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Would this be a correct use of the WhatsApp trademark? I am the developer of a mobile application that scans barcodes and QR codes. In addition to scanning codes, I also allow my users to create their own codes. Recently I am considering adding more types of codes to generate, among which is the WhatsApp QR. This QR allows you to automatically open a conversation with a WhatsApp user by scanning the code. In order to offer this functionality, I would need to use the "WhatsApp" trademark in addition to their logo. Meta has this page where it explains how their trademark can be used. After reading it I get the feeling that the type of use I want to give it would fall within the permitted use, but I'm not 100% convinced. On the one hand, I would be using its commercial name and logo not as the main claim of my application, but as a definition of one of the many features of the app. I have been analyzing other applications of the competition and I see that they do exercise this type of use. In addition, they also offer this feature with other brands such as Twitter or Facebook. My question is if according to your opinion, you think that the type of use that I want to give to their name and logo would be within their third-party use policy. | Ideally, you would say something like "Compatible with WhatsApp. Not endorsed or affiliated with WhatsApp." If you do that, it would be a valid nominative use of the other company's trademark and would face a very low risk of an infringement action. | Neither of those clauses has anything to do with whether a tax on the use of Whatsapp is legal: The first clause tells users that they are responsible for any taxes that may be owed. It says nothing about whether such a tax is or is not legal. The second clause says that users may not charge for Whatsapp services. It says nothing about whether the government may impose a tax for the use of the services. That is all beside the point, though. Even if the TOS explicitly said, "No one may tax the use of our services," that would have no legal effect. Saying that you're exempt from taxation does not make you exempt from taxation. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | There are several things going on with Akinator and their use of trademarked names and characters. If you look at akinator.com Legal Notices it says: 2 – Copyright – Reproduction rights All the content of this site falls under French and international legislation on copyright and intellectual property. All rights reserved. Reproduction in whole or in part of this website, in any form or by any means is strictly prohibited without prior authorisation of the publications director. All products and trademarks mentioned are property of their respective owners. (emphasis mine) The fact that they mention that all trademarks belong to their respective owners is good, but it's a formality. What it appears the site really relies on for use of trademarked characters is what's called Nominative Use, which is a type of "trademark fair use." The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). https://en.wikipedia.org/wiki/Nominative_use Akinator has to use the names and trademarks to identify those names and trademarks. Akinator could possibly be sued to establish their type of fair use is not valid in their case, but it's probably not worth it for the companies to pursue. And, most companies would rather people use and see their trademarks in a marketing and money-making fair use sense rather than sue to stop their use. See In the US, when is fair use a defense to copyright infringement? for a full description of Fair Use. Now, when you get to the "answer" part of the game, you will see a "copyright" link. Part of that resulting page says Displayed pictures are accessible from the web. It is Elokence's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and make the necessary changes. In respect of Elokence's Intellectual Property Policy, Elokence operates a complaints procedure accessible via the form below. So the company has given itself a further bit of protection by only using images on the web they can link to (at least in the web browser game; I don't know about the App), so that means the image is already "out there", uploaded by someone else, and Akinator can claim they didn't upload it. And, further, there is a contact form for trademark holders to send DMCA takedown notices for their work. It's a belt and suspenders approach to the use of trademarks in their game. | Inform him of what you intend to do and by what by what date. Make sure that you can document that you did give him notice -- so not sure sure if Whatsapp/text would do -- I would use a registered letter, and a letter which is also sent in CC to your solicitor. He can always sue you, but he does not stand to win if you can show that you have given him fair warning. | This is likely not fair use. At first blush it appeared similar to things one might see in The Onion (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative. However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. Amendment I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued. If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the Starbucks logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion. | There is ample reason to conclude that "non-commercial" would include a church, as well as advocating a political cause or candidate. The hard part of "personal". In the context of (Canadian) bankruptcy law, it can mean "non-business use"; in the context of "personal use property", it can be "A type of property that an individual does not use for business purposes or hold as an investment. In other words, property that an individual owns for personal enjoyment". US tax law takes "personal purposes" to refer to non-business purposes. But in the context of copyright (especially music downloading / copying), it is taken to refer to the use of or by an individual. Distributing free copies of a protected work does not get legally sanctioned due to the copying being non-commercial. The alternative term "private" is much clearer, in identifying "just you", but is probably avoided in this kind of context so as to avoid the wrong inference that you can only play Pokemon in the privacy of your own home. So the slightly less clear term "personal" is used instead of "private" especially in copyright-related contexts. "Personal" and "private" are not exactly the same, but when it's about use, I don't see any difference, and I think there is no question that use to attract to a church or political candidate is not "private", it is public. Since the license does not define "your own personal purposes" and there is not an existing crystal-clear definition of "personal purposes", the phrase could be given its "ordinary (plain) meaning". Of course, plain meaning has to give way to contractual intent, so we have to figure out what the parties intended. Except, you don't have a contract with Niantic, but still, plain meaning surely has some place in the law of licenses. At this point, in a lawsuit, both sides would hire an expert witness like a linguist or English teacher to make the case that a church or other non-commercial non-private use is / is not included in the meaning of "personal purpose". A silly argument could be made to the effect that if you personally have an interest in doing something then it is a personal purpose (if specifically commercial, it would be precluded by the term "noncommercial"). What makes this silly is that everybody does things for personal purposes (even acting in a way that benefits others, since you do so for the personal reason that you should do so), and thus "personal" would not mean anything. That is, "personal purposes" does not mean "whatever motivation or interest you personally have". You can also gain a certain understanding of what "personal purposes" means by looking at similar licenses. In the context of academic publishing, authors are typically granted license to copy "for personal, professional, or teaching purposes". Professional purposes and teaching purposes are things that the person has an interest in, so by mentioning these things separately, we must conclude that "teaching" is not a "personal purpose". And so: I would conclude that a court could find that using a product to support a political campaign, philosophy, or religion, is a "public" purpose, not a "personal" purpose. At the same time, at least as I understand it, a lure module is a thing that others besides yourself personally can see (I admit, I don't go), which implies that the purpose of the thing is not entirely private. In addition, there is a fair amount of buzz out there about how a lure could be good for business, which is (1) clearly in contradiction of the license terms and (2) clearly a golden opportunity for Niantic, perhaps in a few weeks after everybody gets hooked and then they will offer non-personal licenses. Their license terms also say that you will not "use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms". I would say that that definitively says "No don't do it", and it also means that you can't be nice to a neighbor. So what they literally say and what they really intend are probably completely different things. | "LearnIT" and "Learn it" are both descriptive, and thus are generally weak trademarks. It is not unlikely that a challenge would result in cancellation of any trademark on either, or in allowing a similar trademark in an unrelated category of business. For the matter of that, you don't seem to have determined whether the other company is making any trademark claims. In some countries there is no trademark protection unless a mark is registered. In others, including the US, use without registration can create some protection for a mark. It will also be relevant where the other company is doing business, and where you plan to. Trademark protection is always specific to a particular country, and generally requires proof of use in commerce in each such country (or of a plan to start such use in the near future). Domain registration is a different thing, and is not necessarily tied to a trademark (although registering a domain that infringes an existing trademark will often be disallowed). It appears that "learnit.net" is listed as available. That does not mean that a dispute filed by the other company would not be successful. The Uniform Domain Name Dispute Resolution Policy (UDRP) states in section 2 that: By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. If you register a domain name, and another person or firm complains that the name is "confusingly similar" to an existing name or to a valid trademark, you might be required to participate in an arbitration proceeding under the UDRP, or else forfeit the registration. Note that nothing happens if no one complains. Section 4(s) of the policy reads: You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts ... that (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present. "Bad faith" can be shown by evidence that you obtained the domain for purposes of selling or renting it, not for use; that you intended to prevent a valid trademark owner from obtaining the name, and have engaged in a pattern of such conduct; that your purpose was to disrupt the business of the other; that you intended to attract users who were looking for the other site. The page "What Are 'Look-Alike' Domain Names?" states: An essential element of any domain name dispute is whether the domain name bears some important resemblance to a relevant trademark. The Uniform Domain Name Dispute Resolution Policy (UDRP) refers to this as the “identical or confusingly similar” test. In many cases, a disputed domain name actually contains the trademark, and in other cases it may contain a typographical variation of the trademark (such as by omitting a single letter; transposing two letters; or substituting one letter for another, often adjacent to it on a keyboard). Yet in other cases, a disputed domain name may simply look like the trademark at issue, even if the domain name doesn’t contain the trademark or fall into any of the popular cybersquatting tricks described above. I refer to these simply as “look-alike domain names.” You may wish to determine if the operator of the learnit.com site has in fact obtained a trademark on "learn it". Most national trademark systems provide a means to search the trademark registers. This will not be conclusive, but may give a reasonable idea. One option is to consult a lawyer skilled in trademark law. Another might be to reach out to the exposition firm and ask if they would have any objection to your proposed blog. If they don't object, the will be no problem. Another option is to choose a domain that is not as similar to that of the existing site. One technique that can help avoid an accusation of bad faith is to provide an notice where someone first opening the blog site will see it, something like: This is XY.net. You may have been looking for XX.com,which is about {short description} If co, click here. with a link to the other site. Such a notice might help establish that you were not using the domain to improperly attract traffic looking for the other site. |
Can a student ask other students about their grades and then publish an average under FERPA? Can a student ask other students (>14) to fill out an online form disclosing their grade on an assignment and then publish an average of the grades? Or is the implicit permission given by filling out a survey insufficient? More context from studentprivacy.ed.gov: Schools may use their judgment in determining whether an unaccompanied minor is responsible enough to exercise certain privileges, such as inspecting and reviewing education records and providing consent for disclosure. 34 CFR § 99.5(b) | FERPA merely binds education institutions that receive federal funding to adopt policies against improper disclosure of student information. It does not affect all disclosure of that information itself. In particular, FERPA would not prevent students or their parents from disclosing their own records or grades. | Yes (probably), under COPPA The FTC has stated that YouTube content creators could be held liable under the Children's Online Privacy Protection Act (COPPA), a United States law that "imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age." (source) The FTC's FAQ on complying with COPPA notes that "operators will be held to have acquired actual knowledge of having collected personal information from a child where, for example, they later learn of a child’s age or grade from a concerned parent who has learned that his child is participating on the site or service." It also has the following question/answer (emphasis added): I operate a general audience video game service and do not ask visitors to reveal their ages. I do permit users to submit feedback, comments, or questions by email. What are my responsibilities if I receive a request for an email response from a player who indicates that he is under age 13? Under the Rule’s one-time response exception (16 C.F.R. § 312.5(c)(3)) you are permitted to send a response to the child, via the child’s online contact information, without sending notice to the parent or obtaining parental consent. However, you must delete the child’s online contact information from your records promptly after you send your response. Assuming the FTC is correct that content creators (not just the service itself) are responsible for COPPA compliance, a Discord server administrator would likely be required to ban/delete the account of a user upon discovering (acquiring actual knowledge) that the user is under 13. It may be a defense that they believed the user's retraction and claim that it was a lie, but I wouldn't want to be stuck arguing that in court (an underage user who doesn't want to be banned certainly would have a good reason to lie about their age upon finding out that they would be banned for having admitted their actual age). | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | What stops a university form doing anything it wants is the contract you entered with the university when you enrolled. (I'm writing from the perspective of a student, not faculty). You and they are bound by the contract, and part of that contract will be a clear outline of academic processes such as ethics, grading, class requirements and test taking, as well as penalties for cheating and plagiarism. That contract will be outlined in your student handbook. That handbook and contract will also clearly outline (or should) the grievance process and remediation for both students and faculty. Since you feel that the university is not being fair, you need to start with investigating that formal grievance process and look into gathering your materials and filing a complaint. The college will have an office that handles such grievances; you need to find it and talk to them. If they are a private college, yes, they do have their "own rules," but some aspects of federal, provincial and local civil and criminal law will still apply. Be aware that the school contract may bind you to arbitration - which means you have to deal with the college on all matters - and you may not be able to go to a public court on a civil matter. A lawyer will be able to tell if you are bound by arbitration and if so, that's the end of the road. If not, a lawyer will tell you if you have a criminal or civil case. In any event, the grievance process at the U will more than likely be your first step. If by chance criminal misconduct is found during the grievance process, then a federal, provincial or local prosecutor would be involved; we would assume the university would be forthcoming if that need appeared. | In general, permission is not granted to enter the premises of another by climbing a fence unless it is explicitly granted. That the fence is on your property, but adjacent to the school's property, is a complication. The school, observing that there is a boundary fence, might reasonably rely on that to exclude people from entering other than at desired entry points. So it might be that your entry over the fence would be unauthorized and thus technically trespassing. If you were to put a gate in your own fence, the school's reliance is probably less reasonable. Or if you were to formally notify the school that you intend to enter the school grounds over your own fence. However, in practice, you are not trespassing until you are notified by the owner or owner's agent or someone with proper authority. If there is no sign, there can be no claim that you were notified by one. So until a school official or employee notices you using the fence and orders you to stop, there is no issue. | The basic authority of university staff is summarized here. What seems to be at issue here is whether you have a property right to "access" to the university, as an alumnus. Legal protection of alumnus rights is pretty minimal, contrasted with student or employee rights. There could be a line in the sand pertaining to whether you've paid for something, or are the privileges that you've enjoyed simple part of a PR stunt? If you pay the university for access to university facilities (borrower privileges, for example) then it would be harder to revoke that privilege. Most universities grant a certain level of added privilege, such as an alumnus email account, without any requirement to pay. (They hope to create some good will which translates into donations). So it would really depend on what the basis is for claiming access to university resources, as an alumnus. There is no general obligation of a university to grant alumni various privileges, but they may have created a reasonable expectation and legal right to such privileges, as part of their advertising: that can only be judged by looking at all of the facts. There might be rules within the university which address alumni, so obviously reading the university rules is important. That is really how you would determine whether the coordinator is overstepping her authority. If the university admits that it no longer has jurisdiction over you, then that might be the end of the case, unless that was an error based on less than the totality of the facts. If an accused completely and irrevocably severs relations with a university, the university would have no power over the accused. If there is still a relationship, or if the severance is revocable (i.e. you can become a student again), the university retains some power over an accused. If a student violates the federal regulations pertaining to sex discrimination, the university could be in trouble if they do not address the situation. If the accused leaves the university for a quarter, that does not erase past acts, so the university could be in trouble if they don't address the situation in case of an intervening term off. Thus a legally-viable option would be for a university to permanently remove (unprotected) relations with an accused – not access to transcripts, because of FERPA, but certainly the right to re-enroll or the right to use the library as an alumnus. Again, though, it would depend on what the university rules say. It is highly unlikely that the coordinator has the authority to find facts and mete out punishment (determine that an accused did the act), and this is usually determined by a committee, subject to approval by higher administration. However, an administrator does have the right to limit an individual's relationship to the university in a manner that protects the university's interest. For example, in the event that a person is accused of sexual harassment, the university can temporarily relieve a person of teaching and advising duties, until the case is resolved and there has been a final finding of fact. In general, universities are very protective of their interests and will absolutely squash anything that they think will get them into legal trouble. All that is necessary is that there be a credible basis for the claim – often, that means simply "an accusation". If a complainant vigorously pursues a case, the university could be in trouble because the law allows punishment (loss of funds) in case of a single past violation of the regulations. Their interest therefore is being sure that they have remediated the situation (the stronger course of action), or the complainant has given up (risky since the complainant can change their mind). | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. | We're missing a lot of information that we'd need to offer a full answer. Here are some of the things that will probably drive the analysis: the type of counselor we're talking about; the types of information the counselor disclosed; the reason she disclosed it; the job functions of the people to whom she disclosed it; the reason the client is bothered by the disclosure. Generally speaking, a mental-health counselor has a fiduciary duty to maintain the confidentiality of patient information, but my understanding is that in most cases, the counselor would be allowed to discuss a case with colleagues for the purposes of advancing the patient's treatment. So discussing the facts of a tough case with a supervisor is not going to be as problematic as idly gossiping about clients with custodial staff. Beyond the permitted disclosures, there are also situations in which counselors are required to disclose confidential information, including cases where the counselor suspects child or elder abuse or where the counselor believes the client poses a danger to herself or others. If the disclosure was truly not permitted, then it may be that the client has a claim for breach of fiduciary duty. In Georgia, proving that case requires evidence that: That the counselor had information relating to the client that she knew or should have known was confidential; That the counselor communicated the client’s confidential information to third parties; That the client did not give informed consent to the counselor’s conduct; That the confidential information was not a matter of general knowledge; and That the disclosure harmed the client. As you noted, the client could also file a complaint with the state licensing board. I don't know of any federal laws or regulations that would come into play in the situation you've described. |
Does a tenured professor whose salary was set to 0 have a case for constructive dismissal? See https://www.ams.org/journals/notices/202302/rnoti-p196.pdf?adat=February%202023 The head of the Purdue math department set a tenured professor’s salary to 0. This seems very strange to me and I have two questions. First, does this violate minimum wage laws? Second, is this constructive dismissal? | Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true. The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (appendix 15): In short, you are not teaching in 2022/2023 and you have not submitted the required outline of your research or other engagement. I am very sorry that we cannot establish that you will be doing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall semester, your pay will be reduced to zero and you will be placed on unpaid personal leave. Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work. In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended. An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful. | Could I get into legal trouble for this? No. Relax. Your three emails are very unlikely to cause a data privacy professor to feel harassed. Just move on regardless of whether he replies at all. Don't keep sending another email just because the recipient has not replied to your previous one. As for the issue that prompted you to start emailing the professor, what everyone else has told you is correct. And the other email user is unlikely to take court action for something like this. The effort and cost of drafting & filing suit, and then pursuing discovery would dissuade most people unless they are incurring actual losses (which is not the case with your messages). Just move on so that this other user also can move on. | I am just a foreign patent attorney who is studying common law to pass the California Bar Exam, but I will present my personal view. (I cannot guarantee the validity of my theory) There is an equitable theory called Constructive Trust. If it is established, the victim is entitled to benefit of any increase in value of defendant's (thief) property, meaning in this example victim (plaintiff) can recover $100 million. In order to assert CT, the following must be met: Wrongful appropriation; Here, D stole lottery ticket. Met. D has title; Here, D has title to $100 million. Met. P can trace his property to D's property; P can trace from P's $1 lottery ticket to its possession by D and collection by D of $100 million. Met. Unjust enrichment by D; D was enriched by stealing P's property (the lottery ticket). Met. Thus, it is highly possible that a court will order D to hold the property ($100 million) in constructive trust for P. This means, in plain language, that P will recover $100 million. | The question has no definitive resolution other than the authorities cited and some other related authorities such as the protocol rules of the Secretary of State for diplomatic purposes and the Presidential succession statute. It has never been litigated any reasonable interpretations of the the constitution and relevant law could be argued. There is also some case law under the appointments clause regarding which departments count as principal departments. There is a broad consensus regarding the existence of 15 principal departments of the United States government and which departments those 15 departments are in practice. I would say that the majority view is that the highest ranking person in each department is the principal officer of that department (which is provided for by statute in the event of vacancies) but there is also an argument that only the Congressional ratified and Presidentially nominated Secretary of a department (and the Attorney General in the Justice Department similarly appointed) count. In the event of a dispute, either Congress or a court could resolve the issue depending upon how the issues ended up being presented for a decision. If asked, the White House Counsel would render a formal opinion that would be binding upon all members of the Executive Branch. Triller novel writer Tom Clancy has explored some of the scenarios as have other writers in the same genre, but since the 25th Amendment has never been invoked in this manner, there is no definitive answer or even a non-judicial precedent to provide us with guidance on the question. | The shareholders can change who is the company director, but the company director runs the company (until he or she resigns or is forced to sign by the shareholders). So the company director is who has the say what happens in the company. If the contract is between Fred and John Smith directly, then I would expect John Smith to give the orders and to pay Fred. However, Tom is company director, so he can order Fred to stay off the company premises. He can't order Fred what to do, since there is no contract between Fred and the company, and the company won't pay Fred if it doesn't want to - it's up to John Smith to pay Fred from his own pocket. The whole setup is highly unusual. I would assume that the situation is unsatisfactory for everyone involved, so likely they will agree that the contract between John Smith and Fred is cancelled, that there is a new contract between Small Company Ltd and Fred, and from then on the company director gives the orders. | Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable. | They get paid either way I’m an arbitrator, adjudicator, and mediator and I’ll make this very clear: I don’t give a rat’s arse who wins. When I’m acting as a mediator I can go even further: I don’t give a rat’s arse if the dispute even gets resolved. My job is to do my job. To manage the process and, if making a decision is part of the process, make a decision. My paycheque is totally unaffected by who I decide for. Future employment prospects depend on you being good at the job. Bias is not being good at the job. Oh, yeah. Also, it’s the law that I’m impartial. In any event, most arbitration clauses give the parties no input in the selection of the arbitrator (e.g. by nominating the president of a professional association of arbitrators to appoint them) or require them to agree on the arbitrator. | united-states Under US law, unions and employees enjoy a set of protections codified under the National Labor Relations Act. Some of those rights specifically pertain to strikes, and in particular, employees engaged in "lawful" strikes cannot be fired merely for striking (but they can be replaced). Stack Exchange, Inc. takes the position that moderators are not employees and are not subject to the NLRA. Their reluctance to use the word "strike" likely stems from this position. If the moderation strike were a "strike" within the meaning of the NLRA, that would imply a large and complex set of restrictions on how Stack Exchange may respond to the strike. It would also suggest that moderators, as employees, have a right to discuss their "workplace conditions" with each other or the public - which might be construed to include some or all of the moderation policies that Stack Exchange has distributed in private (but I'm somewhat doubtful of that). Of course, it would also raise serious problems under the Fair Labor Standards Act (moderators are unpaid and the FLSA sets a minimum wage), but that is a different law, and it is theoretically possible that a court would rule that moderators are employees for NLRA purposes but not for FLSA purposes. I have never heard of such a ruling actually happening, and it is far more likely that moderators are not employees for either purpose. Still, it might be unwise to refer to the strike as a "strike," just in case the issue gets litigated. |
Is it a breach of GDPR and DPA to say a colleague is sick and off work? This is a hypothetical question. Suppose a customer calls asking for a colleague, call her Alice, and Bob answers the phone and tells the customer that Alice is off sick with the flu. The customer then says he will call back next week when she's better. Suppose Bob's boss heard this and said that Bob had breached GDPR and DPA by telling the customer about Alice being off sick. Is the boss right and what punishment does Bob face if he is? | 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. | You call their employer and impersonate them The onus is on the employer to keep your personal data secure. If they do not take reasonable steps to verify that the caller is indeed you, they fail that duty and can be held to account. So, not a loophole. | Yes, see the General Medical Council's Ethical Guidance for Doctors: Here: You must take prompt action if you think patient safety, dignity or comfort is being compromised. And here: All doctors have a duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or the systems, policies and procedures in the organisations in which they work. They must also encourage and support a culture in which staff can raise concerns openly and safely. Whether any criminal, civil or disciplinary action is taken will depend on the particular circumstances and available facts. | A NDA can only cover confidential information, that is information that is not in the public sphere, and that was transmitted to the recipient in confidence, that is it is specifically identifiable information that the recipient knew or should have known from the circumstances of the communication was confidential. For example, "marketing techniques" are not confidential information although the specific marketing strategy (pricing, promotion etc.) to be employed for a particular group may be confidential if the circumstances of the communication are such that the recipient should have known they were. Telling them "Hey, this marketing strategy is confidential" is best, however, the nature of the communication may make it implicit, for example, if it is only communicated to a subset of employees and contains information that would obviously damage the organisation if made public such as a price or client list. An NDA that states "all information given is confidential" is probably not enforceable even if exceptions are given because a) it is manifestly untrue (how can the location of the bathrooms or which day is pay day be confidential?) and b) it places an unreasonable burden on the recipient to determine what is and what is not real confidential information. | If you publish a website, you are the data controller for this website. Serving a website necessarily implies processing (but not collection) of personal data. You have chosen to host your website on GitHub Pages. Is GitHub then a joint controller with you, or is GitHub your processor with which you sign a DPA? In 2019, I asked GH customer support about this. Their response: Our Privacy Statement, combined with our Terms of Service, is intended to serve as a data protection agreement for individual accounts — we specifically wrote our Privacy Statement to provide the information required by Article 28 of the GDPR, including a list of our subprocessors. Our Privacy Statement and our Terms of Service serve as our agreements with you, as the controller, instructing us as the processor, and you can always contact us to provide additional instruction. Should we receive a data subject request that relates to data we process on your behalf, we'll always let you know promptly and work with you to comply. — Github, 2019-04-10, private communication At the time, their Privacy Policy described GH Pages as follows: If you create a GitHub Pages website, it is your responsibility to post a privacy statement that accurately describes how you collect, use, and share personal information and other visitor information, and how you comply with applicable data privacy laws, rules, and regulations. Please note that GitHub may collect Technical Information from visitors to your GitHub Pages website, including logs of visitor IP addresses, to maintain the security and integrity of the website and service. (Update 2022: the privacy notice has since changed, and the quoted part is no longer part of the privacy notice.) Under this theory: you are the controller, and GH is your processor the terms of service incl. GH privacy policy form an effective Data Processing Agreement you have instructed GH to collect Technical Information in the sense of the privacy policy, for the purpose of maintaining security and integrity of the website, which can be covered by legitimate interest you have not instructed/allowed GH to process any other data from your site It is your call whether you subscribe to that theory. Note that GH organizations can opt-in to their corporate terms and sign an explicit DPA which will mostly contain the same provisions. Does it matter that you don't have access to the Technical Information? No. Being a controller means that you decide the purposes and means of processing, not that you store data. You as a controller can always decide to point your domain name to a different server if you no longer want to use GH as a processor. | The scope of the GDPR is entered when personal data is being processed in a structured manner. Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). "Peter attended the meeting on the 14th" is personal data. "That woman with the blue handbag said she wanted to return on the 25th" is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. "On the 14th, we had 25 attendees" is not personal data. Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data is processed wholly or partially with automated means (e.g. computers, smartphones), or forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists) If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means: having a clear purpose for processing selecting a suitable Art 6 legal basis for that purpose (e.g. consent or a legitimate interest) only processing the minimum data necessary for achieving that purpose determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects There are of course some complexities in the details. When the legal basis is "consent" (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using "legitimate interest" (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur. Regarding point 1, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like "0-4 attendees, 5-9 attendees" for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals. Regarding point 2 and 3, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this. On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&M's EUR 35 million fine back in 2020 (summary on GDPRHub.eu). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed. In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles. | No. Theft is, in most jurisdiction, an action by which the offender takes another person's property with the intent to permanently deprive them of it. The clerk isn't taking any property from the store, and she doesn't have any intent to deprive the store of anything. She is therefore not guilty of theft. If she were doing this intentionally -- either in league with the customer or even without the customer knowing -- she could likely be held liable for the theft, either on a conspiracy theory or perhaps an innocent-agency theory. The lack of criminal liability of course does not mean that there can be no accountability. The employer is free to terminate the employee, and it will have different options -- depending on jurisdiction -- to recover the value of the uncharged printers, perhaps by docking her paycheck or through a negligence action. | You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room". |
Was the Haitorei ever repealed? In 1870, the first Sword Abolishment Edict (廃刀令, Haitōrei) banned farmers and merchants from impersonating samurai and wearing swords in public. In 1876, the second Sword Abolishment Edict followed, banning even former samurai from wearing swords in public. As a result, carrying swords in public became reserved for either current military or police personnel or a small select group of people that retained samurai status (mostly ex-daimyo). Nowadays, carrying swords in public is regulated by the Japanese Firearm and Sword Possession Control Law (銃刀法剣類所持等取締法). Regulated here means forbidden, as any blade longer than a specified length (15 cm for single-edged, and 5.5 cm for double-edged) is prohibited from being possessed or carried in geneeral. As far as I understand the main parts, nowadays you can only obtain a license to possess a blade longer than 15 cm, but not one to carry a sword (or firearm) in public. You can also transport your sword to perform the reason you have obtained the license for, e.g. to training, or for other justifiable reasons, e.g. to maintenance, but you can not carry it (openly) in public. However, that modern law was first enacted in 1958, and while it is a spiritual successor of the Haitōrei and even earlier Sword-hunts and gun control legislation, I fail to find a note of repeal at the start of the modern text, which would note that the Sword Abolishment Edict would be replaced by the modern law. Am I missing a law in the legislation line, or is the Haitō edict still good law and valid? | Japanese Wikipedia and Google Translate pointed me to the "Act on the Arrangement of Laws Related to the Cabinet and the Prime Minister's Office (Act No. 203 of 1954) No. 4." A Japanese government website and Google Translate seemed to confirm that Act No. 203 of 1954 (Showa 29) explicitly abolished a law/regulation entitled "Prohibition of outer band swords wearing uniforms such as military uniforms, police officers, etc.", which seems to be the Haitorei (the same name also shows up on the Japanese Wikipedia page about the Haitorei). This law took effect on July 1, 1954. At the time of its enactment, civilian ownership of weapons was controlled by the Ordinance Concerning Firearms and Swords (Ordinance No. 334, 1950), which was issued at the direction of Allied occupation authorities (SCAPIN 2099). | Clauses (a) and (c) are potentially relevant. You have to look in the Rules & Regulations to see what exceptions are permitted. Although firearms and especially shotgun shells are of a "dangerous, flammable or explosive character", it is reasonable to believe that when stored properly, they do not unreasonably increase the danger of fire or explosion, and would not be considered hazardous or extra hazardous by any responsible insurance company. On the latter point, you could ask any responsible insurance company if they would consider such shells to be hazardous. While in ordinary language simple possession of a firearm is not a threat of violence, the wording of clause (c) is open to a wider interpretation, since acts considered to be a threat of violence include displaying or possessing a firearm, knife, or other weapon that may threaten, alarm or intimidate others. The fact is that many people are alarmed by the simple existence of a weapon, so simply possessing a weapon could be interpreted as a "threat" in this special sense. Since you are not in the position of having signed the lease and now need to deal with the consequences of this clause, the simplest solution is to explain your interest, and ask them if having your gear in your apartment would be a violation of the lease. Be really clear about this and get it in writing in some form, if they say "no problem". Then either pick a different place, pick a different hobby, or find a separate storage facility. | WWII Supreme Court Cases During WWII, the Supreme Court dealt with three main issues in their cases on Executive Order 9066: curfews, exclusions, and internment of persons with Japanese ancestry. In the lesser-known Kiyoshi Hirabayashi v. United States case, the court had to determine whether imposing a curfew on those of Japanese descent was valid. The main constitutional issue ended up being the effectiveness of the Fifth Amendment in providing for due process of law in times of war. In the end, the court decided that a curfew was indeed justified. Following this, the majority of the court found in Korematsu v. United States, that the exclusion of those with Japanese ancestry from certain military zones (in this case, the West coast) was also constitutional. In their decision, they heavily relied upon the Hirabayashi case. The question of internment of people with Japanese ancestry was not actually decided constitutionally. Another case, a habeas corpus case, Ex parte Endo might have resolved it, but the Court concluded this case in favor of Endo without going to the constitutional level. A day before this decision was announced, the government suspended Executive Order 9066, leaving the question unresolved. In these cases, Justice Frank Murphy's opinions stand out. In Hirabayashi, he sternly warned of the racism involved, but felt that the curfew was indeed justified. However, in Korematsu, he evidently felt that the exclusion was without basis and dissented, calling the majority opinion "legalization of racism." Current Law In theory, these cases still stand. This is because they haven't been explicitly overruled, and the changes to the constitution since Hirabayashi aren't relevant: Amendments XXII and XXV have to do with procedural issues with the office of the President, amendments XXIII, XIV, and XXVI are related to voting rights, and XXVII addresses Congressional salaries. The constitution for the purpose of a similar order is thus unchanged, and so should theoretically be covered under Korematsu & Hirabayashi. However, its effective status as precedent is shaky. For one, it has been widely condemned, and courts would likely avoid using Korematsu & Hirabayashi if possible, or attempt to make a distinction from them given a slightly different order. Second, the convictions against Korematsu and Hirabayashi were overturned in the 1980s based on evidence being possibly concealed by the government. This was confirmed by the Department of Justice in 2011. However, this is an error of fact, and as such the ratio decidendi (legal reasoning) used would still technically stand as precedent. Lengthy Update: The Supreme Court has since declared Korematsu incorrect in Trump v. Hawaii. However in doing so, the court explicitly distinguished the two cases. Thus, many consider the declaration to be obiter dictum, i.e. an aside that is non-precedential. I'll quote the relevant portion so that readers may decide for themselves: Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. [...] The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." Additionally further muddying the issue is that the judgment directly moves from referencing Korematsu to referencing concentration camps. But as noted above, Korematsu dealt with exclusion, not internment in concentration camps as is often popularly believed (though Murphy's & Roberts's dissents dispute the distinction so the Trump v. Hawaii judgment may implicitly be validating this). Korematsu paragraph 20: It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. Future Challenges If another such order occurred, it would almost certainly reach the Supreme Court. The Court would then have to adhere to, reconcile with, or overrule Korematsu & Hirabayashi. In Hirabayashi, the following key piece of reasoning was given (and quoted in Korematsu): Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. Regardless of personal beliefs, it is hard to argue the logic behind this particular statement (mainly because it is so broad, in my opinion). However, these "prompt and adequate measures" would still have to be weighed against the Fifth Amendment. Additionally, we now have a historical example of what may happen if race-based exclusion were allowed, and this could inform the justices' decision. A completely different way that such an order could be ruled unconstitutional could be through separation of powers violations. It could be ruled that Congress cannot constitutionally delegate the powers expressed in Executive Order 9066, but this is rare. It was mentioned in Hirabayashi, but the court did not consider this issue, saying that since Congress agreed with the order, this point was moot. Conclusion Though the letter of the law suggests that another order like Executive Order 9066 is possible, in practice it would face significant hurdles. Such an order would likely face challenges based on the Fifth Amendment and almost certainly make its way to SCOTUS. Then, it would be up to them to decide. I'll end with this quote from the late Justice Antonin Scalia: Well, of course, Korematsu was wrong [...] But you are kidding yourself if you think the same thing will not happen again. | 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. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. | Article 175 of the Criminal Code says: A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale. This has been interpreted to require pixelization, blurring, censorship bars, or other means of obscuring genitalia. See the 2013 guilty plea by publishers of Core Magazine for an example prosecution under art. 175 for insufficient censorship. The law apparently does not reach material that is produced and edited and sold outside of Japan (even if filmed in Japan). See e.g. the discussion of Realm (1976) in Kirsten Fischer, The Art of Censorship in Postwar Japan, p. 198-199: [the film] was not prosecutable because of Ōshima’s innovative production strategy ... He had imported the film stock from France, shot the film in Kyoto, and then exported the undeveloped film back to France, where he developed and edited it and finally distributed it internationally, including importing it back to Japan. A "heavily cut form [was] eventually screened in Japan." | Not with that license Your post makes clear that you have a sports license, not a hunting license. In that case, it was delivered in accordance with R312-40 of the code de la sécurité intérieure: Peuvent être autorisés pour la pratique du tir sportif à acquérir et à détenir des armes, munitions et leurs éléments (...): 1° Les associations sportives agréées (...) 2° Les personnes majeures (...) Sauf dans le cadre des compétitions internationales, ces armes ne peuvent être utilisées que dans les stands de tir des associations mentionnées au 1° du présent article. A license to acquire and own arms, ammunitions and related elements (...), can be granted to: 1° Accredited sports associations (...) 2° People older than 18 (...) Except within the framework of international competitions, those weapons can only be used in shooting ranges of associations mentioned at 1°. | This web site has collected up a number of state anti-mask laws. It is useful to know that the purpose of the tactical balaclava is face protection. The anti-mask law of California prohibits mask for escaping identification in the commission of a public offense; Florida likewise limits it to criminal-like conduct and some sketchy "equal protection" situations (presumably anti-Klan legislation). Georgia generally prohibits masks but takes the tack of listing exceptions, including "traditional holiday costumes" and "for safety reasons". In Louisiana it is prohibited to wear a mask to conceal identity, but there are enumerated exceptions, including Halloween and Mardi Gras (no surprise), or for religious reasons; we can assume that if Lousiana SWAT teams wear tactical balaclavas, the legal basis is face-protection. It would appear that in Minnesota, SWAT team members cannot wear a mask until winter: A person whose identity is concealed by the person in a public place by means of a robe, mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor In New York, the anti-mask law seems to be subsumed under loitering, which includes Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; which could be narrowly construed to outlaw wearing of balaclavas by SWAT teams (they are masked, they congregate and remain in public with others masked men, it is not in connection with entertainment. |
Can a county without an HOA or Covenants stop people from storing campers or building sheds? I am planning to buy land in Costilla County, Colorado. The land does not have a Homeowners Association or any covenants for the area, which is quite rural. It is zoned for residential use, but they say that no campers or sheds can be stored on the property, except for a 14-day camping period once every 3 months or with a building permit. I am not planning to move there, but I wanted to store a camper there for when I do visit. They say that this is not allowed because there is no residence currently there. I have never heard of this before, as in most places I have lived, storage of campers is allowed, even if living in a camper is not. The wording is different. Is it legal for the county to enforce this? Can I sue them if they try to enforce it? | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | §Sec. 54-212 of the ordinance states (a) It shall be unlawful for any person to manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess any assault weapon or large capacity magazine in Cook County So if the gun is an assault weapon, it is not legal to sell. That ends the legal inquiry. Beyond that, we can only conjecture as to possibilities, for example (1) you may be mistaken in your assessment of some particular firearm, (2) the authorities don't know yet so haven't taken action or (3) they do know and they have taken action. Your link did not lead to any obvious things that count as an assault weapon, perhaps you could be more specific. | So why are Amish people not required to register their "vehicle," and to have a driver's license when driving on public roads? The Texas registration requirement in Texas is at Sec. 502.040. REGISTRATION REQUIRED; GENERAL RULE: a) Not more than 30 days after purchasing a vehicle or becoming a resident of this state, the owner of a motor vehicle, trailer, or semitrailer shall apply for the registration of the vehicle for: (1) each registration year in which the vehicle is used or to be used on a public highway; and (2) if the vehicle is unregistered for a registration year that has begun and that applies to the vehicle and if the vehicle is used or to be used on a public highway, the remaining portion of that registration year. (emphasis added) Now, you might argue that this requires owners of motor vehicles also to register their non-motorized vehicles, but I doubt that this is the prevailing interpretation. Regardless, an Amish person who does not own a motor vehicle is certainly not required by this subsection to register horse-drawn vehicles. Similarly, the requirement to hold a driver's license is at Sec. 521.021. LICENSE REQUIRED: A person, other than a person expressly exempted under this chapter, may not operate a motor vehicle on a highway in this state unless the person holds a driver's license issued under this chapter. (emphasis added) Similarly, this requirement does not apply to the operation of a horse-drawn vehicle. In other words, one statement in your question is incorrect: A driver's license is required for all persons "driving" a vehicle. In fact, a driver's license is generally required to drive a motor vehicle (and even there, exceptions exist). | Neighbors(including us) around the property started to mow the part in front of their yard(the weeds grew very high) and continue to do so(is it illegal for us to mow this overgrown land?). There are probably city codes around maintenance of lawns, cutting grass and clearing weeds. You should alert the relevant authorities and they will make sure that the maintenance occurs. You should probably not do it yourself since (a) you don't owe the owner any favors and (b) you might cause trouble for yourself. Recently there was some mowing by large tractors but very little was cut and most of it grew back. The question is really whether their activities bring them into compliance with applicable city codes or not. If they are compliant and you simply don't like how they maintain their property, that is tough luck. If they are not compliant, you are well within your rights to vigorously report them to relevant code enforcement authorities. This overgrown golf course is home to many wild animals(coyotes, snakes, foxes, alligators, etc..) See above 1) Is there any legal action that we can take to force the land owner to maintain the land? See above 2) Could this land somehow under some law be divided and given to the maintainers. This is an interesting question. Technically there are circumstances wherein you could take what's called adverse possession of part or all of the property. This would probably include doing things like actually residing on some piece of that land and establishing a residence there - perhaps getting mail or paying taxes there or paying utilities or operating a business - for a certain period of time without any interference from the technical owner. If you can meet the requirements of adverse possession then you might be able to become a legal owner. Unless you have little to lose, however, actually doing it might be difficult. 3) Is it legal to walk/drive on this land. (I see people walking their dogs, and driving atv's and motor bikes on the golf course) Unless you have been given notice otherwise, it is perfectly legal to walk wherever you like. It is the owner's responsibility to provide reasonable notice and take reasonable precautions against unwanted trespass; e.g., putting up a wall or fence, closing and/or locking a door or gate, posting signs and/or hiring security to patrol the property and enforce property rights - or occasionally checking to make sure their property isn't overrun with squatters. | 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. | It is legal, unless it is a violation of the rental agreement. Generally, a property owner can have a vehicle towed from their property, although there may be a requirement in the state to post a towing notice. If the lease agreement says that cars must always be street-legal, that is the end of the discussion. If the agreement says that cars without tags or plates can be stored in a person's spot, towing it would be a violation of the agreement. If the agreement doesn't say anything, then the property owner's rights would be the default deciding factor. Since your roommate seeks to override the park owner's ordinary control over the surrounding spaces, there needs to be an explicit provision for that in the lease. | There isn't enough information to give a reliable answer in the abstract. It is a hard concept for lots of people to understand, but words don't have the same meaning in every context. Law is not physics or chemistry. Words that mean one thing in a particular instrument or statute could mean another thing somewhere else, even if exactly the same words are used. More context would be helpful in determining a meaning. It could be a reference to a type of use, like AirBnB or other short term rentals (e.g. use as a hotel or hostel). It could also be a reference to a type of building that is not permanent such as tents, RVs, or other non-permanent structures intended for residential occupancy. Usually, a look at what the adjacent and framing language of the covenants say would clarify the intent as would some sense of the kind of structures built or intended to be built in the vicinity. It also isn't clear from context if the emphasis is on "residential" (e.g. in a property with a storage facility included), or on "temporary" (e.g. in a posh suburb). | The term "The Property" does not intrinsically include or exclude a garage in this situation, so the answer has to come from other considerations. The lease is unclear, so the courts will need to look at other factors (such as the picture) to decide which interpretation is correct. Insofar as the landlord wrote the contract and could have included a clause explicitly excluding the garage, but didn't, the courts may rule in your favor under the doctrine contra proferentem. The physical arrangement does support the conclusion that the garage is part of The Property, in particular the access to the part constituting your yard. This assumes that there actually is access to your yard from the garage. Scouring the entire contract, there may be some subtle indication of how the garage is to be treated, such as a clause presupposing that you have access to the garage ("shall clean the garage..."). Then we come to the matter of the key. You say the landlord changed the key: does that mean you used to have a key that gave you access to the garage? If you used to have access to the garage, using a key provided by the landlord, that would support the conclusion that the garage was not a separate item governed by its own contract. If you have never had and were not given access to the garage (no key), that would support the contention that the garage is separate. Similar questions would be raised about the actual use of the garage: has the landlord been using it to store equipment? That would support his contention. Had you been using the garage previously and now months later the landlord wants to charge rent for the garage? That runs counter to his claim that you didn't rent the garage. In other words, since the wording does not answer the question, the full set of circumstances would have to considered. |
What would the punishment be for an accidental killing, provoked by threats of sharing a video of the attacker naked? This is based on the Drishyam Bollywood movie Suppose a boy made an MMS video of a girl taking a bath, and then asked of her sexual favours, with a threat to circulate the video otherwise. Next, the girl didn't budge so he called her mother in front of her, threatening with all above. Suppose the girl, in a fit of rage, hit that boy, not with the intention of murder, and the boy died. Given proof of the above, including the intentions of the participants, what punishment should be given to the girl as per the natural law, if she is pronounced guilty? | Natural law does not prescribe particular punishments, that only comes from statutory law. Under Indian law, this would seem to be a violation of IPC 304a, "causing death by negligence". There is no intent to cause great injury, indeed it is a complete mystery why the boy died. The penalty is up to two years imprisonment and a fine. There are more details in IPC 300, focusing on intent to kill under extreme provocation, but the required intent is lacking here. The courts may be lenient, having considered surrounding circumstances, and sentence her to less than the maximum punishment. | Threats are illegal Whether “I want to kill X” is a threat or not depends on context. “I want to kill my ex” while bitching with mates down the pub - not a threat. Same thing said to the ex in the middle of a screaming match might be a threat. Breaking into their house and writing it in the blood of their cat on their bathroom mirror is definitely a threat. | Edit: because this question has tagged the United States, the answer below discusses US law, not the law of any other country. Because they're separate crimes that, as a general rule, don't merge, and prosecutors like to charge multiple crimes when they can because it gives them leverage in plea negotiations. You could also charge attempted murder if there's been an actual murder, it's just that it would kind of be a waste of time since they would merge upon conviction. You're close on the view that assault is attempted battery. But, note that generally assault is placing someone in imminent fear of receiving a battery, whereas as an attempt usually requires a 'substantial step' towards commission of the actual offense, so the ambit of assault is slightly larger than the ambit of attempted battery (again, generally speaking). | No. As the defendant's lawyer, they will have been privy to privileged communications. As such, it would be unfair to the defendant if they now started prosecuting. Also note that a victim very rarely has their own lawyer in a criminal case. The prosecution lawyer is acting for "the Crown" (essentially, "society as a whole"). (There are exceptions, if the victim is bringing a private prosecution - but this is very rare for serious cases such as rape). | 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 | england-and-wales Alice's defence will be that she had an honest belief, given the circumstances, that force was necessary and the force she used was reasonable in defence of John (and possibly Alice). John's consent is irrelevant unless it had some bearing on that. Why did John oppose the use of force? Did John tell Alice not to shoot because he would rather die than cause a death? Irrelevant. Did John tell Alice not to shoot because he believed Bob was not a real threat due to circumstances X, Y and/or Z that he wanted Alice to heed? Relevant. | 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. | Yes, although whether you get any response depends on a lot of factors. Specific, credible threats are much more likely to get a response than "I'm gonna kick your ass, amphibient, you (insert opposing viewpoint/sports team/etc)." The law broken in question would be: 18 U.S. Code § 875.c: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. As you are in different states, this would need to be reported at a national level. This would be done at https://www.ic3.gov/complaint/default.aspx. Whether or not this is the best option depends on what you hope to accomplish and whether the other person is likely to act on those threats. |
