you have consent). Since the user has uploaded GPX files they already have data portability on those files. You should tell your users that while you will employ best endeavours you don't promise to keep their files accessible and they should maintain their own private copies. That way if your entire database gets corrupted they can't blame you for loss of data. Finally, make sure there is a "Close my account and delete all my data" option. | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | If you are not processing the personal information of EU citizens yourselves then you are unlikely to be classed as data processors under GDPR (check Article 3: Territorial Scope, p.32-33). If you were to operate a Software-as-a-Sevice (SaaS) solution then you would be a data controller/processor (or both) and GDPR would certainly apply if you have EU citizens as customers/users. While I can't see any reference to software vendors in the GDPR text, as a software vendor it would be in your interest to ensure your products meet the criteria set out in Article 25 (Data Protection by design and by default, p.48) in order to help your customers to comply, such as: Implement appropriate technical measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects. Implement appropriate technical measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons. These along with similar organisational measures are the responsibility of the data controller, but unless your software helps them to comply they may be forced to consider alternative solutions which reduce their overall risk. If your software already has a number of such controls in place it may be worth putting a white-paper or similar communication together which can inform your customers of how your software helps them to comply. There does not appear to be any direct liability to the software vendor through GDPR. If a data breach is the result of a design flaw or implementation bug in the software and your customer gets fined as a result, they may be likely to pursue you on grounds of the software not being fit-for-purpose and lacking the appropriate technical controls required to ensure data privacy. In this event, your defence will rely upon records of designing and implementing controls, records of software testing and remediation, and having in place suitable procedures to ensure security patches can be quickly deployed to your customers when required. Further clarification as requested: If your organisation doesn't process the personal data, doesn't have any third parties process it on your behalf (includes hosting companies) or have any access to it ever, then you're neither a controller or processor. However, if your customers ever send you personal data or grant you temporary access to personal data as part of troubleshooting issues with your software, then you would be a processor in this context and would need an appropriate contract in place and would need to ensure the appropriate technical and organisational controls are implemented to comply with GDPR and reduce risk of a personal data breach. Additionally, if international data transfers take place as part of this (e.g. sending/accessing files over the Internet) you would need to ensure your organisation is able to provide an equivalent level of protection for the rights of the data subjects - for example if you are in the U.S. you would likely need to voluntarily join up to the EU-U.S. Privacy Shield or use the EU's Model Contract Clauses within your contracts in order for it to be legal for EU-based businesses to use you as a data processor. For more information about international transfers read the EU's Data Transfers outside the EU page. Ref: GDPR | The conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. As for it being legal for website operators to log the IP-addresses of visitors, this is covered by the following paragraph (also pointed out by phoog in a comment). The paragraph says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) You are not the only web site that logs IP addresses for the purpose of security. Every web site I've ever worked on - from those controlled by large corporations to tiny NGOs - do this. This security practice will not be impacted by the GDPR (if it were, I am sure we would have heard about it by now). there is the EU cookie law too If your website are going to be accessible to European citizens and not only accessible by your friends and familiy, you have to comply with the EU cookie directive of 2002 (a exemption for "personal websites" does not exist). | Personal data is any information relating to an identifiable person, whether that information is public or not. The student website is definitely processing personal data of faculty. Any website is also necessarily processing personal data of visitors due to technical reasons, even though hosting has been outsourced to a third party. There's always a server, you just might not be managing it yourself. Thus, GDPR applies. Just because it processes personal data doesn't mean that the student website would be illegal. It just means the students are responsible for GDPR compliance of that website. Since the website is controlled by students and not by the university, the university DPO has no say here and the university can't demand the website to be hosted in a particular manner. Nevertheless, the DPO's suggestions might be quite sensible. Typical GDPR compliance steps include: having a clear purpose for which the personal data is being processed having a legal basis for that processing (here, probably a “legitimate interest” which will require a balancing test), see Art 6 providing transparent information to the data subjects providing a privacy notice to website visitors, see Art 13 notifying faculty per the requirements in Art 14 GDPR preparing to fulfill data subject rights such as access, rectification, and erasure when using a legitimate interest, there's also a right to “object” (opt-out) implementing appropriate technical and organizational measures to ensure security and compliance of your processing activities, see Art 24+32 making sure that third parties to which you outsource processing activities are contractually bound as “data processors” to only use the data as instructed by you, see Art 28 if you transfer data to non-European countries, having appropriate safeguards in place Does this sound complicated? It can be complicated. The point is that the internet is no longer the lawless Wild West. Just because you can easily publish a site with personal data, doesn't mean that you should. The GDPR is about requiring data controllers to find an appropriate balance with the rights and interests of the affected persons. Of course there are countries with less regulation, but there are also countries with fewer taxes and that isn't necessarily good for society. The easiest way to avoid these responsibilities will be to stop publishing the site as students – and instead taking up the university DPO's offer to have the university run the site. Which is less fun, of course, but the adult thing to do. If this motivates you further: note that the data controller (the people responsible for the site) must publish their contact information in the privacy notice, typically name + email + street address. The GDPR contains no exceptions that would help here. There is an exception for purely personal or household activities. But if the website would be available to the general public, it would be difficult to argue that this is purely personal. There's also case law such as the Lindqvist case requiring a narrow interpretation of that exception. In Art 9, the GDPR does mention that some restrictions are lifted if the data subject made the information public themselves. But that isn't relevant here, because Art 9 is only about extra-protected sensitive data, e.g. health information, union membership, or sexual orientation. | The retention periods depend on the exact legal basis for keeping such records. For example, accounting records might reasonably involve at least your bank account number, sort code, full name, and address. Under Section 388 of the Companies Act 2006, accounting records must be kept for three to six years, depending on the type of company (private or public). This would indicate that the company was within its right (and duty!) to hold records relating to at least the 2018 fiscal year. |
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