Freedom of the press regarding secret government information? There's quite a scandal going on in Switzerland about secret government information that was leaked to the press during the pandemic. Some government employees apparently have mailed information about internal documents to a certain newspaper. Freedom of the press is a high-ranked value in a democracy, but can the newspaper publish information it knows is a government secret? Could they be accused for it? The reports about the scandal currently focus on who's responsible for the leak in the government and whether the health minister has to step down, but nothing about the responsibility of the press. | Under article 293 of the Penal Code, publication of acts or proceedings designated as government secret by law or by a lawful executive decision is punishable with a fine (10,000 CHF maximum), unless there is an overriding private or public interest. The article was controversial for several decades and various reforms and repeal proposals were debated. Before 2007, the law also allowed a short detention (up to three months) as punishment. This was not a specific amendment to the article; short detentions (which were anyway not used much by then) were abolished for all crimes and replaced generally by a fine or a day-fine (fine technically convertible to specific number of days in imprisonment). The law was finally reformed in 2018, adding the exception of public or private interest, under pressure from the developing jurisprudence in the Federal Court and European Court of Human Rights. Under the provision before 2018, a formal secrecy classification suffices for a conviction, though the judge may waive any penalty if the classified material is of minor importance. Under the current provision, the court must balance between the government interest and the public interest represented by the journalist, and substantive aspects of the document will be considered to a greater extent. In any case, journalists are nonetheless protected from being forced to reveal their sources, unless it is necessary to avoid an immediate danger or prosecute an important offence (homicide, sexual abuse of children, other offences with a minimum imprisonment of three years or more; publishing government secret is not one of the exceptional offences); see article 28a. Example Martin Stoll was a journalist writing for Sonntags-Zeitung and published an article on a secret diplomatic document from the Swiss ambassador to the U.S. regarding the negotiations between Swiss banks and Holocaust survivors in 1997. He was charged under article 293 and was convicted and fined 4,000 CHF (reduced to 800 CHF on appeal). The Federal Supreme Court affirmed the conviction. Stoll filed a case against Switzerland in ECHR, who in 2007 affirmed the lawfulness of the provision, but indicated a balance of interests will always be necessary for any punishment. The decision pushed the Swiss government to reform the provision, with the Federal Council affirming its willingness in 2008 and the adoption into law by Parliament in 2016. Other provisions limiting freedom of press in Switzerland Though generally respectful of human rights and having no journalist-specific legal regulations, Switzerland still has laws that may interfere with the freedom of press, sometimes to an extent that many may find uncomfortable with. Like many European countries, Swiss law protects the privacy of certain information related to children, persons accused of crimes, victims of crimes and witnesses in legal proceedings; though not all protections are by way of criminal law, a civil action of defamation (or similar claims arising from personality rights) is of concern most of the time for journalists. One controversial criminal provision (art. 47 al. 1 let. c of the Bank Act) was adopted in 2015 in relation to banking secrecy, as Switzerland is famous for. It is an offence to divulge any information obtained in violation of banking secrecy, even for journalists, with a penalty up to three years (or five years if the information is used for profit). No specific public interest exception is provided. Only overriding public interest may be a defence of necessity under general criminal law. For this reason, Swiss media was forced to refrain from investigating the Credit Suisse leak in cooperation with their usual international partners in 2022. | The United States has a very liberal attitude when it comes to free speech. Short of materials that are: child pornography, restricted under the International Traffic in Arms Regulations (ITAR), Libelous/Fraudulent, encourage or aid others in breaking the law, or seditious/treasonous/ terroistic/other credible threats there is almost nothing that can't be published. There is another example where supposedly The Golden Book of Chemistry Experiments was banned by the US Government, but I cannot find any evidence or action against the author to support the claim. The Political Mofia by Schiff was not neccessarily banned, but an injunction from publishing was issued against the authors in US v. Schiff, 379 F. 3d 621 - Court of Appeals, 9th Circuit 2004 per 26 U.S.C. 7408 on grounds that the books was fraudulent. Essentially it is the Federal courts that can ban a book from commerce with cause. Schools, libraries and other institutions may ban it from their collections, but not from public commerce. Wikipedia has a list of Books banned by governments that you may want to look at to find examples. | The situation in Texas is unclear. It is worth mentioning Texas as a state where the law may require statutory authorization in order to copyright state documents. Although the statute does not explicitly state such as a requirement, it can be inferred from an attorney general opinion. At a bare minimum, the Department of Health, the State Preservation Board, the Water Development Board, the Department of Motor Vehicles, and county governments all have statutory authority to hold copyrights. In your specific case, there's an additional complication. Something is only a work of the State of Texas if one of the following is true: 1) it was created by a government employee as part of their job duties, or 2) it was a work for hire. It's quite likely that neither of the above is true for a student newspaper, rendering the question of Texas-owned copyrights irrelevant. | The intended reference is surely to Section 1078 of the National Defense Authorization Act for Fiscal Year 2013, which is about "Voice of America" and other media services produced by the Department of State for non-U.S. audiences. Under the United States Information and Educational Exchange Act of 1948, also known as the Smith-Mundt Act, the Secretary of State was authorized to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad. This law did not explicitly authorize distribution of that material domestically, other than saying it would be available on request to members of Congress and in certain other circumstances. The policy of not making it generally available in the U.S. was hardened into law in the Foreign Relations Authorization Act of 1972, saying Any such information (other than "Problems of Communism" which may continue to be sold by the Government Printing Office) shall not be disseminated within the United States, its territories, or possessions, but, on request, shall be available in the English language at the Department of State, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio systems, and stations, and by research students and scholars, and, on request, shall be made available for examination only to Members of Congress. Subsequent tweaks carved out many exceptions for other specific content, and arranged for deposition of material in the National Archives. In 1985, a new provision was inserted to say that apart from certain enumerated exceptions, no funds authorized to be appropriated to the United States Information Agency shall be used to influence public opinion in the United States, and no program material prepared by the United States Information Agency shall be distributed within the United States. The developing statute law reflects a balance of concerns; it was felt that Americans should know what their government is saying to foreign audiences, but should not be the target of that official messaging. These additional provisions are not a departure from the position of 1948, so much as they are trying to set out the boundaries more clearly in the light of experience. The 2013 law, codified within 22 U.S.C. §1461-1464b, made some changes to the domestic regime. It authorizes post-2013 material to be made generally available to the U.S. public on request, potentially subject to a fee: there is no longer a requirement that the requestor has to be a scholar/journalist/etc. It also amends the "no domestic distribution" section to account for that change. The bar on influencing domestic political opinion remains, as can be seen from the current codification. The present situation is that much post-2013 material is available online (which is "on request", in that you have to go to the appropriate website). There is a system for requesting permission to reuse this material, including within the U.S.; for example, you might do this if you were making a documentary and wanted to show some VoA footage. Per policy, there is a possibility for providing program materials, prepared for dissemination abroad, to domestic broadcasters aimed at foreign diaspora communities as part of the Agency's foreign policy mission. Subject to various criteria, this allows broadcasting material within the U.S., not by the federal government itself but by some commercial organization - if that is still compliant with the prohibition on influencing domestic political opinion, based on the way the material is used. The broadcaster is also obliged to credit the producing agency, so it should be reasonably clear when a video segment (for example) has this origin. In answer to the question "Does H.R. 4310 allow the US government to use propaganda against citizens?", the situation is something like: it makes it possible for a third party to rebroadcast existing foreign-targeted propaganda for a domestic audience, in certain circumstances. It does not allow the government to broadcast or promote it domestically, and does not allow the government to produce it with a domestic audience in mind. An important note is that all of this legislation only applies to the foreign-audience material produced under the auspices of the State Department (under various agency names at different times). It does not cover broadcasting or communication by other parts of the federal government. A less important note is that the journal "Problems of Communism" mentioned in the 1972 Act is now called "Problems of Post-Communism", and published by Taylor & Francis rather than by the U.S. government. | http://www.healthinfoprivacybc.ca/confidentiality/when-can-and-cant-they-tell-others is a pretty good summary. Different rules apply to private practices than public clinics and hospitals. I will assume that the clinic on campus is private. This is a summary of the summary about who your information can be shared with: Health care professionals can share information within your "circle of care". Specifically, they are allowed to assume your consent to this but you can explicitly withdraw that consent. This would include doctors within the same practice. Admin staff can access your information for administrative purposes. Anyone you have authorised them to share it with e.g. relatives, friends etc. The Medical Services Plan for billing and admin If you are unable to drive If there is suspected of child abuse If you are wounded by a gun or a knife If you are a danger to others For your specific questions: I asked about it and they said it's confidential, but confidential to the clinic. Correct, unless you explicitly revoke this. the counselling department can share information with the doctors This is tricker, these people may be either within your "circle of care" or they may be part of the same organisation. Notwithstanding, councillors are not doctors and are governed by the everyday laws related to confidentiality i.e. information given in confidence is confidential and everything else isn't. If you are told the limits of the confidentiality i.e. they tell the doctor, then those are the limits unless you renegotiate them. he would know I only have one kidney? Well you said "the counselling department can share information with the doctors" and this would require the information going the other way i.e. the doctor sharing with the councillor. Even if this type of sharing was OK in general (and I'm not sure it is, see above); the information shared should only be what is required for the councillor to do their job - the number of kidneys you have is probably irrelevant to this. What laws apply to situations like this where confidential information in one entity (medical office) decides to share it without the consent of the patients to another entity (the counselling dept.)? Well, we are not sure there are 2 entities: legally there may only be 1 - the university. Anyway, the laws are the Personal Information Protection Act and common law (Smith v. Jones, [1999] 1 SCR 455) | If such conversations are reported, it can place the suspect in a dilemma. Consider a man who appears to have overdosed on illegal narcotics. He is taken to the hospital, and the doctor asks what kind of drugs he took, in order to plan his treatment. If the man thinks that what he says could be used to prosecute him, he might lie to the doctor. Then he would not receive proper medical treatment, putting his health at risk. Lawmakers or police authorities might decide that it is better for society for people to always be able to speak freely to their doctors and receive proper treatment, even if it means that it will sometimes be harder to prosecute criminals. That would be one possible rationale for a rule like this. | Even within the United States, this would depend upon the jurisdiction involved. Some jurisdictions recognize a legal privilege of a journalist to keep confidential sources secret (also called a "reporter's privilege"), while others do not. There is a split of authority on the question within the various circuits of the U.S. federal court system, and there is also a split of authority between different U.S. states. The First, Second, Third, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporter's privilege exists. In the recent case of U.S. v. Sterling, the Fourth expressly denied a reporter's privilege exists. Furthermore, forty states and the District of Columbia have enacted statutes called shield laws protecting journalists' anonymous sources. Three U.S. Court of Appeals circuits, the 6th, the 7th and the Federal Circuit, do not have any controlling case law on the subject. Ten U.S. states do not have shield laws protecting journalists' anonymous sources. The U.S. Department of Justice, as a matter of policy, seeks to compel journalists to disclose their anonymous sources only under specified conditions where the need is great, but this policy is not a defense available to a journalist in a case brought by the U.S. government. In the absence of a legal privilege, the journalist could be incarcerated until the information is disclosed or the need for the information is moot, for contempt of court. Quite a few journalists in the United States, faced with that choice, have opted to be incarcerated rather than to reveal a source. If the subpoena is upheld, even if the face of a good faith effort of the journalist to quash the subpoena on the basis of a legal privilege or other grounds, if the journalist does comply with the subpoena, the breach of the non-disclosure contract is legally excused and cannot be a ground for the journalist to be legally liable to the informant. | There is nothing to forgive. The question presupposes that it is a crime to lay eyes on classified information. Crimes related to classified information generally have an element of intent. For example, from 18 USC 793 (emphasis added): (a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ... (b) Whoever, for the purpose aforesaid, and with like intent or reason to believe ... The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full: (e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; Seeing the files is not per se a crime. Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime. |
Do not pass or assist another vehicle to pass you by using this lane Could someone confirm if "do not pass or assist another vehicle to pass you by using this lane" means: Do not pass another vehicle by using this lane, and Do not assist another vehicle to pass you by using this lane | Yes, that's exactly what it means. Using it to pass means passing on the right at high speed in a narrow lane full of debris, which is crazy. But they're also saying don't use any arbitrary point on the emergency lane as a turnout. A turnout is a designated "wide spot" made to allow a slower vehicle to be polite and exit the roadway for a moment to allow stacked up traffic behind them to pass. If you want to help people pass, watch for reasonable opportunities to do so, and slow down a bit to help them position for the pass. Then once they commit, slow down more to help them get back in. | It seems that the Iowa authorities did attempt to notify the driver. If the letter of notification was returned because the driver changed his or her address, that is not the DOT's fault -- drivers are supposed to notify the authorities of changes of address -- indeed driving with a license with an out-of-date address is itself a violation in some US states. If the error was made by the postal service, that is still not the DOT's fault but they might be more willing to accept an appeal from the driver. In general, authorities must make a reasonable attempt to notify people of court or administrative actions, but if those notifications fail, the authorities can go ahead in many cases. Try explaining that one doesn't owe taxes because an IRS notice was misdelivered. It would be too easy to avoid unwanted governmental actions if nondelivery of mail were a valid excuse. It may well be that there is a procedure to get the suspension waived or ended early, perhaps involving taking the class that should have been taken, and perhaps paying an additional fine. Details of such procedures vary. A local lawyer who deals with traffic issues frequently would probably know what steps might be taken. It may well be that the original ticket mentioned a possible suspension, but it may not have. That also varies by state. | This varies greatly by state, but the pedestrians "right of way" is quite a common misconception. Pedestrians do not always have the right of way, but you're also not allowed to just run them over if they're in the middle of the street. That's why states have jaywalking laws, and a lot of people don't realize that they can be ticketed for it - because it's a huge safety concern for a pedestrian to walk in the street outside the designated areas. The NCSL provides a Pedestrian Crossing 50 State Summary that outlines the laws regarding pedestrian crossing. Particularly, there are two lines that frequently repeat throughout all the states: Pedestrians may not suddenly leave the curb and enter a crosswalk into the path of a moving vehicle that is so close to constitute an immediate hazard. Pedestrians must yield the right-of-way to vehicles when crossing outside of a marked crosswalk or an unmarked crosswalk at an intersection. Bottom line: if there is a pedestrian randomly in the middle of the street somewhere, you are fully obligated to attempt to not hit them with your vehicle. Feel free to curse them out (if that's your thing) because in most states they are themselves breaking a law. If an accident can't be prevented due to a pedestrian's actions, then the pedestrian is fully at fault and you will not be held responsible in any way. | You are not reading a law book here and you should not interpret a driving test so literally. It's quite clear that the question implies you should follow all of their instructions regarding how to proceed through traffic. Sometimes those instructions do involve "breaking laws" such as driving on the wrong side of the road or proceeding through a traffic signal that was not turned off. The B option clearly does not mean they have the power to disobey all laws in existence, only those concerning traffic as evidenced by the examples given. You are not Sheldon Cooper and you should know how to interpret a vague question correctly. You are also not a gopher, and you can correctly deduce that crashing into another car or driving off the cliff into the water is not in your best interests, and that calling the police to report someone abusing their position is probably a good idea. If you're concerned by the wording, try contacting the California DMV to have them clarify the wording. | 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. | According to 11.72.240 of the Seattle Municipal Code, entitled Moving vehicle to avoid time limit: No person shall move and repark a vehicle on either side of a street within the same block in order to avoid a parking time limit regulation specified for either side of the street in that particular block. | The most likely reason the other driver doesn't want to go through insurance is to avoid a raise in his premiums. However, there could be more serious consequences, up to and including having his insurance cancelled, for example, if the son was not supposed to be driving the car, or based on the criminal nature of the offense. However, there can be serious consequences to not dealing with insurance. Some (if not all) insurance policies require him to report the accident; by failing to do so, he may risk losing his insurance. More importantly to you, if he does not report a claim to his insurance, his insurance will not pay it. This is important to you, because insurance companies, as a general rule, pay claims. Random people don't always; they ignore you, they move out of state, they go bankrupt. If this is a serious amount of money, you need to talk to a lawyer before you enter into a contract with this person, to make sure that it's enforceable, and that if you don't get paid, you have some recourse. | Can anyone help me understand who's liable for any damages that occur? Yes, a judge. Seriously, in almost all cases in a collision between a turning car and a straight traveling cyclist, the car will be held responsible on the basis that the turn should not be commenced unless and until it can be completed safely. If the car has to stop during the turn, the turn shouldn't have been commenced. The only exception would be if evidence could be provided that the cyclist collided deliberately. Does it matter if it's the car that's damaged or the bicycle that's damaged? No |
May I curse or belittle an officer with no repercussions? Sometimes I belittle police officers and make them really think about what they're doing. I wonder sometimes: what if I really embarrass an officer with something I say, maybe in front of their friends, and they sue me for slander, or, as was mentioned by an answerer below, obstruction. Is that possible? How far can I safely go? That is to say, what are my legal boundaries vis-a-vis avoiding defamatory/obstructive litigation from an officer? | Short Answer "An obstruction conviction cannot stand when it is based on speech protected by an individual’s first amendment right to criticize on-duty police officers" Source: Amicus Brief to Supreme Court of the State of Washington in State of Washington v. E.J.J. I agree with @DaleM's answer. And I want to add to it by picking up on a nuance of the question I don't think DaleM's answer addresses specifically. This question might be about obstruction, not slander. Although the OP specifically mentions slander in their question, I think the context suggests the question actually concerns something different. Like perhaps, obstruction. For example, The question title specifically says, "curse [at]... an officer..." and the OP characterizes their behavior as follows: "I belittle them..." "...and make them really think about what they're doing" "...what if I really embarrass an officer with something I say..." My read of the question suggests (to me) the OP is describing "name-calling" or "insulting" the police by saying things like: "You're an X." (where X is an insulting term or label) A case involving facts similar to what the OP describes has recently been tried, appealed and resolved by a state supreme court. State supreme court ruled in favor of First Amendment protection. The Washington state supreme court ruled as recently as June 25, 2015 on a case that dealt with this issue. [The Seattle Times reports here][3] that the [Washington State Supreme Court has ruled in the case of State of Washington v. E.J.J.][2]: "First Amendment protects profanity against police" A teenage boy convicted of obstruction after yelling and cursing at three Seattle police officers while they were investigating a disturbance at his house had a First Amendment right to behave the way he did, the Washington Supreme Court said in an opinion Thursday. Citizens who curse at police and call them abusive names while they’re investigating a crime are protected from arrest by the First Amendment’s guarantee of free speech, the state Supreme Court ruled Thursday in a case out of Seattle. | Laws that add special penalties to killing a police officer require that the accused knows that the victim is a police officer, for example DC 22-2106 (emphasis mine) (a) Whoever, with deliberate and premeditated malice, and with knowledge or reason to know that the victim is a law enforcement officer or public safety employee, kills any law enforcement officer... A prosecution would need to show beyond a reasonable doubt that the accused knew the victim was an undercover police officer to convict them under this statute. In the case presented, it seems unlikely that the bartender could be convicted under such a statute, even without consideration of a possible self-defense argument. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. | Start with the premise that Person A has so far engaged only in speech, which is presumptively protected by the First Amendment. So unless the speech is for some reason unprotected, the police should not involve themselves. This of course begs the question of whether this speech is protected. The First Amendment does not protect "true threats," which includes "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343 (2003). So the question for the police is whether Person A's texts were meant to communicate a serious intent to commit an act of unlawful violence. Removing First Amendment protection won't be as simple as letting B testify that he truly felt threatened, as the question is whether A meant to communicate a threat. But that also means that for A, it won't be enough to simply deny any violent intent, so the "nothing illegal" disclaimer won't be enough. In the end, this is a question for a jury to decide, should the case ever reach that far. The jury would essentially be asked to engage in mind-reading, determining what A was thinking when he sent those texts. The jury should be instructed to take several factors into consideration when it makes that decision, including the "context" of the remarks (the explicit disclaimer of violence helps A), the "conditional nature" of the threat (the three-strikes langauge helps A), and the "reaction of the listener" (calling the police hurts A). Watts v. United States, 394 U.S. 705, 708 (1969). Practically speaking, if B were to call the police, I'd expect them not to investigate, unless they were awfully bored. If they decided to, I don't think there would be any actionable violation of A's rights, given their obvious inability to divine A's intent based solely on B's account. A court would likely allow them to investigate, but I doubt a prosecutor would allow them to bring charges based on the facts you've described. | Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH. | 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. | Do flight attendants have an unlimited leeway of forcing the passengers to listen to their gibberish that are completely unrelated to their duties? Pretty much, I'd say. It may not be a good customer experience, but the flight attendant certainly isn't doing anything illegal. You don't have a legal right not to hear speeches that offend your IP sensibilities. I don't think it's legally any different than if they were showing an in-flight movie that you didn't like. If you try to forcibly stop him, you are likely to be found in violation of 49 USC 46504, which prohibits "assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties". Even if making speeches about Mickey Mouse is not part of his duties, anything physical you did to try to stop him would likely tend to also lessen his ability to perform his actual duties. Violation of 49 USC 46504 is a felony and carries a prison term of up to 20 years. If you try to shout him down, you might be charged with disorderly conduct under state or local law, like this guy. You could probably push your call button to summon another flight attendant, and politely state that you object to the loquacious crew member's behavior, and could they please ask him to stop. Alternatively, you can put on your noise-cancelling headphones and turn up the volume on your music. Anything beyond that and you're in a bad legal position. Of course, you can certainly file a complaint with the airline after the fact. There's a fair chance you'll get an apology, maybe some extra air miles, and the flight attendant might be disciplined or fired. But that's an internal customer service or personnel matter; nothing to do with law. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. |
Is there a government department in the Netherlands regulating sex work? Do the Netherlands have a government department that specializes in understanding and analyzing sex work, and is tasked with maximizing the legal rights, ethical conditions, and positive outcomes for all parties involved, similar to the departments of education, energy, food, and drugs? | The Netherlands has a more pragmatic approach towards sex work, in which the government tries to balance the protection of the rights of sex workers with the need to prevent exploitation and abuse. The Dutch government has implemented a number of policies and regulations to ensure the safety and rights of sex workers, but does not have a specific department responsible for the regulation of sex work. Instead, various government agencies and organizations, such as the police, public health agencies, and local municipalities, are involved in the regulation and oversight of the sex industry. These organizations work together to ensure that sex workers have access to health services, and that they are protected from exploitation and abuse. The central government of the Netherlands has a policy of toleration and regulation of prostitution, meaning that they allow it to take place but they regulate it, this has been seen as a way to reduce the harm associated with sex work, such as exploitation and trafficking. It has a number of organizations that specialize in the understanding and analysis of sex work, such as the Prostitution Information Center, which provides information and support to sex workers and the general public, and the Dutch Union of Sex Workers, which represents the interests of sex workers. | This is totally, flat out wrong. Quite frankly, it is immoral, although not illegal, for the producers to even cause some viewers to believe it is true. The United States criminal code (Title 18) in Chapter 77, prohibits all forms of slavery (except as punishment for a crime which New York State does not authorize) including the one described. It is not legal. This statute implements the 13th Amendment to the U.S. Constitution (abolishing slavery except as punishment for a crime) and was enacted under the enforcement authority provided by that statute. Those statutes have been in force for more than a century. For example, 18 USC § 1590 states: (a)Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a). Similarly, 15 U.S.C. § 1584 is squarely on point: (a)Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both. (b)Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties described in subsection (a). It also would constitute criminal child endangerment, child abandonment, use of a child to commit a controlled substances offense, conspiracy to commit criminal coercion, conspiracy to have a child engaged in illegal child labor, etc. Possession of controlled substances by the mother is also a crime, although that crime was committed before the mother tried to sell her child to pay her drug debt. (I originally also included crimes like sex trafficking and pimping a child, but from the question it does not appear that the facts implicated those offenses.) It would also constitute grounds to civilly terminate the parental rights of the mother for child abuse and/or neglect, because it violated laws in addition to criminal laws. If the child had a living father whose parental rights had not been terminated (one can't tell from the question, but perhaps the full episode made it clearer), it would violate the father's right to custody of his child. The child, though a guardian or as an adult, could sue the mother for intentional inflection of emotional distress/outrageous conduct, false imprisonment, failure to provide support, etc. | The recognition of other country’s passports is a courtesy Each nation is sovereign over its own borders. So who they allow in (and out) is a matter for them. For example, many Arab countries will ban your entry if you have an Israeli stamp in your passport no matter what nationality it is. So, yes, any country can decide not to record sex in a passport and, yes, there may be consequences in other nations. | united-states In the United States, information released through the federal Freedom of Information (FoI) process, or any of the various state-level versions of FoI, is considered public information. The person who receives it may share it at will, or publish it. Indeed many such inquiries are made by news reporters who intend to publish the information, and many others are routinely posted to various web sites. I suspect that the law on this point in the UK is similar, but I have not checked it. | It is not legal for an employer to discriminate on the basis of sex anywhere in the US (see http://www.eeoc.gov/laws/types/sex.cfm). Exemptions exist where the discrimination is for bona fide occupational qualifications and, irrelevantly, religious reasons. It is completely legal for a consumer to discriminate on the basis of anything they want to. It is also legal for a business to assist the consumer in that discrimination. Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. Mere customer satisfaction, or lack thereof, is not enough to justify a BFOQ defence, as noted in the cases Diaz v. Pan Am. World Airways, Inc. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies. Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided." None of the occupations you mention would, on the face of it, meet the requirements to be BFOQ. Allowing their customers to express a preference for a specific gender may impact on the capacity for the business to deliver on that preference but it would not generally allow a BFOQ defence if this impacted their hiring policies. A possible exception is if the business catered to that preference exclusively, for example, an all female gym with all female staff but I am not aware that this has ever been tested and if a male personal trainer wanted to take them on he may very well win. As an aside, there is no BFOQ defence for racial discrimination except for artistic works where the first amendment rights overrule the anti-discrimination laws. | It may depend on what offences are suspected of being committed. One example is: In the united-states under 18 U.S. Code § 2258A an Electronic Service Provider (ESP) is required to report apparent violations of sections: 2251 [Sexual exploitation of children] 2251A [Selling or buying of children] 2252 [material involving the sexual exploitation of minors] 2252A [material constituting or containing child pornography] 2252B [Misleading domain names with intent] 2260 [sexually explicit depictions of a minor etc] The report is made to the National Center for Missing & Exploited Children (NCMEC) who in turn forward the information to the relevant domestic or foreign law enforcement agency. The ESP is protected from commiting distribution or related offences when making the report by virtue of subsection (g)(4): Permitted disclosure by a provider.— A provider that submits a report under subsection (a)(1) may disclose by mail, electronic transmission, or other reasonable means, information, including visual depictions contained in the report, in a manner consistent with permitted disclosures under paragraphs (3) through (8) of section 2702(b) only to a law enforcement agency described in subparagraph (A), (B), or (C) of paragraph (3), to NCMEC, or as necessary to respond to legal process. | That depends entirely on the laws of the country involved. Some countries do make having homosexual relations a crime, indeed a very serious one. I haven't heard of one which prosecutes for being in a same-sex marriage or relationship entered into in another country, but such a country could hold such a trial if it chose to. Perhaps more likely, if a same-sex couple visited such a country, evidence of a continuing same-sex relationship might be treated as evidence of same-sex sexual acts, and thus of a crime under that country's laws. | In summary, At the time of writing, Michael Gove has overall ministerial responsibility for making planning regulations, with a good part of the role delegated to Rachel Maclean as Minister of State for Housing. The detail of regulatory verbiage is the work of civil service lawyers, based on policy formed within the department as a result of the general political process. There are various rules for how these functions arise and get transferred around government, described below. The Secretary of State can make regulations about flag display These pieces of secondary legislation, as their names suggest, are made under the authority of the Town and Country Planning Act 1990. Several sections of the Act empower regulations to be made by "the Secretary of State", e.g. in s.220(1) we read Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety. and the full Parliamentary procedure for making them is spelled out in s.333. This comports with the regulatory preambles, e.g. for the 2007 regulations, saying: The Secretary of State for Communities and Local Government, in exercise of the powers conferred by sections 220, 221, 223(1), 224(3) and 333(1) of the Town and Country Planning Act 1990, makes the following Regulations "The Secretary of State" means a specific Secretary chosen by the Prime Minister Note that the Act just said "the Secretary of State", whereas we have just read about a specific Secretary. What's going on here is that primary legislation just wants to say "whoever in Cabinet has a job that is most relevant", since functions get transferred around, departments created or abolished, etc., and nobody really wants to update a zillion Acts every time that happens. Instead, there is a framework pattern where powers will be given to "the Secretary of State" generally, but will be executed by a specific one according to the division of responsibilities in the government of the day. That will sometimes be just a matter of agreement within Cabinet, but at other times be encoded in secondary legislation - a "Transfer of Functions Order". Those Orders are also needed to handle special situations like - transferring property and legal obligations when departments are created, merged, split or abolished making amendments to legislation which did happen to mention a specific minister ministers who are not a "Secretary of State" as such, but hold another ministerial title, such as "Lord Privy Seal" These Orders are made under the Ministers of the Crown Act 1975, and are in the form of orders of the King on the advice of the Privy Council - which is to say, that the Prime Minister decides who does which jobs. Historically, this is something of an accident, since the number of Secretaries of State has increased along with the scope of government, and it was convenient to appoint lots of people to the same formal office rather than invent fresh jobs - especially in the days before ministers were paid. In any case, flag decisions would currently be made under the authority of the minister responsible for planning affairs, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove. That comes from a 2021 order when that position was created, inheriting all functions from the Secretary of State for Housing, Communities and Local Government. Those in turn derive from a 2018 order taking them from the Secretary of State for Communities and Local Government, and so on back in time. SoS authority can be exercised by other people who work for him Additionally, the SoS can delegate functions to junior ministers; for example, the 2021 regulations state that they are Signed by authority of the Secretary of State for Housing, Communities and Local Government Christopher PincherMinister of StateMinistry of Housing, Communities and Local Government Intra-departmental delegation of functions also requires the agreement of the Prime Minister, although some functions must be performed by the Secretary of State personally. That relates to the so-called "Carltona doctrine", named for a 1943 court case Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, which establishes that a minister is generally responsible for his whole department, and that when some function is conferred on the Secretary of State, it usually doesn't mean that he has to do it himself. Most administrative functions are like that, although the actual laying of secondary legislation before Parliament has to be done by a member of Parliament, i.e. a member of the ministerial team. Following the downfall of Mr Pincher, the junior minister responsible for planning is currently Rachel Maclean, so she would be likely to be taking lead responsibility for putting through planning regulations. So all this doesn't mean that Mr Gove personally decides which flags fall into which category, although observers of his career know that we can't rule that out. But he is responsible for the actions of his department, and the secondary legislation would be laid before Parliament in his name and on his instructions. On the making of flags and sausages Regarding "how and on what considerations" these decisions are made, I have no specific knowledge for flag-related policy. But in general, the secondary legislation is written by civil service lawyers on the basis of government policy, and then approved (or at least not disapproved) by Parliament. For example, after Brexit, the EU flag was removed from the list. The mechanism would be that various people who had never heard of the Town and Country Planning Act became upset about flying of the EU flag, and either wrote to ministers or were Cabinet ministers already. Internally to the department, there would have been a mandate to stop the flag being flown, civil servants would figure out the legal steps, and draft the statutory instrument. In the end we get a regulation saying In Class H in Schedule 1, in paragraph (b) of column (1) omit the words "the European Union,". even though only planning experts would know or care about "Class H in Schedule 1". Similar remarks apply to the companion regulation giving prominence to the Union flag over the Scottish flag, which was a political reaction in Westminster to the SNP-led government in Scotland. Someone who is upset about a regulation, or just wants it to be different, may be able to challenge it through the political process in the same sort of way. There are also avenues for judicial review, if regulations have been made in a way which is irrational, or exceeding the scope of what the original Act allowed, or other similar reasons - but these are difficult to pursue in court. For example, it is more than three months since the 2021 regulations were made, so it is now too late to mount a judicial challenge. |
Someone gave me an elephant. Isn’t this illegal? Hypothetical: Someone gave me an elephant and told me not to give it away or sell it. I don’t have the capability to take care of this thing. Heck, I don’t have any license or permit for elephants. I’m not a zookeeper or anything. Isn’t it illegal to give this elephant to me? | No one can give you an elephant without your consent. If you don't consent, then it doesn't matter what provisos they spoke to you. They didn't give you an elephant at all. They abandoned an elephant on your property. You owe them no consideration. Call animal control and they make it "go away" (read: probably to a welcoming zoo). If you did consent, now the question arises of whether it is legal. And that works out exactly the same as if you'd purchased the elephant yourself. | 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. | Your problem is not just that you don't have a working stopcock, but that you now know that you don't have one. Of course it's not illegal by itself, the problem is what is going to happen if you have an insurance case. Your home insurance most likely has to pay for accidental damage. But any damage that would be caused by not being able to close the stopcock, when you knew it wasn't working, they could claim that this is due to gross negligence. Whether they would succeed with that claim or not, I don't know, but fixing the stopcock seems to be a much, much cheaper solution. PS. Seems I made a wrong assumption here - that it was your home, owned by you. The same reasons that would have made it a good idea for you to fix the stopcock obviously make it a good idea for the landlord as well. So I would make sure that you tell the landlord as soon as possible. If something goes wrong, and the insurance doesn't pay, your landlord would be responsible for the damage. Whether it's legal to not fix the stopcock - that's a different matter. I thought you were the owner. You would have endangered yourself and your property. Nothing illegal with that. But with the landlord it's different; he wouldn't be endangering himself but someone else's property. | In the United States, no. For something to be illegal in any meaningful way, you have to be able to point to a law that makes it illegal. If there's no law to break, it's not illegal. I would wonder if your colleague was thinking about question of whether cryptocurrencies are legal tender. For something to be "legal tender," there would need to be some kind of law or regulation requiring people to accept them as payment. There is no such requirement in the United States, so Bitcoin, for instance, is not legal tender. But that doesn't make it illegal tender; it just means that people can decide whether to accept it or not. | Yes, it's legal. To be illegal, the photographs would have to be obscene or pornographic. Nude people, ordinarily photographed, doing non-sexual, non-excretory things are neither. However, I would strongly advise caution, particularly if you plan to display or share these photographs. There are definitely cases of people who have been charged with sexual exploitation of a minor for sharing nude photographs of their children. | 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." | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. |
Is resale of Windows 10 keys legal? Windows 10 (pro, enterprise, any) that supposedly have never been activated so far are (re) sold online for 5$-20$. I assume that those are key that have initially been given out by microsoft in volumes or in countries with lower pricing (as the price is around 200$ when bought directly from microsoft). Is it legal to resell Windows license keys? Are there any kinds of Windows 10 pro/enterprise keys for which it is forbidden to resell them? | In the EU, software license resale is legal, even if explicitly forbidden by terms of any EULA or other contract imposed upon the parties. To quote the European Court of Justice's press release on its ruling in a case in Germany between Oracle and a German reseller, An author of software cannot oppose the resale of his `used' licences allowing the use of his programs downloaded from the internet. [...] The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website. Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the license agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy. There are many such companies in the EU who resell software legally, including used OEM Windows licenses that are far cheaper than retail copies. This is, in my opinion, a fantastic thing -- but undoubtedly has been behind the trend towards time-limited licenses rather than perpetual ones, which we all arguably suffer from today. | (2019 update See comments for my exchange with @benrg updating this 2015 answer. In particular, they do a fair job of representing a much less "paranoid" take on MS's take on users' privacy than my highly skeptical one. Also, the links in the answer below are to the latest versions of the respective documents. Archive.org has 2015 versions at 2015 EULA and 2105 privacy statement.) IANAL. This answer is just a broad picture. It's a simple explanation of Microsoft's own words, as they were at the time of originally writing this (just after the final release of Windows 10). TL;DR: Microsoft does not recognize users' privacy rights. The Microsoft Privacy document does not say anything positive about privacy in this document that isn't contradicted by their own words elsewhere in the same document. Microsoft does explicitly reserve rights to share users' private data with just about anyone and everyone. Microsoft explicitly disallows legal recourse regarding privacy. The Windows 10 EULA comprehensively denies legal recourse related to privacy (and indeed anything other than IP disputes). It's Microsoft's offerings as a whole, not (just) Windows 10 The key document to focus on is Microsoft's Privacy policy document. This policy applies to many Microsoft products and services, including, but definitely not limited to, Windows 10. Microsoft reserve the right to share your private data Quoting the "Privacy" document, Microsoft reserves the right to share users' private data: among Microsoft-controlled affiliates and subsidiaries with vendors or agents working on our behalf as part of a corporate transaction such as a merger or sale of assets [to] comply with applicable law [to] respond to valid legal process [to] protect our customers, for example to prevent spam [to] operate and maintain the security of our services [to] protect the rights or property of Microsoft as necessary to complete any transaction or provide any service you have requested or authorized Do users have any privacy rights? One can presumably fight for one's (perceived) rights even if Microsoft attempts to deny them. However, from the English Windows 10 EULA: you and we agree to try for 60 days to resolve [a dispute] informally. If we can’t, you and we agree to binding individual arbitration ... and not to sue in court Additionally, collective action or any other form of representative action is explicitly disallowed. Windows 10 data collection defaults to "Full" mode You've said that what data is collected is off topic. But I think it's worth recognizing that, with Windows 10, Microsoft have made the most popular install option collect and send to their cloud all data collected from your local device ("Full" collection) and have effectively made it a breach of contract to reduce it below a minimal level ("Basic" collection) that they get to determine and change as they see fit. And they can pretty much enforce the latter; if you hack a system to stop "Basic" data being sent to MS, they explicitly disable updates for that system. | The only issue relevant to your age is the (ir)revocability of the license. GPLv3 purports to be an irrevocable license. To be really irrevocable, the license would need to grant certain rights in exchange for something of value, that is, you need a license that passes muster as a contract. Copyright licenses are typically treated as contracts, but it is not clearly established in law that licenses are contracts or are not contracts. Out of the goodness of your heart, you can grant permission to use your property, but you can also withdraw that permission. If you have a contract granting perpetual permission to use your property in exchange for something of value, then you can't later withdraw that permission. In the case of Jacobsen v. Kratzer, the sides advances opposing theories that the license was a "bare license" vs. was a contract. (The matter was ultimately settled out of court). This article puts together the legal factors surrounding the notion of license as contract, see p. 21 ff, and esp. §IV for arguments that licenses should be contracts, to be fully enforceable. A contract for non-essentials formed with a minor is not enforceable, until you are 18. You could therefore revoke the license, until you are 18. Anyone who uses the software does so at their peril. However, if the license is not a contract, no existing legal doctrine (in the US) whereby the permission is irrevocable. In other words, yes you can, at their peril. The whole license-as-contract issue is very complicated, and I'm only focusing on the revocability issue. There is a separate question whether one can sue a user for both copyright infringement and breach of contract. The case of Artifex v. Hancom, see also this analysis, found that (in the particular case), plaintiff can pursue the matter as both infringement and contract breach. | According to this site in the UK apparently there are laws against calling something free if it was part of the entire package before or if was added later and the price went up Example of the latter: LG sold a TV. They then added a sound bar, increased the price and listed the TV as TV for $XXX + free sound bar. They ran afoul of the regulations Also adding something and calling the addition free is okay if the price didn't go up but you can only advertize it as free for 6 months. After 6 months the law considers it included by default and therefore no longer free. | 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. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | This is going to depend on several things. First of all, do you have a lawful, licensed copy of the SDK? My understanding is that Nintendo only licensed the SDK to selected game companies. If what you have is an unauthorized copy, you do not have the legal right even to use it. If what you have is properly licensed, then you do. Or is what you have an unofficial SDK created by someone other than Nintendo? Secondly, what does the license agreement that comes with the SDK provide? Does it require developers to register with Nintendo? If it does, you will need to comply. Nintendo cannot prevent others from writing programs designed to run on their hardware. But they can control who uses their development software, if they choose to. You cannot reproduce in your game any of Nintendo's copyrighted software (or anyone else's) without permission. That applies even more strongly if you intend to sell the software. But you can use any development software for which you have a valid license in whatever ways its license permits. I would expect this includes creating games. It would include selling games that you create that do not use any of Nintendo's code, unless there is a specific provision forbidding that in the license agreement. | This sounds like legal nominative use to me. The issue is trademark. Trademark law isn't a monopoly on using the trademark, it is a prohibition on using the trademark in a way that misleads a customer about who is selling something or what is being sold. You cannot sell goods in a manner that implies inaccurately an affiliation or endorsement of a trademark owner, causing confusion in the mind of a reasonable consumer. But, it sounds like your disclosure makes a factually accurate statement without implying or stating that the goods are sold with the affiliation or endorsement of Kodak, only that you used their goods as parts in your product. To be safe, in order to be completely clear and avoid all doubt, you might want to say, in addition, "This produce is not licensed or authorized by Kodak." The First Sale rule expressly protects your right to resell physical good protected by trademark or copyright to someone else, so the sale itself is not illegal, it is just a question of whether you have abridged its trademark. Conceptually, what you are doing isn't that different from stating that the used car you are selling had all replacement parts obtained to maintain and repair it done with dealer approved parts, rather than third-party knock offs, which would likewise be legal. Similarly, you could sell a house with a listing that identifies the brand of every building material used. For example, "this house was constructed using Pella Windows." |
If I am out of the country for a long time, am I liable for missed Jury Duty? Say that I spend a few years traveling the world, visiting Europe, Asia, Africa, etc.. Then I come back to my home in the California to find missed several Jury Duty summons in the mail. Am I liable for missing all that Jury Duty and not responding to any of it? What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | You need a nexus The company doesn’t operate in the USA. Therefore the damage they caused you can’t have happened in the USA. Therefore, no US court has jurisdiction. | 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. | With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged? Applicable Law States have jurisdiction both over crimes that are committed in the state and over crimes that cause harm in a state. The classic law school example is a murder committed by shooting someone with a gun across a state line. Both the state where the gun is fired and the state where the person is shot have jurisdiction over the crime. Jurisdiction generally requires a purposeful act directed at someone or something in the state where the harm is suffered in most cases. But that isn't a hard and fast rule of constitutional law in other contexts, and there are few cases on point. I would consider this to be an open question. Certainly, however, the mere fact that the victim of a crime is transported to another state for medical treatment, where that victim then dies from causes relate to the crime, does not give the state where the death ultimately occurs in the hospital jurisdiction over the offense. Double Jeopardy Indeed, the constitutional protection against double jeopardy does not prohibit both states from independently convicting and punishing the same defendant for the same crime in this situation under the "dual sovereignty" doctrine. As background, the Colorado Supreme Court decided a dual sovereignty double jeopardy case today. Application To Facts (The application to the facts has been revised upon closer examination of them.) The line about "Ms X, who is, at this point, still in Nevada," is confusing because she was in California before and isn't described as ever being in Nevada. I presume that "still in California" was really meant. Mr. Y could be charged (at least) in Nevada or New Jersey from which the continuing course of communications was sent (undue emphasis on the final communication is probably inappropriate), and Wyoming, to which the bulk of the communications were directed and where the bulk of the harm was suffered. California and Nebraska do not seem to be places to which the communications were really directed or where the greatest harm was suffered. Momentary presence in Nebraska air space is probably insufficient. There are also a set of statutes that specifically address crimes committed during an airplane flight (see also here) that has been discussed in other answers at this website. To the extent that this is treated as a homicide committed while in flight, 49 USC § 46506, might also allow for a federal criminal prosecution. I'm not sure that this is really a crime committed in flight, however, as it involved a course of conduct. A single email or a single moment of death doesn't really capture it. It is more analogous to a poisoning taking place in many doses over a period of time. Is Mr Y's speech in this case protected by the First Amendment? No. First Amendment considerations do apply to crimes involving communications between people that are not false, but if there is sufficient intent to cause suicide or other harm, the First Amendment yields to other considerations. The freedom of speech is not absolute. The exact place that the line is drawn is a matter of ongoing litigation. This specific issue is explored in depth in Clay Calvert, "The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg Application" 94 Tulane Law Review 79 (November 2019). This article is responsive to that case of Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2019). The article explains in its introduction that: In February 2019, the Massachusetts Supreme Judicial Court in Commonwealth v. Carter' affirmed Michelle Carter's conviction for involuntary manslaughter as a youthful offender based on her urging Conrad Roy to commit suicide.' In doing so, the court rejected Carter's claim that her conviction violated her First Amendment' right of free speech. Specifically, it reasoned that Carter's words with Roy immediately before and while he died were "integral to a course of criminal conduct and thus [did] not raise any constitutional problem." In brief, Massachusetts's high court concluded that Carter's speech caused Roy's death' and that the First Amendment provided her no refuge.' | What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied. | 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. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. |
Default judgement on failure to respond to summons In the case "Raising Cane's USA, LLC et al v. Twins Chicken Inc", Plaintiff delivers a summons and Defendant appears to never reply. After 3 months, Plaintiff voluntarily withdraws their case instead of pursing the default judgement after 21 days of non-response per FRCP 12(a)(1). I'm not a lawyer so these might be naive questions: Why didn't the court automatically issue a default judgement after 21 days? Does the plaintiff need to actively pursue it? Would the case history look like this if the parties settled? I would've expected some public record indication of this. Practically speaking, why might the plaintiff withdraw their case after receiving no response? History of: 2:15-cv-01298-JLR | Rules of the court Default judgment is not automatic. The party wanting default has to ask for it. Voluntary Dismissal indicates that the suing party either settled or for some other reason no longer wishes or isn't able to pursue the case anymore. This is speculative, but the three most common reasons are settling, realizing that the return on investment is bad, or realizing a mistake of fact that would sink the case if it came to trial. | Is there a way to accept civil liability without admitting a criminal violation? Are you allowed to tell the police, “I accept full responsibility for the accident, but I don’t wish to discuss what happened”? You can allow a default judgment as to liability to enter in a civil case (and then possibly even have a contested adversarial hearing on damages), or you can reach a settlement dismissing the case with prejudice in exchange for payment of a certain settlement without admission of liability. Indeed, this is what actually happens in about 90%+ of car accident cases that aren't resolved at trial or in a motion for summary judgment (something that is quite rare in a car accident case). Likewise, you can plea "no contest" or even being convicted following a trial of a traffic violation in connection with an accident, without the outcome of the traffic case having a binding effect on the outcome of a civil case, even though this seems contrary to the logic of how results in one case determine issues in other cases (called "collateral estoppel"). Basically, this rule has been enacted in most U.S. jurisdictions (usually by statute but in some rare cases by judicial decision), in order to prevent local traffic trial cases from turning into expensive high stakes battles that are really about liability for huge economic damages, in a traffic court process designed to efficiently deal with disputes in the tens to thousands of dollars at stake, rather than the tens of thousands to millions of dollars that are at stake in a personal injury case where there have been serious injuries. However, while the outcome and plea in a traffic case in not binding in a civil lawsuit involving a related accident, any testimony given under oath in one case can be used in the other case in almost all circumstances. | A witness who disobeys a court order has automatically broken the law. Indeed, this is the most fundamental of laws; you can't decide "If I turn up to the hearing I may be punished for my crime; but not attending isn't against the law, so goodbye." A witness who goes out of the jurisdiction cannot, of course, be punished while there (though when he returns he may have to explain why he chose to leave having been warned that he must attend or face penalties- that is the meaning of sub poena). But your assumption that anybody who fails to attend probably had a good reason betrays a fundamental, though common, misunderstanding. A court has determined that your evidence is necessary for justice to be done. There is therefore no good reason not to attend. It may well be that a doctor would prefer that you did not go to court that day, and if you apply to the court it may be possible to find some arrangement. But you are not allowed to decide 'my convenience is more important than discovering whether the defendant should go to jail or not". Civilised countries have people who are empowered to make that decision; they are called judges, and the decision has been made. | Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been "sealed" i.e. issued in writing) but still possible. The principle of finality only applies to parties asking courts to reconsider; it does not constrain courts themselves. So, in this example, "the judge agrees to vacate them" but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens). No double jeopardy applies because it is still the same trial. | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | In the US, when a person has unpaid debts and dies, those debts are to be paid from any assets of the estate (as in, any assets). The executor has the responsibility to use those assets to pay the debts. Presumably the executor did that, and there are no co-signed accounts or anything like that, so your mother isn't responsible for these debts in some obscure way. The Fair Debt Collection Practices Act has a provision that you can tell a collection agency to stop communicating with you, and they must then stop communicating with you except to say they are stopping attempts to collect, to indicate possible remedies (i.e. lawsuits), or notify of an actual remedy (they have actually filed suit). Since they are no longer allowed to discuss anything with you once you give them the go-away notice, one should probably hire an attorney to exercise the nuclear option. You can also request proof that you owe the money: they are suppose to notify you of the right to dispute the debt with 5 days of first contact, which gives you 30 days to dispute the debt. Persuading a debt collector that they are pursuing the wrong person is probably easier than persuading a jury in a lawsuit. | Usually, an attack on the validity or prudence of the underlying order is not a defense to court action to enforce it. Usually, the only exception would be when it was impossible, or practically impossible, to perform the court order for some reason. You could seek to modify the order, but that would be prospective in effect only and usually isn't granted unless there has been a change in circumstances since the original order was entered. You could also bring a motion to set aside judgment (usually this has to be done within six months of entry of an order) on the grounds that this provision was included only due to mistake or irregularities in the process or excusable neglect. But, that only would have only prospective effect. | He is mistaken. The statute of limitations for suing someone for a car accident, and for enforcing an oral promise, are both far longer than 3-4 months. You could get an estimate of the damages, report it to his insurance company, and, if the insurance company does not cooperate promptly, bring suit in a court of limited jurisdiction or a small claims court. Even if you don't retain a lawyer to take on the case for you fully, if you need to sue, you should hire a lawyer to coach you on the high points of how to represent yourself in this case, particularly with regard to how to fill out the Complaint, how to serve the other driver with process, and what evidence you need to present in what manner a trial. |
Copying a parody of a movie using a fan's 3D model I really like a board game. This game includes artistic references (as parody) to a well-known movie. I wanted to improve the pieces of the board game (which were 2-dimensional) to augment my own experience playing it. This led me to create a 3D printable model of a ship from the movie that modeled the parody's artwork (which has significant differences from the movie, but is still recognizable as a ship from the movie, as its intent is parody). In order to accomplish this, I started with a fan-made model of the ship from the original movie that I found on Thingiverse. I altered it significantly in order to match the parody's artistic style and to work as a printable game piece. The fan's model has an Attribution-NonCommercial license on it. I played the board game with some of my friends. Some of my friends want to pay me to make them their own copies of the game pieces, which includes (among many things) this ship. My four questions: (1) Is my creation of this game piece considered parody because I am very explicitly copying parody? If so it might allow me to be able to sell these pieces under the "fair use" clause. http://lemoinefirm.com/parody-fair-use-or-copyright-infringement (2) What about if I get permission to sell? Who's permission would I need: the parody game maker's? The fan's, who modeled the spaceship? Or the makers of the movie themselves? (3) Does the fan have the right to put a copyright license on his model of the ship in the first place because he is explicitly copying someone else? Or is his work considered art? (4) Has my work been altered enough (now that it distinctly resembles the parody and not the model I used) that it is considered new artwork that has my copyright, not the fan's? https://www.wildlifeartstore.com/can-you-copy-art/ | Copyright is hard. The movie has a copyright, and so has its ship model. This is the original copyright. The boardgame has a token. That thing has its own copyright, no matter if it's a parody of another thing or not. The copyright holder might not be the boardgame maker, but it is under copyright. In any way, parody is fair use, so no harm here. The model has a copyright, but also infringes on the film's copyright as it is a derivative of the film. If the film copyright holder wants, they can have it taken down and sue the maker. In any way, this model is available under a specific license. The model license is clearly Non Commercial. The CC-A-NC license can't be changed to one that is commercial. You can only add more No categories. The questions: 1 - No. Your work is a derivative work of both the model AND the boardgame. You don't parody the boardgame. 2 - You need a license from not one but at least two sources: the model author and the boardgame copyright holder. You might even need a license from the original film company. 3 - YES. He made the model, he can license it as he wants, but the license might be ineffective: He might have coverage under an explicit fan license with the movie company to make the model (allowing sharing under such other license) or not (when it might be silent acceptance of fan works, am implicit license or just plain lack of knowledge of the infringing model) - determining if the company wants to pursue is not your legal battle. Your battle is more likely with the copyright holder (of movie and boardgame) anyway because you lack a valid license from them. "I used this infringing model and breached the license I got it under" is... a very precarious point in court. 4 - No. You used the other work, you can't get out of the CC-A-NC license by altering the item. It'll always be a derivative work of the model you put in. You only get copyright in the changes. The resulting item has shared copyright with the original model maker. He gave you a license to do that, but the unbreakable condition unless you get a different license is: You can't ever sell this, you HAVE to tell them that I was part of this design. | united-states Copyright First of all, copyright infringement is not, in the usual sense "illegal". That is, it is not normally a crime. (It can be in extreme cases, but not the sort of thing described in the question.) What infringement is is a tort, that is, it provides grounds for the copyright owner to sue the infringer, and perhaps collect money damages and/or get an injunction (court order) preventing the infringer from continuing to infringe. Beyond that, let's consider what is meant by "contains the intellectual property (IP) of the company", and what the consequences might be. Some of this will differ depending on the country. Since no country is stated in the question, I will mostly use US law in this answer, with mentions of where it is likely to be different in other countries. Damages The image of Deadpool, or any other comic character, will be protected by copyright. If a fan artist copies this image (or any of the many such images published by Marvel) or closely imitates it, that will be copyright infringement. Marvel could sue and likely win. Damages can be sizable. In the US statutory damages can be as high as $150,000 per work infringed (or as low as $750, as the court thinks just). See 17 USC 504(c) Or the owner can instead get actual damages plus any profits that the infringer made. (17 USC 504(b)). The owner might also get an injunction under 17 USC 502, seizure or deconstruction of infringing works under 17 USC 503, and possibly costs and legal fees as well under 17 USC 505. Derivative work If the fan art is not a close copy, but is clearly based on the original art, then it may well constitute a derivative work US copyright law defines this in 17 USC 101 as: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. The more "distinctive elements and details" of the original that are used, the more clearly the fan art would be a derivative work. Creating a derivative work without permission is infringement, an the same remedies (damages, injunction, etc.) are available as for a direct copy under 17 USC 502 thru 505. Fair Use However, there is a possible exception to copyright available, namely fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it?. If a use is found to be a fair use, it is not an infringement. Fair use is defined in 17 USC 107](https://www.copyright.gov/title17/92chap1.html#107) which provides in pertinent part: ... In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Let's consider the fact pattern in the question in terms of these four factors: The allegedly infringing work is commercial in that it is being sold, almost suely for significant profit. Beyond that, the use does not seem to be transformative. Rather it seems to be used for much the same purpose as the original, so that the purchaser can enjoy the image of the character. If the fan art were making a criticism of or a comment on the original that would be different. As it is, factor 1 leans toward infringement, not fair use. The copyrighted work is creative and expressive, notr factual. This leans away from fair use. The fan art is probably taking a whole image, even if not a whole comic. This probably leans away from fair use, but more details might be needed. Selling individual images of the character is a market that the owner might well exploit, if it is not doing so already. The fan art might serve as a substitute or such an authorized image. Factor 4 leans away from fair use. There doesn't seem much chance of this fan art being held to be a fair use of the original, so that defense will not work. Note that when a work is a parody, it is often found to be a fair use. But in US copyright lay, a parody is a work that comments on or criticizes another work by means of retelling or reworking the source. A work that reworks or modifies a source merely for comic effect, or to criticize something other than the source work, such as to comment on society as a whole, or some social tend, is not ma parody in this sense. Such a work is sometimes described in copyright cases as a "satire". A satire in this sense will not normally be found to be a fair sue because of its satiric qualities, although in some cases it may be found to be a fair use for other reasons. Consider the case of Suntrust Bank v. Houghton Mifflin Co. 268 F.3d 1257, 1259 (11th Cir. 2001). This case dealt with a novel called The Wind Done Gone. TWDG retold Gone With the Wind from the PoV of the enslaved characters. It reused many characters and plot incidents from the source work. It was clearly derivative. But the 11th circuit court held that a major purpose of TWDG was to comment on GWTW by retelling it in altered form, and thus it was held to be a fair use (after considering the other fair-use factors.) Note that the fact that the fan use is perceived to be comedic does not, in and of itself, make the use a fair use. It might contribute to the fan art being found to be somewhat *transformative, but quite possibly, which in turn possibly helps tip factor 1 toward fair use, but quite likely not enough. And it doesn't really affect the other factors at all.Again teh details will matter. Composite Works This commetn asks: ... Let's say the exception is that it's a parody that mixes two different studios' IP to make one blended character, an amalgam. And would be perceived as a humorous caricature to many upon seeing it. Does this make it a fair use parody derivative work that is non-infringing? Such a composite would be a derivative of two or more sources. If the was a suit for alleged infringement of any of these sources, there would need to be a fair use analysis in regard to the elements of the source work that it is claimed to infringe in that suit. How much of that source was used would be relevant, as would the effect on the market for that source. Only if it in some way commented on that source would it be considered to be a parody of that source. The mere fact that such an allegedly infringing wok drew on two or more different sources would not, on its own, make it a fair use. Of course, if it drew on mny different sources it might not use enough of any one to be considered derivative.. Non-US Law The major current international copyright agreements are the Berne Copyright Conventionand the WTO TRIPS Agreement. Article 2, paragraph 3 of Berne provides: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Article 9, paragraph 1 of TRIPS states: Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom. Thus the protection of derivative works under Berne and TRIPS is similar to that under US law. Fair Dealing In the UK and many members of the Commonwealth of nations, the key ewxception to copyright is known as Fair Dealing. The details vary by country, but the key areas covered are: Research and study For this defense to apply, the infringer must show that the dealing was for non-commercial research or private study, private study excludes any study directly or indirectly for any commercial purpose. Criticism or review For this to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgement Reporting of current events Parody, caricature and pastiche This seems to be rather broader than the US treatment of parody under a fair use analysis. None of these seem to apply to the situation describes in the question. "Parody, caricature or pastiche" might apply, but nothing in the question clearly indicates this. | The "Crabs" game can be legal if it is seen as a form of parody. That is one of the forms of "fair use" that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech. Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover." The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. | It is not per se necessary to license objects depicted in a video game. A 2020 court case has decided that the same rules apply to video games as to other forms of art. Just like you don't need to license every car on the road every time you take a picture of said road. Most court cases that are brought against non-licensed use of vehicles claim something other than simple use of the design, such as false implication of license or use of a trademark. Military vehicles enjoy less protection than civilian ones. The works of the US Federal Government, for one, are not copyrightable. The design of military vehicles is also a lot more functional rather than artistic. To claim copyright protection for a vehicle design, one would have to prove that the design wasn't driven by function - which is something military contractors for large projects definitely aren't hired to do. A carrier's or SSBN's shape, for instance, isn't copyrighted at all, because it's necessary for their performance. However, there are elements of real-world objects that would be protected by copyright against depiction in games. An accurate and detailed depiction of non-functional elements can be a copyright violation. Cases have been brought against artist tattoos on human models. A complex vinyl decal on a car can also be copyright-protected against depictions, but only to the extent that its depiction isn't necessary to keep the vehicle recognizable. For a big studio, licensing the vehicles can be simpler and cheaper than risking a need for a potential legal defense. It can also provide help from the manufacturer in recreating a detailed design, such as drawings and 3D models. But it is not strictly necessary. | This would be infringement. It generally doesn't matter that you're giving things away for free. Keep in mind that the point of these laws is not only to prevent third parties from making money off the creator's ideas, but also to protect the creator's ability to make money. If you're providing free knock-off Winnie the Pooh products, that cuts into the market for the creator's legitimate products. | Arguably not (or, the example terms are not restricted by copyright, but not for the reasons given, which means this protection may not extend past the examples given in all cases). The protection for "stock characters" comes from the "Scènes à faire" doctrine, which protects elements that are elementary and near-required to be part of a genre. For example, a fairy tale is "obligated" to start with "Once upon a time" and end with "And they lived happily ever after". Character classes, by virtue of being character classes, do not qualify under this doctrine to me, simply by virtue of being "character classes". What matters are: a) the terms used for the classes are generic b) there is prior art to any claimed copyright, with uses of such terms in fantasy fiction stretching back at least hundreds of years and predating, for example, modern English. Note that the above is not universal to all character classes. For example, if you had classes whose names that directly related to various other copyrighted works IP (e.g. "Jedi Councilor", "Yogo Wardmaster", "Grey Warden", "Aes Sedai", "Asha'man" "Eversor Assassin"), those could still be infringing copyright. | If one is writing about a work of fiction, one may describe the work, and use terms from the work in doing so. One might write, for example: In Spaceman Sam the characters use "blasters" as weapons, while in Jack of the Galaxy "contragravity" is used to propel "aircars" These are facts, and copyright may never be used to protect facts. Moreover, such uses as reviews and criticism are particularly likely to constitute fair use under US law, or another exception to copyright under the law of some other country, even if some otherwise protected content is quoted. If something appeared in that sci-fi universe prior to me re-iterating it; does that mean it's fair game for me to use? If the "something" that appeared earlier is an "idea" or a name, it is indeed fair game. This is true whether it is obscure or well-known. In any case describing the facts of the fiction, even in detail, is generally not an infringement. If "re-iterating" something from an existing work in a new fiction involves an extensive quotation, or a detailed, point-by-point reuse of a fictional element, that might constitute infringement, unless fair use or another exception to copyright applies. Does intellectual law protect very specific plot concepts? No, it doesn't. A plot concept is an idea. In the US, 17 USV 103(b) reads: (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. Laws in other countries are similar on this point. This is sometimes known as the idea/expression distinction. This means that while the expression used to embody a concept is often protected by copyright, the concept itself never is. Are you allowed to borrow names of different generic sci-fi inventions that aren't super-important to the story. Yes. In fact even the names of fictional technological devices that are very important to a story may be, and often are, reused in different works by different authors. For example Ursula LeGuin used "ansible" as the name of a faster-then-light communicator, in fact an instantaneous communication device, in her "Hanish" series, particularly in The Left Hand of Darkness, The Dispossessed, and The Word for World is Forest. (She wrote that the term was derived from the word "answerable".) The term and concept were reused by Vernor Vinge in "The Blabber" and A Fire Upon the Deep, and by Elizabeth Moon in the "Sassanek" series and more centrally in the "Vatta's war" series starting with Trading in Danger. Moreover, the names of fictional characters are not protected. An author might introduce characters with names borrowed from Tolkien, Heinlein, or other well-known (or obscure) fictional works. US Copyright Office circular #33 "Works not protected by Copyright" says that "names, titles, and short phrases" may not be protected by copyright, and will not be separably registered. However, if a character has not only the name of a previous character, but a detailed, point-by-point similarity in distinctive elements to a character in a protected work, that may be enough to make the newer work a derivative work, and thus be infringing if permission is not obtained from the copyright holder on the source work. The same is true of the detailed reproduction of a distinctive setting from a source work. But a mere name and broad, general description is not enough tom make a later work derivative. The more details are reproduced, and the more distinctive and specific those details are, the more likely the newer work is to be found distinctive. |
International status of Batman & Robin photo, Public Domain USA? There is a Batman & Robin photo which, according to Wiki, is public domain in the USA because it was published in the 1960s without a copyright notice. I would like to use this image in a song video I am producing for publication online (YouTube, TikTok, etc). I’d be very grateful if someone could advise me on the likely copyright situation OUTSIDE of the USA. Details of the image are here: File:Batman and Robin 1966.JPG - Wikimedia Commons | The situation is complicated. The easy cases: In the United States, it's in the public domain for lack of a copyright notice. In countries that are parties to neither the Berne Convention nor the TRIPS Agreement, it's in the public domain because those countries don't recognize anyone else's copyrights. In countries that have adopted the rule of the shorter term, it is in the public domain because the image was never copyrighted in the country of origin. In the remaining countries, it is likely but not certain that the photo is in the public domain. Article 18 of the Berne Convention provides that: (1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. (4) The preceding provisions shall also apply in the case of new accessions to the Union... So in theory, since it was in the public domain in the United States as of March 1, 1989 (the date the United States ratified the Berne Convention), it's in the public domain in all Berne countries. However, not all countries may have implemented Article 18 exactly as written. | The lyricist and composers already have copyright. Copyright exists for the moment of creation: registration is not necessary to enforce copyright rights and to grant licences. Registration in the US is merely useful if you want to prove that you own the copyright which otherwise would require providing evidence of the date of creation, priority etc. Most countries do not have copyright registers. Similarly, you will have copyright in the derivative work of the soundtrack from the moment of its creation. | No This is not a copyright issue as you are not making a copy (save for a transient one in your cache which is allowed). You are allowed to record it for personal time-shifting as that is fair use/dealing. The broadcaster either owns the copyright (unlikely) or has a contract with the copyright holder that allows them to broadcast it. Assuming the broadcaster chooses or is not permitted to subsequently stream it, if you miss it, you miss it. Your contract with the broadcaster is over. Their obligation was to make the broadcast available to you, yours was to pay for it - nobody is obliged to watch it. You can, of course, seek the content from any other legal sources, complying with their terms including payment if necessary. | Public domain means that there is no (longer) copyright in the given work. This means that all rights associated with copyright are not controlled by anyone and there is no way to run afoul of copyright laws (note that in some countries a true "public domain" doesn't exist). Assuming you're correct that these works are in public domain, answers to your particular questions are: Does that mean I can play the video's as much as I want to any size crowd I wanted? Could I charge money to watch the videos? Yes and yes. If something is in the public domain does that mean all the parts of that thing are? This kind of begs the question. A work in public domain has no copyright in it. If one of its part has copyright, then it's not really public domain is it? What about the characters in the videos, could I make a new Bugs Bunny or Might Mouse animation on my own? If I wanted to use Popeye or Betty Boop or daffy duck in a video game could I? Copyright isn't your issue here, trademarks are. The characters are most likely trademarked, meaning you generally can't use them in your own works without licensing. | Copyright still exists even if you don't know who owns it In this particular case, however, the copyright has expired - UK copyright lasts for 70 years after the last author passes away. For a death in 1918, copyright expired on 31 December 1998. For other cases where the author was still alive in 1940 (for this year - 2020) but has since passed, the copyright belongs to their heirs and assignees. It's possible that you don't know who that is. It's even possible that they don't know that they own it. Doesn't matter, it's still copyright protected and those people (whoever they are) can enforce their rights if they want to. When you think that everything everyone ever writes, records, photographs, paints, draws etc. will have copyright for 70 years after their death and that most of that stuff has little to no value, is usually not explicitly dealt with in a will, and their heirs will generally not think to deal with it or pass it on in their will it's no wonder the world is full of orphan works. Some copyright legislation deals with this; the UK's does. You can pay the government for a 7-year licence for orphan works. If the right's holder ever comes forward, they get the fees collected. | Copyright protection is about certain acts, and not about relationships between products. Copyright law says that the creator of an original work hold the exclusive right to copy and to authorize creation of derivative works. Copyright law does not say that anybody can freely create derivative works as long as they are different to a certain extent. So if you take an original Mario and modify it a teeny bit, that is a violation of copyright; if you take an original Mario and modify it hugely, that is a violation of copyright. Degree of similarity is relevant on some cases when the factual question arises whether the allegedly-infringing work is based on some protected original. This is most obvious in music cases, where all baroque music has some similarity to all other baroque music, all death metal has some similarity to all other death metal, and so on. There is not a legal quasi-statutory standard for measuring substantial similarity in music. The scientific underpinning of such a standard would be based on (weighted) combinatorics and the idea that there are only so many tunes possible (that would be a huge number, until you get to the "within a genre" condition). It seems obvious (by your "admission") that the derived works are based on protected works, so Nintendo's permission is required to legally create such works. However, you do or would hold copyright in your unauthorized derived work. Without a trail of evidence such as a SE question pointing to the connection, the derived images might be hard to connect to the originals. In addition, you may be able to avail yourself of a "fair use" defense, in case you get sued by the original creator. Factors favoring such a defense are the insubstantiality of the copying (a small portion) and the "transformativeness" of your creation. | It is not possible to say that this is generally fair use, although sometimes it would be. A copy for personal use is still a copyright right violation on its face, and fair use does not categorically exclude non-commercial or personal use of copyrighted works. It is a highly fact specific inquiry. The likelihood of anyone discovering that you have done so and deciding to sue over it is slight, but that doesn't mean that there isn't potential copyright infringement liability. Compare this to speeding. People do it all the time, and even driving one mile per hour above the speed limit is still a traffic violation. But it is rare for less serious violations to be ticketed. | In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage. |
Is it Misrepresentation of Intellectual Property to change the dialect of the same language? Say that Bob wrote a paper that consists of the word, "industrialised". This is how the British English word is spelled. Now, say that Jerry wants to quote Bob on his paper. But Jerry speaks American English, and so he spells the word, "industrialized". Jerry changes the word to the American version. Can Bob take legal action (assuming he has full copyright protection), against Jerry for changing the dialect of the same language? | 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. | 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. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. | What interests me, is if the company that will be fulfilling the "abracadabra" request is able to not provide "hocus pocus" emails (internally — or later in the litigation, if the truth is uncovered — justifying it that the team fulfilling the request does not speak the language and was unaware of the existence of these communications in a foreign language)? Are there legal mechanisms that prevent such defense using "foreign language"? The legal obligation in discovery is to produce compliant documents without regard to their language. Good faith efforts need to be used. Generally speaking, a mere single language boolean or key word search of a database is not a sufficient effort to meet that obligation. Somebody was involved in writing the relevant emails and the lawyer and client representative needs to talk to the people who were involved, not just search a database, to make sure that all relevant materials are disclosed by whatever means are necessary to do so. This is why discovery is often the most expensive part of litigation. This doesn't mean that every good faith mistaken omission from discovery responses results in a court sanction if it is promptly remedied if later discovered. But, compliance requires engagement of the universe of possible documents with much more knowing and intelligent understanding that the question seems to assume. For what it is worth, I have litigated a case in a U.S. court where none of the parties (nor the judge) was fluent in the relevant language (Italian) of most of the documents, but both parties understood and agreed on the meaning of the relevant Italian business documents (invoices and bank statements mostly running to hundreds of pages), and they testified to the judge regarding what those documents meant in English, without the relevant documents ever being actually translated in full by anyone. Language never became a meaningful issue, in part, because the more important issue was understanding the context of how the Italian banking system and commercial transactions were structured and once that was understood, the documents themselves were easily enough understood from context. | Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe. | What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere. | If you use the reviewer's code, or code derived from it (e.g. if you just changed a variable name) then they own the copyright on that part of the software. If the reviewer describes a solution which you implement, or if you re-implement the code from scratch while taking ideas and methods from the reviewer's code, then you own the copyright on that code. However if there are only a few ways to implement something in code then the code is not creative and hence cannot be copyrighted. For example the regular expression in the question you link to is (as far as I can tell) the only correct solution to the problem: any programmer addressing the problem will have come up with that RE. In this the position is akin to a database of phone numbers: while the collection may be copyright (depending on whether selection or arrangement required creativity), the fact that Alice Jones has the number 012345 is not copyrightable, and neither is the alphabetical arrangement of names. Where it gets messy is the boundary between the two. The requirement to detect 4 or more repeated digits in a credit card number could be implemented in a number of ways, but whether there are enough of these to qualify any particular solution as "creative" would be a matter of fact for a court to decide. | Here's one way to avoid the issue altogether: Wikipedia, or anyone for that matter, can't copyright information (only its expression). You can reword (automate the process?) the content (ie, w/out doing "independent research") and it's yours! Of course, I'm not a lawyer so consult one of those. |
Would a giant "F*** BIDEN" flag mounted on a truck be first amendment protected? I recently saw one of those trucks with flags mounted on them. The usual kind: big truck, 4'x6' flags, usually supporting Don't Tread On Me, Donald Trump, MIA, etc. Or the actual American flag. They are legal by the first amendment and don't cause safety problems for traffic. No problems. I recently saw a large flag on a giant truck, styled like a "Trump 2020" campaign poster, substituted with the words "F*** BIDEN AND F*** YOU FOR VOTING FOR HIM!". The first word is probably almost a foot tall, obviously visible to everyone. I know people (or at least Americans) wear t-shirts like that everywhere, protected by freedom of speech. The Supreme Court has found vulgar bumper stickers to be also protected by the first amendment. However, bumper stickers and t-shirts are relatively small. This flag is nearly impossible to not see in traffic or in parking lots. Kids clearly see it. It virtually cannot be avoided. Could that particular flag be considered obscene and not protected by the first amendment? Because it is a large flag mounted high up, could it qualify as a billboard, such as mobile billboards attached to the side of trucks, which by law would not be able to display the most vulgar swear words? Could a city outlaw it? This happened in Idaho. UPDATE: I added "in Idaho" because I've seen the location question asked several times in questions. I don't mean anything special, positive, negative, different rules, etc. Sometimes an answer will involve quoting a state constitution or statutes. Don't read into "This happened in Idaho" too deeply. UPDATE 2: However, part (2) of the Miller test refers to as defined by state law. So I guess the question is in general and in this case the specific state of Idaho. Hope that clears it up. | The First Amendment controls in the US, so it does not matter if this is Idaho or Berkeley CA. This is clearly an expression of a political viewpoint, which is protected by the First Amendment. Any attempt to suppress a political viewpoint by appeal to "obscenity" or "zoning" or the like will ultimately fail in the courts. The word fuck is not lewd, filthy, or disgusting, and clearly does not constitute "obscenity". There is a test, the "Miller test", for obscenity, that requires all three of these conditions to be met: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. The word fuck is not obscene under this test, especially in this context. | In the united-states, those actions would be fully protected by the First Amendment. Andy has a constitutional right to speak freely about essentially whatever he wants -- including Mary's criminal conduct -- unless his speech falls into one of several narrowly defined categories, none of which would apply in this case. And because Mary has already put this information out on the Internet, it is likely not sufficiently private to support an invasion-of-privacy claim. However, the unfortunate reality is that complainants, police, prosecutors, and judges frequently ignore First Amendment protections. Indeed, many states have laws against "cyberstalking" and "telecommunications harassment" that are incredibly broad, and that clearly apply to conduct protected by the First Amendment. For instance, Ohio's telecommunications harassment statute makes it a crime to send an e-mail "with purpose to abuse, threaten, or harass another person." This means that many people who engage in First Amendment-protected speech end up getting prosecuted anyway. If they pay for a good lawyer who knows how to properly raise a First Amendment defense, they may escape any penalties. But because most defendants do not have those resources, and because many lawyers are unaware of the First Amendment implications of such prosecutions, most defendants in such situations likely end up being convicted despite behaving perfectly legally. In the united-kingdom, though, the situation is very different. Even if Mary is breaking the law, and even if Andy limits himself to strictly factual information about what's he's learned about her conduct, he may still be held civilly liable. Mary may also be able to pursue Andy criminally for harassment if his e-mail causes her substantial emotional distress, and civilly for "harassment by publication." The fact that this information is already public is likely not going to go very far in changing the analysis. Andy's best course of action is therefore to play it safe by keeping his mouth shut. Doing so has both legal and nonlegal benefits: He avoids exposure to the hassles of defending himself from criminal charges and he gets some time to examine the resentment, jealousy, paranoia that makes him want to humiliate his "friend." | Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes. Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision). Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign. I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person. | Where the President explicitly tells a newspaper that they should reveal their sources. Is this not illegal in the US? It is not illegal. Well, it would be a U.S. Attorney, rather than the President himself. You're thinking of shield laws, but no such law exists at the federal level. Moreover, although some people might think that the First Amendment ("freedom of the press") would protect a journalist in such a case, the Supreme Court has held that it doesn't, though the government is required to "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest". So if a reporter were subpoenaed in federal court to reveal a source, and they couldn't convince a court to quash the subpoena under the Branzburg test, they'd have to either reveal their source or be held in contempt. In practice, many reporters have chosen the latter, and served time in jail rather than reveal the source. For instance, Judith Miller. There've been a number of proposals to create such a federal law, but so far Congress hasn't seen fit to do it. According to the Wikipedia article, every state except Wyoming has some sort of shield protection for journalists, either in statute or case law, though the protections are not necessarily absolute. So a state court or prosecutor would find it much more difficult to enforce such an order. | I'm just going to talk about the US. The First Amendment to the US Constitution codifies that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;... What is clearly prohibited by this Amendment would be Congress (or any inferior legislature via the 14th Amendment) restricting the ability of religions which refuse to marry same-sex couples from marrying opposite-sex couples, or in general outlawing any kind of religious law about who a particular church is willing to marry (e.g. only marrying if both parties are of the religion). However, legislatures are generally allowed to influence action via government inducements (I'll just use inducements to describe subsidies, tax breaks, etc). The current precedent for determining whether a particular legislative action violates the Establishment Clause is the "Lemon Test," from Lemon v. Kurtzman, which has the following test: Government action violates the Establishment Clause unless it: Has a significant secular (i.e., non-religious) purpose, Does not have the primary effect of advancing or inhibiting religion, and Does not foster excessive entanglement between government and religion. On the first point, I think the law fails - inducing religious establishments to perform same-sex marriage does not have a "significant secular purpose" because ultimately the government doesn't care whether or not you have a marriage ceremony, just that you sign a marriage certificate with an appropriate witness, which can be a government official. The law could survive on the second point if it could be shown to have at least the preponderance of being for social good, if it is argued that the law's purpose is to make church marriage ceremonies more accessible for same-sex couples by inducing more churches to perform them, and not to harm churches that don't perform them. However, this would probably be an uphill battle, since the law has the practical effect of promoting some religions' beliefs over others. The law probably fails on the third point as well, going back to the previous point that it effectively results in the government choosing one religious practice to promote over another. However, the Lemon Test often criticized or entirely disregarded by the current Supreme Court, for example in the case American Legion v American Humanist Association (a case decided by the current Supreme Court): This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not "explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. Even without the Lemon Test, we can look at Walz v. Tax Commission of New York for an idea of when tax breaks for religious establishments is allowed (emphasis mine): The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion... New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its "moral or mental improvement," should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such;... The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. This paragraph seems to provide some argument both ways. First, the bolded section would seem to prohibit using government inducements to promote one religious practice over another, and that the government can only assist religious institutions when the assistance is applied equally. On the other hand, states are allowed to grant tax relief to religious organizations "that foster..."moral or mental improvement,"..." A legislature could argue that the law promotes "moral improvement" by encouraging acceptance of same-sex marriage, rather than a particular religious belief. However, I don't think that such an argument would prevail over the general prohibition on promoting any religious exercise over another. Government assistance for religious organizations is very thinly held to be permissible only when it is equal. In my opinion, the Supreme Court already has to use twisted gymnastics to argue in favor of any government assistance of religious organizations granted because of their religious status, so they are unlikely to allow something this far (especially since it is usually the conservative justices arguing in favor of these policies, and they are less likely to do same-sex marriage any favors). On the other hand, a permissible policy may be to have government grants for any organization that performs same-sex marriage ceremonies, whether or not that organization is religious. Whether or not that is allowed is likely going to depend on what proportion of the receiving organizations are religious in nature, but there may be enough hotels and other non-religious venues that would qualify that such a law might survive. | Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so. | The NYT article implies that she has used social media in the past to get her victims to believe her fake back story. She is being released from detention, and the restriction on her using social media is not tied to her expressing a particular viewpoint. Courts have repeatedly held that the Government can justify incidental limitations on First Amendment freedoms if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest ( U.S. v. O'Brien, 391 US 367 - Supreme Court 1968). One such compelling interest is the effective administration of criminal justice (U.S. v. Spilotro, 786 F. 2d 808 - Court of Appeals, 8th Circuit 1986). For instance, speech restrictions can be tied to the purpose of preventing a defendant from committing further crimes while released. | 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. |
Do all heirs have to sign to sell inherited real estate In West Virginia? My Mother passed away and named five beneficiaries in her will. Before her house was sold, my sister, one of the five, passed away intestate. She has two adult children. Now, my sister’s son is refusing to sign to sell my mother’s house. Can my mother’s Executor sell the house without my nephew’s signature? (My nephew's share of the house is 10%, and the rest of us own 20% each.) | If the estate has not been settled, yes The executor is the legal owner of the house and does not need the beneficiaries' permission to sell it if they decide that is in the beneficiaries' best interests. They can consider their wishes, but they don't have to, and they don't have to follow them if they do. | 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. | I would assume that the seller ('Transferor') still owned numbers 7 and 11 at the time of the sale. If so, this clause means that the owners of 7 and 11 (now and in the future) have a right of way on the path coloured blue on the plan. The land still belongs to number 9, but the owners cannot build on it so as to block the path. (As mckenzm comments, "on foot only" is an important qualification; the neighbours do not have a right to install utilities under the path, and the owner can put in obstacles that prevent bringing cycles down it). | The seminal case on this was Riggs v. Palmer, 115 N.Y. 506 (1889). A grandson stood to inherit a sizeable estate from his grandfather and, concerned that the will might change, killed his grandfather. In the united-states most jurisdictions have passed "slayer statutes" to prevent the killer from taking under the will. In Maryland, one who "feloniously and intentionally kills, conspires to kill, or procures the killing of the decedent" is barred from inheriting or otherwise benefiting under the will. See Md. Est. & Trusts Code § 11-112. Manslaughter is a felony in Maryland. See Md. Code Crim. Law § 2-207. So if a particular instance of manslaughter involves intent (e.g. the grandson intentionally kills the grandfather following some adequate provocation), the slayer statute should bar taking under the will. But if it doesn't, the killer wouldn't be disqualified. Wikipedia adds: The Maryland slayer rule is harsher than most other states. In addition to prohibiting murderers from inheriting from their victims, Maryland's slayer rule prohibits anyone else from inheriting from murder victims through their murderers; Maryland's slayer rule is thus similar in structure to corruption of blood. For example, a mother leaves her son $50,000, and leaves her son's child (her grandchild) $100,000. She leaves her residuary estate (i.e., whatever else is left of the estate) to her daughter. If the son kills his mother, then under Maryland law, the son's child will inherit the $100,000; however the son's $50,000 (which is also the indirect inheritance of the grandchild through his father), is not available under Maryland law to either the son, or his child. The $50,000 becomes part of the mother's residuary estate and goes to the daughter. | 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. | Your question seems to be about abandoned property and whether Missouri’s statute on disposing of property after a tenant abandons his/her property applies. See Mo. Rev. State. Ann. § 441.065 (“Abandonment of premises, disposition of remaining property.”) Assuming there was no agreement (in writing or orally) for the 19 year-old to pay rent, he was most likely a guest and not a tenant. As a guest, landlord-tenant laws, would not apply to the property that that was left at the nice family’s house. The definitions section of Missouri’s landlord-tenant statutes (and common sense) support this analysis. See Mo. Rev. Stat. Ann. § 441.005. Therefore, the issue them becomes did the 19 year abandon his property? To that question, I think the answer is yes. Missouri Courts have defined the test for “abandoned property” in Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo. App. W. Dist. 1989), stating: Abandonment is the voluntary relinquishment of ownership so that the property ceases to be the property of any person and becomes the subject of appropriation by the first taker. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Abandonment of property requires intent plus an act. Id. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. Id. Intention to abandon may be inferred from strong and convincing evidence and may be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property. Herron, 782 S.W.2d at 416. So to synthesize that passage from Herron, the court is saying that there is a 2 part test for determining if property is abandoned. Did the person intend to abandon the property? Did they commit some act to show this intention? If the answer is yes, to both, they the “first taker” or person that gets possession after the property is abandoned is the new owner. Here, it seems that the 19 year-old intended to abandon the property. He left without explaining why and stated that he would not unload the property if the nice family tried to return it (implying he would not accept the property back). Looking at the second part, him moving without giving notice, and telling the nice family that he won’t accept delivery of the property are both acts showing his intent to abandon the property. | It sort of depends on what the will says, for example if the will says "shall receive 1% of the value of my estate at the moment of my death", that answers your question. That's a bit unlikely, more probably it just says "shall receive 1% of my estate", in which case this refers to "the totality of what is left to disburse to beneficiaries", that is, after obligations have been discharged (debts, taxes, funeral expenses, expense of estate administration). You also have to disburse specific benefits first, for example "$10,000 to Aunt Luddy", "the car to cousin Billy". Thereafter, percentages (implied such as "equally" or explicit such as "2%") are then computed over the remainder. Ideally, you will know the current value of everything left and can do the math and transfer title all at once. This might be a bit impractical for an entire estate, but it is practical for an estate composed of a bunch of divisible assets. All of the securities can be transferred on one day; the house may be sold a month later and assets re-distributed according to the formula at that point. In other words, you don't need a fixed instant for computing and distributing the estate, you just need to distribute each asset according to the terms of the estate. | Conventional guns are not generally "registered" in America. (Only a few jurisdictions like NYC, DC, and maybe still Chicago, have laws requiring licensing of gun owners and registration of firearms.) The interstate transfer of guns between individuals/owners is regulated by federal law and must be conducted by Federal Firearm Licensees (FFLs). Many states also regulate certain intrastate transfer of guns (e.g., handguns, or transfers to individuals who are not immediate family members). For a fee any FFL local to you can ensure that any transfer is compliant with local, state, and federal law. In general inheritance and transfer between family members is not restricted, so long as the receiver is not a "prohibited person" ineligible to possess firearms. 18 USC §922(a)(3)(A) explicitly allows for the interstate transportation of firearms acquired "by bequest or intestate succession." In the situation described, if you are not a prohibited person, you could "inherit" the gun in Florida without any paperwork and simply mail it to yourself in Virginia (ref ATF FAQ #6). If you are uncertain or want to ensure that no laws are broken in that process, have the gun mailed to an FFL local to where you live, and pay the FFL to "transfer" it to you. |
Can I build on an easement? I live in Jackson County, Illinois. I failed to check if there was an easement before buying my house, and got saddled with a 50-foot-wide ingress/egress easement. I know this is unusual, but it really isn't a utility easement. The owner apparently gave himself the easement when he sold the land to the people I bought the property from. Can I build a duck coop on it as long as the easement owner can easily access his property to the north of my house, using the easement? His property north of mine is undeveloped land, that he mows at least once a year. He also has access from the highway next to his parcel. | If it doesn’t cause substantial interference to the easement rights You need to look at the specific terms of the easement i.e. what right it gives to your neighbour. If you can build your chicken coop in such a way that it doesn’t materially affect those rights, then that’s ok However, for this type of easement, any ground level structure is likely to interfere with the use of the easement. | There is a police power exception to the 5th and 14th Amendment rights to not taking property without due process of law and just compensation. In a similar case arising in Greenwood Village, Colorado, an innocent homeowner was denied any relief at trial in the U.S. District Court for the District of Colorado, or on appeal to the 10th Circuit, after his house was trashed by SWAT teams trying to catch a guy accused of mere theft and fleeing police officers. (The U.S. Supreme Court declined to review the case sometime after the linked article was written.) But, there does appear to be a circuit split on the issue. The U.S. Court of Appeals for the 5th Circuit in a case appealed from a U.S. District Court decision in Texas reached a contrary conclusion in a case between Vicki Baker and the City of McKinney, Texas decided earlier this month in March of 2023 in which it affirmed a U.S. District Court ruling in favor of the homewoner. The fact that there is now a circuit split on the issue increases the likelihood that the U.S. Supreme Court would consider a Petition for Certiorari from the 5th Circuit decision in the Texas case, although it is far from a sure thing as only about 1% of Petitions for Certiorari presented to the U.S. Supreme Court (about 80 out of 7,000 to 8,000 per year) are granted. The key issue distinguishing these two rulings is the question of whether the police power exception to the eminent domain obligation of a government applies to cases in which the person whose property is taken is innocent of any wrongdoing and any legally relevant connection to a wrongdoer. Both circuits would agree that a government does not have eminent domain liability under the constitution if, for example, the property destroyed belongs to someone who committed a crime and has their house destroyed in the process of trying to arrest the criminal. Also, neither of the decisions disputes that police may, under the police power exception, destroy property in connection with efforts to apprehend a criminal or to prevent a crime, without seeking court approval in the usual situation where there are exigent circumstances that can't wait for the slow process of conducting a court hearing on the question. The question, instead, is whether an innocent property owner has a right to bring an "inverse condemnation" lawsuit to remedy the damage that the innocent property owner has experienced. | While this question was initially posed as a request for legal advice, I've stated some general principles of this kind of situation generically. You are deemed to have "constructive notice" for legal purposes of all documents filed in the public record pertaining to your property whether you know it or not. You are also on notice of anything that a reasonably informed person could assume to exist from observable facts (like that existence of municipal water and sewer service) upon an inspection of the property. In terms of reasonable expectations, almost every urban home is subject to multiple utility easements. If your home has (or most homes in your neighborhood have) municipal water service, municipal sewer service, electrical service, and cable or telephone lines, there are almost certainly easement in place for all of these things. Typically, in a contract for the purchase of real estate, there is a fixed deadline for you (or a title company on your behalf) to review the public record to find what is there. If you don't object by that deadline to any title issues, you can't get out of the real estate contract or undo it. Typically, the deed from the seller will contain an exclusion from the warranty of title for "all easement of record." If the title insurance policy contains an exclusion for easements, you can't make a claim against that title insurance policy. Even if there weren't an easement in the public real property records, anything that has been there since 1911 would benefit from a "prescriptive easement" which is the equivalent of adverse possession a.k.a. squatter's rights, for easements. In New Jersey, for example, the prescriptive easement time period is usually twenty years and never more than sixty years. Furthermore, utilities usually have the power, delegated to them by the government that grants them permission to operate or by the state, to create new easements at the very modest price associated with a reduction in fair market value caused by the easement. This is often estimated to be half of the fair market value of the unimproved land per square foot times the actual square footage occupied by the utility when it isn't working on its infrastructure. Easements, once established, run with the land, and generally can't be removed without the permission of the party for whose benefit the easement is granted a.k.a. the owner of the dominant estate (in legal terminology, the utility's rights in the easement are called the "dominant estate" and the home owner's rights in the property subject to the easement are called the "servient estate"). There may be implied in law duties of someone using an easement to restore damage caused after using it, but it wouldn't be worth suing over that for a bit of displaced grass and a rose bush. | This depends on the law of the specific jurisdiction, but there is non-trivial similarity in those rules across the US. The general rule is that the person who owns the property must maintain the property. There are often local ordinances that explicitly say that, for example this which is the legal mechanism behind this guidance on tree-trimming. A municipality can do the trimming, or they can send official letters to property owners telling them to trim the bushes. It does not matter whether the sign is on your property via an easement, what matters is where the tree is. You are not responsible for trimming your neighbor's tree if the stop sign is on your property. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | 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. | First of all, usually negligence by an HOA or its agents does not create liability for owners of the HOA directly. Instead, it creates a debt of the HOA, which the HOA might choose to pay through assessments on individual owners. But, the creditor probably doesn't have the right to compel the HOA to make those assessments, although they could starve the HOA of funds needed to operate and the creditors might be able to seize common interest property management by the HOA (depending, in part, on some quite subtle details of how the association has been set up that have varied, mostly as as matter of customary practice that changes in different time periods - in some HOAs, common interests are owned by the HOA, in others they are tenancy-in-common interests of the owners with limitations on transferability). Second, self-settled trusts (i.e. trusts for you benefit funded with money from you) are almost always ineffective (outside some select asset protection oriented jurisdictions of which Idaho is not one) as they are a form of fraudulent transfer. So, no it wouldn't work. In particular Idaho Statutes § 15-7-502(4) states: If a person is both a settlor and beneficiary of the same trust, a provision restraining the voluntary or involuntary transfer of the settlor’s beneficial interest in such trust does not prevent the settlor’s creditors from satisfying claims from the settlor’s interest in the trust estate that relates to the portion of the trust that was contributed by the settlor. The same subsection clarifies that federal rules related to grantor trusts are not relevant to this determination, and other parts of the statute also clarify the relevant definitions. | Sometimes you can't. In Washington, for example, it is possible to disclaim property, because RCW 11.86.021 says (1) A beneficiary may disclaim an interest in whole or in part, or with reference to specific parts, shares or assets, in the manner provided in RCW 11.86.031. and there is a procedure for writing up and filing that disclaimer. However, there is a time limit that you have to do it by nine months after the latest of: (a) The date the beneficiary attains the age of twenty-one years; (b) The date of the transfer; (c) The date that the beneficiary is finally ascertained and the beneficiary's interest is indefeasibly vested; or (d) December 17, 2010, if the date of the transfer is the date of the death of the creator of the interest and the creator dies after December 31, 2009, and before December 18, 2010 and RCW 11.86.051 gives a list of reasons why you cannot disclaim an interest. "Indefeasible" means "you can't get out of it". If you fail to pay taxes on real estate, it can be seized and sold by the county to satisfy the tax delinquency. The county will then attempt to sell the property, perhaps for exactly the amount of taxes owed. That sale "clears" the title so that the purchaser does not have to worry about a could over the title (Sec. 34.01.(n) of the Texas tax code). The city can also separately assess you for violation of whatever ordinance they are concerned with: there will be some procedure for the abatement of the nuisance (weeds, usually), an assessment which is made against the property. Notice is given to the owner (or, the person they think is the owner), but the "risk" is shouldered by the property. |
Where do executive agencies obtain their power to effectively legislate? Large portions of the Code of Federal Regulations are enacted by executive agencies such as the Federal Communications Commission and the Federal Aviation Administration, rather than by Congress. The parts that I have seen written by Congress are passed by bills that do not directly "amend X CFR § Y.Z to say ABC," but instead "direct the Federal XYZ Commission to amend X CFR § Y.Z to say ABC." How do these executive agencies have the power to effectively legislate? Article 1, section 1 of the US Constitution says: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Can Congress pass, and have they passed, [a] law[s] giving some of their legislative authority to executive agencies? | Legislation passed by Congress grants authority to the Executive to make regulations relevant to a particular topic. It's common for Congress to pass laws that contain language like "The Secretary/Administrator/whoever shall prescribe such regulations as may be necessary to carry out the provisions of this chapter." It might be illustrative to see how this practically works: So let's look for an example. We'll go to the Federal Register, which contains notices of proposed regulations. Choosing an interesting looking new one, we can look at National Organic Program (NOP); Strengthening Organic Enforcement. That's the new final rule today that tightens the rules for food products labeled "organic". Scrolling through the rule, there are some summaries, a table of estimated costs and benefits, and then we get to the section headed "Authority," which tells us why the Executive Branch (in this case, the USDA) thinks it has the authority to issue this regulation: The Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501-6524), authorizes the Agricultural Marketing Service (AMS) to establish and maintain national standards governing the marketing of organically produced agricultural products. AMS administers these standards through the National Organic Program (NOP). Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published on December 21, 2000 (65 FR 80548) and became effective on October 21, 2002.2 Through these regulations, AMS oversees national standards for the production, handling, labeling, and sale of organically produced agricultural products. Ok, so Congress passed a law in 1990 called the Organic Foods Production Act, and that tells the USDA to issue regulations related to the marketing of organic foods. If we turn to the relevant chapter of the US Code, we can see language where Congress delegates to the Executive the authority to issue these regulations. For example, one provision says: The Secretary shall establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods as provided for in this chapter. And then there's a much longer section (§ 6506) that lists the "General Requirements" for the organic food program. Some lay out specific details that need to be addressed in the regulations (e.g. Congress says the regulations have to provide for annual inspections of organic farms by certifying agents) and discretionary ones (e.g. Congress says that the regulations can make certain reasonable exceptions if a farm is subject to an emergency pest treatment program). Other requirements are quite broad; one says that the regulation needs to "provide for appropriate and adequate enforcement procedures, as determined by the Secretary to be necessary and consistent with this chapter." In other words, Congress isn't saying specifically how this should all be enforced; they're just saying the regulation should provide for the enforcement procedures the Executive considers to be necessary. In turn, the regulation goes into much more detail on inspections, paperwork that needs to be maintained and paperwork that needs to be filed with the government, mediation to resolve compliance issues, appeals procedures, and so on. Congress doesn't want to get into the nitty gritty of super-detailed stuff like the exact process for dealing with appeals of organic food violations. So the law Congress passed just says the Executive needs to include some sort of appeal procedure in the regulations, and it delegates the authority to figure out all those details to the Secretary of Agriculture and their staff, so long as they follow the general process for issuing regulations. So to sum up, executive agencies gain their authority to issue regulations when that power is granted to them by legislation (n.b. Congress's ability to grant that power is limited by the nondelegation doctrine). Sometimes that legislation may be quite specific, while others times it may be very broad and gives the Executive Branch significant discretion. For example (picking random new regulations): Congress said the Secretary of Commerce should issue certain types of regulations related to fisheries, so the National Marine Fisheries Service issued a rule about the "Closed Area I Scallop Access Area," wherever that is. Congress said the Secretary of the Interior may issue regulations dealing with certain matters related to museums and archeological resources removed from Native American lands, and Congress passed another law that says that civil penalties should be updated every year based on inflation, so the Department of Interior issued a rule increasing the fines for noncompliance as Congress directed. Congress said the Administrator of the Federal Aviation Administration shall issue various types of regulations related to aviation safety, so the FAA is proposing a rule about inspecting for corrosion and repairing or replacing affected parts of landing gears on certain Airbus helicopters. Congress said we're gonna have the National Marine Sanctuary System and it "shall consist of national marine sanctuaries designated by the Secretary in accordance with this chapter," so the Secretary of Commerce, via the Office of National Marine Sanctuaries within NOAA, proposes to create the Lake Ontario National Marine Sanctuary. | Generally speaking the "blessings of liberty" phrase from the preamble to the US Constitution is not relied on for anything. It does not grant additional power to Congress or the Federal government as a whole, neither does it restrict the Federal government beyond the restrictions already included in the body of the Constitution. Congress often accepts hearsay when it takes testimony before a committee. Such testimony need not comply with the rules of evidence that apply in court. I am not clear what you mean by "to pretext privacy and the right to try", please clarify this. I am not aware of any "right to try" under the Federal or State governments. The word "pretext" is not usually used as a verb in this way. Edit The link on "right to try" goes to a Quora question about laws passed by Congress later being held to be unconstitutional. That does happen. but I have never herd it called "the right to try". The link on "pretext" goes to a security.se question about a "convict internet". I don't see what that has to to with the preamble to the Constitution. 2nd Edit The "blessings of liberty" phrase from the preamble has nothing to do with laws against discrimination, neither authorizing nor restricting such laws. | The differences are subtle in practice today as a result of technologies like the Internet. Enact means (according to Black's Law Dictionary, 5th edition (1979), hard copy): To establish by law; to perform or effect; to decree. The common introductory formula in making statutory laws is, "Be it enacted." Promulgate means (according to the same source): To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of court. In the context of the U.S. legislative process, a law is enacted at the moment when it is signed by the President or Governor after being duly passed by the legislative branch (or when it is adopted by the legislative branch in a veto override). It is promulgated when the public act is published either in physical book form, or electronically, for example, in an online official government website containing the laws that were enacted. These days the time gap between enacting a law and promulgating it is a matter of minutes or hours. Historically, the gap would have been a matter of days or weeks. For example, in Colorado, the legislative session ends in the first few days of the month of May, with all laws passed during the session signed or vetoed by mid-May, but (subject to certain exceptions) laws passed in that session are generally effective on July 1 of the same year. This reflected the assumption of the people who drafted that part of the state constitution that it could typically take up to about four to six weeks to promulgate the laws enacted in the legislative session. | 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. | In the US usa, at least, the concept of ex post facto laws, which is what you have described, are specifically prohibited: Article I, Section 9, Clause 3: No Bill of Attainder or ex post facto Law shall be passed. | No. They could be, but the "nullification" wouldn't be automatic. That is because, as the Congressional Research Service says in its excellent "Executive Orders: An Introduction": "Once issued, a valid executive order has the force and effect of law. Executive orders do not, by default, expire when the issuing President leaves office. Instead, an issued executive order remains in effect until it is either struck down in court, modified, or revoked." Because executive orders persist but can be easily changed, one of the first orders of business of a new administration is to revoke, modify or re-issue inherited executive orders. As far as your hypothetical, most commenters agree that when the President is expected to return to office quickly, the Acting President's job is simply to "keep shop." However, in extreme cases, such as the one you outline, they also agree the Acting President can exercise the full-range of Presidential powers. Thus, the Acting President could revoke the problematic orders. (This is discussed in Yale Law School's in the Yale Law School's "Reader's Guide" to the 25th Amendment.) If you want to know more, the Wikipedia page on Executive Orders gives a short (and harmless) summary. For more detail, see either the CRS pamphlet cited above, or their earlier pamphlet,"Executive Orders: Issuance, Modification, and Revocation." | Congress has the power to propose amendments, but not to enact them. Amendments are only enacted once they're ratified by 3/4ths of the state legislatures. And yes, there's no reason to think it would be unconstitutional for 2/3rds of each house of Congress plus 3/4ths of the state legislatures to make fundamental changes to the Constitution like eliminating other branches of government. The only limit on amendments that's still in effect is that states can't be deprived of equal suffrage in the Senate without their consent. | 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. |
What sort of lawyer can help enforce unconventional non-business oral contracts? Assume two individuals A and B make an oral contract, say A waives unpaid child support in exchange for B buying a house for their children to live at in perpetuity. Both parties follow through, but later B decides to sell the home and evict the children so B can solely financially benefit. What sort of lawyer would have the expertise needed to help A enforce the oral contract effectively? | Usually, a family law lawyer would handle a matter like this one. I am refraining from prejudging the outcome on the merits. | Terms in a contract that are not legal or not enforcable are quite capable of causing you trouble and costing you time or money, most likely a generous amount of both. Your friend shouldn't care one bit about whether these terms would be legal and/or enforcable. If he doesn't like them, then he MUST NOT accept the changed contract. Not if these terms are illegal and unenforceable and of course even less if they are legal and enforceable. I would write back "I believe that the suggested change in terms is illegal and would be unenforceable. I also believe that the change is deeply unfair towards me and creates a considerable legal risk that I am not willing to accept under any circumstances. I therefore strongly reject your suggested change. " | These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers. There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs. For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it. The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts. One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do. One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order. Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order. But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved. | As a buyer, you can write anything you want (aside from anything illegal) into a contract, i.e. to withhold the last payment on a item until you check off the final product specs, but that won't make a difference unless the manufacturer agrees to the contract. A contract that is agreed to (written and agreed to (typically signed), or verbal and verbally agreed to) is legally binding; a contract not agreed to is little more than a wishlist. If this involves, as you say, online purchases or when the customer is remote and working through an agent, a contract can still legally binding, but the contract may be more complex. You may need to draft more stipulations into the contract with all involved, (agent and manufacturer); but again, those mean nothing if the contract is not agreed to. See Contracts - Legal Information Institute for an outline of the steps of making a contract: An agreement between private parties creating mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality. The enforcement of breaking a contract is a completely different situation. You may draft arbitration arbitration (Legal Information Institute) into the contract; or may go to civil court. | Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? Unfortunately, no. The email you got from the loan agency reflects that no contract was formed yet. The email merely is the loan agency's expression of interest to proceed toward the formation of that contract. Absent that formation of the contract, even if for reasons beyond your control, you are not entitled to the benefits or consideration(s) the contract would provide. Nor would the lender be entitled to your compliance with the terms of that contract, terms which might not even be informed --let alone known-- to you. There is no legal obligation from one party to the other. Lastly, the agency's or bureau's faulty process/questionnaire is not actionable either. Lender's reluctance to employ an alternative method is within his freedom of contract. | Is sales person required by law to give a copy of signed contract at the time you sign up for service? No. If I would ask for copy of all documents from that company are they required by law to send her these copies? No. Is there a law that mandates process on how contracts should be signed in California? There are many, however, they relate to specific classes of contract. In general, it is not a requirement that a contract be signed or even written; verbal contracts are totally legitimate. Given that every single transaction where money changes hands in return for goods and/or services is or is part of a contract it is not feasible that they all be signed. Have you bought a cup of coffee today? Did you sign a contract when you did? Here's the thing Your friend has learned several valuable business lessons: the first is some people in business will rip you off. If you are a consumer then you have (some) legal protection, however, if you are in business then the courts and the legislature expect you to look after yourself. Your friend has signed a contract. Pretty much, any court will consider that what they signed would be the entire contract unless there was compelling evidence to the contrary. Her word that the sales rep said there would be no break charges would not on its own be compelling evidence. Your friend has an obvious incentive to lie. Here is the second lesson: don't sign anything unless and until you have read and understood it; hire a lawyer if you need to in order to understand it. Now, either under the contract the company is legitimately allowed to charge these fees or it isn't. Without having a copy of the contract you have no way to tell. Thus the third lesson: always keep your own copy of everything you sign. What your friend can do is: nothing. Don't pay the bill, write to them saying that she disputes that she owes them any money at all. If you want to be provocative, suggest which court would be most convenient if they want to prove the debt. Odds are this will go no further. If they do proceed with a summons then they will need to state their case. At that point she can request through the court a copy of the contract they are relying on. If their claims are legit she can simply roll over. | The contract is almost certainly not valid. The answer you linked references the 2001 Federal Circuit case Fomby-Denson v. Dept of the Army. The court, in its opinion, quoted from the 1948 Supreme Court case Hurd v. Hodge: [t]he power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States . . . . Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power. It is clear that, in the case you propose, the enforcement of such a contract would go against the public interest. Quoting from the 1972 Supreme Court case Branzburg v. Hayes, the Fomby-Denson decision said: it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. It further notes this clause from the First Restatement of Contracts: [a] bargain in which either a promised performance or the consideration for a promise is concealing or compounding a crime or alleged crime is illegal. | Beware: The details will depend not only on jurisdiction, but also on the details of the parents, the parenting agreement and, of course, on the situation of the child. However, here are some general guidelines (mostly independent of jurisdiction): Ideally, you should resolve the problem by non-legal mechanisms. However, you may have to resort to legal means if this fails. I would advocate a gradual escalation of your reaction: First, do not assume malice. Nicely ask parent A why the plan was not followed. Maybe it was a simple oversight, maybe there was an emergency? Try to find out, and decide whether the change was warranted. If there is no satisfactory answer, clearly remind A that the parenting plan is binding for everyone, and that it is important for both the child and the parents that they can rely on it. Stress that any last-minute changes must be discussed as soon as possible, even in emergencies. This should be done in writing, maybe even by registered mail. If the problem repeats, send a last letter indicating that you will seek legal remedy if the problem persists. This letter may work better when sent by a lawyer. A letter from your lawyer to A's lawyer (assuming you both have one) may also prompt A's lawyer to explain to A that they are hurting the child and themselves by violating the parenting plan. Finally, if all the above fails, go to court. You could ask for a change in the parenting agreement, maybe with less frequent changeovers, or with changeovers that are easier to arrange, or at an earlier time, such that a delay causes less problems. You could also ask for a formal permission to have the child fetched by the police or similar on subsequent violations (though that is a rather desperate option, and may not be available). If you reach this point, following the previous steps should give you a fighting chance to prevail in court, as you have demonstrated that you tried everything to make the agreement work. Courts generally take a dim view of people who violate an official agreement. In Georgia specifically, like in most US states, violation of a court-ordered parenting agreement by one parent is a serious matter. The other parent can ask the court to hold the parent in contempt of court. The court can then order a number of consequences for these violations, such as awarding the other parent extra visits or monetary compensation, up to and including sending the parent to jail (this only happens in extreme cases). The article Violation of Custody and Visitation Orders in Georgia gives a good overview. |
If a defendant is found guilty, they can usually appeal to a higher court. Is the plaintiff appealing an acquittal also allowed? Say Adam the accuser is taking Dave the Defendant to court. If Dave loses in his local district, I've heard that he can appeal the decision and be re-tried in a higher court (all the way to the Supreme Court, theoretically). But is the opposite also possible? I.e. if Dave is acquitted, is Adam allowed to re-try him in a higher court, hoping Dave will be found guilty this time? | In the US, the prohibition against double jeopardy provides a hard restriction against re-trial and appeal of an acquittal. The government cannot appeal an acquittal (U.S. v. Sanges, 144 U.S. 310, Ball v. U.S., 163 U.S. 662), and a verdict of acquittal without judgment is also a bar to re-prosecution. The exception is that if the defendant was never in jeopardy – the judge had been bribed – then there can be a new trial (Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois). However, Adam does not take Dave to court. Adam may make an accusation that motivates the prosecutor to file criminal charges. When Adam sues Dave (not a criminal matter), there is no acquittal or conviction, or guilt. There may be a finding of liability, or not. Either side can appeal to the top, as long as there is a legal basis for the appeal. If Adam is found not liable because the judge makes a legally erroneous ruling, if Dave objected properly to the ruling, Dave can appeal if successful, the court could then change its mind and find Adam liable. | Scotland has a third possible verdict, which covers much of the situation you are asking about: “not proven”. While still an acquittal, it is typically used by judges and juries in situations where they are not suitably convinced the defendant is necessarily innocent, but not convinced the evidence supports a conviction. As recently as 2015, attempts to remove the third verdict from the Scottish legal system were rejected, despite it being seen as an easy way out for courts. | Bob will be convicted if he is found guilty beyond reasonable doubt. Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder. His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case. Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder. Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe. | Does the law or judge ever make exceptions for events such as this? From a legal standpoint, your friend is at high risk of being found in contempt and thus be sentenced to imprisonment. Your friend should have called 911 rather than violate the protection order under pretext of consoling her. Asking from the standpoint of whether judges ever do this or that is pointless. The answer would be "yes, they make exceptions" even in scenarios which are plain aberrant. However, a judge's departure of the law quite often is not a reliable standpoint for understanding the law, but the result of his/her ineptitude and unfitness for judicial office. | I have encountered this problem in Pennsylvania. The PA Code requires a District Attorney to approve all private criminal complaints. If the DA declines to prosecute, then an affiant can petition the Court of Common Pleas to review the decision. However the affiant bears the burden of convincing the court that the DA abused his descretion in declining to prosecute, which is a pretty high hurdle. In the United States the only other legal appeal I am aware of is through federal courts under broad federal laws like 18 USC 242 or 42 USC 1983. | 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. | Alice files a lawsuit against Bob This is a civil suit, it will not lead to any court punishing Alice, or anyone else. If facts come out showing that Alice violated the law, the local prosecutor could, but need not, file a criminal case against Alice. If the prosecutor does not file such a case, Alice's worst possible outcome is to get no damages, with costs and fees awarded to Bob (or his estate). If Bob dies and Alice wishes to drop the case, there is no obvious reason not to permit it, unless Bob or his estate has counter-sued. Bob (or his estate) might ask for costs and legal fees, and perhaps sanctions for a frivolous suit. The court might well asses whether to grand such a costs order before or as it dismisses the case. ; The question seems to confuse the idea of a civil lawsuit and that of a criminal prosecution. In an Civil lawsuit, one person (or company) (the plaintiff) claims that another (or several others) (the defendant) have violated an agreement, or have in some other way caused legal injury. For example, if Alice claims that she had a contract with Bob and Bob violated the terms that would be a civil suit. Or if Alice claims that Bob infringed her copyright, or slandered her, or falsely advertised something or any of many other possible situations. The case would be Alice C vs Bob D. However, if Alice accuses Bob of having stolen from her, or punched her, or raped her, that woulds be a criminal accusation. The police would investigate, and if they found evidence to support the accusation, the local prosecutor could (but need not) file a case, which would be something like State of Franklin vs Bob D IN THE CRIMINAL COURT. Alice would be a witness, but not the plaintiff. If the investigation found that Alice committed a crime also, the prosecutor might file, State of Franklin vs Alice C Or the prosecutor might file both cases, or neither. The prosecutor has wide discretion whether or not to prosecute in any particular case, even when the evidence is clear. Neither Alice nor Bob could insist that either criminal case be dropped. Only the prosecutor, or the Judge, could do that. A criminal court is a different court from a civil court, and in many places a given judge hears only one or the other type of case. In many other places a judge may hear both kinds, but any one case is still either civil or criminal. | 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. |
Lethal force to defend killer dogs? Let's consider the following scenario, taking place in an American state where self defense in defense of property and castle laws are in effect. An intruder onto a man's property is mauled to death by his dogs. The man promptly lodges an application for an emergency injunction against the local/state animal control services, seeking to prohibit the confiscation and destruction of his dogs. Prior to this application being heard by a judge, an animal control officer arrives at the property and is then shot dead. During the ensuing police standoff, the man declares that he was acting in self defence, that he will peacefully surrender if the emergency injunction he applied for is approved and a copy of the approval is delivered to him by his lawyer, and that he is willing to die fighting to protect his dogs. In the interests of preventing unnecessary bloodshed, the judge approves the injunction, and the man does surrender peacefully. At the resulting trial, he advances the following arguments: Any intruder on his property has unknown intentions, and must be assumed to be there to murder him and his family. If he had been present, the initial intruder would have been shot dead by the man, and it would have been self-defense. As such, the intruder being killed by his dogs was self-defense - the dogs were simply the weapon he used to defend the lives of his family, no different than an autonomous killer drone. The dogs should not be destroyed because they were acting in accordance with their training to defend the property from intruders, and once you cross the property line, you have forfeited your right to continue living - and they pose no additional danger to the community beyond that he himself does. The animal control officer was there to kill his dogs. His dogs were members of his family, and he was acting in self-defense to protect the lives of his family. Even if that argument doesn't fly, he was still acting to defend his property (his dogs), so it was still self-defense. Once the threat to the lives of members of his family (and/or property) was averted, he peacefully surrendered. What would likely result at trial? Would he be able to successfully argue self-defense? Would he be able to save the life of his dogs? | That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they forcibly enter your house. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force. “You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument in favor of having them confiscated and destroyed. Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a person is in danger. Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent illegal damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog. Threatening violence in order to influence a judge’s decision is terrorism. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism. | No Law enforcement are allowed to use “reasonable force” to effect an arrest. They are also allowed to use reasonable force to prevent imminent harm to people or property. As described, the felon is not a danger to other people or property and a drone strike would be an ineffective means of effecting an arrest. The force used is not reasonable. Nor can the drone be used as a means of lawfully carrying out the sentence. An execution in the USA is a highly formalised legal process and must be done strictly in accordance with the law to ensure it is not "cruel and unusual". Blowing people up with high explosives which may or may not kill them is not an authorized method of legal execution. | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | In most U.S. states, a citizen's arrest using proportionate non-deadly force is authorized when the citizen has witnessed the crime or has been asked by a law enforcement officer to assist in making an arrest. The U.S. Constitution is not violated by this authorization. For example, in Colorado, citizens arrests (not made at the direction of a law enforcement officer) are authorized by Section 18-1-707(7) of the Colorado Revised Statutes, which states that: A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force. Generally speaking it is illegal in the context of a citizen's arrest to use: disproportionate force, force applied to punish rather than detain someone, or deadly force, although there are times when deadly force is authorized for reasons similar to those that would apply for self-defense in the absence of a citizen's arrest. Deadly force is generally not authorized to protect tangible personal property or most forms of real property, but some places authorize the use of deadly force to protect a residence. I've heard before that a thief have "right" to flee, and trying to knock him out is not justified because you can only use violence to protect your self, instead of your money. While it is understandable that you might think this based upon U.S. Supreme Court cases like Tennessee v. Garner (1985), the law is actually more nuanced and that case held that: when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger. Thus, it is illegal to shoot to kill a fleeing thief or shoplifter, even though it is not illegal to restrain a shoplifter physically to prevent that shoplifter from fleeing the scene prior to the arrival of the police. | The answer provided by Dale M is half right, but there are a few things that I think are wrong. Firstly, the actual reality of the situation doesn't matter. What matters is that you act in a reasonable manner, performing assessments of the situation as a reasonable person would do. If you misread the situation, and end up killing a police officer that was acting in a lawful manner, it doesn't necessarily mean you were acting unlawfully yourself. Because police officers are generally exposed to situations where they would be forced to use their firearm, that obviously would impact how a reasonable person would see the situation, but the test for reasonableness would not go out the window. In addition, even if you were found to not be acting in a reasonable manner, there is certainly a question if you would be found guilty of a lesser charge of manslaughter rather than murder. It's possible the self-defence claim would be upheld as an imperfect defence. | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." | In most US States (probably all of them) failure to follow the Lawful orders of a police officer is itself a crime, and is grounds for the officer to arrest the person, even if the person had not done anything wrong prior to that. This obviously leads to the question: what orders are lawful? The officer has a pretty broad range of discretion. Ordering a person out of a car, or to roll down a car window, is pretty clearly lawful. Ordering a person to commit a crime would not be lawful. Neither would ordering a person to submit while the officer rapes or robs the individual be lawful. In practice, the officer will usually think that all of his or her commands are lawful, and might feel threatened by any failure to comply. In which case, the officer might shoot. This might not be upheld later if the command was not lawful and/or the officer's fear was not reasonable, but that will do the person shot little good. It is usually wise to comply with any commend, unless it puts you very directly at serious risk. Remember you don't know what else has happed to the officer that day. Has the officer had a fight with his/her spouse that morning? Just been denied a promotion? Been turned down for a mortgage? None of that should matter, legally, but it will affect the officer's attitude, and can lead to escalation, even if the person stopped is in no way at fault. An instruction to "shut up" is probably not going to provoke an officer to shoot if it is disobeyed, but it might help to escalate the situation. It is probably lawful, depending non the exact circumstances. As to the first amendment issues, that would probably come under the 'time, place, or manner" regulations that may be applied to speech. And even if it is not held to be lawful, the time to contest it is in court, not during the stop. If the officer feels safer with the window fully rolled down so that the officer could reach in, that is probably a lawful command. | Legal Context This kind of argument is often called a "defense of others" defense which is available in every jurisdiction of which I am aware. Almost every state has a specific description of when this is permitted as part of their criminal code, usually in a general principles section at the beginning, or in the sections pertaining to crimes of violence. Some details vary from one state to another, but none of the facts presented in this hypothetical really push the envelope in terms of distinctions between one state's law and another. Most of the differences involve situations when the use of deadly force is allowed. For example, states differ regarding when deadly force allowed to prevent a burglary of your home or business which is in progress, particularly if it is possible to avoid a use of deadly force at all by retreating in a manner that puts you at no one at any significant risk of bodily injury. But, the scenario presented does not appear to involve the use of deadly force (although the definition of "deadly force" can be slippery and lead to some subtle variations in what is permitted from state to state). Another common nuance of variation between states involves the circumstances under which physical force or deadly physical force is authorized to make a citizens arrest, but this situation is also not implicated by your hypothetical. Once Thug is beat up, the scenario ends without any effort to detain Thug until the police arrive. Generally speaking, a defense of others defense that justifies a use of force under criminal law will also not give rise to civil liability in a lawsuit for assault and battery as opposed to a criminal prosecution for it. A Sample Defense Of Others Statute The pertinent section of the Colorado Revised Statutes (2016), strongly influenced by the language of the Model Penal Code (which never adopted in full by any state but highly influential stylistically in how U.S. criminal codes are drafted) is very typical of the majority rule regarding the defense of others and reads as follows (emphasizing the language relevant to the scenario in the question): § 18-1-704. Use of physical force in defense of a person (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, 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: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment 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 kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Analysis of the Hypothetical Facts Is Paul guilty of assault and battery for attacking Thug, or would self-defense or some other standard defense apply? Paul is probably not guilty of assault and battery for attacking Thug because a defense of others defense justifies his actions. Paul is using physical force to defend a third person (and presumably himself as well once once he is involved in the fray) from what he reasonably believes to be the use of unlawful physical force by Thug, and generally, under those circumstances Paul may use a degree of force which Paul reasonably believes to be necessary for that purpose. Paul is most vulnerable in this scenario on the question of whether he reasonably believed that the degree of force he used was reasonably necessary for the purpose of defending Emily and himself from Thug's unlawful use of physical force, or whether he went further than what was reasonably necessary for a few minutes that left Thug "incapacitated and thoroughly bloodied". For example, suppose that Paul had already caused Thug to try to flee the scene after the first minute at which point Thug was slightly bruised and afraid of Paul, but was not at all incapacitated. But, suppose that despite this fact that Paul, awash with adrenaline from the fight, continued to pummel Thug for a couple more minutes as Thug repeatedly tried to flee the scene only to be dragged back by Paul. Suppose that Paul continued the fight after it was no longer necessary because Paul wanted to punish Thug for his mistreatment of Emily and to discourage other people from trying to attack Emily in the future, even after Paul knew that there was already no real risk that Thug himself would continue to use unlawful physical force against Emily no or in the near future. Under these circumstances, which aren't inconsistent with the hypothetical facts, if this extra couple of minutes caused Thug to be much more badly injured than he otherwise would have been if Thug had been allowed to flee after the first minute, then Paul could still be guilty of assault and battery, even though his actions were legally justified for the first minute of the fight. There is no indication that either Paul or Emily provoked the attack on Emily, or that either Paul or Emily was the initial aggressor, or that this was actually a pre-agreed dueling situation. So each of these circumstances which would be exceptions to the general rule that the defense of others is justified do not apply to this case. There is likewise no indication that Paul used "deadly force" as opposed to mere "physical force" in handling the situation. It is likely that Paul would have committed a crime if he had shot and killed Thug instead of beating him up, if Paul knew perfectly well at the time that he was capable of beating up Thug and making Thug go away for good as a result without resorting to a firearm, unless the attack on Emily was severe enough for Paul to reasonably believe that the attack was putting Emily at a real risk of serious bodily injury. |
Is there a jurisdiction where child pornography is not illegal? There is somewhat recent research (PDF) which has found there to be at least links to child pornography on the bitcoin blockchain with also one one explicity file on the blockchain which may be classified as actual child pornography. Now, assume there is actually a clear and indisputable case of child pornography on the bitcoin blockchain. This means that everyone who a) mines bitcoins and b) verifies the blockchain themselves have a copy of this file on their machine. This raised (at least for me) the interesting question: Is there any country / jurisdiction in which it is not illegal to own child pornography (on your personal computer)? | According to this chart i googled and the associated table, child porn is actually not explicitly illegal in most of the world. Basically, a bunch of countries in Africa, and a couple in Latin America and Asia, don't appear to regulate kiddie porn at all. A couple of others (like Argentina, Russia, and South Korea) allow possession, but not distribution. A couple of countries protect "virtual" kiddie porn (cartoons, computer renderings, etc where no actual child is being abused). The US is among these. (Pretty much has to be, due to the First Amendment.) Obscenity laws may apply, though. | Section 230 (of Title 47) grants immunity from civil liability under certain circumstances, so the website is not liable to the porn-distributor for taking down their images. There are also criminal laws pertaining to child porn, such as 18 USC 2252. It is not a crime to "see" child porn. Instead, the crime is defined with reference to one who knowingly receives, or distributes, any visual depiction... of child porn. Therefore you cannot be prosecuted if you do not know that the image is has the prohibited characteristics (is child porn). See US v. X-Citement Video, 513 U.S. 64 for discussion of th scienter requirement. The surrounding circumstances (the report) at most indicate that the moderator has some reason to believe that it is porn, and the immediate deletion of the material supports the conclusion that the moderator's action complies with the law. Paragraph (c) of that law also provides a defense, in case of prosecution: It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant— (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof— (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction. | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | By posting an image (or any other content) on an openly accessible page, a person such as Alice is implicitly giving permission to anyone to view or read that content, although not necessarily to make copies of it. A link from a page operated by Bob to such content is not making a copy, nor is it any other form of infringement. However, there are other possible cases. For example, if Alice sells access to her pictures, placing them behind a paywall, so that only those who have paid have a valid ID/PW set to gain access, then if Bob provides a link that bypasses the paywall, that may well be contributory infringement (CI). When Bob builds a business model on encouraging or facilitating infringement, that will be CI. If Alice does not post her pictures, but Charlie gets copies and posts them without permission, a link from Bob's site to Charlie's may be CI, particularly if Bob gets per-click revenue or other benefits for increased traffic. | So, as I understand the decision, it's a little more subtle than that. By default, states have sovereign immunity and can't be sued without their consent. Congress can remove ("abrogate") this immunity by law in some circumstances. They tried to do so for copyright infringement cases with the Copyright Remedy Clarification Act of 1990. However, in the present case of Allen v. Cooper, the Supreme Court held that this part of the CRCA is unconstitutional. The idea is that under the Fourteenth Amendment, Congress can abrogate state immunity when it's necessary to ensure people's right to due process, but only in a "congruent and proportional" way. Now if a state unintentionally or negligently infringes someone's copyright, that does not violate the person's right to due process, but an intentional infringement might. At the time the CRCA was passed, when Congress went looking for instances where states infringed on copyrights, they found several cases of unintentional or negligent infringement, and just a couple where they may have infringed intentionally. SCOTUS argued that to respond to this by completely abrogating state immunity in all copyright cases was disproportionate, and therefore unconstitutional. But the Court suggests in the opinion that Congress could pass a different law to abrogate immunity in copyright cases, if it were narrower. For instance, a law that only stripped immunity in cases of intentional infringement would likely be constitutional, especially if there were evidence that intentional infringement was happening enough to be a significant problem. So I think the answer is that as of right now, a state could deliberately infringe someone's copyright (e.g. by pirating software) and be immune from suit. However, Congress has the power to "fix" this, and most likely will, especially if there seems to be egregious abuse. (By the way, the decision contains an impressive quantity of pirate jokes. I guess since it's not only about copyright infringement (aka "piracy"), but actually alleges infringement of a video about a sunken pirate ship, the justices just couldn't resist.) Your "eminent domain" idea is separate from this. Seizing copies of the software wouldn't give the state the right to use them, as the software itself would still be copyrighted. The state would have to seize the copyright, and I don't know whether that is possible - it's not necessarily property in that sense. But if they did so, then they wouldn't be infringing the copyright at all (since the state itself would now own the copyright) and this case would be irrelevant. On the other hand, when a state uses eminent domain to seize property, they must as you say pay fair market value for it, and that means the market value before they seized it. So the value of the copyright in such a case wouldn't be "nothing" - it would be more like the amount a competitor would have had to pay the software maker to buy all the rights to that product. Likewise, if the state seizes your lovely house and bulldozes it to build a toxic waste dump, they owe you what someone would have paid for the house, not the value of a dump that nobody wants. | According to Blackmail Overview :: Justia (emphasis mine): A blackmailer typically has information that is damaging to the victim, and uses threats to reveal that information in order to coerce the victim. Blackmail is considered a crime regardless of whether the information is true or false. The central element of the crime is the blackmailer’s intent to obtain money, property, or services from the victim with threats of revealing the information. So it's still a crime, at least in the US. But the enforcement problems are tracing the original emailer, which, due to (I assume) multiple email relay IPs, address spoofing, etc, and the big issue of identifying the actual individual who pressed the metaphorical "send" key on the bulk email script, the jurisdiction of that person, etc. As Ron pointed out, BitcoinWhosWho shows no one has fallen for it, even though millions of these emails get sent every day, gauging from the number that I get myself. | 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. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. |
Other historical forms of punishment besides serving time or money? I am currently undertaking a personal research project to create a comprehensive list of all forms of punishment that have been meted out by legal systems across history. Common forms of punishment include serving time or paying fines; less common and more violent forms of punishment include losing a limb or life. I am curious to know if there are any other forms of punishment, even if only used in the past. Can anyone share any information or examples of such punishments that they may be aware of? For example, a person being forgiven if they recite some religious ritual or agree to marry someone else. | The past is a foreign country; they do things differently there When we think of crime and punishment, we automatically think of a powerful central and secular government with (relatively) clear laws handing down judicial sanctions - usually of imprisonment or financial penalties but increasingly including home detention, community service, or restitution to the victim. This is all the product of post-enlightenment thinking and would be largely unrecognisable (and stupid) to our ancestors. We don't think as they did, and we struggle to get into their mindset. This cuts both ways - we are equally horrified by the Roman collective punishment of decimation as we are by the fact that a Germanic murderer merely needed to pay a weregild, the price of which was determined by the social rank of the victim - with a discount for Welshmen in Anglo-Saxon law. Categories of Punishment All punishments fall into one or more broad categories listed here in decreasing order of severity according to the Western tradition. Damnnation Because we are a largely secular society, we don't think of this as being a punishment for crime; but there was no distinction between sin and crime in the past. The beauty of this system is that no crime goes undetected or unpunished. Whether you get your punishment in Purgatory, in front of the Assessors of Maat, in Gehinnom, or Mictlān, everybody gets what they deserve. This was not just a matter between a person and god - religion was culture, culture was religion, and both were the law. For your crimes, the priesthood could make things worse in the afterlife; or for your piety, they could make things better. In the Christian tradition, we have excommunication, which cuts you off from social life (a form of ostracisation) but also put your soul in peril - if you died in this state, you went straight to hell, no passing Purgatory, no collecting $200. This could be a collective punishment, called an interdict, where the clergy would be prohibited from performing those rituals required to make one right with God, such as christenings, marriages, and the last rites. We also have Hell as the punishment for an unrepented mortal sin, most often suicide, but also unrepentant capital felons, where the Church would not perform a burial. In the same vein, post-mortem dismemberment, such as being hung, drawn and quartered, which, in a Christian tradition that looked to the literal resurrection of the body, meant that you could never be resurrected. Apparently, a God that created the Universe couldn't stick people back together. This belief faded in the wake of the Great War when the widespread use of artillery meant there were hundreds of thousands of Christian dead in bits so small that not only couldn't God stick them together again, they couldn't be identified. Execution A time-honoured staple for anything from murder, treason, and drug trafficking to worshipping in the wrong way or, in some parts of the world, being the wrong race in the presence of a police officer. Just about any way you can imagine of deliberately ending a person's life has, at some time and place, been a method of execution. Modern usage has tended towards the elimination of suffering, which gave us lethal injection, firing squad, the electric chair, long-drop hanging, the guillotine, and, in the more advanced parts of the world, the elimination of the death penalty altogether. Historical methods tended to include torture, prolongation, and humiliation as a deliberate part of the execution "such as the breaking wheel, keelhauling, sawing, hanging, drawing, and quartering, burning at the stake, flaying, slow slicing, boiling alive, impalement, mazzatello, blowing from a gun, schwedentrunk, and scaphism. Other methods which appear only in legend include the blood eagle and brazen bull." And, of course, crucifixion. This can be direct punishment of the perpetrator or, for collective crimes, execution through drawing lots or decimation. Human sacrifice is generally not execution as it was usually not a punishment for a crime but a great honour for the sacrifice - even if the methods came from the same playbook. Mutilation This includes one-for-one maiming, the most famous being Exodus 21:23–27 "If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." However, this was also a feature of Babylonian, Greek, Roman, and Islamic law. It also includes removing the hands of thieves, the genitals of adulterers, and the tongues of blasphemers. Blinding was also a common punishment, often politically driven, because, throughout many parts of the world, a blind person could not inherit. It also includes branding, scarification, tattooing, or mutilation of the ears or nose, but this is primarily intended as ostracisation to mark the criminal permanently (see ostracisation and humiliation below). Depending on the technique, mutilation may effectively be capital punishment. Also, some forms of corporal punishment, like flagellation and caning, may permanently scar their victim, although that is not their primary purpose. Ostricisation and Humiliation Humans are social creatures, and exclusion from or falling in standing in society is particularly devastating - particularly in a pre-modern society when ostracisation often meant death. Excommunication has already been mentioned. We also have being declared an outlaw - this wasn't, as it largely is now, a synonym for criminal - it was placing someone beyond the protection of the law, effectively making them fair game for anything anyone felt like doing to them. Exile or banishment was another punishment usually reserved for those of high standing, like nobles or royalty. Forcing people to be publicly exposed and subject to verbal and physical abuse, such as through the stocks or pillory, was common. Having convicted people bear a mark of shame or a visible mark of their crime (see mutilation above) was also common. Arguably, maintaining criminal records and sex offender registers is a form of humiliation, particularly if it is made public. Servitude From slavery, to penal servitude, to indentured service, to transportation, to modern prison workshops, if you can make someone pay for their own punishment, people will find a way to do it. However, imprisonment per see has only been considered a punishment since early modern times and came in with such strange notions as reform (hence reformatory school) and penitence (hence penitentiary). Before then, a prison was a place where you kept people while awaiting trial or punishment - or people who were just too damn dangerous to be let loose. Corporal Punishment Caning, whipping, hitting with sticks, hitting with nettles, breaking bones, holding people in painful positions, hitting with the hand, etc. These have all been (and some still are) judicial punishments as well as methods of maintaining discipline in children and military forces. Financial These are basically two types: fines paid to the government, or restitution paid to the victim or victim's family. | "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. | I'll use Wisconsin as a jurisdiction. If you file a false death certificate, that's a felony. But you probably wouldn't go that far. It could be disorderly conduct. In Wisconsin disorderly conduct is described as follows: Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor. There's also a statute prohibiting "Disrupting a funeral or memorial service" but it won't apply in this case unless disorderly conduct applies. It would raise the penalty to a class A misdemeanor (or a class I felony if you somehow did it again after being convicted once.) On the civil side, there could be an action for intentional infliction of emotional distress, either for the false report of your death, or for a "corpse" suddenly coming to life. This kind of lawsuit requires "extreme and outrageous conduct", but if this isn't, I don't know what would be. | Here are a few examples (sorry, they are in German) https://www.echo24.de/region/kuenzelsau-24-jaehriger-verurteilt-gefaengnis-beleidigungen-instagram-13181018.html https://www.mainpost.de/regional/main-spessart/beleidigung-bringt-34-jaehrigen-ins-gefaengnis-art-8445139 https://www.maz-online.de/Lokales/Brandenburg-Havel/Gericht-verhaengt-Gefaengnis-wegen-Beleidigung-und-Noetigung https://www.wochenblatt.de/archiv/fuer-beleidigungen-wieder-einmal-ab-in-den-knast-154472 So it does actually happen, but it's fairly rare. It typically involves abusive behavior: frequently repeated insults, defamation, and threats and also ignoring any cease and desist orders or requests to stop the behavior. There is also a pre-existing criminal record: it's not the first time they stand in front of a judge for this type of thing. The guy in the last article had already 12 previous offenses so the judges felt that a fine or probation is just not working. So it's not so much the exact type of insult but more about relentlessly barraging the victim and having an existing pattern of bad behavior and related offenses. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | There appears to be no specific number of hours. This article touches on the matter, presenting a slew of cases where e.g. the prisoner was on a hunger strike (self-imposed starvation is not cruel and unusual punishment). Gardener v. Beale upheld a 2-meal plan with 18 hours between dinner and brunch to be allowed. This was, however a temporary exception rather than a long term policy which was to provide 3 meals not spaced further apart than 12 hours. There does not seem to be any period deemed to be legally too long, however a prison system may have (probably does) have a policy, which cannot simply be ignored. | A judge can only impose sentences as prescribed by law. Suppose, as a random example, that a person is convicted in federal court of fraudulently mutilating coins, in violation of 18 USC 331. That section of the statute states the punishment for such a violation: ...Shall be fined under this title or imprisoned not more than five years, or both. The scale of fines is to be found at 18 USC 3571; for this crime, which is a felony, the maximum fine would be $250,000 (with certain exceptions, which let us suppose do not apply here). So in principle, the judge may sentence the offender to any of the following: Five years in prison and a fine of $250,000 Five years in prison and no fine Three days in prison and a fine of $6.25 No prison and a fine of $5000 You get the idea. (In practice, the judge is likely to follow official sentencing guidelines, but is not legally required to do so.) But the judge may not sentence the offender to any of the following, because the statute does not authorize it: Death A fine of $250,000.01 Five years and one day in prison Wearing a silly hat for a week Slavery I do not know of any federal criminal statute authorizing slavery as a punishment for any crime, so therefore, a federal judge cannot impose this sentence. Congress could in principle create such a law, and if they did it would not violate the Thirteenth Amendment, but they have not done so. (The Eighth Amendment might be a separate question, as slavery might very well be considered a cruel and unusual punishment by today's courts. And as you point out, such a law might also be in violation of treaty obligations.) (I assume here that "slavery" is understood to be something distinct from "imprisonment", although I know some would disagree.) | Chapter 26 section 7 of the Swedish Penal Code points to a possible consequence of prison escape: If the sentenced person seriously violates the conditions for the serving of the sentence in a prison, the date for conditional release may be postponed. Such a postponement may amount to at most fifteen days on each occasion of use. Aiding an escape is a specifically-identified crime, but apparently the act of escaping is not, though is would have a negative consequence (we would say that such a treatment is an "infraction", not a separate crime). This article in fn. 7 indicates that it is not a crime in Germany, and The Interwebs tells me the same thing. Mexican law explicitly declares that there is no penalty for prison escape (Article 154, with translation from here) To the prisoner that to escape (from prison) will not be given any penalty, except when it’s in complicity with one or more other prisoners and they perform violence on other people, in which case the penalty is six months to three years in prison. It is a specific crime in the US (governed by individual jurisdictions). The state of Washington in RCW 9A.76.110 makes general prison escape a class B felony. Adjacent provisions increase the severity of the crime if the person is a sexually violent predator (9A.76.115), reduces the crime if it is escape from detention (not pursuant to a conviction), and further reduces the crime if it is just escape from custody (e.g. escapes from the drunk tank). |
Is online content considered to be "published" to the whole world? Suppose, as a resident of your own country, you put some content online. Given that everyone online in the world can, potentially, view it, does that mean that you have, from a legal point of view, "published" it in every country of the world -- and are thus subject to the particular copyright laws of every country in the world? | Yes, except for the part where you say "thus". Copyright protection isn't limited to published works, though in the past this was the case with US law. Current US law defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Web distribution is one way to distribute a protected work. The distinction between published and unpublished works matters in terms of registration requirements, it figures into the question of the nationality of the author, the duration of protection for a work for hire and (pseudo)anonymous works, as well as the duration of protection for works created before January 1, 1978 but first published between then and January 1, 2003, and so on. The US Copyright office provides guidance that derives from court cases, and they have this to say about published vs. unpublished. They give as an example of publication ("Offering to Distribute Copies or Phonorecords to a Group of Persons") Publication occurs when copies of a photograph are offered to clients, including but not limited to newspapers, magazines, agencies, wire services, and websites with a license permitting further distribution or display of the photograph. also An offer by the copyright owner on a public website to purchase and download an app that they developed and made accessible on that website constitutes publication of that app. German copyright law makes mention of "publication" as well, for instance The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he may, however, demand performance only to all of the joint authors. §6 says that (1) A work shall be deemed to have been published when it has been made available to the public with the consent of the rightholder. (2) A work shall be deemed to have been released when copies of the work have been offered, with the rightholder’s consent, to the public or brought to the market after their production in sufficient quantity. An artistic work shall also be deemed to have been released when the original or a copy of the work has been made permanently available to the public with the consent of the rightholder. One would have to inquire into the specifics of German law to know if "putting one copy on a website" constitutes being brought to the market after production in sufficient quantity. | To answer the last part of the question: Jurisdiction would be where the copied media is being producted and where it is being consumed/sold. Moving media from one jurisdiction with ineffectual protections to another jurisdiction is part of product piracy. The scheme you suggest might shield the company producing the counterfeit goods, leaving the importers holding the bag. If the importers and manufacturers are controlled by the same person, courts in jurisdictions with strong protection might hold that person liable for the whole criminal enterprise. There is a widespread assumption that the internet is 'beyond national laws.' That is wrong. Enforcement may be difficult in some cases, but the laws apply. If you try to make profits by skirting the edges of law, you need really good, really professional legal advice. | The first copyright law dates from 1710, so it's not true that Chekhov wrote before any copyright laws. Any work from prior to 1924 isn't necessarily safe to use (it depends on when the author died). It is in the US but will complicate things if you publish internationally. Unless you translate with something like Google translate, translation is definitely a creative process. This is especially true (although probably not significant legally) for something like a poem, where its' extra hard if you try to keep the original metre and rhyme scheme. If you publish work in the public domain, you would have some claim to the typography. If the translator has done a copyright assignment to the publisher as part of the publishing agreement, they would hold the rights to the translated version. | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | There are 196 sovereign nations in the world (more or less); each of them has its own copyright laws. 168 are signatories of the Berne Convention which requires them to extend to foreign copyright holders at least the same rights that they would have domestically. It relies from this on the concept of country of origin. Assuming that the book was originally published in the UK (as it has a London based publisher) then the applicable copyright law is that of the UK. Exceptions to copyright can be found here. The relevant exemption is the first part of the Teaching section: the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing. Acknowledgement is pretty straightforward but fair dealing as a legal concept means: There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work? Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include: does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used The relative importance of any one factor will vary according to the case in hand and the type of dealing in question. If the work had been simultaneously or previously published in the USA the relevant consideration is fair use rather than fair dealing. Fair use typically gives the copier much greater latitude than fair dealing does. As to the specifics of posting on stack exchange. Extracts on SE are unlikely to affect the original market (they may even enhance it by serving as advertising) so providing that you have used the minimum amount necessary to illuminate your answer it is probably fair dealing (and fair use). This would probably be true even if, across tens of thousands of questions, the entire book were quoted. Notwithstanding, if the copyright owner issued SE with a take down notice they would take it down because they are not in the business of fighting protracted copyright cases even if they are in the right. | Yes The US constitution is in the public domain. Anyone may publish a version of it, including an altered version. No US law forbidding publication of an altered version would itself be constitutional -- the First Amendment would prevent such a law. However, if an altered version were sold under such conditions that a customer might reasonably believe it to be an unaltered version, that might be false advertising, or perhaps fraud, because the seller would be deceiving the customer as to what the product is. | It's legal as long as you follow these guidelines: They [The Cached Files] are created only for the purpose of viewing (In Your case listening) content The copies do not unreasonably prejudice the legitimate interests of the rights holders. The creation of the copies does not conflict with a normal exploitation of the works. Source: http://www3.ebu.ch/contents/news/2014/06/eu-court-rules-on-legality-of-in.html | Basically, statement 3 above is correct. The owner of the copyright in a work may release that work unmder different, even incompatible, licenses, as many times as s/he chooses to do. None of these releases cancels or invalidates any other. A person who obtains a work from a site where it is listed under a particular license, may rely on that license grant. The owner may (if the site allows) modify the license or remove the posted work, but this does not invalidate the license granted to those who obtained the work before any modification or removal. An incorrect or incomplete copyright notice does not, under current law. invalidate the copyright, and to the best of my understanding will not invalidate either of the license mentioen in the question. |
Do I have any responsibility over 3rd party data collection? I have a little game that does not collect any user data whatsoever, nor does it resell it or anything else. I do employ Google Ads, and the game is planned to be released on the Google Play Store. I do not know what user data Google has collected, and I have absolutely no control over what they will do with it. Do I have any responsibility for it? If so, then to be honest I have no idea what they collected, and I wouldn't know how to list it even if I wanted to. Or could I just say something like, "Third-Party Data Collection has nothing to do with me" in my Privacy Policy? | Simply stating that third-party collection of data has nothing to do with you is not sufficient in your Privacy Policy. You are responsible for ensuring compliance with applicable laws and regulations related to data privacy, including providing clear and accurate disclosures about data collection and use in your Privacy Policy. While you may not have direct control over the practices involved in the data collection process of third parties, you still have a responsibility to inform users about these practices and obtain their consent as necessary. You can include a statement in your Privacy Policy about the use of third-party services like Google Ads, and inform users that these services may collect data and that you have no control over the data collection or use practices of these third parties. | It is hard to prove a negative, but no - there is not rule that an app cannot track a user while the app is in the background. Almost every GPS-function app on every smart phone does the very thing you are talking about. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | You clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. | Copyrights don't apply to the names used. You mean trademarks. You copyright your game and you trademark the name. http://www.reddit.com/r/gamedev/comments/11v69k/using_a_guns_name_in_your_video_game/ Basically, it wouldn't be wise to use trademarked names in your game. Even though it's unlikely you would be sued and even if you were, you could possibly fight it under Fair Use, but do you want to take the chance? If some gun company decided they didn't like how you used their name, even if they have little to no grounds for a case, they can STILL sue. Anybody can sue for pretty much any reason where there is doubt. If they have enough money to throw around, they can drag you through the mud, ruin your business and then just lift their lawsuit. They don't need to win in court, just destroy you. Keep in mind that even if you don't use the name, if the gun in your game is an accurate replica of the real thing, it could still be a trademark issue. EDIT: Something you could consider though is asking permission. You never know. They may simply not care. You might even try propositioning them to pay YOU to have their gun showcased in your game. It's not entirely uncommon for companies to be willing to pay for a bit of endorsement advertising. | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. | It doesn’t make you exempt from the GDPR if that’s what you’re asking The hash you produce is linked to one (or a small number) of computers and it therefore serves as an ID number. Because that ID number is linked to the owner of the computer it is personal information and if you are collecting it, you must comply with the requirements of the GDPR - valid legal reason, deletion when no longer required, deletion on request, data security etc. | A public key is private data - the fact that its a public key is neither here nor there, its data owned by the user and not necessarily in the public domain (I have keypairs for which the public key is only known by myself, for example). For a subject access request, you must give the user all data you hold about them, subject to certain restrictions laid out in the GDPR - in your case, this would be the IP addresses, public keys, encrypted data and anything else involved in identifying their devices for transferring the files. You dont need to decrypt the encrypted data if that is something you cannot do or would not normally do in the course of holding it during a transfer - to you, the encrypted data is what you hold. If you hold the means to decrypt the data, that means (private key for example) would also be included in the subject access requests response, but in your case you say you dont hold that, so there you go. Remember to include information from things like logs etc in your response. |
UK Spring Water Regulations I just saw a post talking about how various brands of spring water in the UK are not meeting regulations because they are bottled at a different location to the spring. Looking online, most sites (including https://www.gov.uk/guidance/spring-water-how-to-produce-and-label) specify that "bottling must take place at the spring or borehole", with some linking to the legislation for England: The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 However, while I know my legal speak isn't very good, I just can't find where in that document it explicitly says that spring water must be bottled at source? Schedule 10 (the most obvious place) just seems to say it must be extracted from spring, not altered, and meet Schedule 2&4. Those two schedules seems to mainly just cover the requirements for the water to be legally considered mineral/spring, but don't cover bottling. Is someone able to point out where in the regulations it states that the water must be bottled at source? | england Admittedly it's not very clear, but paragraph 5 of Schedule 4 restricts the use of anything else apart from the resulting consumers' bottles, ergo bottling has to take place at the point of extraction (Subject to sub-para 3): 5.—(1) Subject to sub-paragraphs (2) and (3), water must not be transported in containers other than those authorised for distribution to the ultimate consumer. (2) [omitted] (3) Water distributed to the ultimate consumer in a bottle marked or labelled with the description “spring water” may be transported from the spring to the bottling plant in a container which is not for distribution to the ultimate consumer if, on or before 13th December 1996, water from that spring was so transported. | No. English is not government-regulated. That's why the Oxford English Dictionary (arguably the most authoritative dictionary out there) uses different spellings than most of the UK does. | why do they sometimes specify the federal law as well as the state/provincial law? Isn't it redundant? Not necessarily. The contract might be entered and/or performed in a different country, whence mentioning only the Canadian provincial law does not override the other country's federal law (or that country's "supra-provincial" equivalent). Mentioning Canadian federal law removes --at least on paper-- the ambiguity of which law applies for matters beyond the scope of Canadian provincial law. In such scenarios, portions or the entirety of the provision might be null and void. For instance, an employment contract might establish waivers which are void or perhaps even unlawful under the legislation of that other country. Please note that in general a copy/paste of sample clauses is strongly discouraged unless the parties fully understand their meaning and implications. | Your rights and responsibilities in this realm are a matter of local law, sometimes down to the level of the city, plus whatever is stipulated in the lease. In San Francisco, for example, No Person shall have upon any premises or real property owned, occupied or controlled by him, or her, or it any public nuisance [which includes] Any visible or otherwise demonstrable mold or mildew in the interiors of any buildings or facilities This does not say whether the owner or the occupant is liable for remediating the situation. Shower mold is gross but not a health hazard (the SF ordinance just lumps all mold into one category). Since you have no written lease, there is no automatic clean-up requirement. There might be a law requiring a tenant to clean the premise to its original condition, for instance in Washington, tenant must Upon termination and vacation, restore the premises to their initial condition except for reasonable wear and tear or conditions caused by failure of the landlord to comply with his or her obligations under this chapter. Landlord duties are here: there is no duty to provide ventilation. However, the bathtub appears to be in a common area and not your particular unit. The landlord duties also require the landlord to Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident so in Washington, it's his problem and not yours. In general, even if a tenant is responsible for some form of cleanup, that does not constitute legal license for a facility upgrade. It might cost a couple hundred dollars to hire a person to wash ordinary mold accumulation, and does not justify getting a $5,000 new tub. Since this is in a common area, you would not be solely liable for whatever the damage was. The part where you say "crack in a common bath tub" is a large red flag: it suggests to me that somebody negligently broke the bathtub, and then caused behind-the-wall damage by letting water infiltrate without notifying the landlord. If you broke the tub and let it rot, you could be liable. If the tub was broken already and the landlord didn't bother to do anything about it, that is his negligence. The three questions that you should try to answer are: (1) what are the duties of landlord and tenant in my jurisdiction, (2) what was the actual harm done, and who did it, (3) what is the ordinary cost of whatever repair was done. | The law is here (too long to quote, or understand). There is a proposed modification of the law which may be enacted. In the section Justification, it is noted that under the existing law a global corporation may technically "own" five subsidiary corporations. Company A may own a winery in France while Company D may own a hotel containing a restaurant in New York. Under New York Law, the liquor license for the restaurant would be prohibited - and it could be subject to financial penalties. So the restrictions are broader that you mention (ownership of stock is an "interest"), but certainly what you mention is prohibited. The proposed law limits the effect to an interest in a restaurant or brewery "licensed under this chapter", i.e. in the state of New York (currently, a NY manufacturer cannot have an interest in an alcohol-selling restaurant anywhere). | No, it is not illegal under 7 USC 136j (a)(2)(G) to use a pesticide labeled for use against one pest against another pest... at least not anymore. It turns out that there apparently were cases of the EPA interpreting the language of that portion of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in an overly broad manner. This included the interpretation in question here, as well as even interpreting it to ban using doses or concentrations less than those specified by the label. In response, Congress amended FIFRA in 1978 to add a definition of the term "To use any registered pesticide in a manner inconsistent with its labeling" as 7 USC 136 (ee): The term “to use any registered pesticide in a manner inconsistent with its labeling” means to use any registered pesticide in a manner not permitted by the labeling, except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment... [other exceptions not relevant to this question] The act that included the amendment became Public Law 95-396 (PDF), also known as the Federal Pesticide Act of 1978, upon being signed into law by President Carter on Sept 30, 1978. A question was raised on the linked question that this exception might have been referring to accidental use against one pest when another was being targeted, however, the following description of the meaning was given in a summary of the bill on the Senate floor when the final version of the bill was being considered for passage: Third, the new definition will permit farmers to use pesticides that are already registered for a crop or site for pests not listed on the labeling. It is rather foolish to tell farmers that they can put a pesticide on a crop for one bug, but that they cannot apply it to the same crop for another bug. Senator Herman Talmadge (D-GA), Senate Floor, Sept 18, 1978 (Source: Congressional Record vol. 124 (1978), part 22, page 29760 (Warning: 584 MB PDF)) Senator Talmadge was Chair of the Senate Committee on Agriculture, Nutrition, and Forestry at the time and so had been heavily involved in crafting the bill. So, allowing the use of a registered pesticide against a pest not mentioned on its label was indeed the expressed intent of Congress in adding this exception to the definition of using a pesticide in a manner inconsistent with its labeling. As long as the pesticide in question is being applied to a plant, animal, or site specified on the label and the Administrator of the EPA hasn't required the specific pesticide in question to expressly prohibit use against other pests on its label, then intentionally using it against a pest not specified on its label is not a violation of 7 USC 136j (a)(2)(G). | Wave Broadband is a private company; they can probably decide to not provide service to an address that is in arrears or collections. I'm sure there is a clause in their service contract that states they can do that, and there would be local or state laws to support that. Whatever public service commission governs the state may also allow that. It's possible that Wave is breaking the law by denying service to a whole address, but doubtful. You can check with the state level public service commission. | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. |
What are the regulatory equivalents of "prosecute" and "convict"? If I understand correctly, the terms "prosecute," "convict," "guilty," and "innocent" are only used in criminal cases. What are the equivalents in cases of civil violations, such as traffic infractions or violations of radio regulations? | For a civil infraction, the typical term is found responsible/not responsible. For example, Michigan MCL 600.113(1)(b) (b) "Civil infraction action" means a civil action in which the defendant is alleged to be responsible for a civil infraction. For violations of Federal regulations, as in the FCC example, the term is found in violation/not in violation. 47 CFR § 95.313(b) If a Federal court finds that a Personal Radio Service station operator has willfully and knowingly violated any FCC rule, the operator may be fined up to $500 for each violation... | The concept of "innocent until proven guilty" is inherent in our constitutional protections for due process. As far as I know, the Supreme Court first formally recognized it as a rule in Coffin v. United States, 156 U.S. 432, 458-59 (1895): Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. The key phrase -- for purposes of your question -- is "sufficient evidence." At a criminal trial, sufficient evidence consists of proof beyond a reasonable doubt on “all the essential elements of guilt” In re Winship, 397 U.S. 358, 361 (1970). But if the government wants to lock up a defendant pending trial, the question is not whether the defendant is guilty of the charged crime, but rather whether he poses a danger to the community and can be trusted to appear for trial. 18 U.S. Code § 3142(e)(1). And on those questions, he retains the presumption of innocence, but the government's burden of proof when arguing otherwise is substantially lower. The courts recognize both the potential of fleeing from the court and the prevention of additional crimes as legitimate bases for pretrial detention. In cases like Avenatti's, where the government is seeking pretrial detention because the defendant is a danger to the community, it needs to prove by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community." 18 U.S. Code § 3142(f)(2). However, if the government is seeking to hold the defendant because it does not believe he will appear for trial, it need only prove its case on that question by a preponderance of the evidence. United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986) (“For detention to be proper, the government had to prove by a preponderance of the evidence that no conditions of release would reasonably assure Martir's attendance at trial.”). As a side note, I'd agree with some of the answers that in practice, the bond system is regularly abused to the point that its underlying principles become unrecognizable. My answer is meant only to address the actual legal rules your question implicates. | I will address only the legal issues. Prosecutors for very good public policy reasons are not required to prosecute every crime they have suspicions about. When exercising this discretion they consider: Is the act, in fact, criminal - many of the things you list, while reprehensible, unethical, and possibly immoral are not actually criminal. Do they have the resources (time, staff, money) to collect the evidence and run this case as opposed to the thousands of other crimes out there. There are always more crimes than can be prosecuted and these have to be prioritised in some way. Do they have enough evidence to gain a conviction beyond reasonable doubt. People can be fired or resign on suspicion, they can't be convicted on it. | Habitual offender laws are written such that they represent distinct crimes. In your given example, the trier of fact will be asked to judge two distinct crimes: Did the defendant rob the bank Did the defendant break the habitual offender act An example from California, Penal Code Section 193.7 defines habitual offenders for traffic offenses: A person convicted of a violation of subdivision (b) of Section 191.5 that occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code, or any combination thereof, that resulted in convictions, shall be designated as an habitual traffic offender subject to paragraph (3) of subdivision (e) of Section 14601.3 of the Vehicle Code, for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350 of the Vehicle Code. The conviction of being an habitual traffic offender is applied an underlying statute's sentencing guidelines. In the case of California's Vehicle Code 14601.3(e)(3): Any habitual traffic offender designated under Section 193.7 of the Penal Code or under subdivision (b) of Section 23546, subdivision (b) of Section 23550, subdivision (b) of Section 23550.5, or subdivision (d) of Section 23566 who is convicted of a violation of Section 14601.2 shall be punished by imprisonment in the county jail for 180 days and by a fine of two thousand dollars ($2,000). The penalty in this paragraph shall be consecutive to that imposed for the violation of any other law. In this case, there is enhanced sentencing if one is convicted of the crime of driving under a suspended or revoked license if the person is also convicted of being an habitual traffic offender. The jury instruction template used when determining if an enhanced sentence is warranted requires that the defendant be found guilty of the underlying crime as well as the additional allegation of the sentencing factor: If you find the defendant guilty of the crime[s] charged in Count[s] _________________[,] [or of attempting to commit (that/those) crime[s]][ or thelesser crimes[s] of ], you must then decide whether[, for each crime,] the People have proved the additional allegation that <insert description of enhancement, sentencing factor, or factual issue>. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. To prove this allegation, the People must prove that: <Insert elements required.> The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved. The person in your example is not being punished again for the first crime; they are being sentenced to a year for robbing the bank the second time and receiving a sentencing enhancement of a year for breaking the habitual offender statute. | 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. | 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. | "I have done nothing wrong" You got up in court and, when the judge asked if you had done anything wrong, you said: "yes" (guilty). So, in the eyes of the law, you are in the wrong. Police are entitled to make mistakes and, when they do, the accused can either accept the consequences of that mistake by pleading guilty and paying the penalty or they can defend themselves and show that the police made a mistake. Unfortunately, while you have a right to a defence, you don't have a right to a defence at no cost. | Let's say you leave fake drugs in someone's yard. Eg, you expect the police to be dumb enough to believe it and arrest the other person Obstructing a public officer, specifically "deliberately hindering a public officer from carrying out official duties". Trespassing. |
What actually is a “Modern Day Slavery Policy”? On many businesses’ websites there is an unobtrusive link to a so-called modern day slavery policy. What is this, and what provisions does it fulfill or get governed by? | I can't speak for others, but my employer's policy is to ensure compliance with, and raise heightened awareness of, the Modern Slavery Act 2015. If I recall correctly, the Act's original working-title included "Day" but was dropped along the way. | No. This is governed by the HIPAA Security Rule which was a regulation that the HIPAA statute required the Department of Health and Human Services to adopt. The Rule does require someone covered by HIPAA to have a "Business Associate Agreement" (BAA) and a Service Level Agreement (SLA) with any cloud storage provider (which would be the usual way that a U.S. health care provider subject to HIPAA would have a foreign server), but the Rule does not require that a server be physically located in the United States. The lack of this requirement is a good one, because when you are transmitting data (which the Security Rule requires be done in a secure fashion), you can't know which servers the information will end up on in a trip from source to destination. Email and all other Internet content travels through what amounts to a pony express. It goes through a variety in intermediate server nodes which can change during the course of a session, and generally speaking, you never know which intermediate nodes are used. You could be seeing this answer via a server in China, for example, and you would never know it. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | There is a relevant Q&A here about how ex post facto is defined in the United States. Not all law is about crime, and that includes NY rent control laws; violating them does not lead directly to a criminal prosecution, hence a sufficiently strict definition of ex post facto cannot apply to them. And such a sufficiently strict definition has been the explicit one since 1798, when the Supreme Court ruled in Calder vs. Bull ("law that makes an action done before the passing of the law, and which was innocent when done, criminal [...] law that aggravates a crime, makes it greater than it was [...] law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime", etc.). Notice that Article 1 Section 9 prohibits Congress (i.e., the Federal Government) from doing exactly the same thing, so if ex post facto refers to any kind of law, then there could not be any retroactive laws passed in the United States, period. However, the Supreme Court has apparently already set further, more recent, precedents, making it clear that this rule does not apply to tax law. I would assume in this case the intention is to retroactively extend the old law, i.e., if the old law expired on the 15th and the extension passes on the 20th, that extension will be retroactive to the 15th. If the extension then continues until a new law is in place, there will be no time period under which one or the other did not apply. Despite the wording in the news article, I do not think the intention is to make the new law retroactive, only the extension of the old one, for the simple reason that the legislature would never agree to pass such a brand new law later and no matter what it contains say it will be retroactive back to the original expiration date of a law it replaces even after they already extended that until there was a new law. That is borderline non-sensical. The Daily News blurb certainly makes it sound like it might be that way, but I think this is a bit of intentional obfuscation -- the way in which a partial quote is used in the first paragraph is indicative, and the Daily News is, well, the Daily News. | united-states Since "lying" is not a clearly-defined legal concept, we need to look at a specific kind of (non)statement. Some lies are plainly illegal, for instance saying in the context of a sale that "this column is made of pressure-treated lumber" when in fact it is make of sand and Elmer's glue is fraud. A receptionist being told to say "Mr. Smith is at a conference in New York" when he is actually drunk in Chicago is a legal lie. Now the question is, who can refuse to tell this lie (without suffering employment consequences), and on what grounds? Generally, in the US you can be ordered to tell such a legal lie as part of your employment duties. If I refuse, I can be fired. If you refuse, you can request a reasonable accommodation under Title VII of the Civil Rights Act of 1964, since you proffer that your religion requires you to tell the truth / forbids you from telling a falsehood. If you make a claim for a religious accommodation, then the issue becomes whether there is a reasonable alternative. Such an accommodation might be that you instead say "Mr. Smith is not available"; or perhaps someone else who does not have a religious objection will be forced to act as receptionist for the day. This is specifically about religion. "I don't want to" or any similar idea does not provide protection against being fired. However, bear in mind that there is no official list of approved religions and their beliefs which the courts will refer to in determining whether your refusal was protected. If you claim "As a Pastafarian, I can't lie", the courts will not accept the premise that declaring yourself to be Pastafarian (a parody "religion") is valid. The available governmental resources on the fine line between general moral code and religious beliefs are quite sparse. | In such a case the person who bypasses the terms knows that use of the site is conditioned on agreement to the terms, and has taken an explicit action to continue past the terms and use the site. I suspect that if a dispute were to arise where this is relevant, it would be held that taking such action was legally equivalent to clicking "I agree". But I don't know of any court case on this point, and i can't be sure what a court would do. If having intentionally bypassed the terms, such a person tried to raise his or her lack of consent to the terms as a defense to some obligation imposed by those terms, such equitable concepts as "unclean hands" and estoppel might be raised, since such a person, in effect, leads the other party, the site owner, to believe that s/he has accepted the terms, I suspect that such a person will be treated as having accepted them. If this becomes at all common, I suppose that the designers of such sites will in future store a record of such consent being given, and not allow the user to proceed unless it has been. | This potentially (i.e. almost certainly) runs afoul of laws against religious discrimination. However, you can have such a requirement provided you make an accommodation for those with sincerely held religious beliefs or practices against bacon-eating. You can also have such a requirement (despite the beliefs) if not having the requirement imposes an undue hardship on the business. For example, if the job is "bacon taste-tester", then there's no reasonable accommodation. This applies to religious objections, since religion is protected class, but not "I don't like bacon" as an objection; nor does this apply to people who object to meat-eating on economic grounds. | Certain kinds of pay secrecy measures are illegal under the National Labor Relations Act, a 1935 law. It's not the strongest prohibition, however, because the consequences of violating it are rather weak (especially compared to other employment claims). Some government entities or contractors are under more stringent rules by executive order, and states may have their own laws. Here's a Department of Labor fact sheet. Here's a 2014 NPR story on the subject. |
After a buyout, can a company legally continue to use old testimonials? US general law. I'm curious... Company [A] is in the digital services industry and has been in business for a decade. During their operations they receive many rave testimonials/reviews about their service. "[A] has been exceptionally responsive... "[A] is great".. etc. Company [B] then buys out Company [A] and assumes all operations. However, the the name and/or branding does not change after the buyout. To customers, everything still looks like it is Company [A] and no visible transfer of services has occurred. Although the services are now entirely under the operations of Company [B]. Company [B] continues, for many years, to use testimonials/reviews related to the performance of the original Company [A]. Testimonials/reviews are in no way related to the performance of Company [B], under the guise of Company [A]. Company [A] technically no longer exists, rather it is Company [B] doing business as Company [A]. Can Company [B] continue to use testimonials/reviews originally referencing the performance of Company [A]? Are the testimonials/review permitted merely because the visible "face" of the company hasn't changed? Even if the entire backend operations have? | After a buyout, can a company legally continue to use old testimonials? Yes. What you describe would not suffice for a finding of false and misleading practices. For purposes of pricing the acquisition, it is most likely that company's A prestige was factored in. After all, as Kaspersky Lab, Inc. v. US Dept. of Homeland Sec., 909 F.3d 446, 461 (2018) points out, "reputation is an asset that companies cultivate, manage, and monetize". As company A has --or could have-- monetized its reputation via the acquisition price, it would be inconsistent to preclude company B from using an asset for which it paid. | I did not write "confidential" on my letter, but I assumed a business proposal is automatically considered as a confidential material. An incorrect assumption unfortunately. Unless you have a confidentiality agreement (NDA) with the first company, they and their agents are not under any legal obligation to keep information you share with them confidential. How is the legal situation here? There is none on your side. You lied about a direct question asked and were caught in the lie. Company A had no obligation to keep what you sent confidential. Even if they did, that may not (depending on how the confidentiality agreement is worded) keep the employee of company A stating that they had received the same proposal. Chalk this one up to a lesson on confidentiality and honesty in business. There are no reasonable assumptions of confidentiality in business unless you specifically state that they are confidential or are provided as part of a confidentiality agreement. | Of course you have to follow the license. You seem to have a license that doesn't allow distribution and want to know if giving copies to the Dutch or Chinese branch of your company is distribution. First, you should not make that decision. Your company's lawyers should do that. Second, such distribution is with some licenses perfectly legal if you distribute the software with source code. That's a business decision which you or your manager or his/her manager... can make. Such questions (whether giving a copy to your Dutch branch is distribution) often don't have an answer that is yes or no but maybe - if you went to court, would a judge say that it is distribution? The answer is quite clearly "maybe". So unless you can find a safe way, there is a risk. Again, your lawyers will assess the risk. | 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 company continues to own all its assets australia The appointment of a liquidator to does not change what the company owns - it just changes who is in control (the liquidator rather than the directors) and the purpose for which it is being run (realisation of assets for the benefit of creditors rather than as a going concern for the benefit of shareholders). The laptop still belongs to the company. The liquidator's job is to sell all commercially realisable assets and distribute the proceeds to the creditors. When they have done that (which can take years), they get a release from the court, and the company is deregistered 3 months later. Any assets of a deregistered company belong to the shareholders. A 3-year-old laptop is not a commercially realisable asset, so it's not something a liquidator would be interested in. You could tell the liquidator you have it, and they are welcome to collect it at any reasonable time. They will probably say, "keep it." | One can certainly remove a trademark from an item that one owns, whether it be a car, cell phone, blender, or computer. Using some other firm's mark would not be trademark infringement if one did not try to sell the item. If the logo was complex enough to be protectable by copyright, copying it might be copyright infringement, but for such personal use it might fall under an exception to copyright, depending on the country. In any case a copyright infringement suit in such a case seems unlikely. For a car, registration is generally required, and must accurately specify the make and model. The same is true for insurance coverage, a falsely stated make or model would be fraud. If one were to sell the "rebranded" item, one would have to make the situation clear to any potential buyer, otherwise this might be some form of fraud. | It is not clear from your question whether you intend to make use of the Yelp API to display Yelp ratings on your own website. You ask: So is my idea fair use of these websites data or is not because of the TOS? The ToS is not for Yelp data, it is for the Yelp API. The ToS will only apply to you if you agree to it. However, if you agree to the ToS for the API, fair use is irrelevant. The ToS is a legally binding contract that trumps fair use. You also brings up Google's display of Yelp stars. This display is not based on the Google using the Yelp API, but on Yelp opting in on a mechansim created by Google called Rich Snippets. Returning to Yelp ToS, it is clear that its purpose is permit re-use of their "ratings, reviews, photos" etc. by to promote your own Yelp-rated business. Also what they clearly do not allow you do do, is to build a competitor to Yelp. Since your planned restaurant rating site would compete with Yelp, you will not be able to use the Yelp API to get the data. What if you didn't use the Yelp API, but simply scraped their site - would fair use apply? What constitutes fair use in borderline cases such as yours is mainly decided by case law. Case law differs from jurisdiction to jurisdiction. My general impression is that it is not fair use if the use is commercial in nature (i.e. you create something intended to directly compete with the site you scrape the data from) and your product or service does not communicate something new and different from the original or expands its utility. As always: If you want specific advice, hire a lawyer. | This question has been addressed directly, with very similar facts, by the federal courts, and the answer, based on those decisions, is: Maybe. The most famous case in this area is Mirage Editions v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988). In that case, the defendant had bought a copy of plaintiff's art book, cut out the pages, and affixed them to ceramic tiles, which it sold. The defendant relied on the first sale doctrine, codified in 17 U.S.C. 109. The first sale doctrine says that if you own a copy of a copyrighted work, you can resell it without the copyright holder's permission. The plaintiff argued that, by altering the original artwork, the defendant had created a new derivative work. The first sale doctrine gives you the right to sell the book to someone else, but not the right to create derivative works, whether by writing and publishing an unauthorized sequel or, they argued, cutting and pasting and tiling and kilning the physical pages. The Mirage Editions court agreed with the plaintiff that the tiles were a derivative work outside the scope of the first sale doctrine, and therefore the defendants had infringed the plaintiffs' copyrights. However, other courts faced with similar facts have disagreed, and to date I'm not aware of any Supreme Court decision resolving the issue. The bottom line is: you are allowed to sell what you bought; you aren't allowed to transform it into something new and sell that. Where the line gets drawn is muddy and likely to remain so at least until the Supreme Court addresses the issue. |
Dead judges deciding votes on cases Strange development on the US Court of Appeals: Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Altera Corporation v. Commissioner, a challenge to the Internal Revenue Service's treatment of cost-sharing arrangements for employee stock compensation. The panel split 2-1 on whether the IRS rule satisfied the requirements of the Administrative Procedure Act (APA), reversing a lower court decision concluding the IRS had failed to conduct an adequate rule-making. One of the two judges, however, has been dead for four months. The practice certainly is novel and may, in fact, be unique. The US Supreme Court doesn't follow the practice (same source): This happened on the Supreme Court when Justice Scalia died. Note, however, the Court did not proceed to issue any additional opinions with him participating. Opinions in cases that had not yet been issued were released with only eight judges participating (seven in the case of Fisher), even if that meant that some cases (such as Friedrichs, the precursor to Janus v. AFSMCME) were resolved 4-4. My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal? | My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal? This happens roughly a couple of times a year on average in the U.S. Courts of Appeal, usually when an opinion has been agreed to in principle and a final draft of the opinion has been approved, but release of the opinion is delayed, for example, to allow the dissenting opinion in the case to be completed prior to publication of the decision. The blog "How Appealing" regularly reports this practice when it happens, although its accounts of this practice are not comprehensive. To the best of my knowledge, no appellate court opinion has ever been reversed on appeal because a judge died prior to its publication. For comparison's sake, in the most recent year for which statistics are available (2017) the U.S. Courts of Appeal handled 60,877 cases, so this happens in less than one in 30,000 cases (you have to combine the regional U.S. Courts of Appeal and the Federal Circuit which is reported separately for statistical purposes to get the total). | (The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.) But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding. When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this). Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections. Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights. | I don't believe it is contradictory. Some kinds of injury are inherently difficult to calculate (e.g. damage to reputation caused by slander) but the judge or jury, as the case may be, will review the evidence and do the best they can. Lord Reed says as much in paragraph 38 of his judgment. ... and as a practical matter, it appears the damages, in this case, were both calculable and supported by evidence. The Court's primary focus was not whether damages could be calculated but rather the measure of damages (i.e. the method of calculation). | On an issue of pure law, an appellate court decides if the trial judge got it right or wrong from scratch, and if there is a case that is a better match than the one that the judge used that leads to a different outcome in the case, then an appellate court is likely to find that the trial court's ruling is a reversible error. On an issue of mixed fact and law, or on a legal issue where a judge has more discretion in how the law is applied (like many evidentiary issues), a judge is given more deference, and the judge will generally only be reversed if no reasonable judge could have applied the correct law to the facts viewed in the light in which the judge saw them, and then, only if an application of the correct law to the facts viewed in the light in which the judge saw them would have changed the outcome of the case. There are a couple of ways that this standard of review is described, one of which is called "abuse of discretion" review. | Congratulations, intrepid legal enthusiast or learner! What you'll need A legal dictionary, especially if you're just getting started. If you don't own one, you can try Black's Law Dictionary A little bit of patience and time. Or maybe a lot, depending on the particular case and the particular question you're trying to answer. Maybe a normal dictionary, too. Again, if you don't own one, there's plenty online. Onelook is a dictionary search engine, so it'll search a lot of dictionaries at the same time. Okay, I've got those things, now what? Alright, there's a few things you should know. Firstly, decisions of superior courts are binding only on those inferior courts within the same hierarchy. This means that you can appeal to a higher court so long as it has appellate jurisdiction. Generally, a state (meaning a country) will have a supreme or highest court, with appellate jurisdiction over all other courts - in Australia, this is the High Court of Australia, in the United States, this is the Supreme Court of the United States, and in the United Kingdom, this is the Supreme Court of the United Kingdom. Secondly, decisions of a court are generally binding only on the matter in dispute. For example, if in a case, the matter of whether the police owe a duty of care to citizens in detecting crime, a comment on whether the police had correctly parked their vehicle is not binding - it is called obiter dictum (plural obiter dicta). What we're looking for in a judgement is the ratio decidendi (plural rationes decidendi), which is the reason for the decision. This is what is binding, and would be considered in future decisions. The problem? It's not always easy to tell the ratio from the obiter. Finally, often, the only way to know whether our interpretation of a case is right is to see whether it is applied in a future case, or overruled. Examples, examples! Sure. Let's try something easy to start with. Do product manufacturers owe a duty of care to their customers? Yes. The decision in Donoghue v Stevenson [1932] UKHL 100 found that product manufacturers - in this case, a ginger beer manufacturer - have a duty of care to ensure their products are safe for use or consumption. Lord Atkin said: The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Okay, so the answer to this question is yes. How do I verify it? Get the source of the judgement. Without this, you're going to be relying on hearsay. The next best thing is a subsequent judgement that applies the one you're looking for, because if the judgement says what it's supposed to, it'll be mentioned in the subsequent judgement. I've found this one. Decide whether the matter in dispute is actually being decided. In our case, it is. But if I was quoting this from a judgement on whether product manufacturers have an obligation to transfer title for goods supplied on a credit agreement, it wouldn't be binding. Find the quote. If you've been given a quote. Otherwise, grab a cup of tea or coffee and get ready to read. A lot. If you can't find something that says, or means, what it's supposed to, it's probably not accurate. Make sure the judgement hasn't been overruled This is tricky, unless the judgement database you're using has a way of searching it. Most do. In any case, it's much like trying to prove a negative. In fact, it's exactly that. But always check whether the judgement has been overturned on appeal. Make sure the judgement hasn't been obsoleted by statute Again, this is tricky. It's proving a negative, again. And trying to find statute might be an answer for another time. Is that it? Pretty much, I think. These are at least the main points. There's a whole laundry list of things you shouldn't do with judgements, but they're more about reasoning than legal principles. It's a skill you can really only develop by using, and I'm constantly practising myself. Many discussions about cases are precisely about what their effect is. Yes, the decisions and orders are usually pretty clear-cut - for example, the decision is that the manufacturer has a duty of care, and the orders are for damages and costs to be paid. But what it means beyond that can be murky. Luckily for us, judges have become better at writing their judgements so that others can understand. Also, for more important cases, where the entire country, or world, is watching, others will interpret it for you - consider Obergefell v Hodges, for example. Not everyone can be trusted, but everyone, taken together, is a much more trustworthy source than just one person. In the end, there's not a mathematical formula for determining what judgements mean. There's some interpretation involved, some judgement. There's not always going to be one judgement that's enough to prove your matter. I'm struggling to end this post neatly so I'll just finish it with a cliff- | Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law. | I haven't reviewed the filings, but I can tell you that it's perfectly routine for lawyers to describe the other side's position as "plainly without merit," with no regard for the actual merits. The lawyer's job is to make his client look good, in court and in public; the existence of this question shows that he's doing a good job at least on the latter half of that equation. But in truth, it's such a generic thing to say that no lawyer who hears it will actually think it means anything. In all likelihood, the filing is like most others, in that it makes a good case on some points and a bad case on others, and the opposing lawyer's job is to argue that all of them are bad. In the rarer case that a filing is actually "plainly without merit," courts can and sometimes do impose penalties under Rule 11, which allows for sanctions against parties and attorneys who make factual assertions that are not supported by reality or arguments that are not supported by the law. | While the answer by Jen does a good job explaining why some possible alternative structures for US courts of appeal (circuit courts) would be unworkable, the real reason why we have such courts is their historical origin. In the United states, Justices of the Supreme Court regularly traveled through the country. They would stop at particular locations, and hold court together with the local judge of a district court as a two-judge court. Appeals from district court decisions were heard. Some were passed along to the full Supreme Court, particularly ones in which the Justice did not agree with the judge. Each Justice had a route, or "circuit" which that Justice covered once or twice a year on horseback (or by carriage) spending half or more of his time "riding circuit". The process was quite onerous, and was by far the larger part of the work of a Justice. It allowed decisions to be reviewed by a Supreme Court member at places physically closer to the original trials, and served as a filter on cases to be decided by the full court. This practice was derived from the older English practice of having Justices in Iter (later known as circuit judges) who traveled through the country, judging cases that had been held awaiting their arrival. (The word "Iter" is related to "Itinerary", the list of places one is scheduled to visit.) The Marshall Court and Cultural Change, 1815-1835 by G. Edward White (ISBN 978-0195070590) includes a detailed description of the process of circuit riding during the period of 1815-1835, and the way in which proceeding in the circuit courts influenced constitutional jurisprudence and how cases came to the Supreme Court. I recommend this extensive book for better understanding of the origins of many features of the US Judicial system. Some years after the US Civil war the Circuit Courts officially became the Courts of Appeals and Supreme Court justices stopped "riding circuit", but the geographical divisions continued to be called "circuits", and each circuit is still supervised by a single Justice, who rules on "emergency" applications, often for stays of judgement, or for injunctions. The division of the US court system into circuits thus is due as much to historical inertia as to careful design, although an alternate design that was an improvement would not be easy to create. |
Can criminal law be retroactive in the United States? I was watching a segment from CNBC on YouTube and was surprised by the fact that the government intends to make the tax rate retroactive after the law is passed so that the new tax rates will apply to stocks owned before the law was passed. I was wondering if in criminal law, the passing of a law that makes punishment retroactive after the law was passed is also possible making it possible for past crimes to be punished in the United States. | No. This is black-letter constitutional law. From Article 1, section 9: No Bill of Attainder or ex post facto Law shall be passed. | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | As far as I understand, no. In Canada, everyone has the constitutional right to be free from any cruel or unusual punishment, under the Canadian Charter of Rights and Freedoms: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. If you're guilty of a crime, well then, you're guilty. You're either going to be tried in court (and if you were guilty of that crime, then you will probably be found guilty), or you will plead as such. Before being tried, you could try to plea bargain with the prosecutor: plead guilty and be sentenced to a lesser charge. Say you were charged with assault with a weapon or causing bodily harm. You thought that the punishment was cruel or unusual - and thought that the trial judge had made an error in the law. In this case, you can make an appeal to a higher court. There are also other things that can factor this: mitigating and aggravating circumstances. If many circumstances are mitigating, then it may make way for a lower punishment, and vice versa with aggravating circumstances, where punishment may be higher. Again, this is something where if something was erred, you can appeal to a higher court. However, just because you think a sentence is too long won't constitute cruel or unusual punishment. In R. vs Latimer, the Supreme Court of Canada ruled that minimum sentences, even if within special circumstances, will not constitute cruel or unusual punishment, and be upheld. Originally, he had been sentenced only to one year, based on the recommendation of the jury. He had been charged with second-degree murder. The Supreme Court reinstated the default punishment: A life sentence with no eligibility of parole for ten years. | 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. | This story is plausible but the technical legal details are probably wrong. It is completely illegal to transport a pistol in a car in New York State if you do not fall into the list of exceptions § 265.01-b: A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Since the question mentions the firearm locked in a glovebox I'm assuming it is a pistol. Comments have suggested and certain exemptions in the law suggest that there isn't a licensure or registration requirement for manual action long guns, but I have not found the specific section exempting them from the possession law. There is a long list of exemptions to the possession law in § 265.20, but the only one that could be applicable to a person just travelling through the state might be section 13: 13. Possession of pistols and revolvers by a person who is a nonresident of this state while attending or traveling to or from, an organized competitive pistol match or league competition... Notably, for a regular citizen they must have a New York State carry permit to possess a handgun, and their long guns must be registered with the state: 3. Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter or possession of a weapon as defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this article which is registered pursuant to paragraph (a) of subdivision sixteen-a of section 400.00 of this chapter or is included on an amended license issued pursuant to section 400.00 of this chapter. Neither applies to someone simply travelling through the state to another state who hasn't fulfilled the appropriate license or registry requirements. What may apply, however, is the federal Firearm Owners Protection Act, which in part codifies 18 U.S. Code § 926A: Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. The notwithstanding in this case preempts state law and affirms that transporting a firearm between two states that allow the person to carry that firearm cannot be a crime assuming they meet the statutory requirements on carrying the firearm and ammunition. However, he failed to meet those requirements by keeping the firearm in the glove box, which the federal law specifically does not protect. Therefore, NY State law is allowed to apply and he can be charged with possession without a license under NY State law. The part about whether or not he stayed overnight being a distinction may be a retelling error or conflating this law with similar state laws that allow transporting firearms that are inaccessible in the vehicle as long as the vehicle doesn't stop in the state beyond minor pit stops (e.g. for gas). | 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. | The "point" of including bank-interest income on your tax return rather than having the government automatically deduct what it feels that you would owe is that the government is not legally empowered to take money away from you in that fashion. The government is legal empowered to compel you to pay your taxes, and there are numerous rules enacted as law or as a consequence of laws passed. You can read the various relevant laws here. There simply is no general law that says that banks must withhold taxes on interest. There might be a specific case when an entity is subject to backup withholding (as a response to a taxpayer not following certain rules). There are also special rules regarding non-resident alien withholding, which could require interest withholding. Apart from the intrinsic political unpopularity of imposing new withholding requirements on people, it is difficult to compute the correct amount to withhold, since not all interest is taxable. In theory, a set of rules could be constructed to require withholding of interest income, if Congress were to pass a law similar to 26 USC 3402. | As @cpast says in their comment, these are not equivalent punishments, the fine is for the lower end of the scale where incarceration is not warranted and the maximum gaol term is for the most egregious cases. That said, your supposition is almost certainly correct; statutes tend to be a "set and forget" thing, legislatures have a lot to do and going back to old laws to update fines in line with inflation is probably not high on their list of priorities. In order to overcome this problem all jurisdictions in Australia have adopted the Penalty Unit; fines in statutes are stated as a certain number of penalty units and the value of a penalty unit is set in various ways that usually do not require a vote in parliament. |
Does ambiguity in law go in favor of the defendant in a criminal case? Is it an out if the law a person is accused of breaking is ambiguous or in any way poorly written that an accused can be set free from it? I cannot think that every law enacted are made equally. Sometimes laws can be rushed while some party has enough power to do so, without the necessary care and thought as to the precise practical implications of the law. Surely, there must ways of dealing with poorly written laws when a person's future is at stake? | This is known as the rule of lenity. A common formulation of the rule of lenity is as follows: If a federal criminal statute is grievously ambiguous, then the statute should be interpreted in the criminal defendant's favor. Importantly, the rule of lenity does not apply when a law merely contains some ambiguity or is difficult to decipher. As this Court has often said, the rule of lenity applies only when “ ‘after seizing everything from which aid can be derived,’ ” the statute is still grievously ambiguous. The rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Kavanaugh J., concurring, in Wooden v. United States, 595 U.S. ___ (2022), citing Ocasio v. United States, 578 U.S. 282, 295, n. 8 (2016), internal citations removed. | Not the same way as there's protection against double jeopardy in the criminal system. If Person A and Person B both have claims against Person C, even if it's for the same act or omission, each of them can independently pursue those claims. Imagine what would happen if that weren't the rule: Whoever filed first would functionally be preventing the other one from recovering their claim. What's worse, Person A and Person C could collude (say, by presenting a bad case on Person A's side) and prevent person B from accessing relief that they're entitled to. The way that the courts prevent abuse of the system by people who want to keep re-litigating the same issue is a principle called res judicata. But that's a principle that only applies when it's the same parties – say, Person A sued Person C and lost, and so sued Person C again for the same claim. This limitation protects Person B against any collusion or just bad lawyering on the part of Person A. | Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that. | See jury-nullification. I'm not a legal historian, so I can't say for sure what the laws on jury acquittals were at that time in that jurisdiction. However, when a jury has final discretion to acquit a defendant of a crime that's it: They can effectively ignore laws if they want to acquit someone. Such acquittals do not set a precedent or have any bearing outside of the trial in which they issue their verdict. | If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask "Didn't you already convict A for this crime? what about that?" as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A & B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks "How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?" | This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations. | 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. | In the United States, the constitutionality of a law can be challenged in any court. Unless and until the court is reversed by a higher court, then the law will be considered unconstitutional and invalid. A jury can also theoretically nullify a law for any reason, including unconstitutionality, however, the jury's finding will only hold for that one case that they are trying. |
May I create a custom license plate myself (in Virginia) using a purchased blank plate? I live in America (VA), and I wanted to replace my current license plate with a customized one. I found an item on Amazon, which gives me a blank black license plate with white text. The original content and my license text is still the same, however now the design would be different. Are there are laws that prohibit doing what I want to do? I did some research and found that under the code of Virginia, § 46.2-722, it states: Any person who, with fraudulent intent, alters any license plate or decal issued by the Department or by any other state, forges or counterfeits any license plate or decal purporting to have been issued by the Department under the provisions of this title or by any other state under a similar law or who, with fraudulent intent, alters, falsifies, or forges any assignment thereof, or who holds or uses any license plate or decal knowing it to have been altered, forged, or falsified, shall be guilty of a Class 1 misdemeanor. I'm confused, does it mean that I can't use a license plate that I don't own, or does it prohibit the usage of the license plate I want to get? | forges or counterfeits any license plate That means you can't make your own. Certainly any created plate in different colors or design will attract attention of the authorities as well. You will need to use the license plate issued by the state. | In the United States, the U.S. Department of Transportation, by regulation sets uniform design and signage standards for federally funded highways, which most U.S. state and local governments incorporate, either by restating them or incorporating them by reference for non-federally funded roads. I imagine that most other countries have similar regulations. Nonetheless, this is extremely unlikely to prevail as a defense to the traffic violation of speeding which is usually a strict liability offense to which almost no affirmative defenses, excuses, or justifications may be considered. | The published statues pertaining to Vermont vehicle registrations reference operation by a person "on any highway." This specific statute applies to a motor vehicle or trailer. A person shall not operate a motor vehicle nor draw a trailer or semi-trailer on any highway unless such vehicle is registered as provided in this chapter. There are no references I could find regarding private property within the statutes. It's common to consider that any vehicle operated exclusively on private property can be done so without registration and therefore without the inspection. | 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. | Generally, it's illegal. You are creating a derivative work and you are not allowed to do that without the permission of the copyright holder. Some jurisdictions may have exceptions, such as fair use under US law. However, this generally protects uses that are intended to comment on or parody the work. It doesn't sound like that is the purpose of your image modification. NOT including: faceswaps, modifications that would shame or affect negatively the reputation of the actors on the image. That doesn't make it legal. I share it in a way that I don't make any economic profit out of it, and clearly stating that it is a modified image (not sure if inside the image, or in the caption under it) and state who is the legal owner of the original image. That doesn't make it legal, either. | Yes, barring any statutory prohibitions against such a rule. I would be very surprised if any existed. They don't exist in any jurisdiction I'm familiar with. Look up the local by-laws to be sure. | In all honesty, this completely depends on the judge you happen to get that will hear your case. There's no straight-forward "yes this will work" or "no this won't work" answer in a case like this. But a couple things to keep in mind: The fact that he was from out of town doesn't matter. If signs were displayed, then he has to obey the signs. Your argument about the placement of the signs may or may not work, again depending on the judge. But make sure you take more evidence than just some numbers derived from guess work (you'll need pictures of where the car was parked, where the signs are at, and exact measurement between the two signs and the vehicle, pictures of obstructions, etc). It's up to you to decide whether collecting all of that is worth the $45. Someone has to pay the ticket. You cannot just go to court and get it dismissed because you weren't driving. By default, the parking ticket obligation falls onto the owner of the vehicle. If you know you weren't driving, you can then request the person who was to reimburse you, or even sue them for reimbursement if they refuse. Continuing from #2, in some jurisdictions and especially if the parking ticket was issued by a private company (like at a strip mall) that doesn't use police enforcement for parking, you can provide them with the name and address of the person who was driving and have them re-send the ticket to the correct person, but not always. However, relying on this is a bad idea. The ticket, while issued to another person, is still attached to your vehicle and if the other person refuses to pay, it's your vehicle that will be impounded, booted, etc if the ticket is left delinquent. Then you just have even more hassles to deal with. Having outstanding tickets for your vehicle could also affect your insurance premiums. Don't let this linger for too long. Get on top of it and decide what the two of you are going to do as soon as possible. | As described, this may be a form of illegal bait-and-switch advertising, but not breach of contract. The contract states the specific vehicle to be sold, which does not match the test-driven car. If the dealer had listed the better car's VIN in the contract but supplied a different car, that would be breach of contract. Whether it is illegal advertisement depends on the representations and disclaimers made by the dealer. To the extent that the dealer supplied indications that there was a difference between the test model and the purchase model, or to the extent that the customer should have known that the test car had features not found in the specific model that the customer believed he was buying and paying for, the dealer was being non-deceptive. To the extent that the dealer holds that selling model X instead of model Y is an "honest mistake" on their part, the dealer was being deceptive (or, was plainly in breach of contract). It's hard to see what "honest mistake" the dealer might have made, but perhaps the mistake was "not being clearer to the customer that they had test-driven a fancier model, not the one that they were actually buying". The customer's attorney could pursue this matter and either get the better car, or get a better financial deal, but it really hinges on who said / wrote what (and has a more believable story about what was said). |
Can I sell the file OR a print of a 3D model that I significantly altered? I downloaded a freely available .stl file that is a fan-made model of a space ship from a well-known sci-fi universe. The fan posted the file under a Creative Commons - Attribution - Non-Commercial license. I edited it significantly (by reshaping, deforming, resizing, adding details, etc.) and put it onto a stand I created. I 3D printed the resulting model and use it as a piece in a board game. Two of my friends saw it: one wants to buy a printed copy from me and the other wants to buy a copy of the .stl file so that he can print it himself. Am I allowed to sell either of those things to my friends? One of my friends is telling me that since I've altered the work by more than 30%, it's mine and I can sell it. If I do the same thing with a 3D file that has only a Creative Commons - Attribution or Creative Commons - Attribution - Share Alike license, could I then sell it? | 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. | No. You may not do this. As your post points out this is a blatant copyright violation. It isn't remotely in the realm of fair use. | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | It is reasonable to interpret the statement in their Github repository README.md as a "public domain" license for anything contained there. However, their "usage guidelines" backpedals a bit ("generally are not copyrighted", the misleading implication that content used commercially is subject to restrictions that educational and personal uses are not subject to). Although it is true that works "created by the US government" are not protected by copyright, not everything associated with a government agency is created by the US government. An agency might have a policy that they will not post material that is not copyright-free, there is no practical means of knowing if an item is an actual government work, versus a government-supported or government-hosted work (where copyright is held by someone else). If you trust their implication that all of those items in the repository are indeed government works, then they are free of copyright. I don't know any reason to not believe them, although sometimes the government is wrong and they end up liable big-time for infringement. However... NASA Open Source Agreement Version 1.3 (another copy on a NASA web page) on first glance seems to contradict the "government work" theory. Here, they claim to grant certain rights to users and also impose impose restrictions (including obligatory registration). This does not make any sense for a work that is in the public domain. The license is legally defective in that it fails to fill in relevant blanks (agency name, title of work, URL for obligatory registration). Also notice that the license is only for software. The scope of that license therefore has to be something narrower – it applies only to software, and presumably software that is not "a government work". I have no idea what software NASA could legally give away and is not a government work which is therefore not protected by copyright. | Yes, that’s allowed. Under the Stack Exchange terms of service, content you upload is licensed to Stack Exchange Inc. on a non-exclusive basis under CC-BY-SA 4.0. The terms of service do not give Stack Exchange the copyright to your contributions, and a non-exclusive license means you are not promising Stack Exchange that “only Stack Exchange will be allowed to use this content.” That means you can continue to do whatever you want with your own content and do not need to mention Stack Exchange at all. The only restriction is that you can’t stop Stack Exchange from continuing to use your Stack Exchange content under CC-BY-SA 4.0, and since it’s a Creative Commons license you also can’t stop anyone else from using your Stack Exchange content under that license. | This is known as "film novelization"(For example, the novelizations of the Star Wars movies are film novelizations, created under license), and is copyright infringement unless made under a license from the copyright holder. Specifically, you would be making a derivative work of the original, by changing the medium. One of the rights provided by copyright is the right to control the transference from one medium into another. This, in my (non-lawyer) opinion, is unlikely to be found as fair use. There are four test factors for determining fair use(source), decided on a case by case basis: Transformative Character of the Derivative Work: Unlikely to be found in your favor, as nothing is transformed ("I don't change anything, the name are the same, everything is the same, it's just a conversion to textual form"). Nature of the Original Work: A narrative entertainment film, thus unlikely to be found in your favor. Amount and Substantiality of the Portion Taken: You've taken all of it; not in your favor. Effect on the Potential Market: You are essentially providing a free version of what copyright holders can often charge for; negative effect on their potential market. Not in your favor. | Your understanding of the GPL is a bit off. GPLed code doesn't generally force you to GPL the output of the program, but that's just because the output of the program is normally not a derivative work of the program. For instance, if you write a novel in Emacs, your novel is an entirely original work. The fact that you used Emacs as a tool doesn't mean that your novel is somehow based on Emacs. This generator is different. It generates sprites by putting together art assets made by the program's creator. That means that the output contains a substantial amount of content made by the program creator, which means that it would likely be covered by the program creator's copyright. If the content was licensed to you under the GPL, you normally have to abide by GPL restrictions when you redistribute the content or incorporate it into your own program. Copyright holders can, if they want, grant additional permissions to their content and allow you to incorporate that content into nonfree software. For instance, the GCC compilers have an additional permission for their runtime libraries to let you use them in any GCC-compiled code; without that permission, GCC could only be used to compile GPL-compatible code. But unless the copyright holder has granted those permissions, when program output contains large amounts of their copyrighted content you're bound by the GPL when using it. In this case, the program specifically says that the art is dual-licensed under GPLv3 and CC-BY-SA-3.0. Since the generator's output is a combination of premade art assets (the buttons just let you tell the program which art assets to combine), the output is a derivative work of those assets. You can't use it unless your use is compatible with the GPL v3 or CC-BY-SA-3.0 (either works, since dual licensing lets you pick either license). | You need permission from the copyright holder(s) to make the prints at all unless it falls under some fair use doctrine or is a work in Public Domain. If permission is granted, it would presumably involve you paying money on some negotiated basis. An artist might flatly refuse to give permission to your plan to use their art as a component of your art. |
Can you appeal a case after a higher court renders a favorable opinion about a law? In the U.S. Supreme Court's case, 'Monasky v. Taglieri', an opinion was rendered regarding how jurisdiction findings related to 'Habitual Residence' under the Hague Convention are determined. Could parties who have lost previous cases appeal their cases given the new standard if the standards applied in their cases were in error? If appeals can be made, or not, what doctrine/law clarifies this? What is the time window for such appeals? | canada The appellant would still be expected to file within the required time limits (30 days after the would-be appellant's judgment in the lower court). A judge of the court of appeal has the discretion to extend time, but this is subject to established criteria. For example, the criteria in British Columbia are (Morden v. Pasternak, 2022 BCCA 268; citing Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (C.A.)): Was there a bona fide intention to appeal? When was the respondent informed of the intention? Would the respondent be unduly prejudiced by an extension of time? Is there merit in the appeal? Is it in the interest of justice that an extension be granted? If the highest court in the country had recently issued a decision clearly favouring the appellant, I predict this would weigh in favour of granting an extension of time under the "merit in the appeal" factor. However, that factor is not dispositive, and it will not excuse a long delay. This might seem harsh, but there is an interest in finality and a concern about prejudice to the respondent. And if the appellant thought they had an argument on appeal, they could have appealed within the time limit to potentially challenge the precedent themself. | Short Answer Yes, Supreme Court decisions apply everywhere right away. (Unless the decision says it doesn't.) No, we do not have to wait until new laws are passed. Explanation Judicial Review Marbury v. Madison (1803) established the principle of judicial review under Article III of the U.S. Constitution. This allows the court[s] to interpret laws passed by legislatures. And this is the basis for applying the ruling everywhere (in the U.S.) immediately. From Marbury at 178: if a law be in opposition to the Constitution [...] the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. [...] the Constitution of the United States confirms [...] that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. Judicial Restraint (Nominally) courts either interpret or invalidate existing law. In the former case, the law will persist (with the new clarity added by the decision). In the latter, the law will be struck as unconstitutional and, therefore, no longer exist. | Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts, as the Congress may from time to time ordain and establish. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court. | In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Supreme Court held: A federal court may “look through” a §4 petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group [535 U.S. 826], however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication. Discover sued Vaden to recover a credit card debt in state court. Vaden filed a counter-claim challenging the charges under state usury laws. Discover filed a claim in federal court seeking to compel arbitration under 9 U.S.C. §4, which provides: A party aggrieved by the alleged failure … of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction … of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed … "Look through" analysis gives effect to the bolded words. A dispute about arbitrability itself is not sufficient to attract federal jurisdiction. But the petition does not need to be based on an existing claim in federal court, either – the court can "look through" the petition for a claim that would attract federal jurisdiction. Although Discover's debt recovery claim was based solely on state law, Discover asserted that the court would have had federal question jurisdiction because §27(a) of the Federal Deposit Insurance Act preempted the state laws supporting Vaden's counterclaim. The Supreme Court agreed that the district court should "look through" the §4 petition and consider the possible existence of federal jurisdiction, but reversed the court of appeals' finding that Discover's claim "arose under" federal law for the purposes of 28 U.S.C. §1331. The Supreme Court applied the "well-pleaded complaint rule" to Discover's §1331 claim, which required the court to focus on Discover's original (state law) claim, not its response to Vaden's counterclaim. To answer your question, "look through" analysis does not require the court to consider the "merits" of a federal claim before compelling arbitration. However, it is not sufficient that the dispute "seems to be of federal nature"; the court must conclude that (but for the arbitration agreement) it would have jurisdiction. The disagreement between the Supreme Court and the court of appeals in Vaden, which related to the scope of federal jurisdiction rather than the application of "look through" analysis, demonstrates that disputes about whether jurisdiction would have existed can become very complex. Thus, in general, a federal court should not decline to compel arbitration of a federal claim because "the case would have been dismissed summarily had the court been asked to rule on it." However, the court must dismiss the petition if the federal claim is so insubstantial that federal jurisdiction is not attracted at all. As the Supreme Court held in Hagans v. Lavine, 415 U.S. 528 (1974): Over the years, this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," or "no longer open to discussion." | In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue. | It is the lower courts' interpretation of a senior court's judgment—specifically the ratio—that determines what is the precedent. If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended. For example, a court could say that this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts. Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the ratio was being applied too widely. (I have read examples of the explicitly narrow ratio, but haven't been able to find any today) | Res judicata in the broad sense The relevant rule is stated in Henderson v Henderson (1843) 67 ER 313: where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. A more recent statement of the law appears in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160; [2013] UKSC 46: Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle … Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. These principles apply when one claim is decided, and in subsequent proceedings, the plaintiff raises issues which "could and should have been" addressed in the first claim. Consolidating pending cases Your question raises a slightly different situation, where two overlapping claims are brought at the same time. Doing this to avoid paying court fees is likely an abuse of process. It would also breach the plaintiff’s duty to help the court advance the overriding objective of dealing with cases justly and at proportionate cost. If both cases are pending, the overriding objective can be achieved by consolidating the cases or transferring them to a more appropriate jurisdiction. If the court does this, on its own motion or at the request of the defendant, the overlapping causes of action can be determined in one judgment. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! |
What is the legality and practicality of conducting litigation under a pseudonym? When one goes into a police station (okay, when one is brought in for a recordable offence), one is fingerprinted and identified against big databases of identities. Even if this doesn’t happen, there is still a degree of record checking and matching. For example, “do we have anyone in the system with this date of birth and similar features but different name?” And other efforts to match the prisoner’s identity with one known to the master database. In court there appears no effort to exercise skepticism with respect to the litigants’ identities and little safeguards in the way of preventing anyone for standing in for our impersonating any of the parties. Not in the courtroom, and not upon entering the building and passing security. Not even inspection of ID documents. From experience, this appears true in the magistrates', Crown, and county courts although in criminal proceedings one is asked to confirm one’s identity including date of birth is correct. In general, is there a reason for this lack of exercised skepticism and forensic scrutiny when courts are generally so principally concerned with truth and probity? Apart from this empirical/historical question about court practice, what about the legality? One can easily imagine that in Criminal proceedings, impersonating a defendant and then actively, explicitly deceiving the court is unequivocal contempt and perjury. But suppose one wishes to bring a civil action under an alias that one assumes from the beginning of pre-action proceedings until the conclusion of the action. Practically speaking there appears to be nothing standing in the way of this. And furthermore, I recall a decision from either the UKHL or the EWCA that discussed how generally the laws of England have always allowed one to assume and use whatever name one may please to. How does this compute with the litigation question here? Is there anything unlawful of assuming a different name under which one wages a lawsuit? | In an adversarial legal system, the parties are responsible for framing the issues in dispute and adducing relevant evidence. The parties, and perhaps more importantly their lawyers, also have an obligation of candour to the court. Courts routinely accept unchallenged assertions because there are serious consequences for misleading the court, and the opponent (rather than the court which should remain neutral) is in the best position to investigate and prove any suspected dishonesty. It is a matter for the party commencing proceedings (plaintiff or prosecutor) to decide how the parties will be named. People often change their names, and may use multiple spellings. It is not uncommon for typographical or other errors to appear. Generally, it is in the interest of at least one party to name the parties "correctly," ie. consistently with other government records that will be used to enforce any judgment, but a person's name is ultimately a formal matter that can be corrected if necessary. In cases of uncertainty, aliases can be specified, as occurred in Microsoft v McDonald (aka Gary Webb) [2006] EWHC 3410 (Ch). A person who is genuinely known by an alias (ie. the use of the alias is not part of an attempt to mislead the court) should use their "real" name in court, but could potentially conduct litigation using the alias without anybody noticing. However, court proceedings are public and this would not necessarily protect the person's identity. To achieve this, an anonymity order under CPR 39.2 is required, as explained in XXX v Camden London Borough Council [2020] EWCA Civ 1468 [13]–[22]. | To quote Wikipedia: In theory anyone who is at least 16 and resident in the United Kingdom can call themselves whatever they wish. In practice, however, some form of documentary evidence is required when changing your name on bank accounts, passport, etc: Documentary evidence of a change of name can be in a number of forms, such as a marriage certificate, decree absolute, civil partnership certificate, statutory declaration or deed of change of name. While it seems likely that a certified translation of your marriage certificate would probably be sufficient, it may be quicker (and cheaper) to use a deed of change of name. (See also the government advice on the subject.) | There is no US law licensing journalists or people who report the news, or requiring such people to identify themselves by legal name. Nor can there be under the US First Amendment. There is also no law requiring a person to identify himself or herself by legal name online. Some sites, including Wikipedia, have policies against having multiple undisclosed user IDs for the same person, but that is a matter of the site's own rules, not a matter of law. Any US law mandating this would again run afoul of the First Amendment to the US Federal Constitution. This article on Anonymous Speech reviews and cites a number of US Supreme court cases on the subject of anonymity, mostly in political contexts. This article from the Electronic Frontier Foundation (EFF) discusses the same general subject. Both articles mention that The Federalist (analyzing and advocating for the then-unratified US Constitution) was originally published under the pseudonym "Publis". The EFF Article "Court Recognizes First Amendment Right to Anonymity Even After Speakers Lose Lawsuits" discusses the 6th Circuit case of Signature Management Team, LLC v. John Doe in which it was held that an anonymous blogger who lost a copyright infringement suit could nonetheless remain anonymous. This page apparently from a Harvard course, lists and briefly describes several cases on the same subject. In Doe v. Cahill, 884 A.2d 451 (Del. 2005) an elected official sued an online poster for defamation, and sought to force the ISP involved to disclose the poster's identity. The Delaware Supreme Court ruled against this, setting a standard offering greater protection for such anonymous online speech than previous cases had. This answer is very US-centric. Laws in other countries are different. The OP has not specified a country or jurisdiction. | a gutter cleaner drops a leaflet with phone number, and as my gutters needed to be cleaned I called him, we met and I gave him a deposit for the work in cash. The gutter cleaner put everything in writing at the back of the leaflet and signed it. In other words, you have a written contract which you fulfilled but the other party did not fulfill, so they now either owe you a service or your money back. This is a civil law matter which you can bring to a county court. You have a telephone number, so it should be possible to identify the other party. lure him into a trap. But then- how do I turn him into the police and keep everything legal? Was thinking of using pepper spray, but I live in Newcastle, and it's illegal to use it in the UK. Any ideas? This is a very bad idea! Apprehending suspects is the job of the police, not yours. Well, there is the concept of a citizen's arrest, but this is only an option in a very limited number of cases, specifically when you catch a criminal in the act and need to prevent the suspect from getting away before the police arrives. And even then you are on very shaky legal ground if the suspect claims you used more force than necessary or if the court doubts that a citizen's arrest was necessary in this particular case. And in this case a court probably won't believe that a citizen's arrest is justified, because the gutter cleaner probably didn't even commit a crime. They just violated a contract. That's a civil matter, not a criminal matter. It might be a criminal matter if they never intended to fulfill the contract (fraud), but you don't know that. If you use violence on a person just because they owe you money, you are very likely committing a crime yourself. | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. | What if somebody copies your signature on a contract that says you can't sue them? what can the judge do to stop this paradox? I will assume that by "copying the signature" you mean "without the person's consent". In that case, the contract is void and consequently unenforceable. However, it would need to be proved that the person whose signature was unlawfully used did not intend to be a party to that contract. For a contract to be valid, the parties must have knowingly and willfully entered it, whether it is via a document or through their subsequent conduct/actions. False pretenses, identity theft, and akin offenses preclude these two essential requirements of any contract. Moreover, if the person who forged the signature is a party to the contract, then that unlawful act clearly contradicts the prerequisite "covenant of good faith and fair dealing" that is presumed in contracts. The remedies or actionability available to a person whose signature has been forged depend on the laws of each jurisdiction. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | Am i going to jail? I'm so scared. No, probably not. The details depend on jurisdiction, but normally the only crime you could be accused of would be that of forgery. However, forgery by definition requires an "intention to deceive". So my personal advice would be to come clean immediately: Go to your employer, and tell them you did not understand the checkout system and accidentally signed yourself, instead of having the customer sign. If you do that, what you did would not count as forgery, because (as you explain) you did not do it on purpose to trick someone. Now, your boss may still decide to discipline you in some way, maybe even fire you, but that's out of your hand. If they are reasonable, they'll hopefully understand a minor mistake on the first day. That said, it is possible your jurisdiction has special penalties for incorrectly filling out medical documents, so there may be more to it - but I doubt it. To be sure, try asking someone you know and trust who is familiar with the legal rules around medication. Or book a single consultation with a lawyer - this is not cheap (typically around $100 in the USA, or 100€ in the EU), but will give you peace of mind. You could also try asking around if there is a local initiative which offers legal help, possibly a professional organization or trade union. |
Since the UN charter is amendable easily. What is stopping nations from amending it to have less UN obligations? It seems like a pretty intuitive thing to do. They could even invalidate various treaties they have signed. | The UN charter is really hard to amend It requires approval by two-thirds of its member states, and ratification by two-thirds of its member states, including in both cases by the five permanent members of the security council (the USA, the UK, Russia, China, and France). It's happened a total of 3 times, in each case, for completely non-controversial reasons. | This is a hard question, but a good question. The following relates to the issue from the perspective of the USA. You ask "...if the US wants to invade France, can they officially declare war by...", You have to make clear what you mean by "can". If you mean whether or not the US has the physical ability to do this, then of course they do. If you mean whether they are allowed, then this is another question. When you ask whether something is allowed, then you have to make reference to a moral code or a law that determines what is and what isn't allowed (legal). Normally each country will have laws that govern what is and what isn't legal for it's citizens to do. That hard part is how this applies to nations. There are two sides to the question. (1) What are the leaders allowed to do under their own laws, (the domestic laws) (2) what are countries as entities allowed to do? (the international laws) It sounds a bit like you are asking about the second thing. Here treaties govern what is and what isn't "legal". However, usually when someone breaks a law, other entities have the power to enforce that law and decide (judge) whether the person has broken the law. The question is: who decides whether a country has broken a treaty or an international law? And if a law is broken, what exactly can be done about it? This is hard to answer. Consider for example the conflict in Ukraine. Here many will argue that Russia has piratically invaded Ukraine. There should be war between the nations. But Russia denies this and other world powers have done little beyond imposing sanctions. This illustrates how hard it is to deal with this question. One question that comes up is what the purpose of international treaties are if a country can just violate them without much consequence. Pointing out two points about this. (1) If, for example, a president wants to convince his/her own congress that the country should engage in war, then it makes a stronger point if you can show how the country you want to engage has violated international trities. (2) After you have won a war, you might want to prosecute the leaders of the loosing power. Here you will stand stronger if you can make references to some international law that existed before the conflict started. This second point is illustrated in the Nuremberg principles. Here it was exactly stated that "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." According to the US constitution "Congress shall have power to ... declare War". That means that historically Congress has the power to decide where to wage war. The War Powers Resolution says, for example, that "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities ...". Note that this doesn't mean that the US has do formally declare war before going to war. Example: The Iraq War was authorized by Congress, but there never was a formal declaration of war. It is interesting that you ask about the timing for when the declaration should be given. The Japanese wanted to deliver their declaration of war just before the attack on Pearl Harbor. But because of issues with decrypting the message from Japan to the Japanese Embassy, the declaration wasn't delivered until after the attack. Remember also in all of this that the winning party to a conflict, usually decides what was and wasn't legal! One good reference for more on all of this is the report by the Congressional Research Service called "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications". Here you can see more on what I have tried (and failed?) to say above. | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | It sounds to me like the parties made proposals with an intent to draw them up and formalize them but didn't intend to form binding agreements. The first agreement sounds vague. The second was committed to writing, suggesting that the written deal was to be the real agreement, and not executed. In the last case, it doesn't appear that there was an agreement because there was no meeting of the minds on the essential term, which was the price. Going to court is expensive. It is expensive whether this is litigating underlying disputes or trying to enforce an alleged oral settlement that is disputed. Also, settlement discussions that don't result in a resolution are not admissible as evidence in court. Making a deal would be nice, but Dave's concept of what constitutes a deal seems to be out of touch with reality. | At the time of annexation of country X someone would have to decide the status of the countries citizens: If all citizens of X are now citizens of the USA, and whether they are legally citizens from the date of annexation or since they were citizens of X, and if they are considered residents in the USA since the day they became residents of X, and if they are retrospectively "born in the USA" if they were born in X. And other things, like whether non-citizen legal residents of X are now non-citizen legal residents of the USA. That has to be decided for many reasons, and the answer to your question follows naturally from this. Maybe you could check on a history site if anyone knows how this worked with Hawaii. | No Recognition of territorial claims is the sole province of the diplomatic branches of national government, and of heads of state. In the US it is the State Department, and ultimately the President. The actions of telephone operators and people engaging in other forms of communication cannot and do not bind the decisions of the President, or of other heads of state. Besides, there may be cases in which a telephone country code or a web domain may not match the actual, undisputed legal status of a territory. Accepting a phone call does not affect a country's legal status. For decades the US did not recognize the communist regime in China. Legally, it considered that the Republic of China (aka Taiwan) was the only valid government, and the acceptance of telephone calls did not change that. | You are indeed thinking of the Vienna Convention on Diplomatic Relations of 1961. This codified a portion of existing customary international law on diplomatic immunity. It is the result of several years of legal negotiations at establishing a common set of rules that would be generally acceptable. The basic concept of immunity for ambassadors is very ancient, and there is still a body of customary international law that was not codified. For example, the 1961 Convention only deals with permanent missions, not temporary ones like for multinational summits. The history and practice are also helpful for interpreting the Convention itself, such as when considering the scope of diplomatic duties which are protected, as opposed to extracurricular activities which might not be. In the UK, the Convention is implemented by the Diplomatic Privileges Act 1964. This mostly repeats the relevant parts of the Convention text, in Schedule 1, and also includes sections integrating those provisions with domestic law. As far as the courts, section 4 says that If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. This means that what happens procedurally in a UK court is that someone wanting to claim immunity must come with a letter from the Foreign Secretary attesting that they are a real diplomat and not just making it up. The court then considers, from that fact, what legal consequences follow, depending on the type of diplomat involved (e.g. heads of mission have broader protection), the nature of the case (criminal case where the diplomat is accused? civil case where they are the respondent?), etc. That is a matter of interpreting the Convention, plus maybe customary international law - it doesn't mean the diplomat gets to wave their certificate and end the proceedings. The purpose of section 4 is to avoid the court entering its own fact-finding process about whether someone is a real diplomat. That is felt to run the risk of the court causing diplomatic offence by accident - consider Israel and Palestine and China and Taiwan for potential pitfalls. The doctrine of "one voice" obliges the courts to follow the executive's lead. Prior to the Act of 1964, diplomatic immunity was covered by several other enactments, but with the same basic model for implementing immunities in court. There were different regimes for Commonwealth countries and others, which is not the case any more. The first such Act was passed in 1708 after an embarrassing situation with the then ambassador from Russia, who was imprisoned for his debts, angering the Tsar. In general, domestic courts in the UK can take account of customary international law if it is relevant. They can also look at treaty texts, even ones the UK has not signed, to help interpret international law. (In the same way, they can look at academic articles, travaux préparatoires, etc., which have no formal status as law.) If the UK signed the 1961 Convention but did not pass the 1964 Act, then courts might be able to treat the Convention as "background" - but would still be bound by the 1708-1955 Acts on the topic, as far as the actual procedure and rules to follow. A diplomat would not be able to avail themselves of their specific 1961 rights, unless perhaps there was some gap or ambiguity in the domestic law where they could squeeze in an argument that the Convention supplied the proper interpretation of whichever point of customary international law was involved. | The most commonly used definition for statehood is the declaratory theory, codified by the Montevideo Convention. This says that statehood doesn't depend on recognition by other states; it merely requires four things: A defined territory A permanent population An effective government The capacity to enter into relations with other states. You immediately run into issues around the defined territory (you don't really have one) and the capacity to enter into relations with other states. But let's ignore those for a second. Meeting these requirements in some abstract world doesn't mean you get treated like a state. If no one else agrees with your claim to statehood and they act inconsistently with it, you have little recourse. You might get them not caring enough to do anything about it, but if they decide you're not a country you're out of luck. You have some misconceptions about statehood as well. A country is allowed to forbid trade with any foreign country, even ones it recognizes as sovereign states. See: US embargo on Cuba. It is also entitled to deny foreign ships access to its ports. Ships flying the flag of a sovereign state are entitled to innocent passage through territorial waters of another state, but not to the use of that state's ports. A country can certainly allow people to be killed and still be a country. See: the US, which has the death penalty for certain crimes. But if you're killing nationals of a foreign country, that foreign country is likely to take a keen interest in your activities. If the killings are judicially-ordered executions based on violations of your penal laws, that's one thing -- Australia might consider it awful that an Australian citizen was shot by Indonesia for drug smuggling, but they recognize that Indonesia is a real country with its own laws that it has a right to apply. If it's just lawless there, the keen interest might culminate in a travel warning. But in more extreme cases, or where the killings are of people who didn't willingly enter your territory, you're looking at potential military action. |
Can state or city police officers enforce the FCC regulations? Suppose I'm using an amateur radio transceiver in my car. I'm not breaking any traffic laws, but I am talking in a secret code, which is illegal under the FCC regulations. Can a state or city police officer pull me over and detain me or write a ticket for my violation of the FCC regulations? I'm using amateur radio as an example, but the question applies to any part of the Code of Federal Regulations. | A state or local law enforcement officer cannot enforce federal laws unless the officer has been deputized by the federal government to do so. State and local law enforcement officers are sometimes deputized to enforce federal law, but this would almost never be done in the case of FCC regulations. | There is a state law that requires you to obey the police: ORC 2917.13, which says you may not Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot, or emergency of any kind. If you do, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree. You also cannot Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind "Hamper" is not defined statutorily, but the plain meaning of "hamper" is not the same as "fail to assist". We have not established that the order is lawful, however, which is crucial. The police cannot just freely search a residence without permission. If they have permission from the occupant, they can search and seize. If they have probable cause to believe that a crime exists and the circumstances make a warrant impractical, they can search and seize. I don't know what you mean by "wellness check", but that seems plainly to be unlawful entry. However, if the resident calls 911 and reports that he is having an issue, that is sufficient consent for entry. In the case of a fire alarm, the fire code authorizes a fire department official in charge of an actual emergency response incident to order the evacuation of a building, and occupants are required to comply. If we suppose that the smoke detector in a room has gone off, the fire department is authorized to inspect for fire, and there is a provision under the law about failure to obey a lawful command (to open the door so that they can look for fire). Problem: you cannot know whether the order is lawful. The officer doesn't decide what is lawful, the courts do (after the fact), and typically a command is found to be lawful unless it is clearly unlawful. The order from your supervisor is not "enforceable" in the sense that you cannot be arrested, imprisoned, or fined for disobeying your boss. However, there is a potential club they can use against you, namely firing you for disobeying the order. Normally, you can be fired for wearing the wrong shirt. But there are laws about employers doing illegal things, such as ORC 4113.52, which provides recourse when the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety etc. In which case you report this to the supervisor, they have 24 hours after getting the report to correct the situation, and after that you would report the situation to the county prosecutor. (Read all of the details in the linked law, don't just skip steps: this is an executive summary). Having done this, you are protected from being fired, demoted. reassigned etc. The employer will be strongly motivated to not incur the penalties for violating the whistle blower statute. Additionally, you can sue the employer if they fire you for refusing to violate the law (termination in violation of public policy). | Yes. This doesn't remotely approach the threshold to which the excessive fines clause applies. Also SR-22 insurance isn't a fine, it is a requirement that you take extra responsibility because you are a high risk driver. In general, states have broad authority to regulate the right to drive a car. | In the United States, individual members (States) of the union are allowed to make their own constitutions and state laws & regulations. This includes laws that may contradict Federal law, although this is a grey area. It usually comes down to enforcement: Federal laws are usually enforced by Federal law enforcement as they can not force states to do so. Further more, State prosecutors will usually not attempt to prosecute you for a Federal law infraction. Only Federal prosecutors OR the department of justice will do this. To see a more detailed explanation on this, look at this "How Stuff Works" article. | This would probably constitute illegal wiretapping and would certainly constitute a 4th Amendment search if conducted by law enforcement. Normally, the definition of whether something is "public" for purposes of an expectation of privacy is whether it could be detected by a human being unaided by technological enhancements from a place where someone could lawfully be to make that kind of observation. Some of the relevant cases are Katz v. U.S., 389 U.S. (1967) (tape recorder outside a public telephone booth was a search violating the expectation of privacy) and U.S. v. Karo, 468 U.S. (1984) (tracking device placed in barrel by authorities violated expectation of privacy). RFID signals are not "public" even if they are not encrypted with a private code because a device, such as the ones identified in the question, is necessary to receive them. The Wiretap Act, codified by 18 U.S. Code § 2511, is a federal law aimed at protecting privacy in communications with other persons. Typically, when you think of a "wiretap," the first thing that comes to mind is someone listening to your telephone calls. But the Act protects more than that. Under the Act, it is illegal to: intentionally or purposefully intercept, disclose, or use the contents of any wire, oral, or electronic communication through the use of a "device." The Act provides criminal and civil penalties for violations, although it creates various exceptions to when interceptions and disclosures are illegal. From here. In this circumstance, despite being passive, one is intentionally intercepting the contents of electronic communications through the use of a device. The fact that there was not in all cases an intent to communicate through, for example, an RFID chip, on a specific occasion probably does not suffice to render it not a communication. | Try the phone or email contacts at Florida Department of Law Enforcement - Home. The state of Florida doesn't appear to maintain a statewide officer registry, but that department should be able to verify someone is or isn't a officer in conjunction with the police department closest to your location. If this neighbor is threatening or attempting to enforce the law while not showing ID that proves he/she is an officer, that's serious, and you should call the local police department. Talking about being a LEO while drinking beer at a BBQ is less serious, but still could be a third degree felony. See Statutes & Constitution - Florida State Statutes: 843.08 False personation.—A person who falsely assumes or pretends to be a firefighter, sheriff, officer of the Florida Highway Patrol, officer of the Fish and Wildlife Conservation Commission, fire or arson investigator of the Department of Financial Services, officer of the Department of Financial Services, officer of the Department of Corrections, correctional probation officer, deputy sheriff, state attorney or assistant state attorney, statewide prosecutor or assistant statewide prosecutor, state attorney investigator, coroner, police officer, lottery special agent or lottery investigator, beverage enforcement agent, or watchman, or any member of the Florida Commission on Offender Review and any administrative aide or supervisor employed by the commission, or any personnel or representative of the Department of Law Enforcement, or a federal law enforcement officer as defined in s. 901.1505, and takes upon himself or herself to act as such, or to require any other person to aid or assist him or her in a matter pertaining to the duty of any such officer, commits a felony of the third degree, | 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. | Yes. 47 U.S. Code § 333 (part of the Communications Act of 1934 as amended) bans willful or malicious interference. § 501 imposes a general penalty for any violation of the Communications Act that doesn’t have a different penalty defined elsewhere in the Act. A first offense is a misdemeanor punishable by up to a $10,000 fine and/or up to a year in jail. Subsequent offenses are felonies punishable by up to 2 years in prison. In practice, this might result in only a civil action by the FCC. But it is forbidden by Congress and can be punished by imprisonment. |
Alice wants a divorce but Bob does not. What can Bob do to stonewall the process and what are the consequences of doing so? Alice wants to get a divorce from Bob. Bob is an upstanding member of society. There is no credible case against Bob for any crimes or impropriety (no abuse, infidelity, etc). Bob does not want Alice to divorce him. Alice and Bob have no prenuptial agreement. Alice has asked Bob to leave their shared house, but he refuses and maintains residence at the property. What can Bob do to stonewall the process? What happens if he refuses to sign the divorce papers? If those consequences are highly detrimental, what is his next course of action after delaying as long as possible? And then what are the consequences from that action? (Continuing on until he is out of options) What is the ultimate outcome? Can Alice unilaterally force a divorce? What are the conditions of such a divorce likely to be? (alimony, the house, other property, etc) This is a hypothetical and I am interested in the United States law as a whole, but if necessary I will specify New York State to establish a concrete jurisdiction. | Prior to 2010, New York was the last state to have only fault based divorce. In 2010, the fault based grounds for divorce were retained, but a no fault ground for divorce was added and has become very popular. In a no fault divorce: All that has to be proved and stated in your divorce papers is that the marriage has been “irretrievably broken" for at least six months. One spouse must state this under oath. With respect to this point: Alice has asked Bob to leave their shared house, but he refuses and maintains residence at the property. The judge will almost certainly at the very outset (probably within a month or two, quite possibly in a matter of days) order one spouse out of the house in temporary orders if either spouse objects to continued cohabitation. Temporary orders at the outset of a divorce establishing a provisional status quo with separated parties is routine. In a divorce, title to the residence is pretty much irrelevant, and so are the wishes of the adults unless they agree. There is no presumption in favor of either party, i.e. neither for or against Bob, and neither for nor against Alice, in a temporary orders hearing, based upon who filed for divorce or who lived there at the time of temporary orders. There is, however, a very strong imperative to not have people who are getting divorced cohabiting when one or both of the parties doesn't want to cohabit. Cohabitation would only in the most extraordinary case be imposed on a party who opposed it during divorce proceedings. The judge looks at the facts and circumstances and decides for one or the other without considering at all who filed for divorce, and without seriously considering what either of them want (if they don't agree). Once a divorce has been commenced, everything is up for grabs without regard to who filed for divorce. Usually, temporary use of the residence if awarded to the primary caretaker of the children if there is one, so that the children's lives can be disrupted as little as possible. But, a judge in a temporary orders hearing has immense discretion. For example, Rudy Giuliani wife was granted occupancy of his official residence as Mayor of New York City during one of his three divorces: "Giuliani moved out of Gracie Mansion by August 2001 and into an apartment with a couple he was friends with." What can Bob do to stonewall the process? Not all that much other than insisting on disputing all matters to be resolved in the divorce and taking them to trial. Bob can't prevent the divorce from happening and can't do all that much to slow down the process any more than insisting on taking everything to trial does. Generally speaking, efforts to unjustified efforts to delay the process and the inevitable will be penalized and it is unethical for Bob's lawyer to use such tactics. If it is apparent to the judge that Bob is trying to stonewall, this will be perceived as defiance of the court's authority in a case where the judge has massive discretion to make a determination on the merits. This is unwise, although there is no specific consequence that could necessarily be assigned to this kind of perception. What happens if he refuses to sign the divorce papers? A process server delivers the papers to him, and then a judge decides how to resolve the disputed issues related to custody, property, child support, alimony, and attorney fees. Bob's consent is not required for anything. Bob could speed things up by agreeing to various things, but only so much. If those consequences are highly detrimental, what is his next course of action after delaying as long as possible? And then what are the consequences from that action? (Continuing on until he is out of options) Fighting for the sake of fighting rarely produces an optimal outcome. Delaying as long as possible is almost never the best strategy. If Bob litigates needlessly, he is likely to see most of both side's attorney fees allocated to him and to get a custody arrangement that is rigid in a way that will be detrimental to him in the long run. What is the ultimate outcome? Can Alice unilaterally force a divorce? Yes. What are the conditions of such a divorce likely to be? (alimony, the house, other property, etc) An equitable but not equal division of property, a parenting time and parental responsibility order that a judge finds to be in the best interests of the children, child support based upon child support guidelines with statutorily allowed adjustments if any are present, and alimony based on many factors but mostly duration of the marriage and the relative incomes of the parties. The specific award could vary significantly even in case where the lawyers present exactly the same facts to two different judges in the same courthouse, without either judge committing reversible error. This is a hypothetical and I am interested in the United States law as a whole, but if necessary I will specify New York State to establish a concrete jurisdiction. For what it is worth, New York is somewhat atypical. But the broad outlines of no fault divorces are reasonably similar. One factor that makes New York State divorces different from some no fault states is that marital fault can be considered in some cases in the substantive decision on the merits. But this is no applicable in the case of this question where, by assumption, there is no marital fault present. | 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. | The appropriate course of action would be to demand an evidentiary hearing, present evidence, and appeal the judge's ruling if it is contrary to the evidence in the record. Abandoning your attorney because the judge is sounding ominous would be foolish indeed. You can't do anything about the judge or about DSS. | In a typical divorce proceeding, both sides are required to provide a sworn statement of their finances, and to respond to written interrogatories, produce documents (e.g. financial statements made in loan applications, balance sheets, tax returns, bank statements, and copies of deeds and certificates of title and stock certificates) and be deposed in pre-trial discovery proceedings. Divorce lawyers have the authority to subpoena third-party records custodians and to take a small number of depositions of third-party witnesses prior to a permanent orders hearing and can usually get permission to take more if there is evidence suggesting that it would be fruitful to do so. There are a variety of sanctions that may be imposed for failure to cooperate, including adverse inferences regarding the facts that would have been disclosed if there had been disclosures in the discovery process. Still, it behooves a client to know as much as possible before commencing the process, since having lawyers gather this information during the course of divorce litigation is expensive and isn't always perfect. Where misconduct is suspected, a spouse's lawyer will typically retain forensic accountants and/or private investigators and will compare bank and accounting and tax records with other public records such as real property records, corporate records and tax filings. Unless an asset has produced no income or expenses flowing through a personal or business account, it will usually show up somewhere. Spouses will also often have familiarity with where to look based upon living with a spouse and often will have obtained copies of relevant correspondence or documents to provide a lead - perhaps a letter asking a spouse to fill out corporate paperwork or receipt from a foreign bank account. This investigation process (collectively called discovery) usually takes place between the filing for a divorce and the half year or more later when a permanent orders hearing is held. Often, in complex cases and cases where there is a likelihood that assets have been hidden, the final hearing will be set later after the original filing than it would otherwise be, and the planned hearing will be longer in light of the evidence that will need to be produced at that time. In my state, a spouse has up to five years after a divorce to reopen a proceeding is undisclosed assets are discovered. It isn't impossible to hide assets in a divorce, but it isn't easy either. | It is possible that a court would hold Comapny X's agreement with Bob to be unconscionable for overbredth and therefore void. This would depend on the state having jurisdiction, and on the specific facts of the case and the language of the contract between X and Bob. Some states do not favor such broad agreements on automatic assignment of IP rights. If the Contract between X and Bob was held to be void, then Sam would own the rights. Otherwise X would own the rights, as their contract came first. As the answer by Dale M says, Bob entered into the contract with Sam fraudulently, by concealing a materiel fact (Bob's existing employment with X). Bob would potentially be liable to Sam for damages. One possible measure of damages would be what it would cost Sam to buy the rights from X. | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. | Truth is a defense to defamation Bob must prove the truth of his statement if Rob sues - there is a reverse onus for this defense. Because this is a civil trial the burden is balance of probabilities. Provided Bob can prove Rob stole his bike he will win. A conviction for doing so is pretty good (but not necessarily conclusive) evidence. Absent that, Bob would need other evidence. Of course, if Bob has said that Rob was convicted of stealing the bike, he’s going to lose. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. |
How can a jury know about jury nullification? It appears that jurors are not allowed to be told that they can ignore the law and thus use their right of jury nullification. https://en.wikipedia.org/wiki/Jury_nullification#Canada The contrary principle contended for by Mr. Manning, that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law. … But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. Since they're apparently still allowed to use this right, only not be explicitly instructed in court that they can use it, doesn't it produce the very problem mentioned above by Mr. Manning? I.e., in any particular trial one juror may have prior knowledge of the right of nullification, in which case the jury may use it; while all other juries will carry out their obligation ignorant of it. | Jurors don't have a "right" to jury nullification per-se. The "right" of jury nullification is really just a logical consequence of other rights that the jury and the defendant have The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal,[2] and the fact that jurors can never be punished for the verdict they return. In fact, the court doesn't want juries to nullify, because that undermines the rule of law, and they might penalize lawyers tho try to argue for nullification The 1895 decision in Sparf v. U.S.,[24] written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[25] Source: https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States As far as how would juror's know about jury nullification, they could have read about the process before being selected for jury duty. Some Juries might also rule contrary to their instructions without actually having heard about jury nullification because they have some sort of sympathy with the defendant. | 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. | If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically. | The United States gives the accused the right to a fair trial. However, it also gives exceptionally strong protection to the media (and to people in general) to speak on matters of public concern; there are very, very few cases where a US government (federal, state, or local) can legally order someone not to publish something (as opposed to letting it be published and then issuing sanctions). The rule of thumb for content-based restrictions on speech is that they must be the least restrictive way of achieving a compelling government interest. For trials, there are other ways to achieve a fair trial without restricting the press. One of the most preferred ways to do it is to use the voir dire process, in which jurors can be rejected for prejudice. Courts can also move the trial to a new location; they can grant motions from the defense to delay the trial while things cool down; they can sequester the jurors (meaning that the jurors are kept in a central place and prevented from talking to anyone else or reading anything about the case); if none of these are done, a conviction can potentially be reversed on appeal. US courts will, wherever possible, modify the trial to mitigate the damage done by the press, rather than restrict the press to mitigate the damage to the trial. For a review of a few different approaches to this in different jurisdictions, you might want to look at this law journal article. | In the United States, the constitutionality of a law can be challenged in any court. Unless and until the court is reversed by a higher court, then the law will be considered unconstitutional and invalid. A jury can also theoretically nullify a law for any reason, including unconstitutionality, however, the jury's finding will only hold for that one case that they are trying. | To know a defendant is guilty is to know that the government has convinced a judge or jury beyond a reasonable doubt that the defendant committed all the elements of a crime. A lawyer can't know that the government will accomplish this prior to a trial. Options for a lawyer who determines that the government has a strong case include: seeking to have evidence excluded looking for other grounds for appeals establishing affirmative defenses negotiating a plea deal for a lighter sentence or less serious crime the lawyer will continue to force the government to prove their case | With only prosecutor(s) and a court reporter, are jurors at all instructed to not simply "rubber stamp" the prosecution's desire to indict? Not really. They are told their job and the legal standards that they are required to act according to, however, and the federal judicial branch does have a short handbook for grand jurors. Are the terms and concepts necessary for them to function as a jury (e.g. "preponderance of evidence") explained to them? Yes. But grand juries don't operate on a preponderance of the evidence standard. The sole evidentiary standard in a grand jury proceeding is the lower "probable cause" standard. Likewise, lots of evidence which would not be admissible in a criminal trial is admissible in a grand jury proceeding. The main kind of evidence not admissible in a grand jury proceeding is evidence which is "privileged" against court disclosure (e.g. attorney-client communications). If so, by who? The prosecutor and the handbook linked above. Is there a standard "script" or talking points for such instruction? Prosecuting attorney's offices in jurisdictions that usually use grand juries typically have a set of forms. In federal practice, Federal Rule of Criminal Procedure 6 is the primary source of guidance, and the Justice Department (which handles all or virtually all federal criminal prosecutions) has detailed policies and procedures for handling grand jury practice (and a 405 page practice manual) that his a matter of public record. There is some case law on what the content of an indictment must look like and on the grand jury process. Some state and local jurisdictions with routine use of grand juries probably have standard court forms for certain parts of grand jury process, and there may be some standard forms in local rules for some federal courts. But there isn't a national judicial branch sanctioned official set of court forms for grand juries in the federal criminal justice system. The rather lax supervision of grand juries reflects the fact that they are a road bump in the criminal justice process with a pretty low threshold to meet that faces sterner tests later in the process: Is there probable cause to support the charges requested by the prosecutor against the named defendants? About half of U.S. states allow prosecutors to do this without a grand jury approval, unilaterally. Every grand jury indictment must either be consented to by the defense, or approved by the court following a trial with a much higher proof beyond a reasonable doubt standard, to result in a conviction resulting in the imposition of punishment. A judge in a separate hearing determines if there will be pre-trial detention or bail conditions prior to the criminal trial. | In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge. |
Are jurors allowed to teach law to one another? I vaguely recall in the case of Oracle v. Google in regards to Java v. Android that was happening in a district court physically located in San Jose, California, that one of the jurors was familiar with the process and procedure of acquiring patents, and there was some controversy in regards to this fact (he was sharing his experience with the rest of the jurors). Is a juror having a prior knowledge of law, other than what has been presented to them in the specific court case, allowed to teach others about any such understandings they have held prior to the start of the proceedings? Is it cause for them to be disqualified, or even for the whole panel to be disqualified? | I finally found the actual transcript of the voir dire part of the case mentioned in the question. http://www.groklaw.net/articlebasic.php?story=2012090614295190 As can be evidenced from the transcript, the judge has specifically instructed the two jurors working as engineers at the local tech companies that they'd have to "forget" what they know about both the software engineering and the patent law itself, too, starting their work on the whole case with a completely clean sheet, using a very simple criteria for making decisions: One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide. Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here. Then, after a short break and a consultation with the lawyers, where Oracle seems to have expressed some concern to having the computer experts be on the panel, which subsequently prompted the judge to declare the following to the two potential jurors who worked at Cisco and HP: So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying? You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works. Since both jurors had so much software and patent experience that they couldn't disregard it easily, they were thus both excused (page 95 of 224). All right. I think it would be too hard for you to sit in this case and sort out what you knew already against what is proven or not proven here, and itwould not be fair to the parties to have that extra burden even though you two actually know something about the subject. It's in a way too bad, but it's for the best. So you two are excused to go back to the jury assembly room. Thank you. The other instructions that the judge gives to the potential jurors is also worth reading (starts on page 36 of 224) The full transcript is at http://www.groklaw.net/pdf3/OraGoogle-942.pdf. In summary -- jurors are only allowed to talk to one another when the deliberation process starts, and, no, they are not allowed to bring any "baggage" to the case at stake. | I don't think there would be such a case. The Supreme Court itself does not allow cameras in its courtroom. Also, when Florida wanted to bring cameras into Florida courtrooms, the Supreme Court said in the 1981 case Chandler v. Florida: Absent a showing of prejudice of constitutional dimensions to these defendants, there is no reason for this Court either to endorse or to invalidate Florida's experiment. It's also worth noting that "the jury may not be filmed" and "The Florida Supreme Court has the right to revise these rules as experience dictates, or indeed to bar all broadcast coverage or photography in courtrooms" were two of the specific rules that the Supreme Court noted Florida had implemented. Although those particular rules were not at issue in this case, the Court made no further mention of them, and thus perhaps tacitly approved of their constitutionality. Given that there does not seem to be a general right to film in a courtroom, it seems unlikely that there would be a right to film jurors in particular. Furthermore, this page lists the courtroom camera rules for several states. In many of them, filming jurors is prohibited. Presumably, if there was a ruling that this was unconstitutional, they wouldn't have those rules. | Unless you are an ambassador or one of the US states, SCOTUS doesn't have original jurisdiction over your lawsuit, so they can't hear it either. If you've named all the judges of all the courts that do have jurisdiction, then one of them will handle it anyway, under the doctrine of necessity noted before. For cases that do fall within the Supreme Court's original jurisdiction, a jury trial is theoretically possible, but it appears it has not occurred since the 1790s, and only one has surviving records: Georgia v. Brailsford in 1794. See "Special Juries in the Supreme Court" by Lochlan F. Shelfer, Yale Law Journal 123:1, 2013-2014. Otherwise, non-jury original jurisdiction cases are usually delegated to a special master, a sort of "contract judge" who hears all the evidence and recommends a judgment that the full court typically rubber-stamps. | The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does. | If you have something to say, you should have said it before now When a judge is about to hand down a decision the case is all but over. Just like figure skating at the Olympics, the points are scored even if nobody but the judges know what they are yet. The onus is on the parties to bring forward all the evidence and make all the submissions on the law that they want the judge to consider before and during the hearing. If they didn't then that's their fault and they can't introduce new stuff now. Now, it's not uncommon for a judge to share their thoughts during the hearing or in writing when considering written submissions. This is because their thinking on the law is at variance with what the parties are contending. The plaintiff says the law is X, the defendant says the law is Y, the judge thinks they're both idiots and the law is clearly Z. They will usually call for submissions on this because the judge's role is to decide the dispute between the parties on the evidence the contend -not to impose the judge's interpretation on them; by doing this the parties may relies the judge is right and a lot of the dispute disappears or they may convince the judge that they are wrong (it's not unknown) and move on from a clear agreed position. | Jurors don't have a "right" to jury nullification per-se. The "right" of jury nullification is really just a logical consequence of other rights that the jury and the defendant have The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal,[2] and the fact that jurors can never be punished for the verdict they return. In fact, the court doesn't want juries to nullify, because that undermines the rule of law, and they might penalize lawyers tho try to argue for nullification The 1895 decision in Sparf v. U.S.,[24] written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[25] Source: https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States As far as how would juror's know about jury nullification, they could have read about the process before being selected for jury duty. Some Juries might also rule contrary to their instructions without actually having heard about jury nullification because they have some sort of sympathy with the defendant. | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | "Since state level crimes are prosecuted in the state they happen and potential jurors are eligible voters, would this make it impossible for anyone who voted in the election to serve on such a jury as they would obviously prefer their side to win?" No. A conflict of interest is a particularized and personal interest in the case that is different from an interest of a member of the general public or of a voter or of a taxpayer in general. Someone who wouldn't have standing to bring a case will generally not have a conflict of interest for purposes of being a juror. |
Could an employee be held liable for taking parts meant for another assembly line? If foreman A of assembly line AA took parts meant for a different assembly line BB for their own crews to use, which would help them meet their production quota but hurt foreman B and their crew, could A be held liable in a civil action or criminal charge? Both A and B and their crews work for the same organization. | The parts are owned by Z, the company. The usual definition of "theft" is as in RCW 9a.56.020: (a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him or her of such property or services. In moving property within the company from one part to another, B has not been deprived of its property. The company might fire A for unauthorized use of company property, but this is not a legal matter, it is an employment matter. B cannot sue A, although B might sue Z if B was punished for not meeting quota, Z knew of the the reason for not meeting quota, and A's motivation was illegally discriminatory (Perez v. DDR). | No, a later trial is not allowed A prosecutor can, and often will charge multiple related crimes, and all will be addressed at the same trial. But once a person has been acquitted on a given set of events, the same jurisdiction cannot re-try the same person on what is often called a lesser included offense. Nor on a greater offense implied by the same events. Not even if additional evidence comes to light. However, if an act (or set of acts) is a crime under both state law and Federal law, for example theft by deception (state crime) and wire fraud (federal crime) one jurisdiction may try the person even after ther has been an acquittal in the other. I think the same rule applies if an act is a crime within the jurisdiction of two different states, that both can trey the accused. In many cases prosecutors will choose not to bring the second trial, but they can if they see fit. | By my understanding you should not be held criminallly liable. In order to be held guilty of a crime the prosecution needs to show the elements of the crime are met. One of these elements is "mens rea" - ie guilty mind/intent. According to your question you lacked intent to commit the crime, so the prosecution can't prove it, so their case must fail. Note that in some places there are "crimes" which are strict liability - I'm ignoring these abominations here, as they are generally a grey area between criminal and civil law where freedom is not at stake and do not seem in the spirit of your question. | Has Person B committed assault even though person A may have verbally offended person B? Yes An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. source Under common law, the use of force against another must be proportionate and justified, but not excessive in the particular circumstances - Person B's retaliatory assault (and battery) does not appear, according to the details in the OP, to meet this criteria. See palmer v R (19711) AC 814: It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | I think that the language In consideration of permission to use, ... Recreational Sports Department ... arising from, but not limited to, participation in activities, classes, observation, and use of facilities, premises, or equipment. would be read as limiting the waiver to cases in some way connected with the RSF. Even so limited it is rather broad, and may not be enforceable. In particular public facilities are not always allowed to obtain a waiver of otherwise valid negligence claims. If it were interpreted to mean "all claims on any matter, even ones having nothing at all to do with the RSF" then I think it would be so broad as to be unenforceable as unconscionable, and as misleading, so that there was no meeting of minds. | If the company makes a contract, and as a result of that contract it owes more money than it has, then the company goes bankrupt and the owners and directors can walk away from it. This covers the owners/directors in cases of ordinary business contracts. However if an employee (including an owner or director) does something sufficiently harmful then under the law of torts they can be personally liable as well as the company. Examples are negligence and fraud; if you build someone's new roof while acting as an employee and the roof leaks then its likely to be the company on the hook for damages. However if you misrepresented your qualifications or acted negligently then you might well be personally liable. This is all very general. Details are going to be specific to your jurisdiction. So the answer is that having a company is certainly better than making every contract in your own name, but its not complete cover. You can probably get insurance if this is a concern, but its likely to be expensive. | Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case. |
What does "sign it voluntarily as my own free act" mean? At the very end of a company's severance agreement (for laid-off employees), just before the signature box, the agreement reads (emphasis mine): I HAVE CAREFULLY READ THE FOREGOING RELEASE, FULLY UNDERSTAND ITS MEANING AND CONSEQUENCES, AND SIGN IT VOLUNTARILY AS MY OWN FREE ACT. Given that an employee isn't voluntarily laid off (i.e. being faced with this agreement in the first place isn't a voluntary act), and that an employee must sign essentially under the threat of not receiving severance pay and benefits if they don't (i.e. they "voluntarily" sign it in the same way they "voluntarily" don't drive head first into oncoming traffic), this seems like a curious thing to state: It does not seem that the employee is really voluntarily signing it under their own free act. They kind of have to sign it, or they're hosed. My questions are: What does this language protect the company against? What employee rights does this forfeit if the employee signs? That is, what purpose does this language serve? The reason I am wondering is: There are many contracts without this language, are those contracts therefore not protected against claims that signing them was forced? For the implication that "if you don't like it don't sign it", isn't that true of any contract even without this sentence? If the company didn't put this language in, it seems like it would be similar to any other typical contract that also does not have this language, so if it was a generally required protection I would expect to see it all the time. What could make this agreement different as to require that statement? | The "Severance Agreement" is a contract between the company and you. It spells out what the company will do and probably what they expect you to do going forward. Simple enough. The statement you referenced merely says that you are not being forced to sign the agreement. That's all. You don't, presumably, have the option of remaining employed at this company but you DO NOT have to sign this agreement. But if you don't, it's likely that any benefits being promised in the agreement will not be delivered to you. So specifically in answer to your questions: It protects them against a claim that they somehow forced you to sign the agreement. Likely anything that the agreement says the company will do such as pay you a certain amount of money and the like. Bottom line is that if you don't like the agreement, don't sign it. If you want the benefits they are promising in the agreement, then sign it and move on. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | I limit my answer to U.S. law. The Right To Quit And Its Impact On Unemployment Benefits First, absent narrow exceptions (e.g. soldiers), any employee can quit at any time, from work with a bad employer. Normally quitting forfeits a right to unemployment insurance payments, but if the employee can convince the unemployment eligibility hearing office that the conditions the employer established were so bad that there was a "constructive discharge" the employee will be treated as having been fired for purposes of unemployment insurance. The employee can't get an advisory opinion on constructive discharge, however. The employee must act first and argue that there was a constructive discharge afterwards at risk of not getting any unemployment benefits if the employee loses. Occupational Safety and Health Laws Second, the employer is obligated to follow workplace safety law. Outside the mining industry (which does not include oil and gas work), workplace safety regulations are primarily promulgated by OSHA (the Occupational Safety and Health Administration) which is a subdivision of the federal department of Labor. Many states have a parallel state agency. (The mining industry is governed by MHSA a parallel and much more powerful body.) Violating workplace safety rules established by OSHA can result in the employer being fined and being required to correct the situation going forward, although the amounts of the fine even taken together with worker's compensation packages, are often far less than the amount of liability that the employer would have in a third-party negligence lawsuit. The government and not the employee receives the fine paid if one is imposed. Also, OSHA is vastly understaffed and routinely ignores worker complaints out of sheer lack of manpower, since it is responsible for all safety issues for 98%+ of all employees in the entire United States. OSHA has protocols related to requirements for employees working in extreme heat that are discussed here. In particular, OSHA states that: Washington, Minnesota, and California have specific laws governing occupational heat exposure. Federal OSHA has a General Duty Clause (Section 5a of the Occupational Safety and Health Act of 1970) that requires employers to provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” The OSHA Technical Manual Chapter on Heat Stress establishes that OSHA uses WBGT to determine if a heat hazard was present. Thus, outside those three states, rather than having detailed requirements in a regulation, OSHA has general suggestions and provides a framework for evaluating heat related safety and occupational illness issues that gets evaluated on a case by case basis if OSHA asserts that an employer has violated these general safety requirements, which will be resolved in a hearing, if necessary, if a citation issued by OSHA on this basis is issued by OSHA and disputed by the employer. Worker's Compensation Third, the employer has liability without regard to fault for all work related injuries, illness and deaths under worker's compensation law. The employer has liability even if the employer didn't violate any OSHA regulations or standards. But, the recovery allowed is much more meager than it would be between strangers suing each other for negligence. It is largely limited to lost wages, medical expenses, and funeral expenses, although if a deceased worker has dependents, their dependent survivors are also entitled to worker's compensation lost income benefits. The existence of worker's compensation coverage, however, bars an employee from bringing a lawsuit other than a worker's compensation claim against the employer, however. Collective Bargaining Rights Of Unionized Workers Fourth, in a unionized workplace, the union could raise a grievance with the employer under the collective bargaining agreement governing the workplace which will universally require the employer to follow safety rules. If there is a dispute, these disputes are typically referred to an arbitrator in union-management arbitration. The arbitrator has considerable freedom to fashion remedies if the arbitrator feels that the safety rules were not followed. Neither side can appeal the arbitrator's ruling. If the employer does not follow an order from an arbitrator, this is converted to a court order at an ordinary court with jurisdiction over the employer and the court will make the arbitrator's order a court order which may be enforced under pain of contempt of court sanctions (including incarceration or punitive fines). | 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. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | Can he/lawyer try to use the payment to me as leverage, for example, offer to give me that payment only if I agree to sign a non-compete or other document? The employer ultimately ought to comply with the written agreements between you two. The employer is not allowed to belatedly impose conditions that alter (to your detriment) the contract(s), let alone when you are no longer his employee. The clause "You will be paid on X and Y when/if they close" does not reflect whatsoever that payment is contingent on your acceptance of a non-compete agreement. Your description does not reflect any legal merits that would justify your employer to further withhold the compensation to which you are entitled pursuant to the deal/sale that got closed. The employer and his lawyer are just being vexatious. | What is the difference between personal contract, business contract and full-time contract? There is no formal definition, but it most likely refers to whether you intend to be hired as independent contractor, as a corp-2-corp, or as employee in the company's payroll. Each option has its tax, administrative, and legal implications. Some of these are: whether your compensation will be from payroll vs. invoicing the company; an employee might be statutorily entitled to benefits that outside contractors and companies are not; servicing them in a capacity of contractor or company might make it easier for you to take side projects; under some of these three alternatives the company might be more flexible when negotiating raises; you might be hired on a project basis (that is, if you are not in their payroll); in case of liabilities or when one of the parties commits a tort or breaches the contract, the "administrative remedies" could be different. |
How are any gun restrictions constitutional? The Second Amendment says (emphasis mine): A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. How are any laws restricting the "right of the people to keep and bear arms" constitutional? | Because the Supreme Court, who interprets the meaning of the Constitution, said so: Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. "District of Columbia, et al., v. Dick Anthony Heller. 554 U.S. 570". United States Supreme Court. June 26, 2008 | Yes In 2010, on the last day of her testimony before the Senate Judiciary Committee, Justice Elena Kagan, was asked “Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?,” by Senator Tom Coburn of Oklahoma. When Kagan began to answer by stating that she “accept[ed]” the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment guarantees an individual right to keep and bear arms, Coburn interrupted to clarify that he was not asking whether she believed the right to be protected by the Constitution, but rather whether she considered it to be a “natural right.” “Senator Coburn,” replied Kagan, “to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.” The full exchange is as follows: Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself? Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively. Coburn: I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is, do you agree with that? Kagan: Senator Coburn, to be honest with you, I don't have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States. Coburn: So you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution that are ours, ours alone, and that a government doesn't give those to us? Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws. Coburn: Well, I understand that. I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that? Kagan: Senator Coburn, I think that the question of what I believe as to what people's rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief. Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says. Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I'm fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States. See Transcript | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | Barron v. Baltimore 2 U.S. 243 (1833) explains the rationale: The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. | Bob can probably print the firearm for personal ownership if Bob is not prohibited from possessing a firearm himself, but after that it gets problematic. This is ignoring any potential safety violations and liability issues or patent violations which might arise. According to an ATF spokesman quoted in this article : it is legal for Americans to build their own firearms without a license so long as they are not prohibited by law from possessing firearms, the firearms are legal to own, for personal use, and not for sale or transfer to others. Whether the gun parts are printed, created by other ways of manufacturing, or legally purchased from a licensed dealer has no impact on whether it is legal for an American to build a gun for personal use, though some states like California have placed additional requirements on the process. So transfer of ownership is possibly problematic. It's notably not a way to avoid normal firearm possession restrictions : Knight [the ATF spokesman] emphasized it is not legal for felons or somebody otherwise prohibited from possessing firearms to build their own guns under any circumstance. "Title 18 of the United States Code, section 922(g) prohibits several categories of persons (i.e., persons convicted of a crime punishable by imprisonment for more than a year) from possessing firearms in or affecting interstate commerce," Knight said. "Title 18 of the Unites States Code, section 922(d) prohibits persons from disposing of any firearm to a person the transferor has reason to believe is prohibited from possessing firearms under federal law." Finally there's a rather crucial point to note about the design of such firearms : He said the Undetectable Firearms Act of 1988 outlaws the manufacture or possession of firearms that can pass through a walk-through metal detector or X-ray machine commonly employed at airports without being detected. "A person or manufacturer cannot produce an undetectable firearm as prescribed in Title 18 of the United States Code, section 922(p)," he said. So making a weapon that's undetectable by a metal detector is not allowed (at least according to the ATF). | It may help to start by clearing up some false premises in the question/comments: The Fourteenth Amendment does not "expressly list protecting citizens as a core responsibility of Government." The IRS does not define "U.S. person" as "someone that is born." The Internal Revenue Code has no bearing on whether corporations are considered people for purposes of political contributions. Then we need to clear up the main logical fallacy on which the question is built: Even if we accept that the Fourteenth Amendment requires government to protect citizens, and even if we accept that fetuses are not citizens, that doesn't mean states can't protect fetuses. That argument -- "States may protect citizens, therefore states may not protect noncitizens" -- is a straightforward example of denying the antecedent and pretty obviously untenable once you stop to think about it. Houses aren't citizens. Elections aren't citizens. Can state laws protect them? Foreign exchange students aren't citizens; can state laws protect them? How about the Canadian ambassador? The answer is quite well settled. The Tenth Amendment ensures state governments' right to enact virtually any laws to promote health, safety, and welfare, so long as those laws do not run afoul of some constitutional limit. Existing Supreme Court precedent makes clear that that authority -- known as the "police power" -- is virtually boundless. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore & M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895). While Roe v. Wade has long provided just such a constitutional limit against the exercise of that power to regulate abortion, it appears clear that protection is about to vanish. Without Roe, states looking to protect "potential life" will be free to enact virtually any law that would advance that goal. | Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so. | (The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.) But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding. When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this). Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections. Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights. |
Can I use a pseudonym in the Impressum of a non-commercial website? I am creating an online forum where users can communicate and exchange ideas with no public content. This means that the website does not have any commercial activities, and it does not engage in any form of advertising, selling or promoting products or services. I would like to know if it is allowed to use a pseudonym in the Impressum instead of my real name. I understand that the Impressum is a legal requirement for websites and it's used to ensure transparency and make it easy for customers to contact the website owner, but I would like to maintain a level of privacy. In my country, the general usage of pseudonyms is allowed (even the use of a pseudonym in a signature is legally binding and permissible as long as the person in question can be identified without doubt.) However, I am unsure if this applies to the Impressum of a website. The website could be hosted outside of Germany (for example UK) if this changes the legal requirements. I'm planning to use AWS for hosting. The best case would be a solution where I just have to put my mail address in the Impressum. I would appreciate any guidance or advice on this matter. Thank you in advance for your help. | You won't be able to get around self-doxxing yourself. § 5 Abs 1 TMG requires tele-media service providers like you to list den Namen und die Anschrift, unter der sie niedergelassen sind the name and the address where they reside or are established Similarly, Art 13(1) GDPR requires you to provide the identity and the contact details of the controller In a German context, it is generally accepted that both of these involve a ladungsfähige Anschrift, i.e. a street address where you could be served with a lawsuit (not a post box). These requirements exist for both natural persons and legal entities, and for both businesses and non-commercial activities. The TMG Impressumspflicht talks about “geschäftsmäßige, in der Regel gegen Entgelt angebotene Telemedien” but in practice this only requires that the service could be paid (not that you're actually making any money), and that the service is offered routinely/business-like (not necessarily commercially). It does not matter where your service is hosted as long as you live in Germany. The TMG and GDPR might not apply if the forum is run purely privately, e.g. if it is only made available to a few close friends or family members. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | The GDPR applies to such sites if they offer services in the EU/EEA. If they clearly wanted to avoid being subject to the GDPR, they should block visitors from the EEA. For the GDPR, only location matters. Other concerns like residence or citizenship are generally irrelevant. Personal data does not turn non-personal just because it was public. So the GDPR still applies when the data was collected from public sources. However, the data controller (who determines the purpose of processing) often has to balance your rights and interests against other interests (e.g. when using legitimate interest as a legal basis for some processing). For the purpose of publicly displaying your data, only showing data that was already public anyway makes it easier to argue that this is fine. But when the GDPR applies, you have data subject rights. Relevant rights include: a right to access, to see all the data they have about you a right to rectification, to correct wrong data they hold about you a right to restriction, effectively an opt-out a right to erasure (also known as the right to be forgotten) These rights apply both against the website and against Google Search (arguably, both are doing the exact same thing). Google correctly points out that they can't remove information from the Web, but they can hide information from search results. If you feel that your requests have not been resolved correctly, you can issue a complaint with your country's data protection authority. In theory you can also sue them. In practice, GDPR enforcement against overseas data controllers can be quite difficult and has not yet happened. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | 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 clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. | But that a phone number exists in your collection is interesting information. Since phone numbers are identifying and so short that they are guessable, hashing does not provide anonymization. Hashing could still be an appropriate safety measure or pseudonymization technique. Note that the salt is typically stored as part of the hash value, and should not be considered to be a secret key. If the information had been anonymized it wouldn't be personal information and the GDPR wouldn't apply. However, since the phone numbers are personal information (even hashed, they relate to an indirectly identifiable person), you should apply standard GDPR compliance processes to determine whether storing these phone numbers is legal: What is the purpose of processing? Some purposes like national security or purely personal and household purposes are exempt from the GDPR What is the legal basis for this purpose? E.g. consent, legitimate interest, legal obligations, … What is the minimum data necessary to fulfill the purpose? If pseudonymized data is sufficient, pseudonymization is mandatory. What safety measures do you think are appropriate? This could shift a legitimate interest balancing test in your favor. What compliance measures are you obliged to take? E.g. information per Art 13–14, preparation for data subject requests, engaging data processors, further safety measures. While your purposes are probably benign, it can be useful to recall that the presence of identifiers in data sets can be a matter of life and death. When accounts were leaked in the Ashley Madison data breach, that drove some users to suicide. In some countries, the existence of a Grindr account can be a death sentence. Those are examples involving special categories of data per GDPR Art 9, so likely far more sensitive than the context of this question. However, in the AM breach it would not have helped much to hash identifiers like emails: third parties would still be able to check whether the email of someone they know was part of the breach. | German law protects the Right of Personality, of which the Right of Publicity is a part. The Right of Publicity protects individuals from having their identity exploted for someone else's gain, without their permission. Using an individual's likeness in the way you describe would violate this, including that of non-German citizens. Depending on what you used this image for, you would potentially face a civil suit. Changing aspects so they're unrecognizable would likely depend on the specifics and intent would count. Honestly, if you're going to change them to be unrecognizable, why even bother- just create an original character. This right lasts for 10 years after the individual's death- during this time it is controlled by the deceased's estate. After 10 years, you would be able to use them this way. |
What are the differences between particulars, facts, and information? In this tax rule, in some places information sharing is legalised/allowed where on the other places particulars sharing is legalised/allowed and elsewhere facts sharing is allowed though in some places all have been legalised/allowed. What is the difference among these three terms? | I'm not familiar with this law, but if it works like other tax confidentiality laws I'm familiar with, it would be interpreted so broadly that there would effectively be no difference between "facts," "particulars" or "information." People receiving tax returns under this law would be prohibited from disclosing any of them. Anything that is in the return would be considered secret. | The issue of who pays directly for the items and/or to contractors is irrelevant. The important thing is to memorialize the agreement/arrangement in writing so as to preempt or solve eventual disputes. A clearly written agreement signed by the parties would supersede any presumption of conditions and rights arising solely from the parties' conduct. | There are a number of misconceptions here. GDPR does not generally impose blanket bans, but things get dicey if you're using data in a way that is not strictly necessary. Consent (freely given opt-in) is a way to continue nevertheless. A website without ads, tracking, or potentially tracking embedded content can probably work without having to ask for consent. Under the GDPR, every processing of personal data needs a purpose. This purpose must be covered by a legal basis. Some processing might be legally mandated or required by a contract with the data subject. It's also possible to base processing on a legitimate interest, but this requires a balancing test that also considers the data subject's rights and interests. As a last resort, consent can be an appropriate legal basis, but this comes with additional restrictions. Once you have a clear purpose that is covered by a legal basis, you can process the minimum data necessary to achieve the purpose. Sometimes, laws prescribe a particular legal basis. This is the case for cookies. You can use cookies (and similar technologies that access information on the end user's device) as strictly necessary to provide a service explicitly requested by the user. If you go beyond that, the ePrivacy Directive says you must obtain consent first. So for example, session cookies, shopping carts, or cookies that remember a “dark mode” preference are all perfectly fine because they are strictly necessary for something the user is trying to do. Also, you can use cookies to remember if the user gave or declined consent. On the other hand, analytics or tracking cookies are not necessary and require consent. If a website embeds third party content, this discloses personal data such as IP addresses to the third party. This disclosure requires a legal basis, most likely consent. There is case law about this regarding Facebook Like buttons on a page (→ Fashion ID case) but the same principle can be generalized to embedded Tweets or Youtube videos, images, or JavaScript files. A common way to handle this is to replace the embedded content with a placeholder, and to only load the embed once the user gives consent. But not all other domains or services are “third party” in the sense of the GDPR. When you engage a company to act as a data processor on your behalf, they are contractually bound to only use the data as instructed by you, and not for their own purposes. The GDPR allows you to outsource processing activities such as serving web content, as long as you have a suitable contract in place. Such “data processing agreements” are common for hosting providers or CDNs. When consent is to be used as a legal basis, it's important to consider the various conditions that the GDPR imposes (see Art 7 GDPR). The core principle is that consent must be freely given. You cannot make access to a site conditional on consent, so a naïve cookie wall or captive portal will be non-compliant. It's fine to force a choice, but “no” MUST be valid and possible. That consent is freely given also means that you must provide enough context for the user to make an informed decision, that the user must give consent through an unambiguous, affirmative action (consent is never the default), and that consent must be specific for a particular purpose (you can't bundle unrelated purposes). That is why modern consent management tools have multiple layers of information and allow the user to give consent for individual purposes (e.g. yes to analytics but no to ad personalization). In your particular context, you could proceed as follows: Figure out what kind of external content you're currently including. Can you enter into a data processing agreement with the external providers? If so, sign that. Can you host the content locally? This can be an easy solution except for video streams. Careful: copyright concerns might make this impossible. Can you replace the content with placeholders that only load if and when the user gives consent? That way, the rest of your site remains accessible without annoying consent walls. If the third party content is an unavoidable and essential part of your page, use an interstitial to inform the user of the risks before they proceed. | A legal paper published in a peer reviewed journal is not science. Universities have faculties of Law and Science because they are not the same thing. while both disciplines use the terms ‘evidence’, ‘fact’ and ‘proof’ they do not mean the same thing. Notwithstanding, the law has already disproved science - see the Catholic Church v Galileo and the Heliocentric model of the Solar System. Yet NASA still uses it to send spacecraft to Pluto - possibly because engineering is neither science nor law. | It may be legal or it may not For example, if any of the users are in the European Union, then the GDPR applies and the person storing the information is a data controller and has legal obligations. These include, having a legitimate reason for storing them, storing them only for as long as necessary for that reason, notifying the individuals that the data is being stored and why, deleting it upon a users request etc. | (For the data you use, you might not have to follow the license. But let’s assume you have to.) The license only applies to the content you distribute (or publicly perform, but that’s likely not relevant in your context): "Distribute" means to make available to the public the original and copies of the Work or Adaptation, as appropriate, through sale or other transfer of ownership. It doesn’t matter what’s saved on your server, it only matters what’s published (i.e., distributed). So you don’t have to publish the database. You have to attribute the content from the database when and as long you show (i.e., distribute) it. Not earlier nor longer than that. | There may be jurisdictional differences, but this link gives a thorough summary based on US interpretations. In short, privacy is an expectation based on common law while confidentiality is an ethical duty - usually (but not exclusively) part of a professional interaction. For correspondence where the sender wishes to show that they are aware of their ethical responsibility and that they also recognise that the addressee would have an expectation of privacy, both are often written. | 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. |
What is the origin and basis of stare decisis? When, where, how, and why did the doctrine that courts must have regard to the entirety of the infinitely ever growing corpus of judicial decisions that came before that sub judice and align their ruling to those that are comparable? And why are prior judges’ powers of interpretations automatically seen to be more capable and robust than, so as to bind and prevail over, subsequent judges’ interpretative abilities? | I assume you are asking about horizontal stare decisis: a court following its own previous holdings or those of courts of coordinate jurisdiction (e.g. courts at the same "level" in the judiciary). I say this because your incredulity does not seem to extend to the notion that appellate courts can bind lower courts. You ask: why are prior judges’ powers of interpretations automatically seen to be more capable and robust than, so as to bind and prevail over, subsequent judges’ interpretative abilities? This is not the rationale for horizontal stare decisis. The doctrine is not at all based on the premise that the first court or judge to answer got it correct. Justification was given in a concurring opinion in R. v. Kirkpatrick, 2022 SCC 33: Stare decisis promotes: (1) legal certainty and stability, allowing people to plan and manage their affairs; (2) the rule of law, such that people are subject to similar rules; and (3) the legitimate and efficient exercise of judicial authority (citations omitted). And horizontal stare decisis is not absolute. Common-law jurisdictions have developed limited avenues for departure. For example, in Canada, a lower court can depart from previous decisions of courts of coordinate jurisdiction when (R. v. Sullivan, 2022 SCC 19): The rationale of an earlier decision has been undermined by subsequent appellate decisions; The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or The earlier decision was not fully considered, e.g. taken in exigent circumstances. Even apex courts have developed a sense of internal obligation to follow their own precedents. But departure from previous decisions may be justified where (see the Kirkpatrick concurrence at para. 202): The Court rendering the decision failed to have regard to a binding authority or relevant statute (“per incuriam”); The decision has proven unworkable (“unworkability”); or The decision’s rationale has been eroded by significant societal or legal change (“foundational erosion”). This has been viewed to "strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law" (R. v. Sullivan, 2022 SCC 19). "Adherence to precedent furthers basic rule of law values such as consistency, certainty, fairness, predictability, and sound judicial administration." | Discovery Basically, you ask. If your opponent thinks your request is out of bounds they object, give their reasons to the judge, you give yours and the judge orders them to produce the evidence or not. A lot of people think court cases have big “ah-ha” movements when a witness reveals something unknown on the stand. This rarely happens because there are no secrets in litigation - both sides have to clearly explain their case before, usually well before, they go to trial. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. | The notion of a peer for purposes of the jury is someone who "walks in the same shoes" as the defendant or litigants. A freeman was to be juried by other freemen, a Peer of the Realm by other (capital P) Peers, a landsman by other landholders, and a marine by other sailors. The ancient origins of a judgment by jury were rooted in removing allegations by the defendant, alleging unfairness of the process, since the defendant himself was a party to the selection of those who would weigh his actions before the law and mete out punishments, the defendant could have confidence that he wasn't being railroaded. In the USA, we've done away with the codified, defined social definitions such as peerage and royalty and owned/indentured vs. free...so we are all, as far as the law defines, equal peers. | How to refer to Supreme Court cases by just one name In general, subsequent references to a decision can be the first name in the caption of that case. As an example, you will notice that in the decision Rucho v. Common Cause, 139 S.Ct. 2484 (2019) the court makes an initial reference to Gill v. Whitford (at 2492), and thereafter most of the references to that decision are simply Gill (see, for instance, at 2498, 2501, 2507). Nate Elredge makes a good point in that there are exceptions. Where the general rule may result ambiguous, another main party in the caption would be mentioned. Using Nate's example of United States v. Nixon, the court's subsequent references to that case in Calley v. Callaway, 382 F.Supp. 650 (1974) is Nixon. There might be other, harder to find, instances where ambiguity persists. For instance, several unrelated decisions issued by the same court might involve the exact same parties. In those scenarios only the suffix (that is, the numbers following the caption) would distinguish among decisions. | In the Hicks case, police entered the premise, reasonably, pursuant a bullet having been fired from Hicks' apartment into a person in the apartment below. There were expensive stereo components in plain sight, which raised a reasonable suspicion. But that reasonable suspicion did not justify a further search, which police nevertheless conducted: they turned the stereo to get the serial numbers. Having phoned in the numbers and learning that the items were stolen, they then had probable cause for a seizure. That cause was, however, obtained via an illegal search. Suppose that the serial numbers had been visible from the front: then because they would have been in plain view and since the police were there for a reasonable search related to the shooting, then could have legally seized the stereo, since no additional search was required. There is no distinction between search and seizure w.r.t. 4th Amendment protection ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Police could not confiscate the stereo without probable cause, nor could they confiscate cash, or any other thing, again, unless they had probable cause. And they could not search for evidence that would give them probable cause to take stuff. As SCOTUS said, regarding searches versus seizures, We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. | Original jurisdiction is not necessarily exclusive jurisdiction. [T]he original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal Courts, not to those cases in which an original suit might not be instituted in a federal Court. Cohens v. Virginia, 19 U.S. 264 (1821) However, "in the Judiciary Act of 1789, Congress made the Supreme Court’s original jurisdiction exclusive in suits between two or more states [...]. The Supreme Court’s jurisdiction over the remainder of suits to which a state was a party was to be concurrent." (Federal Judicial Centre - History of the Federal Judiciary) |
Do anti discrimination provisions apply to online as well as brick and mortar retail vendors? Suppose a shop commits unlawful discrimination by selling products to only one race or only one sex, and a court rules that this constitutes direct unlawful discrimination. Now suppose that a website practises the same policy, with respect to the same product, only online, perhaps by requiring customers to tick a declaration that they belong to X or Y gender or race. Is there any reason why a court may rule differently with respect to the online vendor, simply because the discrimination is committed online? I can imagine that quantum may be less for damages, as one would suffer the discrimination in private without the aggravating factor of public humiliation likely in front of other members of the public. But apart from this, are there any otherlegal differences between discrimination committed online and in brick and mortar venues? | Do anti discrimination provisions apply to online as well as brick and mortar retail vendors? Yes There is nothing in the Equality Act 2010 in general - nor in the definitions of Prohibited Conduct found within Part 2, Chapter 2 in particular - that excludes, exempts or otherwise makes allowances for unlawful discrimination according to what business model is being used. This view is supported by Citizens Advice who say that... The Equality Act says you mustn’t be discriminated against when you buy or receive goods, in many different places including: shops, supermarkets, market stalls or charity shops at an auction by telephone or online by catalogue or through doorstep sales. | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. | This is unlawful sex discrimination In fact, its incredibly close to the example given on this website: A nightclub allows women in for free but you have to pay because you’re a man. This is unlawful discrimination because of your sex. How do they get away with it? Did you complain or report them? No? That’s how. | There appears to be no general federal statute addressing the legality of a male entering a female-labeled bathroom, or vice versa, within federal jurisdiction. There are various regulations that touch on bathrooms, for example the OSHA regulations pertaining to sanitation require that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section", but "Where toilet facilities will not be used by women, urinals may be provided instead of water closets". These are regulations imposed on employers, and there is no provision for enforcement by employers, for instance no clause saying that the employer must call the police, or in any way intervene or sanction an employee, if a person enters a bathroom of "the wrong sex". It is apparently not a crime, as reflected anywhere in the US Code, for a male to enter or remain in a female bathroom, or vice versa. Building managers have some discretion regarding the operation of federal facilities, for example courthouses, which could extend to requesting a male to not enter a female bathroom or vice versa, but there isn't a practical way to determine what departmental regulations exist that would allow eviction of a bathroom-cross-user. Federal law does not protect against sex/gender discrimination in public accommodations. As for Maryland law, the owner of private property has the right to control his property up to the point that state law take that control from him, and therefore in principle he could call the police to remove a person trespassing in a bathroom (this article addresses the trespass angle in North Carolina). Maryland does not appear to have any case law or statutory exception to trespass laws related to labeling of bathrooms, so enforcement actions would be at the discretion of the owner. At the lower end of the political hierarchy, Baltimore has an ordinance requiring single-use bathrooms to be gender neutral, and a proposal exists to enact a state law with this effect. In other words, there does not appear to be any direct, enforceable legal requirement regarding bathroom entry and sex. Trespass laws could be used, but are at the discretion of the property owner (who might be civilly sued for his actions, but the police don't decide the merits of a discrimination suit before evicting a trespasser). | I’ve managed to answer my own question. Age discrimination legislation only applies to over 18s: It’s only discrimination if a trader or service provider treats you unfairly because of: age - if you’re 18 or over disability gender reassignment pregnancy and maternity race religion or belief sex sexual orientation Source | There are two kinds of evidence for discrimination. The primary evidence is direct, that is, statements by an employer, for example "We need to make sure not to hire a ___ for this position". The act of hiring a person that has a certain demographic property is never evidence for discrimination, because discrimination law treats all races and religions (etc) the same, so hiring a European is not intrinsically discriminatory, nor is hiring an African or Asian. Discrimination is also not defined in terms of the sameness or difference of an employee and a supervisor. Another possibility w.r.t. a discrimination claim is demonstrating a discriminatory pattern. However, the law does not demand exact proportional representation of all protected demographic classes. It is possible that certain circumstances would be compelling enough that illegal discrimination could be established, but this would require showing a pattern, and would not be useful in an individual action. There is no law requiring employers to be up-front about hiring decisions. There is also no law requiring posting a job (I assume this is not a government job), and no law requiring consideration of more than on candidate. It might be contrary to company policy. This is not murky from a legal perspective, even if it is scummy from an HR perspective. | In general, a seller may make different and inconsistent sales terms with different customers on whatever basis the seller chooses. In some jurisdictions, for some kinds of transactions, specific laws may regulate this. They may require similar treatment, or advertised prices, or whatever. I do not know of any such laws governing the sale of oil, but there might be some. This will depend on the exact jurisdiction (country, state/province, and perhaps city or other locality). Please edit the question to specify the jurisdiction if you want a more specific answer. Price discrimination on the basis of membership in a protected class under anti-discrimination laws, such as race or religion under US federal laws, would be illegal. Proving that the basis was unlawful might be hard, however. | Note: IANAL Does the placement of a sticker stating, "We accept XYZ credit cards," essentially obligate a business to accept that card? It depends on whether you mean whether they are obligated to provide goods/services to someone who presents the card, or whether, having provided goods/services, they are obligated to accept the card as payment. For the first question, the answer is "no". The credit card brand could theoretically go after them, however, as names of credit networks are trademarks, so claiming to accept a card but not doing so is trademark infringement. For the second, the answer is "pretty much". Since they misrepresented their establishment, there is no mutual assent and therefore no contract. If they try to use "defrauding the innkeeper statutes", those require fraudulent intent. If you fully intended to pay for you meal by a credit card, and it was their choice to refuse payment, then you have no fraudulent intent. The only avenue I can see for them is some sort of equity argument, but that would be problematic, especially if they ask for the retail, rather than wholesale, price, and not worth the hassle of collecting. So, legally, you can just walk out, but in practice if they have a bouncer they might make trouble for you. |
What is "look through" analysis? For a federal court to hear a case it must have both subject matter jurisdiction and personal jurisdiction. Federal court retains subject matter jurisdiction via 1) federal question jurisdiction or 2) diversity jurisdiction. Federal question jurisdiction arises from 28 USC 1331 which provides that federal courts have jurisdiction to decide a case based on federal law or the constitution. According to this reply on SE: A federal court can compel arbitration under Section 4 of the FAA, however, if, on a look through basis, the underlying dispute were to give rise to federal question jurisdiction, even in the absence of diversity of citizenship. Vaden v. Discovery Bank, 556 U.S. 49 (2009). In these cases, there is no minimum amount in controversy and diversity of citizenship is not required. What is the definition of look through analysis? Does the federal court need to delve deeply into the arguments and counterarguments of both sides in order to determine whether there is actual merit to any of the claims? Or as long as on the surface the dispute seems to be of federal nature it is sufficient to create federal jurisdiction? In other words, is the look through analysis deep or shallow? Are there times when federal court might decline to exercise jurisdiction over a matter (to compel arbitration) because it believes that the case would have been dismissed summarily had the court been asked to rule on it? Or they have no right to delve into the merits of the arguments? | In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Supreme Court held: A federal court may “look through” a §4 petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group [535 U.S. 826], however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication. Discover sued Vaden to recover a credit card debt in state court. Vaden filed a counter-claim challenging the charges under state usury laws. Discover filed a claim in federal court seeking to compel arbitration under 9 U.S.C. §4, which provides: A party aggrieved by the alleged failure … of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction … of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed … "Look through" analysis gives effect to the bolded words. A dispute about arbitrability itself is not sufficient to attract federal jurisdiction. But the petition does not need to be based on an existing claim in federal court, either – the court can "look through" the petition for a claim that would attract federal jurisdiction. Although Discover's debt recovery claim was based solely on state law, Discover asserted that the court would have had federal question jurisdiction because §27(a) of the Federal Deposit Insurance Act preempted the state laws supporting Vaden's counterclaim. The Supreme Court agreed that the district court should "look through" the §4 petition and consider the possible existence of federal jurisdiction, but reversed the court of appeals' finding that Discover's claim "arose under" federal law for the purposes of 28 U.S.C. §1331. The Supreme Court applied the "well-pleaded complaint rule" to Discover's §1331 claim, which required the court to focus on Discover's original (state law) claim, not its response to Vaden's counterclaim. To answer your question, "look through" analysis does not require the court to consider the "merits" of a federal claim before compelling arbitration. However, it is not sufficient that the dispute "seems to be of federal nature"; the court must conclude that (but for the arbitration agreement) it would have jurisdiction. The disagreement between the Supreme Court and the court of appeals in Vaden, which related to the scope of federal jurisdiction rather than the application of "look through" analysis, demonstrates that disputes about whether jurisdiction would have existed can become very complex. Thus, in general, a federal court should not decline to compel arbitration of a federal claim because "the case would have been dismissed summarily had the court been asked to rule on it." However, the court must dismiss the petition if the federal claim is so insubstantial that federal jurisdiction is not attracted at all. As the Supreme Court held in Hagans v. Lavine, 415 U.S. 528 (1974): Over the years, this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," or "no longer open to discussion." | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | 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. | 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. | No they are not the same statement. Who has jurisdiction? Let's disentangle a few things: A jurisdiction is an entity that has sovereignty to make, interpret and enforce its own laws. Each country in the world is a jurisdiction. Sub-national entities like states, provinces and municipalities may be a jurisdiction depending on the operation of law in the country they are part of. Some supra-national bodies like the EU and the UN are jurisdictions. To some extent, even companies, clubs and similar bodies are jurisdictions to the extent that they can make, interpret and enforce its own rules. A jurisdiction can decide that it has jurisdiction based on a whole raft of matters including: where the event took place where the party(s) are resident where the party(s) are citizens registration of things like planes, trains and automobiles if money passed through their financial system etc. A court or tribunal has jurisdiction if the jurisdiction has jurisdiction and it is the correct body within its jurisdiction to hear a particular matter. Which laws apply? Once a court or tribunal has decided that it does have jurisdiction it then needs to know what law to apply. This may be the law of their jurisdiction or another jurisdiction or both. Example For example, imagine there is a company in New York, USA that sells a product to a consumer in New South Wales, Australia. Further suppose that the contract says it will be governed by the laws of Ontario, Canada (don't ask me why). In the event of dispute, let's say the consumer begins proceedings in the Local Court in New South Wales. The New York company petitions the court to say that the correct forum is the court in Ontario, or New York, or Mexico where the product shipped from but certainly not New South Wales. The court in New South Wales will consider the jurisdictional arguments and decide if it does or does not have jurisdiction. If it decides that it doesn't then the customer would have to bring an action somewhere else (where the process repeats). Worth noting that the New York company would be precluded from arguing in that forum that New South Wales was the right jurisdiction because they can't have their cake ... If it decides that it does have jurisdiction then it would consider what law applies. Its quite probable that they would accept that the contract is governed by Quebec law. However, Australian law, most specifically the Australian Consumer Law would also apply. If there was a claim on a tortuous basis this might be New South Wales or New York law. They would then proceed to decide the case on the applicable law including working out how to reconcile any incompatibilities. | The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does. | united-states In the US Judges are generally not supposed to take public opinion into account, nor the views of executive officials, except as those are expressed in briefs or other documents submitted during a case. This is part of the "Independence of the Judiciary" or "Judicial Independence" Where a court has been too strongly influenced by short-term public opinion in a criminal case, this has been held to be a violation of Due Process, as was noted in Powell v. Alabama, 287 U.S. 45 (1932) although the main issue there was the right to Counsel (a lawyer). In the opinion it is said that: It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. (287 U. S. 51) However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. (287 U. S. 53) In The Federalist #78 Hamilton wrote: ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. | To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with "sufficient minimal contacts" with the forum state such that the particular suit "does not offend 'traditional notions of fair play and justice.'" What constitutes sufficient "minimum contacts" has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the "unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction. |
Selling software internationally and taxes I'm about to go crazy due to the amount of information I have explored on this matter and still I have no answers. Anyone with at least some knowledge, please share it. My case is very simple (I think), I create a small software application and want to sell licenses for it from my own web-site, taking payments using PayPal. I'm registered in Canada. If I was to sell it in Canada only I would have to collect and pay GST/HST taxes. But I have no clue where my clients will be from. According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. So it must not be the case. But PayPal's page on international sales suggests exactly that it's the case. The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer? Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates? I also known that usually countries specify certain limits before their taxes has to be collected, which makes it even more confusing. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? I want to show tax amount in the invoice, but it such case it looks like there will be no tax collected at all. | According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Correct. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. You are required to comply with the law. If it is complicated, or difficult or expensive to do so then, it's complicated, difficult and expensive and you still have to do it. The answer is obvious: if it's not worth having a small business, don't have a small business. The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer? It depends on the law in both Canada and the destination country. In most cases, the sale will be an export sale from Canada (GST/HST exempt) and an import sale in the destination country - requiring you to comply with GST/HST obligations there. Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates? Yes. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? Then you don't need to register and remit tax. Nor are you allowed to collect it from your customers. By the way, I have no idea what country in the Eurozone goes by the initials UE. In most jurisdictions, you need to register either when you reach the threshold in fact or reasonably expect to reach the threshold. Also in most, you can usually register even if you are below the threshold. For example, these are the rules for Australia. Anyone, please advice. Hire an accountant versed in international digital services. They will be able to give you the advice you need. They will also be able to recommend sales/payment platforms that can handle most of this for you (for a fee, of course). | If GDPR applies, then no one can opt out. If it doesn't apply, then an IP block is superfluous. Whether GDPR applies is determined by Art 3 GDPR. For this, we must distinguish where the data controller is operating from. It is irrelevant where the site is hosted, but primarily relevant where the data controller (your colleague) has an “establishment”, e.g. where he resides or typically works from. Per Art 3(1), GDPR applies to all processing activities in the context of an European establishment, regardless of where the users are. So if your colleague were running this site from Europe, they wouldn't be able to circumvent GDPR by blocking European users. However, if your colleague is running this site from outside of Europe, then Art 3(1) doesn't trigger. Per Art 3(2), GDPR can apply to processing activities where there is no European establishment. There is the Art 3(2)(a) “targeting criterion”: if your colleague “offers” goods or services to people who are in Europe, regardless whether paid or gratis, then GDPR applies to all processing activities related to this offer. I'll discuss this more below. There is also the Art 3(2)(b) criterion: if your colleague monitors the behaviour of people that occurs in Europe, then GDPR applies. For example, an app collecting geolocation information or a website creating interest profiles for ad targeting might trigger this criterion. An IP block can help to establish that no offering/monitoring related to people who are in Europe is happening, but it might not be necessary. It may be worth talking a bit more about the targeting criterion. The GDPR explicitly says that mere availability of a website in Europe doesn't imply that GDPR would apply. Instead, it is necessary to establish the data controller's intention – are they soliciting users from Europe, or otherwise expecting that people from Europe might use those services? Recital 23 gives a couple of non-exhaustive factors that can be considered here, for example: the site uses a language or currency used in the EU but not used in the controller's own country the site mentions users or customers from Europe, e.g. in testimonials This means that a lot of US websites, written in English or Spanish, only mentioning payment in USD (if any), not mentioning any European countries, will not be subject to GDPR. Then, occasional European visitors are irrelevant. It wouldn't be necessary to IP-block potential European users. However, such an IP-based block would help establish that the data controller really doesn't intend for those services to be offered to people who are in Europe. My personal opinion is that it's wasted effort to block users from foreign countries in case their foreign laws claim to apply, but if such a block brings peace of mind that might be worth it. While geoblocking might not be necessary, is it sufficient? There is no clear guidance on this subject, but it seems to be generally accepted that IP-based geoblocking is fine, even though it is trivially circumvented using VPN services. Of course, if a website were to block European IP addresses but were to also advertise that people in Europe can use their services via VPNs, that would probably still be an “offer” and might defeat the point of doing any geoblocking. The Art 3(1)(a) targeting criterion is most easily applied to things like ecommerce where physical goods are shipped to the customer in return for payment – so essentially whenever the data controller participates in the EU Single Market. This is roughly similar to the concept of a Nexus in US tax law. But in principle the targeting criterion can also apply to other kinds of websites or apps such as blogs, even if they are gratis. GDPR does not just apply to for-profit commercial activity, and doesn't distinguish between controllers that are entities/LLCs and controllers who are natural persons. Things are slightly more complicated due to the Art 3(2)(b) monitoring criterion and the pervasive use of online trackers on websites, but this aspect of the GDPR is difficult to enforce and frequently ignored. In this answer, “Europe” means the European Union (EU), the European Economic Area (EEA), and the United Kingdom (UK). Note that countries like Norway are covered by GDPR, whereas Switzerland is not. Of course, the GDPR is not the only privacy law relevant internationally. | You can always get in trouble. Copyright is always protected by the laws of a particular nation, by the courts of that nation. Because of the Berne Convention and the Universal Copyright Convention, I can sue you outside of my country, and will be treated as a person of that country. The conventions don't say who has jurisdiction, that is where you have to sue, so you have to resort to conventional jurisdictional principles. If you are in Europe, under the Brussels Convention, that means I have to sue you in your country of domicile (if you reside in multiple European nations, I get to decide which country to sue you in). The English courts are slightly different in that they generally hold that you sue in the country where the act took place, but (Lucasfilm v Ainsworth) you can sue in UK courts for infringement that occurs in the US. As you can see, this can get complicated. I can't sue you in Mongolian courts (assuming neither of us has any connection at all to Mongolia), but I could sue you (being a hypothetical UK citizen) in UK courts if you did the infringing deed while in Mongolia. Mongolian courts enforce Mongolian copyright law, US courts enforce US copyright law. Therefore you first have to decide what country you plan to sue in (from the plaintiff's perspective). | "There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England & Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages. | You would not be required to do either of the things you state (unless you explicitly agreed to do so). What, strictly speaking, you need to do is to advise the seller that the original goods arrived and ask them if they want to collect them, have you return them at their expense or abandon the goods to you. (In all likelyhood they will give the goods to you because the cost of them recovering them is to high). Although I'm not in the UK, I believe the Sale of Goods Act 1979 applies. Strictly speaking, as you have not paid for the goods, they still belong to the seller - but you do not have to pay to return them. | The work and the copyright to the work are different property rights Buying one does not give you rights to the other. Copyright laws differ by country so its impossible to say which need transfers to be in writing and which don't. For example, the United States requires them (and also allows owners to rescind the transfer after a number of years) but in Australia, it isn't necessary and the Copyright Act makes a number of presumptions in civil actions (ss126-131) which favor the person claiming the copyright so that, in the absence of contrary evidence, their assertion will prevail. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. |
Is it required for a defendant to be in court? Say that Nathan is on trial for 100 murder charges. He already knows his life is over, so every time they bring him into court, he starts screaming expletives out of turn. They charge him 1000 times over for contempt of court. But even if they gag him, he can still flop around like a fish out of water whenever they bring him into court. Basically, no matter what they do short of torture/violence, Nathan will find some way to be a nuisance in court. Is it at all possible to conduct his trial/sentencing without him present whatsoever? Or is it required that he be present in court at some point, and they just have to carry on through his antics? | They have a right to be present but can be removed under Illinois v. Allen While in general, a person has a right to be present for the trial and conviction hearing, they can be removed if they disturb the orderly process. SCOTUS also offers to have him fined again and again (only works if the accused is not judgment proof) or to gag and bind an unruly defendant. Illinois v. Allen, 397 U.S. 337 (1970) Syllabus Respondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so "absolute" that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had. Held: A defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. Pp. 397 U. S. 342-343. A trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U. S. 343-346. On the facts of this case, the trial judge did not abuse his discretion, respondent, through his disruptive behavior, having lost his right to confrontation under the Sixth and Fourteenth Amendments. Pp. 397 U. S. 345-347. Example of removal in action: The Darrell Brooks case As a rather public example, this happened during the Darrell Brooks trial, multiple times: there's abouht 9:12 hours and 6:15 hours of sentencing hearing in this case, including breaks, split between two days. On the 2nd day, the judge starts the actual sentencing by elaborating on how she understands the case at about 3:11:45. If you look up the transcript, keep in mind that the local time at the start of the video was about 12:50, ten minutes to 1 PM. At 3:44:20, Mr. Brooks starts to speak up and interrupt the judge, receiving in quick succession multiple warnings that he will be removed if he doesn't stop. After 40 seconds, the order to remove him from the courtroom is given. The hearing resumes at around the 3:49:50 mark, Mr. Brooks now in a separate courtroom. The judge elaborates that Mr. Brooks has a right to be present, and also why he can be removed under Illinois v. Allen. There is more elaboration on this topic till Mr. Brooks is muted at about the timestamp 3:53:00, because he is unwilling to do the required pledge to reclaim the right to be present under that case. More explanation about it follows that the judge wants the pledge in writing at that point. The reading of sentencing factors only resumes at around the 3:55:00 mark. Mr. Brooks writes something at about 3:57:00, and the paper is given to the judge at 3:59:19, ruling that whatever is on the sheet is not a pledge and thus he stays removed at 3:59:25. For some hour Mr. Brooks waves papers at the camera, writing another note to the Judge at starting about 4:41:00, before resuming waving with the new note at about 4:43:20 and showing his statement to the camera at 4:55:52. Sadly the quality is not good enough to read the letters, and not even the judge can read it at 5:57:00 - re-iterating that unless it is a pledge to stay quiet, he's not coming back. The prosecution manages to make out the top word as Objection at 4:57:20 and shortly after it is ordered that he may return with the sign, but if he so much as speaks up, he will forfeit his right to be present. Court resumes at about 5:03:20, corresponding to 4:53 in the courtroom. Mr. Brooks is instructed that he can only stay in the courtroom if he is to waive his right "to do so", and that if he doesn't behave he'd be removed again and told to sit down. Instead, Mr. Brooks starts rambling about subject matter jurisdiction at 3:04:00. Told once more to sit down, this transpires: Mr. Brooks: "I'd like to go back to the other court room." Judge: "It's not a courtesy to you. If you like to specifically waive your right to be physically present, then I will entertain that. Otherwise, you need to sit down." Mr. Brooks: [something unintelligible] "I never waived a right to not be present" [more unintelligible] Judge: "That's because you forfeited your right to be present by conduct. You're now back in this courtroom. Mr. Brooks: "Your honor I wrote three... I did what you asked me to do..." Judge: "You never once pledged to me sir, that you would not interrupt, and you're demonstrating by being here that you will continue to interrupt. Mr. Brooks [something to the effect that the judge told the bailiff that the pledge had to be in writing] Judge: "Mr. Brooks, this is not a debate. You asked to come over here and I honored that, and I brought you back. Mr Brooks [Interrupts, the words My Right are understandable.] "three times. I shouldn't have to do it three times!" Judge: "None of the opportunities you wrote to me said *I pledge to not interrupt." Mr. Brooks [Interrupts] "I never had to do that before! You've never required that before!" Judge: That is actually not true sir. Mr Brooks [argues that he'd never been required to pledge like that before in trial] Judge: Mr Brooks, You were just simply trying to delay the inevitable, please sit down. Mr. Brooks continues to argue and stand up, despite now being told to sit down and be quiet for the 3rd time since returning to the courtroom. A 4th order to "please sit down" is issued at about 5:05:35 and two more within about 20 seconds later. Mr. Brooks rants and complains about being removed in the first place and that he'd want to exercise his right to be present. The Judge finally re-iterates at 5:03:40 that the reason he was brought back was not because he had complied with the request to pledge not to interrupt, but because the next portion is very important. Mr Brooks doesn't sit down and argue. At 5:08:00 the judge clarifies that he "did not reclaim his right to be present" (which was forfeited back at timestamp 3:44:20!). A minute later, the judge orders him directly - with a warning that this is a direct court order and not doing what is told is contempt of court: Judge: Sit down and be quiet, so I can make the appropriate record. Mr Brooks [dispnbeys] Judge: All right, he's not going to obey, he has now forfeited his right to be present He will go into the other court room. We are in recess until he's there. 5:09:25 -The camera pans to the clock showing 4:59:20 Around timestamp 5:13:20 trial resumes, and the judge once more reiterates that and how the court deems Mr. Brooks having forfeited the right to be present for about two minutes. His sign that he objects to the other room and wants to return is ignored, even as he parades it around. Sentencing continues without him. The sentences are read starting timestamp 5:55:20 - no further interruption happens. | Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it. | In many jurisdictions, there is a "witness fee" that one is required to pay, as a token recognition of the value of a person's time. Fact witnesses can often be obligated to appear and testify, for minimal compensation, but not against themselves. In federal cases, Rule 17(b) of the Rules of Criminal Procedure permit the defendant to apply to ask the government to pay the witness fee if they cannot afford it and the presence of the witness is necessary for an adequate defense. The other side of a case (in this example, the prosecutor) could try to impeach the witness's testimony (i.e. make him seem less credible in the eyes of the jury) by demonstrating that the witness is a "professional witness" (i.e. fees from saying things in court are a major part of the witness's regular income). That doesn't seem to apply to the facts you've listed, where the witness just happened to be in that place and time to observe what happened and (assuming for this question) accurately testified as to what he saw. Personally paying the police officer or judge for a favorable result is a different question with a different answer. | There are several elements working in your friend's favor. The first is "guilty beyond a reasonable doubt." In an entrapment case, the police have recordings or documents claiming that the "girl" was underaged. If there is no such smoking gun from the (real) girl, the case (probably) would not be prosecuted in the U.S. He doesn't have to prove that she told him she was 18; "she" (or the police) has to prove that she told him she was "not." The second factor is "remoteness" in time, and distance. Two years after a U.S. state sent me a "nasty letter," I asked my lawyer if the state would ever come after me. He answered, "If they were going to do this, you would have heard further by now." The other factor, distance and cross border, (three countries: Turkey, the U.S., his home country) further militates against prosecution except for highly aggravating circumstances such as drug dealing, gambling, or sex for pay. A third factor is that your friend would not come close to qualifying as a "serious offender." This would be someone like a drug dealer, or the head of a "call girl" ring. The cops concentrate their effects on big "busts" like this that make their careers, not "small fry" like your friend. But of course they use the publicity from the big catches to scare everyone else. While there is no "guarantee" against "the worst possible consequences," the chances of them happening are similar to his getting hit by lightening, and less than his chances of being hit by a car crossing the street. No one stresses out about those chances. He shouldn't either. I am not a lawyer but I have done paralegal work in a law office. | Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case. If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary). Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case. Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts. The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post. | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | 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. | 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. |
Bellowing helicopters in the sky: insight and recourse Exceedingly loud helicopters seem to regularly fly in the sky where I live in the London Borough of Islington, both in the day and night, and often on Sundays, when noise is supposed to even be legally restricted in the day. What methods are available for one to find out who these helicopters belong to, and what they’re doing? Further, what recourse do disturbed local residents have to complain or prevent these helicopters from so severely disturbing them? | The U.K. Civil Aviation Authority provides information about making noise complaints to the relevant airport. It also notes that your local planning authority can provide more information about operating hours and noise restrictions. You could also ask at Aviation Stack Exchange for more information about identifying the aircraft and owner. This is also a political issue that Parliament attends to from time to time, so you can talk to your MP about it: Research Briefing: Aviation Noise (2017) Independent Commission on Civil Aviation Noise (2021) At common-law, there might have been causes of action available in trespass, nuisance, or public nuisance, but the Civil Aviation Act 1982 says that "[n]o action shall lie in respect of trespass or in respect of nuisance" as long as aviation regulations and orders are complied with. | If I were a federal prosecutor (which I'm emphatically not), I might try to charge you under 18 USC § 32 (a) (5): a) Whoever willfully— [...] (5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft; [...] shall be fined under this title or imprisoned not more than twenty years or both. Since you clearly know, or believe, that this has the potential to interfere with piloting, which would obviously be a serious danger to people on board the aircraft, I'd argue you would be acting with "reckless disregard for the safety of human life." If your conduct results in anybody's death, then life imprisonment and/or the death penalty are also on the table, under 18 USC § 34. | It says in the article The Metropolitan police said Bray’s equipment had been seized under section 145 of the 2011 Police Reform Social Responsibility Act, which gives the force power to seize items being used for prohibited activities in Parliament Square. That includes operating amplified sound equipment in the controlled area. It even gives the correct section truly outstanding journalism. | Nothing in the description strikes me as illegal or unlawful, so I am unsure of the grounds your friend would have for legal action. The questions a lawyer would ask (in addition to that) would be likely to include : How does your friend quantify the damage? The law is great for pursuing financial compensation, but does not handle abstract concepts. Has your friend used psychological counselling services, and what was the cost? What additional financial costs has your friend borne? If your friend has written to the University and has expected a response, what is the evidence of diminished trust? (The letter suggests otherwise.) Would a reasonable person (the proverbial "man in the street") be psychologically damaged by the events experienced by your friend? Is there evidence of a pre-existing condition? You've also mentioned yourself as a witness. Did you witness the eviction, or would you be attesting to your friend's state of mind? If the latter, what are your psychological qualifications? In the main Western jurisdictions, the answer to the question "can my friend sue?" is usually "yes", but whether they stood a chance of winning the suit would probably be a better question to ask. Your friend would only be likely to win a case against the University or the Security company if they could demonstrate unlawful or counter-contractual activity by staff, and were able to demonstrate financial damages that had been caused by that activity. | The key part of (e) is the National Radio Quiet Zone that covers parts of east-central West Virginia and west-central Virginia. Because of radio telescopes and military intelligence equipment in the area, there are restrictions (increasingly strict as you get closer) on potential radio interference. A radio source that would be no problem in most of the world can be a major problem when you are trying to pick up a radio signal from a few billion light-years away. So if Sally is in the National Radio Quiet Zone, she has to notify the National Radio Astronomy Observatory who will consider the power, location, etc. of the proposed beacon, and determine if it will potentially interfere with the radio telescopes before granting permission. If they grant permission, Sally is fine. Otherwise the FCC will decide what Sally can do. If Sally is outside the National Radio Quiet Zone, then (e) doesn't apply. So more information is needed before we can know if Sally is legal or not, but as a general rule: Outside the National Radio Quiet Zone, probably ok, inside it, will have to ask for permission. | australia There are likely several offences under the Inclosed Lands Protection Act 1901. Under s4 it is unlawful to enter into inclosed lands (which includes all buildings) without the consent of the owner or controller. The balloon releasers did not have explicit permission and entering with the intent to disrupt means they cannot rely upon implied permission. s4B makes this an aggravated offence if the intention for entering is to disrupt any business or undertaking taking place on the inclosed lands. Because there were 3 or more people involved, the maximum penalty is 200 penalty units (currently $22,000) or 3 years. In addition, the occupiers could seek damages under the torts of trespass or nuisance. | According to Virginia law, Every person convicted of reckless driving under the provisions of this article is guilty of a Class 1 misdemeanor. That speed easily qualifies as reckless driving: A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit. The punishment for a class 1 misdemeanor is "confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both." But wait! An airplane is heavy, so this may also apply: If it is found by the judge of a court of proper jurisdiction that the violation of any provision of this title (i) was a serious traffic violation as defined in § 46.2-341.20 and (ii) that such violation was committed while operating a vehicle or combination of vehicles used to transport property that either: (a) has a gross vehicle weight rating of 26,001 or more pounds or (b) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed vehicle with a gross vehicle weight rating of more than 10,000 pounds, the judge may assess, in addition to any other penalty assessed, a further monetary penalty not exceeding $500. By the way, I couldn't find a general reckless endangerment statute (unrelated to specific objects like firearms or specific results like injury or death) in Virginia law. The closest thing I could find was disorderly conduct, which is also a class 1 misdemeanor. It's possible I just don't know where to look. | As a practical matter, if you learn that people are gathering around a street racing event, leave. In all likelihood, you should do the same if you learn that people are gathering around a cockfighting event, a duel, a staged fight between people outside of a licensed boxing or fighting event, or any other illegal contest. Rather than worrying about the precise contours of these laws, avoiding this situations is the safest rule for your personal safety from other participants and from authorities. |
Do I need a privacy policy when selling on a shopping platform commercially? I am selling 5 articles per month commercially (not privately) on the internet. I am doing this on eBay Kleinanzeigen in Germany. The English translation is eBay small advertisements. It's like Vinted, Shpock or Etsy. I already have a text for terms and conditions. I wonder if I also need a privacy policy which tells the buyer how long I will save his address (for example)? I also have the PayPal address or the IBAN of the buyer. Do I need a privacy policy which tells the buyer how long I will store this information? | If you process any personal data, you do need to provide notice to the data subjects per Art 13 or Art 14 GDPR. Personal data is any information relating to a (directly or indirectly) identifiable natural person. It seems you are processing personal data including as addresses, PayPal accounts, and IBANs. Thus you're in scope of the GDPR. The GDPR does have an exception when data is processed for “purely personal or household purposes”, but that very likely does not apply to you. The German Datenschutzkonferenz (DSK), a cooperation of the German supervisory authorities, has published a handout on information obligations, listing which information has to be provided in a privacy notice: https://datenschutzkonferenz-online.de/media/kp/dsk_kpnr_10.pdf Such a privacy notice can be fairly short if you're don't doing anything special, in particular if you only use the data as necessary to fulfil the sale contract and then as legally required (e.g. for keeping financial records). There are privacy notice generators that can help with the boilerplate, but be aware that some are significantly outdated, and that in any case you have to fill in the information about your concrete processing activities. You have guessed correctly that you will need to inform your customers about your data retention periods. Your privacy notice will get more complicated if you also want to use this data in other ways, for example for marketing purposes. That would also require you to think about appropriate legal bases (e.g. legitimate interests, or consent). | It might possibly be illegal. For criminal law, usually you need to obey the laws of three countries: The country you are a national of (by personality principle) The country from where you make the sale (by territoriality principle) The country that hosts the attacked interest (by territoriality principle) Then it depends on the jurisdiction (and other factors) whether the sale is legal or not. I'll use the example of my country, Czech Republic. There is a crime called "Unauthorized access to a computer system or data storage device". For example, you commit this crime by exploiting a vulnerability in a web application and copying the web owner's data on your computer. It is also codified that whoever wilfully facilitates the committing of a crime by providing the criminal with resources (such as the exploit) is considered to have also committed the crime. For this to apply, you must have known or expected that the exploit will be used to commit a crime. The courts would decide this. | Yes, phone numbers would generally qualify as Personal Data under GDPR. It would be so irrespective of whether you have also stored other information along with the phone numbers or not, since also information that indirectly could identify a natural person is Personal Data (provided that there are, somewhere else, public or not public, a register of who holds the specific phone number). See Article 4(1) GDPR. (One could possibly argue that the phone numbers would not be considered personal data if there is no actual register of who owns a specific phone number with any other party. Or if such register is in practice not available for anyone. It might be so in some cases, although I would not rely on it.) Whether you have the right to process the phone numbers must be assessed based on its lawfulness (see Article 6 GDPR). It could be based on consent, performance of contract, legitimate interest or any other ground set out therein. | GDPR & EPD require user consent before storing a users personal information. Wrong. User consent is one of the ways that justify storing personal information, but there are others. You may check art.6 to see the several reasons that allow to store personal information. In this case, it seems reasonable to justify it under the paragraph f (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. Of course, that means that the data has to be used for this purpose. Avoiding spammers and other banned users would be such a purpose, but you should ensure that you do not send those e-mail address commercial information or even a Christmas greeting. In any case, be careful with anything you store. If along with the e-mail you stored more info, this could be interpreted as excessive and beyond the scope of paragraph f. For example, imagine storing "User wrote nazi statements" explaining why the e-mail is banned; EU laws are very restrictive about storing information about political or religious beliefs. | Don't do it. So clearly tax fraud is bad and the state can prosecute this when tipped off. Alice is also clearly allowed to report the possible tax fraud to authorities and to serve as a witness if necessary. The problem is that Alice can expose herself to various liabilities, and could be sued by Bob or by the state. On what grounds did Alice snoop around in Bob's room? Even if they are roommates, Alice might not have a right to enter the room. Even if she has grounds to enter the room, she might not have permission to trawl through Bob's private stuff. A glance at a computer screen is also quite unlikely to show evidence of tax fraud, as even selling lots of stuff does not imply running a business.1 On what grounds can Alice collect and share personal data with authorities? There is no constitutional right for snooping and snitching.2 Alice must instead identify a legal basis for sharing such screenshots or pictures with third parties. Data protection law such as the GDPR does recognize that there might be a legitimate interest, but Alice is unlikely to have such a legitimate interest unless she is personally affected by Bob breaking the law. For example, some people have been sued for overly enthusiastic reports of parking violations. Footnotes: People can sell goods e.g. on eBay without running a business that would have to be registered with the tax office. A business in this context is any regular business-like for-profit activity. Thus, a registration might not be necessary for occasional activity, or if the activity isn't for profit. For example, a person selling their old stuff for less than they bought it for is not acting with a profit motive. Even if there is occasional profit, this can be a privates Veräußerungsgeschäft (private sale). Whether such a sale is taxable depends on the duration between acquisition and sale. If it is taxable, it has to be reported as part of income tax filings. Generally, the profit is free from income tax after one year. VAT is a different matter. Private sales don't involve VAT. When a sole proprietor registers a business, they can elect to ignore VAT until they reach certain turnover or profit limits (Kleinunternehmerregelung). This kind of tax fraud is typically not a crime, and more of an administrative offence. Thus, intrusive investigations are not proportional – and even then, they would be up to the state, not to individuals. It is worth noting that Germany has extremely poor whistleblower protections and has failed to implement relevant EU laws. | 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. | united-states I am going to answer based on US law. But many of the principles would be similar in many other countries. In particular the law in the EU is similar. There are two separate issues here, trademark rights and copyright. Trademark Rights Trademark law provides protection against the use of the mark "in commerce". This means using the mark to identify or advertise goods or services. It does not provide any protection against use not in commerce. Specifically 15 USC 1114 (part of the Lanham Act, the main US Federal trademark law) provides, in relevant part: (1) Any person who shall, without the consent of the registrant— (1) (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (1) (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. If the plane was being used commercially, using someone else's trademark would be infringement and could lead to a successful infringement suit. But if it is not being used to provide or advertise a service or goodsm there is no trademark issue. Copyright 17 USC 106 specifies the exclusive rights that a copyright owner has. One is to make copies, another is to make derivative works. Unless fair use (or fair dealing in the UK) applies, one needs permission from the copyright owner. Without such permission, copying is infringement, and can lead to an award of damages. However, according to the question, the image has been released under a CC-BY-NC license. That grants permission, under certain conditions. One condition is that the image (or text) not be used for commercial purposes. If the plane is purely private, not rente out, these conditions seem to be complied with, so there is no copyright issue either. Conclusion Based on the statements in the question, there seems to br no IP issue here. Be sure that there is no commercial purpose, and that the CC license was issued by the actual copyright owner. A brief consultatuion with a lawyer might be wise. | 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. |
Can I trademark a 10-year-old-dead-trademark? According to US law, if trademark 'ABC' has expired under 'Section 8/9' more than 10 years ago (2010), and has not seen any activity so far, can I trademark it? | After some research, you can IF: The trademark is NOT used in trade, per example, if Apple failed to renew the trademark but is activelly using on products, they can always renew filling a new application. As said on Trademark Now: The risk comes from the Lanham Act. Through this act, a mark is not abandoned until it’s been discontinued without intent to resume use. While the USPTO will not track the mark in their registry as active because the paperwork has not been filed, this doesn’t mean that the mark isn’t still being used by a business who has an acceptable reason for not maintaining it in the registry. If you can prove in court that the original owner had no intent to continue its use, then have at it. Understand, however, that the subjectivity of the process will give you problems if the previous owner pushes back. 2. The expired trademark is NOT in the 6-month grace period after expiration in wich, the original owner can renew. I learned also that you could always ask(And is the best course of action), i spoke with some companies who had expired trademarks and they usually are willing grant the trademark, since the product/brand has been long dead. | The name of a company is not necessarily a trademark, so you are conflating two different concepts: A company name is the legal identity of the company, like your name is for you. A brand is an advertising construct which identifies certain goods or services. For example, Microsoft is both a company name and a trademark while Windows is only a trademark. Company names are regulated by whomever it is in your jurisdiction who is responsible for this: in Australia this is the Australian Securities and Investments Commission (ASIC). In general, within the same jurisdiction, you cannot have two company names that are the same. So, if you are not registering your company in the UK you should be fine. Trademark is about protecting brands and ensuring that there is no scope for confusion by the consumer that your goods and services are theirs (and vice-versa). Generally, if there is no room for confusion there is no trademark infringement. E.g., if your brand is about software and theirs is about agriculture then this is probably OK. If you both make software but you are a game company and they make accounting software this might be OK too, or it might not. | Can the word "Cola" be used for commercial purposes? It depends on what you want to do with it, but most uses would be permissible. "Cola" is, as you note, a generic term, comparable to "trout" or "sugar" or "beer." Still, generic words may be subject to trademark protection. Even "coca" is a generic word. Such protection is, furthermore, not exclusive; trademark protection is more subtle and complex than most people realize. There might be a company called "Cola" that operates guided outdoor activities, but that wouldn't necessarily prevent an unrelated company of the same name from pursuing the same business in another jurisdiction. Similarly, it might not prevent a company that repairs household appliances in the same jurisdiction from calling itself "Cola." For example, in the US, you can buy "Dove" personal care products and "Dove" chocolate; they are sold under distinct trademarks. The central criterion is confusion: trademark protection primarily prevents others from confusing consumers about the source of goods or services. Even if a word or phrase is unambiguously a protected trademark, there are still allowable uses, most notably to designate the product, service, or company associated with the trademark. For example, if someone wants to tell a story about a bottle of Coca Cola (or even to claim "our product is better than Coca Cola"), the owner of the Coca Cola trademark cannot use trademark protection to prevent them from using the phrase "Coca Cola" in the story (or to make the claim). For a specific opinion about a specific use of a specific trademark, you should engage a qualified lawyer with experience in trademark law. | Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name "Portable Network Graphics" and the abbreviation "PNG" in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that "Portable Network Graphics" is rather descriptive, and not particularly distinctive. Descriptive marks, like "Tasty Pizza" generally get weaker protection, while more distinctive marks, such as "LuAnn's Tastee Pizza" are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply. | Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe. | For works released after 1989, Copyright notices don't have any legal consequences in the United States. They are just a friendly reminder of who created the work and that they take their copyrights seriously. But those notices are not required anymore to enforce your copyrights on the works you created. If you have proof that you own the copyright on something and when it was created, and if it's still within the term limits, then you can take legal actions against people who violate your copyright. Disney has a history of repeated worldwide lobbying for extending the expiration durations in copyright laws in order to avoid any of their classic cartoons from falling out of copyright protection. So it could be that they try to intentionally muddy the waters and make it harder to find out which of their works expire when. That way people are less sure about what Disney works are and are not in the public domain, making it more risky to use them. But that's just my theory. | This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code. | Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc). |
Does anti-discrimination law apply to software licenses? Related: Can a software license validly restrict place of use, or impose restrictions on the type or purpose of use As per the above thread, it seems like it is perfectly legal in the USA to attach arbitrary conditions of use to software licenses. I do know that Title II of the Civil Rights Act of 1964 generally bans discrimination with respect to "public accommodations" which may be privately-owned services such as hotels or restaurants, but I'm not finding anything that specifies whether discriminating against someone with respect to licensing software violates the Civil Rights Act or any other US federal law such as the Americans with Disabilities Act of 1990. Is it lawful for the owner of the copyright of a software product to attach discriminatory usage conditions on it in such a way that such conditions would violate US federal law if the discrimination was instead done with respect to a public accommodation? If it is unlawful, is the offending (discriminatory) license clause invalidated (i.e. it is not part of the license), or does the clause remain valid but subject the licensor to liability for a discrimination lawsuit? For example, any of the following hypothetical license clauses could be considered discriminatory under my definition above: Persons with epilepsy must purchase an additional $50 Epilepsy License Rider in order to use this software. Purchasing this rider does not grant you access to epilepsy-related services, but only allows you to use this software despite having a medical diagnosis that would otherwise disqualify you from holding a license. If you hold a valid license to use this software and receive a new diagnosis of epilepsy, you shall have 30 days to purchase a Rider before your license to use the software terminates as a result of your disability. (disability discrimination) Notwithstanding any other part of this license or any other correspondence or arrangement with Licensor, members of the Church of Scientology are forbidden from using this software. (religious discrimination) This software is for white people only. It shall be a violation of the terms of this license for any black, Asian, or otherwise nonwhite person to use the software. (racial discrimination) By clicking the "agree" button below, you represent and warrant that you are a woman as defined under the family law code of Texas. False certification shall be a violation of the license and shall terminate your right to use the software. For the avoidance of doubt, men may not use this software. (gender discrimination) Are software license clauses such as the ones above lawful under US federal copyright and anti-discrimination law? In other words, if I write some software in the USA, do I have the freedom to decide to permit only people in certain racial, religious, etc. groups to use it or to require persons in certain groups (e.g. black people) to pay more for the same license, or do I have to obey anti-discrimination laws in who I license to and under what terms? Discussion: Questions about why someone would want to discriminate in this way are out of scope for this question. Similarly, why someone would want to use software whose owner wants to forbid them from using it for discriminatory reasons is also out of scope. I am aware that some software might represent niche areas of interest that would appeal primarily to members of certain protected groups. For example, an app for Talmud study would probably appeal primarily to Jewish users and not, for example, to Muslims, Buddhists, or Scientologists. My question could be whether I could lawfully publish a Talmud study app that only Jews are licensed to use or whether doing this would either invalidate the restrictive license clause (allowing non-Jewish people to license the app for the same price or under the same conditions as anyone else) or subject me to liability for discrimination. In response to Neil Meyer, I am not asking whether there is a distinction in law between lawful discrimination like choosing who to date or whose products to buy for personal use and unlawful discrimination like deciding not to hire people from a certain racial group for my business. I know that such a distinction is made and that it is not illegal for me to refuse a date on racial grounds or decide to quit my job because I discovered that the company was affiliated with a religion I disapprove of. I am not asking about what discrimination means, I am asking if what is commonly considered unlawful discrimination in public accommodation, employment, etc. is legal if it relates only to software licenses. For example, if I publish a "Standard Edition" of my software for $50 and then a "Special Low-Cost Edition for White People Only" at $20 with an EULA that specifies that the license is void if purchased by a non-white person, is that legal as long as I disclose what I am doing (e.g. on the box or on my website)? In response to a comment by gnasher729, this question has nothing to do with Scientology per se. I am simply using it as an example of a religion. In the USA, Scientology is considered a bona-fide religion under law and it is unlawful to discriminate against Scientologists in the same way that it is unlawful to discriminate against Russian Orthodox believers, Wiccans, or members of the Holy Family Temple of Pentecostal Righteousness under God Sabaoth. | It is generally held (see this article) that contracts are subject to 42 USC 1981 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other and the wording of the license conditions clearly shows a the "but-for" discrimination cited in the primary holding of Comcast v. National Association of African American-Owned Media that a "§1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury". The scope of §1981 is limited to cases of racial discrimination, having been enacted as part of the 1866 Civil Rights Act. | The companies really need to speak to an IP lawyer as this question is seeking specific advice which this site is loathe to give out for fear of compouding issues. The answer would depend on the license agreements and enforceability in various jurisdictions. According to https://social.msdn.microsoft.com/Forums/vstudio/en-US/0368d7ee-0eb3-4e3e-a143-4410969a15bb/eula-for-vs2010?forum=vssetup Microsoft says you cant rent out the software - but this applies to the "Pro" version - I could not find anything on the "Premium" version - so most likely Microsoft to have some clam. The flipside is how enforceable this EULA is - and this would probably vary from jurisdiction to jurisdiction. It would be a very, very good idea to speak to a lawyer before letting Microsoft come onto the premises - as "inviting them" to do this is almost certainly not going to improve the Asians company's case and will allow Microsoft to go fishing further and make it easier for them to expand on and collect evidence should they decide to pursue the matter. | No. You cannot be held liable for violating the EULA if you have never used the software and are only reporting what people who did use it told you. Of course, people bring groundless lawsuits all the time and you might have to defend such a lawsuit if you are sued. In some places you could be subpoenaed to disclose your sources, and in others, a reporter's privilege would allow you to quash such a subpoena. | Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment. The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business. If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner. And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all. In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech ("I am vaccinated") in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment. That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest. The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it: Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact. And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated. (N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.) Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause. The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce. When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state? A "yes" answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required: Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities. Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument. | Just assuming for the sake of this particular answer that everything happens in the U.S.: I'm not sure about the particular example of Open ZFS. The registration in the USPTO Records is in Oracle's name. Using OpenZFS for distributing the same kind of software as the now closed-source ZFS would seem to be infringing to me absent a license. Maybe Oracle just tolerates the use of the "ZFS" component by third-parties since they decided at some point to license the software under an open source license. In that case, they may have a dilution (http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkDilution.aspx) problem and the mark may be invalid. If the mark is invalid, anybody can pretty much do whatever they want with it. That said, assuming for sake of discussion that the mark is valid, there is indeed such a thing that is similar to the copyright fair use in trademarks (in the U.S. at least). It's called "nominative fair use". You can read more about it here: http://www.inta.org/TrademarkBasics/FactSheets/Pages/FairUse.aspx Bottom line is that under the nominative fair use doctrine it's generally ok for party A to use party B's trademark to refer to whatever party B is doing, even to sell products and services related to whatever party B is doing. As per the INTA document I just linked above, its for example ok to "use “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6." Having a website (even with third-party ads) that discuss ZFS-related matters is similar to the iPhone example in my mind. Having a domain name that contains the mark seems riskier, but it's not necessarily downright forbidden. See: http://itlaw.wikia.com/wiki/Toyota_Motor_Sales,_U.S.A._v._Tabari | There is a general EU anti-discrimination directive 2000/43 which in Article 3(1)(h) which applies the standards to housing. This document analyzes Czech anti-discrimination law. If you were discriminated against on the basis of being English, that could support legal action. There is no current EU or Czech legislation that guarantees a right to operate in the language of your choice. There have been calls to create some such legislation. Such legislation would be the implementation of Article 21 of the Charter of Fundamental Rights of the EU, which says that Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. There is under Article 9 of the European Charter for Regional or Minority Languages a right to use regional or minority languages in judicial proceedings, but there is no generic "right to use your own language". There are occasional cases where governments are sued because their actions linguistically discriminate. As observed here, there was a case in Belgium where the government was sued for not subsidizing French education in non-French territories, but the court said that "Art. 14 cannot be interpreted as guaranteeing children or parents a right to obtain instruction in a language of his choice". | If your own software includes software covered by the GPLv2 (for example by copying source code, or by linking dynamically) then your own software is also covered by the GPLv2, and you will have to provide the source code. This is called a "work based on the Program" on the GPLv2. In this case, however, it seems that your own software does not include software covered by the GPLv2, but you want to put it onto an SD card together with software covered by the GPLv2. That would most likely fall under "mere aggregation of another work", as long as your software and the other software do not interact very closely (such as dynamic linking). To quote the GPLv2: In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. So in that case the GPLv2 does not cover your program. You will still have to supply the source code for the GPLv2 software on the SD card. This is covered by section 3 of the GPLv2. Basically, you have two options: send along the complete source code for all the software (would be quite bothersome for a complete distro) or provide a written offer to provide the source code on demand to anyone who asks (you may charge for this, but only to cover your cost) GPLv2 contains a third option, but that only applies to non-commercial distribution. Practically speaking, it should be enough to include a README.txt or similar explaining that the SD card contains software covered by GPLv2, and that you will provide the source code on demand for a certain, reasonable fee (say $5 or $10 per CD). In practice, it is unlikely that anyone would ask for this, as the source code can usually be downloaded for free elsewhere, but if someone does ask, you just charge them $5 and send a CD. Of course, to reduce legal risks it may be prudent to contact a lawyer for your jurisdiction, as this is only general advice. | 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. |
Does double jeopardy apply if the prosecution did a "terrible job"? The point of this question is about how double-jeopardy could potentially be abused. Say that Bob is suspected of murdering Mary. If he is tried for this crime and found not guilty, then he can't be tried again for this case due to Double Jeopardy (if I'm not mistaken). But what if Ivan the Incompetent was in charge of the prosecution for Bob when Bob ended up walking free. Any other prosecutor would've handily had Bob behind bars, but Ivan was just a complete idiot who happened to file the case first. Is any other party not allowed to take Bob to court about this afterwards simply because Ivan the Incompetent got to it first? A mildly related example to consider would be Bill Cosby's case, where seemingly incompetent mishandling of the case resulted in his release, whereas a more proper team would have probably easily gotten him convicted. Lastly, a question about abuse: what's stopping Bob from asking his friend Ivan the Incompetent to prosecute Bob for his crime and do a terrible job at it, so that Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy? Edit: Can someone get protection under Double Jeopardy for a crime by arranging to be put on trial with fake evidence that is then disproven? seems relevant. But note that I'm asking in particular about whether a very poor prosecution can leave one innocent for life of a particular crime. For example, if Charlie is poor and hires a bad lawyer to prosecute, and loses. But his brother Dave, who's rich and has good lawyers, also wants to prosecute Bob. Is Dave just out of luck because of Double Jeopardy? | The prohibition of double jeopardy is about each sovereign getting only one chance at conviction for the same offence. If the sovereign handles their chance incompetently, they don't get another attempt. (The only "exception" discussed in user6726's answer here: bribery of a judge such that there was no actual jeopardy in the first trial; that exception has not been extended so far to bribery of the prosecutor.) You ask whether "Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy"? Yes, but only by whatever sovereign conducted the botched prosecution. The prohibition of double jeopardy does not prevent a separate sovereign for prosecuting the accused for the same acts, though, under their own criminal jurisdiction. This is why a person can be charged and prosecuted sequentially in federal court, in a tribal court operated by a Native American Tribe pursuant to its inherent sovereign authority, or in one or more state courts, even for the same acts, and even if the earlier prosecutions have resulted in acquittals. Your wording reveals a potential fundamental misunderstanding of what a criminal prosecutions is in the United States. You say "if Charlie is poor and hires a bad lawyer to prosecute." But there is no need or avenue for Charlie to hire a prosecutor. The state (or tribe, or federal government) has its own prosecutors and is in charge of the prosecution as the sovereign on behalf of the people. | The Fifth Amendment always protects someone from being forced to testify against themselves if it would implicate them in a crime (see, among others, Ohio v. Reiner, 532 U.S. 17). Any person can assert the privilege, regardless of their role in the trial, with the possible exception of the plaintiff (who is the one person who wanted to go to court). Like always with the Fifth Amendment, they can answer some questions but not others (but if they do answer a question, they need to fully answer it). In civil cases, the Fifth Amendment itself does not keep the jury from making adverse inferences against whoever invoked the privilege; if you refuse to testify, they can assume that it's because testifying would be extremely damaging in that particular case. However, most states have rules against that, and so invoking the privilege in state courts generally works like it does in a criminal case (where the jury basically ignores that the question was even asked). In federal courts, if a case is being heard under diversity jurisdiction (plaintiff and defendant are from different states but the claim is not a federal claim) the state rule is supposed to apply; if the claim is a federal claim, the federal rule applies and adverse inferences are allowed. While the Fifth Amendment can be invoked by anyone, there may be consequences. In many states (where adverse inference isn't allowed), a witness who will just invoke the Fifth and answer no questions can't be called, because it's a complete waste of time. If the plaintiff invokes the Fifth to not answer key questions, then the court can potentially dismiss the case; they have the right to assert the privilege, but their lawsuit might suffer for it. In federal court, another possibility that's been done several times before is that the civil case is just put on hold until the criminal matter is resolved. Sources: “The Fifth Amendment Can & Will Be Used Against You In a (Federal) Court of Law” Taking the 5th: How to pierce the testimonial shield Plaintiff as Deponent: Invoking the Fifth Amendment | Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record. | In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true ("after thinking it over after meeting with you, I realized that I was confused and getting it wrong"), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it. | This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions. | If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations. | can you hire a witness as your lawyer to exclude their testimony? That is pure fiction and misleading. Unfortunately scenes like that contribute to keep people ignorant about the law, which then makes it easier for courts to dissimulate their recurrent miscarriage of justice. But Purdue University v. Wartell, 5 N.E.3d 797 (2014) is an example where the Indiana courts did the right thing, and is pertinent to your question. There, Purdue University first assigned an investigator in regard to plaintiff's grievance, and thereafter the University tried to withhold information under pretext that the investigator was also its lawyer and thus that the information was protected by the privilege. Because that person hitherto had been portrayed only as an independent investigator, the Indiana courts concluded that Purdue University was estopped from invoking the attorney-client privilege (as well as the work-product doctrine). Thus, the guy in the film or series who said to be "screwed on Kardashian" reflects pure cluelessness about how the law supposedly operates. I have not seen the plot of that film or series, but the information that the friend-lawyer obtained prior to becoming O.J.'s attorney would not be protected by the privilege because it was not obtained in preparation for O.J.'s defense. If there were one star witness on the opposing side and they happened to be a lawyer, could you simply pay them off by hiring them as your lawyer? This question is somewhat unclear to me, but I will mention that lawyers have a duty to disclose to their potential or actual client any conflict of interests. The rules of so-called "professional conduct" discourage lawyers to ignore conflict of interests in that this conflict may impair their "services". And, as I explained previously, any information that a lawyer obtains as witness rather than as attorney in the matter is not protected by the privilege. Thus, as for If you committed a crime at a law-firm and everyone who witnessed it was a lawyer, is there any rule preventing you from just hiring all of them? the answer is: Nothing prevents the criminal from hiring all of them, but that information is not protected. | If you are convicted you can be retried (indeed, on appeal, you asked for a retrial). Double jeopardy prevents retrials in cases of acquittals and some mistrials, not convictions. |
Can my landlord force me to sign an agreement whereby I'd have to pay their legal fees? Canada, Ontario: My landlord included this item in the additional terms for a lease they want me to sign: Tenants agree to pay all reasonable costs, Lawyer’s fees and expenses made or incurred by Landlord enforcing this agreement. This is a major red flag for me since this would seem to imply that if my landlord wants to take me to court for anything (reasonable or not) I'd have to pay for their lawyer as well as my own lawyer. If they wanted to hire an expensive lawyer and drag it out they could easily bankrupt me. Is this even legal? It feels like signing away your rights which I'm pretty sure you're not allowed to do. | Is this even legal? Yes, it is lawful. The Ontario Tenancy Act does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it. Also note that the clause refers to reasonable costs, which implies that those costs must be for a reasonable cause. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious. Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario. | You mean like this? Of course, a website can charge you to access its pages; many do. And yes, clicking on an "I agree" button can form a valid contract (just visiting the website can't). Historically, the law has adopted the position that if you sign it (including by clicking "I agree") you read it, you understood it and you agreed to it. It's hard to imaging how it could be otherwise because allowing people to get out of contracts by saying "I never read it" is problematical as well. However, there are two things that mitigate against the type of term you suggest; one practical and one legal. Practical: How do they get your money? They can ask for your credits card details and, if they do and you give them a court will probably come to the conclusion that you knowingly and willingly agreed to pay for the service. However, if they don't have any method of getting money from you, they would have to take you to court to do so. There are a number of practical problems with this like: who are you? where are you? Which court can they sue you in etc. Legal: At common law, there exists the doctrine of unconscionability that describes terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience. Such terms are legally unenforcable. Further, in many jurisdictions, consumer protection law often give additional protections up to and including not enforcing terms that are merely unfair not just unconscionable. | Can a landlord legally charge for pet rent even when no pets are present in the apartment? Yes. Absent any indication in the lease that your cats would not move in immediately, the landlord is right. I assume that your lease reflects mutual knowledge of your intent to bring your cats over (via a marked checkbox or in "d) Pet1 Details: ... Pet 2 Details ..."). If so, according to the lease, you officially have pets in the apartment. To avoid being charged unnecessarily, you should have (1) ensured that the contract reflects the intended delay regarding your cats, or (2) asked the landlord to amend the lease once it is imminent that you will bring your pets over. One or multiple administrative reasons justify a landlord to charge pet fees even if there are no pets in the apartment. For instance, the landlord might need to notify his insurer whenever an additional rental unit will host pets, thereby resulting in adjustments to a premium. Likewise, the number of pets might be a factor when a cleaning company bills the landlord. The lease was signed with the impression that the $40 would only be necessary if we brought pets. Hence the relevance of determining whether or not the lease objectively reflects that you notified the landlord of your intention to bring pets and, if so, when it would become effective. If the latter is not specified, it defaults to the start date of the lease. It also sounds like if we never mentioned pets until, say, 6 months in, they would charge us pet rent for the previous 6 months even though the pets were not present. It depends. If the landlord "busted" you, then he could sanction you in accordance with the terms of the lease. Instead, if you subsequently requested an amendment to the lease, then the landlord would only charge you from the date you officially bring the pets. But the effective date needs to be reflected in the lease/amendment. Should I take this to court and get a lawyer? No. First, for the reasons I mentioned above. Second, because lawyers want money, and they will detect right away that there is really not much to recover in a controversy like this one. Third, because complaining about a relatively small amount ($40/month) tells the lawyer that he or she won't get much money from you either (and lawyers want your money). And fourth, because the yearly total of pet fees indicates that the matter would have to be filed in Small Claims Court, where --if I am not wrong-- parties are not allowed to be represented by counsel. Going to court is not "peanuts". Even if your were allowed --and you managed-- to retain a lawyer, you would end up paying so much in attorney fees to someone who might not be forthcoming, let alone diligent. If you no longer plan on bringing pets, just ask the landlord to amend the lease accordingly. | Dale is right; here are the details from CA statutes: Since 1872, CA law has told CA courts to assume the parties to contracts in CA are reasonable, not crazy. If the literal reading of the contract is crazy, the California Civil Code's rules for the Interpretation of Contracts tells its courts: ignore the crazy reading. Here is what the statute says: § 1636 A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. To win under this section, you would need to claim that both you and the landlord intended that the landlord would pay the late fee. No judge would believe this. § 1637 For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this Chapter are to be applied. To win under this section, you would need to claim that there is no doubt that both you and the landlord intended that the landlord would pay the late fee. Again, no judge would believe this. § 1638 The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. To win under this section, you would need to claim that it was reasonable that the landlord would pay the late fee. Again, no judge would believe this. § 1640 When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded. To win under this section, you would also need to claim that both you and the landlord really intended that the landlord would pay the late fee. Since no judge would believe this, any judge would rule that the wording was a mistake, and should be disregarded. § 1643 A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. Ditto. | No, it was not done properly See here. You cannot, and the landlord cannot agree to remove your name from the joint tenancy. You can cancel the tenancy for both of you, as can your ex. If you do this, the landlord is not under any obligation to offer your ex a lease on the same terms or at all so they would risk becoming homeless. The court has the power under the Family Law Act to make such a substitution so you can apply to them for such an order. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | Can they legally charge this fee if it was not stated in the lease we signed? No. The landlord's conduct is in violation of Virginia Code § 55-248.7, which in its item G reads: No unilateral change in the terms of a rental agreement by a landlord or tenant shall be valid unless (i) notice of the change is given in accordance with the terms of the rental agreement or as otherwise required by law and (ii) both parties consent in writing to the change. Per your description of the lease, the fee of $400 is an unilateral change (by the landlord) to which you and the tenant never consented, let alone in writing. You might still want to check whether Virginia Code § 55-248.37 applies to your situation at all, although the issue rather seems to be just the landlord's unilateral change. | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. |
How shall I handle user consent "remember" option I get consent from user for some operation. While consenting user can check "remember consent" option and this is handled as below: Consent is saved to db Some action is done and consent is deleted from db But problem is at step 2. If user cancel HTTP request that give us consent after the consent is saved in db, then consent isn't deleted from db. So at another request this consent this consent will be used. Is it legal behavior? | The GDPR does not prescribe how exactly consent must be managed, as long as consent was obtained in line with the GDPR's principles. Similarly, the EDPB does not provide concrete recommendations in its guidelines on consent, mainly noting that Controllers are free to develop methods to comply with this provision in a way that is fitting in their daily operations. I would not be too concerned with edge cases like failing HTTP requests, at least not any more than for other HTTP endpoints. If the user indicated consent, and you act on that indication of consent in good faith, that's probably fine. However, remember that you must provide a equally easy way for the user to revoke consent later. If the user changes their mind, they can use the mechanism that you offer to inspect their consent status, and revoke it if they want. But again, how to do that is largely up to you. | They must comply with your restrictions, via the principle that consent can be withdrawn. One relevant Supreme Court case is Walter v. US 447 US 649, which declares that When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization Likewise in Florida v. Jimeno, 500 U.S. 248, A suspect may, of course, delimit as he chooses the scope of the search to which he consents. In US v. Williams, No. 16-3547, 2018 U.S. App. LEXIS 21304 (3d Cir.), the court elaborated that a consensual search satisfies the mandates of the Constitution only if conducted within the boundaries of the consent given. This recognition establishes that it is the subject of a consensual search who decides the terms of the search. and furthermore, That a party may terminate a search by withdrawing his consent is a corollary of the recognition that the subject of a consensual search determines the parameters of that search. Bear in mind that you have to be crystal clear on any limits on the scope of a search. If this is more of a business call (the electrical inspector) and not a search, they don't have any special powers to enter your house. If the inspector enters your basement study without permission, that is trespassing, but you can't sue him because of that unless there was actual damage done. You can complain to his superior. | 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 territorial scope of the GDPR is defined in Article 3. It covers "personal data of data subjects who are in the Union", whether they are EU citizens or not. So to answer your questions: 1) are EU users, but moved to USA a few years ago, and signed-up on my website? They are not in the EU, so are not covered. You don't need to know if someone is an EU citizen, just if they are currently in the EU. 2) went for holidays in USA, signed-up on my website, and then came back to EU? (note - potentially skipped any Consent questions at sign-up, because IP was from USA) If someone moves into the EU while using your service then they fall under the GDPR for the time they are in the EU. If their home address is in the EU then that is covered, and monitoring of their behaviour while in the EU is also covered. Your other two questions are about VPNs. If a VPN is used to evade IP address geolocation and you have no other clue about where someone is then you can't be blamed for not knowing where they are (although I'm not aware of any actual case law on this topic). But if someone with a USA IP address gives a home address in the EU then you should probably treat them as being in the EU to be on the safe side. Basically, if you don’t know if they are in the EU or not, you should treat them as if they were. | 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. | As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user. That's not exactly true, consent is merely one of six possible legal basis for processing (article 6). For example, processing of personal data can also be lawful if it necessary to perform a contract, legally mandatory, or in the public interest. The court decision acknowledges that but rules out another basis in this case because it considers that it is possible to serve fonts without relying on a third-party ([…] der Einsatz der Schriftarten auch möglich ist, ohne dass eine Verbindung von Besuchern zu externen Servern hergestellt werden muss). Confusingly, it only refers to article 6(1)(f) when it seems to me that (b) would also be plausible but maybe this wasn't raised during the proceedings? If the data controller cannot invoke any other basis for the lawfulness of the processing then yes, the only thing left is asking for consent, i.e. invoking article 6(1)(a). But that doesn't mean that you should expect to be asked for consent each and every time your personal information is being used. The consent form on the site also implicitly assumes consent, which I thought was also a violation. Yes, implying consent doesn't really make sense under the GDPR definition (article 4, see also article 7): ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action European data protection authorities have issued guidelines that detail what that means and clearly reject “bundling” different data processing. The regulation also makes it clear that data subjects should be able to withdraw consent at any time, which does not seem possible with the fonts on golem.de My reading of all this is that assuming consent because you are using a service (or even created an account or checked a box at some point) simply isn't valid consent. Either you don't need consent at all in the first place or what you need is freely given, specific consent and “implying” consent or bundling it with a registration process achieves exactly nothing. But this is still extremely common and it might take some time before enforcement and case law definitively settle this question. Smart data controllers trying to avoid collecting consent (like Meta) have abandoned any claim that signing up to the their services would constitute consent (because that's transparently not the case) and try to bypass the issue entirely using another basis like contractual necessity. This is also being litigated. I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself. That sounds more like the way EU directives work. Regulations are supposed to be immediately applicable (no implementation in national law necessary) with minimal differences between countries (except when they explicitely provide for that). Of course, enforcement would still mostly be in the hands of national court systems and (in Germany) provincial data protection authorities but there are mechanisms to ensure consistency (the European Data Protection Board, prejudicial questions to the CJEU, infringement proceedings from the European Commission…). | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. | Your title is not necessarily consistent with your example. Can a website demand acceptance of non-essential cookies to allow access? As you have found, GDPR prohibits conditioning the provision of service on consent to the processing of personal data. Cookie walls without alternative means of access are generally considered violations of the GDPR. Can a website demand acceptance of non-essential cookies to allow free access? The situation of a "consent or pay" scheme (or "cookie paywalls") is more uncertain and has not been clearly settled at the EU level. There are data protection authorities that do not consider such scheme necessarily a GDPR violation (Austria, France) if a reasonable alternative access, without requiring non-essential cookies, is provided. For what it is worth, the French data protection authority (CNIL) held initially that all cookie walls are illegal, but on appeal from publishers and advertisers, the French supreme administrative court annulled CNIL's initial guidelines for being too absolute. German and Italian authorities are still examining the validity of such scheme. More reading: Consent or Pay: Privacy Considerations with Cookiewall-Paywall Hybrid Solution, https://securiti.ai/blog/cookie-paywall/ Is the use of a cookie wall allowed in European Countries, https://www.iubenda.com/en/help/24487-cookie-walls-gdpr |
Do not park on the parking lane How come Alberta's driver's guide says on a roadway outside an urban area, "do not park on the parking lane"? Isn't such a lane used for parking? Thank you! "On a roadway outside an urban area, do not park: on the roadway, parking lane or shoulder of a primary highway except where: your vehicle is incapable of moving under its own power, an emergency arises, or it is permitted by law" | Reading those clauses, you can see that you can park in an emergency. You can park with your vehicle dies and you can't move it. You can park if it is specifically allowed (maybe a sign saying "unrestricted parking allowed here"). Otherwise, you may park on a parking lane (or roadway, or shoulder) but subject to conditions also listed: "unless there is a clear passage for other motor vehicles, and your vehicle can be seen for 60 metres (200 feet) along the roadway in both directions". Regardless of the name of the piece of road, you are allowed to park there but only if your car is clearly visible, and there is room to get around you. | No party is granted the right of way, instead, some party is required to yield the right of way. Sec. 545.155 of the Texas Transportation Code says An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered. Sec. 545.256 likewise requires that An operator emerging from an alley, driveway, or building in a business or residence district shall: (1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway; (2) yield the right-of-way to a pedestrian to avoid collision; and (3) on entering the roadway, yield the right-of-way to an approaching vehicle. The law against wide right turns says "To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway"; intersection "means the common area at the junction of two highways, other than the junction of an alley and a highway", and highway or street "means the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel", i.e. the part where the parking lot empties into the main road. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. | The building manager needs to be there when the car is towed The tow truck driver must be wearing his hat when he attaches the hook to the car The tow truck driver needs a piece of paper which says Authority To Tow These are all urban legends of what is necessary to tow the car legally, and none of them are true. If you park on private property, essentially there are 2 main possibilities: You have a contract with the land owner, or You don't have a contract with the land owner Do you have a contract with the land owner? If there is a sign which says something like "If you park here, we will tow your car away and you will have to pay $200 to get it back", and the sign's placement, fontsize, etc mean that it would be visible to a normal person, then by parking there you are entering into a contract. The landowner likely also has a contract with a towing company allowing them to tow cars from their property. Whether this is a blanket contract covering all cars on the land (they might sign a new contract once a year) or individual contracts for each car (they might call the towing company whenever they need a car towed) is determined by the land owner and the towing company Alternatively, you may have a contract with the landowner allowing you to park there for free. Is there a sign that says "Visitor parking" and were you visiting someone who lives/works on the land? If there is no sign and you have not specifically entered into a contract regarding parking there, then depending on the circumstances the landowner can still have your car towed, but it would be difficult for them to require you to pay a specific amount to get it back. They may need to make a claim against you for their towing costs, and show receipts from the towing company etc, because without a contract they have no right to profit from you parking there, even if you were trespassing. In most cases there will be a sign, you will see it, and you will agree to it by parking. You can report it to the police as stealing, they can investigate by asking the towing company and the land owner, and they will probably discover that the landowner had the right to tow cars and assigned that right to the towing company. If there's a sign, then you may have agreed to it by parking there. If there's no sign, then you may have been trespassing. | It could be. You would have to check the specific address here, although not all properties are covered by By-Law 569-2013. This will give you the allowed uses. Picking a random residential-looking location, you might be stopped by §15.20.20.100 of the zoning bylaw, which restricts service shops to being located in non-residential buildings. There are also specific laws about vehicle service shops, which may included a required 3 meter soft landscape perimeter and fence, depending on what is adjacent to the lot. | Zoning is controlled by the municipality (and possibly state, given where KC is) so you would have to check the rules for the municipality of interest and look at the specific zoning designation (e.g. RP-OE, R-2, MXD). Here for example is a page of code from Overland Park, which tells you that RP-4 land can be used for a private park, but agriculture is not a listed permitted use. You might argue with city hall over whether a giant garden is agriculture, and you might even win the argument (if it is a garden where you don't harvest product). Private / non-commercial is not likely to be the controlling factor over agricultural use. | It's likely that you'll find similar statutes for your state. Florida's specifically considers the circumstances you've described: 316.081 Driving on right side of roadway; exceptions.— (1) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows: (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; (b) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard; This last entry represents your stalled car. An obstruction exists and you've yielded the right of way to oncoming traffic. You're good to go. | This varies greatly by state, but the pedestrians "right of way" is quite a common misconception. Pedestrians do not always have the right of way, but you're also not allowed to just run them over if they're in the middle of the street. That's why states have jaywalking laws, and a lot of people don't realize that they can be ticketed for it - because it's a huge safety concern for a pedestrian to walk in the street outside the designated areas. The NCSL provides a Pedestrian Crossing 50 State Summary that outlines the laws regarding pedestrian crossing. Particularly, there are two lines that frequently repeat throughout all the states: Pedestrians may not suddenly leave the curb and enter a crosswalk into the path of a moving vehicle that is so close to constitute an immediate hazard. Pedestrians must yield the right-of-way to vehicles when crossing outside of a marked crosswalk or an unmarked crosswalk at an intersection. Bottom line: if there is a pedestrian randomly in the middle of the street somewhere, you are fully obligated to attempt to not hit them with your vehicle. Feel free to curse them out (if that's your thing) because in most states they are themselves breaking a law. If an accident can't be prevented due to a pedestrian's actions, then the pedestrian is fully at fault and you will not be held responsible in any way. |
Can americans break american laws while in another country? If a 20 year old american brings his 16 year old america girlfriend to a country where the legal age of consent is 14, and then have sex with her there, is he liable to be prosecuted back in the US? | I'm answering your title question and assuming that you meant to present a circumstance that would actually trigger criminal liability, but based on the ages you've actually used in your hypothetical, you may not have done so. I'll ignore that complication and just present what the law is. Yes, there are some U.S. laws that people can be found to violate while in another country. The Department of Justice has a "citizen's guide" explaining extraterritorial sexual exploitation of children. The main offences are: 18 U.S.C. § 2423(a): Transportation with intent to engage in criminal sexual activity 18 U.S.C. § 2423(d): Travel with intent to engage in illicit sexual conduct 18 U.S.C. § 2423(c): Engaging in illicit sexual conduct in foreign places For § 2423(a), there must be the intent to engage in "any sexual activity for which any person can be charged with a criminal offense." For § 2423(b) and (c), "illicit sexual conduct" means, among a few other things: "a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States." Chapter 109A includes § 2243(a): Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who (a) has attained the age of 12 years but has not attained the age of 16 years; and (b) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. | In Texas, sex offenses are defined in Texas Penal Code § 21.01, et seq., and rape and kindred offenses are defined as sexual assault § 22.011 and aggravated sexual assault § 22.021. None of those laws prohibit the conduct described (assuming adults who are not in a teacher-student relationship with full mental capacity), nor do they prohibit the video as long as there is no intent or threat to disclose it. Of course, not recognizing that it is the same person both times in an in person meeting when they have sex is highly implausible. | I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one. | The only age of consent in England and Wales is 16. The relevant provision is Section 9 of the Sexual Offences Act 2003. 9 Sexual activity with a child (1) A person aged 18 or over (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, and (c) either— (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13. Sex between your two hypothetical people is always legal as both are aged 16 or older at all times (under this provision - there are a raft of reasons why it may be illegal notwithstanding). | It is illegal to marry while you are already married This is the crime of bigamy in all 50 states. A marriage ends with the death of one of the couple, a divorce or (in some very limited circumstances) an annulment. The US will recognise any of these wherever they happen so it’s your choice whether you get divorced in your home country or the US. By the way, don’t cause the death of your husband, that’s also illegal. | The US child porn law is Chapter 110 of Title 18. It refers to a "minor", defined as anyone under 18. Sexually explicit conduct is defined, which you can read about. Regarding distribution (not production), 18 USC 2252 (A)(1) identifies as an offender anyone who knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; "Affecting interstate commerce" is a term of legal art that means "doing, at all", which relates the law to the Commerce Clause and givers the federal government jurisdiction. There is a big interstate trade in child porn, and absolutely restricting distribution of child porn is part of what's necessary to regulate this form of interstate commerce (see Wickard v. Filburn, 317 U.S. 111 (1942): "affecting interstate commerce" can be found even when a farmer grown wheat for home consumption). There is no overriding of the law in case the minor is now an adult, and there is no overriding of the law if the producer, purchaser or distributor is the child in the porno. The core prohibition is 18 USC 2251, and distribution is covered in (d)(1), which defines the person to be punished as one who knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering— (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or (B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct; | When you are in another country, you are subject to their laws - you may be arrested and go through the due process as defined by that countries laws. This potentially means anything from a fine, to incarceration or deportation or even execution, depending on the local countries laws. A good example is the caning of American citizen Michael Fay in 1994 by the Singapore authorities, as a judicial punishment for vandalism, or the case of Swiss citizen Oliver Fricker, who was also caned in 2010 for vandalism. | […] 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’?” |
Can action be taken against a Discord server for someone admitting in chat they're under 13 then changing their age to over 13 thereafter? Suppose you have a Discord server with a member who voluntarily tells people in chat that they are 12 years old. For purposes of this example, the user says I am 12 years old. Then after making that claim, they tell the moderators they are instead 18 years old in a private DM. For purposes of this example, the user says I am actually 18 years old. My questions are Whether or not the Discord server is legally required to ban this user after voluntarily saying they are 12 years old, even if they then say it was fabricated, either in the public chat or via private DM. Outside of banning the user, is there any other action the server administrators are required to take? Hypothetically speaking, could the server owner/server be held liable if god forbid something happened to or on behalf of that individual? Useful Information Discord TOS says: By using or accessing the Discord application (the “App”) or the website located at https://discord.com (the "Site"), which are collectively referred to as the “Service,” you agree (i) that you are 13 years of age and the minimum age of digital consent in your country, (ii) if you are the age of majority in your jurisdiction or over, that you have read, understood, and accept to be bound by the Terms, and (iii) if you are between 13 (or the minimum age of digital consent, as applicable) and the age of majority in your jurisdiction, that your legal guardian has reviewed and agrees to these Terms. A recent Tweet from Discord: Anyone under the age of 13 cannot use Discord per our Terms of Service. If a server owner is aware and ignores it, we will take action on the server and/or owner. | Yes (probably), under COPPA The FTC has stated that YouTube content creators could be held liable under the Children's Online Privacy Protection Act (COPPA), a United States law that "imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age." (source) The FTC's FAQ on complying with COPPA notes that "operators will be held to have acquired actual knowledge of having collected personal information from a child where, for example, they later learn of a child’s age or grade from a concerned parent who has learned that his child is participating on the site or service." It also has the following question/answer (emphasis added): I operate a general audience video game service and do not ask visitors to reveal their ages. I do permit users to submit feedback, comments, or questions by email. What are my responsibilities if I receive a request for an email response from a player who indicates that he is under age 13? Under the Rule’s one-time response exception (16 C.F.R. § 312.5(c)(3)) you are permitted to send a response to the child, via the child’s online contact information, without sending notice to the parent or obtaining parental consent. However, you must delete the child’s online contact information from your records promptly after you send your response. Assuming the FTC is correct that content creators (not just the service itself) are responsible for COPPA compliance, a Discord server administrator would likely be required to ban/delete the account of a user upon discovering (acquiring actual knowledge) that the user is under 13. It may be a defense that they believed the user's retraction and claim that it was a lie, but I wouldn't want to be stuck arguing that in court (an underage user who doesn't want to be banned certainly would have a good reason to lie about their age upon finding out that they would be banned for having admitted their actual age). | The basic requirements for the effectiveness of valid legal consent are defined in Article 7 of the GDPR and specified further in Recital 32. There is no form requirement for the consent, so using a button is not a problem. However, I do not think the MailChimp-button you reproduce as an example is good enough. It asks for a blanket consent to stuff that is buried in MailChimp's “Anti-spam Policy & Terms of Use”. But according to the GDPR, what the data subject consent to can’t be buried in the ToU – it must spelled out in clear, plain language. Requests must be granular, asking for separate consent for separate types of processing. “When the processing has multiple purposes, consent should be given for all of them” (Recital 32). Blanket consent, as used by MailChimp, is not allowed. The other clear requirement from the GDPR is that opt-in is mandatory. Pre-ticked and opt-out buttons are explicitly banned: “Silence, pre-ticked boxes or inactivity should not therefore constitute consent” (Recital 32). ‘No’ must become your data default, but if the user chooses to opt-in by clicking a button, this is valid consent. The MailChimp-button complies witrh this. The GDPR also requires you to keep a records of the consents given (so make that part of the user profile), and to withdraw consent at any time – so you make make provisions for that as well in your implementation of consent. | The GDPR's right to erasure just applies in some specific situations. While messages you wrote on Slack are personal data, they are generally also part of a larger discussion with others. If your messages are removed, the discussion becomes incomplete, so that will violate the freedom of expression of those others. Art. 17(3) GDPR provides an exception for the right of erasure in such cases. So basically, whoever is the controller, you probably don't have the right to have your messages to be deleted. However, you would have the right to have your account pseudonymized like Slack replied in the Reddit post you linked to. See also my answer in "Does a user have the right to request their forum posts deleted?". Basically, it is correct that Slack can be just the processor. Even if the controller cannot get access to more than 10000 messages unless they pay. However, Slack is not allowed to do anything with those messages, except when the controller says so. In its Privacy Policy, Slack distinguishes between customer data and other data. It states to be the processor for the customer data, but controller for the other data. Because those are tied together, I am not sure this distinction can be made. If not, Slack and the customer will be joint controllers, but it requires probably a court case to decide on that. For example, the Court of Justice of the European Union has ruled (in the Fashion ID case) that putting a Facebook "like" button on your website, makes you a joint controller together with Facebook. And (in the Wirtschaftsakademie case) that also creating a Facebook "fan" page makes you a joint controller. But neither of those are very similar to the situation with Slack. | Most place it isn't illegal, but unless the company has some good reason for asking (such as the ones that Nij outlines) then it might open them up to accusations of ageism. In other words, if they have no good reason for asking they would have difficulty explaining to a court why they wanted that information if it wasn't to facilitate age discrimination. | Probably not An employee is someone that the employer "suffers or permits to work" - moderators would appear to be caught by this. There are specific exemptions carved out in the public and not-for-profit sectors where they "a) work toward public service, religious or humanitarian objectives; b) not expect or receive compensation for services; and c) not displace any genuine employees." However, they very specifically say “Under the FLSA, employees may not volunteer services to for-profit private sector employers.” So on the face of it, a moderator is an employee and is entitled to minimum wages and conditions for the hours they work. AOL settled a lawsuit in 2009 with their moderators who were suing for wages for an undisclosed sum and so the case did not set a precedent. This article suggests that "for-profit companies don’t have volunteers; they have lawsuits waiting to happen" and uses examines the situation at Reddit (which could equally apply here). Facebook employs moderators so the precedent exists that this is work that employees do. When the lawsuit happens, we'll find out. It will turn on the particular facts - some types of mods for some companies may be employees while others may not. | 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). | In Illinois, there were previously no restrictions for those 13 and older. However: NOTE: Beginning on January 1, 2016, no person born on or after January 1, 1998, unless exempted by subsection (i), shall operate a motorboat with over 10 horse power unless that person has a valid Boating Safety Certificate issued by the Department of Natural Resources or an entity or organization recognized and approved by the Department. Please check back at a later date for more details. Persons at least 12 years of age and less than 18 years of age may only operate a motorboat if: They have in possession a valid Boating Education Certificate of Competency issued by the Illinois Department of Natural Resources, Safety Education Division, or They are accompanied on the motorboat and under direct control of a parent of guardian, or a person at least 18 years of age designated by a parent or guardian. Emphasis in original. Source: https://www.dnr.illinois.gov/safety/Pages/BoatingSafety.aspx In Wisconsin, Who May Operate/Age Restrictions It is illegal for a parent or guardian to allow a child to operate a vessel in violation of the requirements below. Motorboats (Other Than a Personal Watercraft) A person under the age of 10 may not operate a motorboat. A person 10 or 11 years old may operate a motorboat only if accompanied by a parent, a guardian, or a person at least 18 years old who is designated by the parent or guardian. A person 12-15 years old may operate a motorboat only if: He or she is accompanied by a parent, a guardian, or a person at least 18 years old who is designated by the parent or guardian or … He or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person at least 16 years old may operate a motorboat only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person born before January 1, 1989, is exempt from the safety course requirement. Personal Watercraft (PWC) A person under the age of 12 may not operate a PWC. A person 12-15 years old may operate a PWC only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. (Parental supervision is not a substitute for a boating safety course certificate as with other motorboats.) A person at least 16 years old may operate a PWC only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person born before January 1, 1989, is exempt from the safety course requirement. A person under the age of 16 may not rent or lease a PWC. Emphasis removed. Source: https://www.boat-ed.com/wisconsin/handbook/page/6/Who-May-Operate%7CAge-Restrictions/ | In general, a ToS document for a web site or online service is simply a contract or agreement. Normally violations of such an agreement are possible grounds for a civil suit, but are not crimes. Moreover, some terms that some TOS documents claim are not legally enforceable. For example some insist that a user waive a right that the law says cannot be waived. The kind of terms mentioned ion the question are probably enforceable in most jurisdictions. If a person intentionally supplies false information to a site operator or service provider, with the intention of gaining some financial benefit that would not be available without the false statements, under circumstances where it would be reasonable for the site operator to rely on the statements, that would be fraud in many jurisdictions. Fraud is often a matter for a civil suit, but in some cases it can be a crime also. Those cases vary in different jurisdictions, and the question does not specify any particular jurisdiction. Criminal fraud is the only case where I can think of where a ToS violation would be a crime. Some TOS documents prohibit things which are already crimes. For example a communication site might include in its ToS that users are not to use it to assist in committing a crime, or to unlawfully harass someone. If a user violated those provisions, they would also be committing a crime, but only because those actions would be crimes even if the TOS had never mentioned them. It is a crime to plan a murder via a chat site, whether the TOS says so or not. But that is because it is a crime to plan a murder in general, with nor without the chat site. There are some specifically online crimes. For example, posting so-called "revenge porn" is a crime in many jurisdictions. But that is a crime because of a law against it, not because of a TOS that prohibits it. In all usual cases, a ToS violation will be dealt with via a civil suit, or by limiting or canceling the user's access, if it is dealt with at all. CFAA In the united-states the Computer fraud and Abuse Act (CFAA), specifically 18 U. S. C. §1030(a)(2), makes it a crime for anyone who ... intentionally accesses a computer without authorization or exceeds authorized access ... The recent case of Van Buren v. United States, 593 U.S. ___ (2021) dealt with the "exceeds authorized access" language. (See the Wikipedia article) In that case, Van Buren, a police officer, accessed official databases to determine id the holder of a given license plate was in fact an undercover police officer. Van Buren thought that this information was being provided to a criminal, and was paid $6,000 for it. Van Buren knew that the access policy prohibited access for "personal use" or any "non-official purpose". He was charged with a felony violation of the CFAA on the ground that he accessed information with an "improper purpose", although he would have been authorized to access that same information with a proper purpose. After a long discussion of the meanign of the words "so" and "entitled" in the stsatute, the court opnion says: If the “exceeds authorized access” clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals. Take the workplace. Employers commonly state that computers and electronic devices can be used only for business purposes. So on the Government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA. Or consider the Internet. Many websites, services, and databases—which provide “information” from “protected computer[s],” §1030(a)(2)(C)—authorize a user’s access only upon his agreement to follow specified terms of service. If the “exceeds authorized access” clause encompasses violations of circumstance-based access restrictions on employers’ computers, it is difficult to see why it would not also encompass violations of such restrictions on website providers’ computers. And indeed, numerous amici explain why the Government’s reading of subsection (a)(2) would do just that—criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook. ... ... For example, one police department might prohibit using a confidential database for a non-law-enforcement purpose (an access restriction), while another might prohibit using information from the database for a non-law-enforcement purpose (a use restriction). Conduct like Van Buren’s can be characterized either way, and an employer might not see much difference between the two. On the Government’s reading, however, the conduct would violate the CFAA only if the employer phrased the policy as an access restriction. An interpretation that stakes so much on a fine distinction controlled by the drafting practices of private parties is hard to sell as the most plausible. In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him. This case clearly says that a person who has authorization to access a computer, but does so for a purpose prohibited by system policy, perhaps as expressed n a TOS contract, is not subject to criminal prosecution under the CFAA. It does not directly deal with the case where, as a condition of access, a person must furnish truthful ID information, or comply with some other condition, and whether violating such a condition would constitute a crime under the CFAA. But it casts significant doubt on any interpretation of the CFAA which would treat that as a crime |
Is it possible for an individual to commit money laundering like a bank? In the classic example of money laundering, Charlie the Criminal would take his dirty money to Bob the Banker and get it in some form that is spendable and transferable. In this situation it would be expected that Charlie would know it is dirty money, but Bob the Banker does not need to be specifically aware the the money has criminal origin. Because of this he implements, if he is for example a cryptocurrency exchange, Know Your Customer (KYC) checks and refuses to deal in certain products, Monero in the UK for example. What if however Bob is not a financial institution but a member of the public (Bob the Builder perhaps)? If he uses a decentralized exchange such as bisq he would be performing much the same actions as Bob the Banker or Cryptocurrency exchange, including exchanging fiat currency for cryptocurrency and trading in Monero. The design of the market makes it impossible to perform any such KYC checks, and at least when exchanging fiat currency makes it clear that there is an covert element in the process (you are informed by the interface not to reference the transfer as "bisq" or "cryptocurrency transaction"). It is possible for an individual to commit the crime that a bank could be found guilty of by having insufficient money laundering prevention measures? As far as jurisdiction as one never really knows where the other party is located any jurisdiction where this is illegal probably makes it illegal anywhere so the most restrictive rules are probably the most relevant. | Because money laundering is a form of transnational crime there is an extensive system of treaties which harmonise, to some extent, the laws of most developed countries. Relevantly to your question, the United Nations Convention against Transnational Organized Crime provides in article 7: Each State Party … Shall institute a comprehensive domestic regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money-laundering, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer identification, record-keeping and the reporting of suspicious transactions … Generally, local laws will define concepts like "money transmitting business" and require individuals engaged in these businesses to obtain a licence and comply with similar KYC and reporting obligations to a bank. For example, in the United States, 18 U.S.C § 1960 makes it illegal to run an unlicensed money transmitting business. In United States v. Rockcoons (3:17-cr-03690), the defendant committed this offence through peer-to-peer bitcoin trading: Rockcoons advertised his Bitcoin exchange services on the website LocalBitcoins.com. In 2015, HSI identified Rockcoons as the most prolific San Diego-based seller. In April 2016, the defendant’s LocalBitcoins.com profile showed that he continued to advertise as a trader and seller of Bitcoin in San Diego, with his profile reflecting that he had engaged in more than 500 transactions. As of October 2017, the defendant’s profile indicated that he conducted more than 1,000 bitcoin trades with more than 644 people. Rockcoons received a commission of as much as 36 percent per transaction. On the other side of the Atlantic, the law in the United Kingdom is explained in Vladimir Consulting Ltd v Financial Conduct Authority [2022] UKUT 168 (TCC). VCL had been trading on LocalBitcoins.com since 2017, but from 2020, was required to become licensed as a "cryptoasset exchange provider" under the Money Laundering and Terrorist Financing (Amendment) Regulations 2019. VCL was refused a licence because it had consistently failed to comply with requirements of the money laundering regulations. VCL challenged this decision in the Upper Tribunal, which analysed the applicable rules and confirmed the Financial Conduct Authority's decision. | Nope, the seller can't refuse "to sell". They have sold it. They sold it right at the moment the contract was created (which, depending on where they were, would not necessarily even need to be in writing). The deposit is irrelevant. What is relevant is that now your friend must pay the full balance, and the seller must hand over the car. If the seller does not do that, that is a breach of contract which can be fixed by going to the court and obtaining an order to hand the car over. | The primary distinction between gambling and non-gambling is whether something is a game of chance, and usually, the statutes of a state prohibiting gambling will expressly define it in those terms. The mere fact that there is some element of chance or probability involved, however, is not sufficient to make something gambling, and the fact that there is some skill involved in a game does not automatically prevent it from being gambling. Generally speaking, if the activity serves some commercial or economically useful purpose, like an insurance contract entered into by someone with an insurable interest in the outcome, or a contract regarding a security or commodity price, it will not be treated as gambling under U.S. law (Britain and Ireland draw the line differently). The status of prediction markets is still unresolved, but since many of them call upon the application of skill and knowledge, rather than random chance, to make predictions, and since their use, for example, by the CIA, has given them an air of legitimacy, more often than not, they are not treated as gambling. Binary options are regulated in the United States by the CFTC and gambling is regulated by each U.S. state individually. This isn't entirely true. But it does appear that the CFTC asserted jurisdiction over this particular prediction market type activity, and did not consider it to be gambling subject to state law regulation. Also, there is some federal regulation of gambling even though it is primarily a matter of state law. Indeed, this ruling was quite helpful in the long run to the prediction market industry. The case held that Polygon.com was subject to CFTC jurisdiction, which would take it out of state law gambling jurisdiction and it provided a road map to come into regulatory compliance: The platform offered off-exchange event-based binary options contracts and failed to obtain designation as a designated contract market (DCM) or registration as a swap execution facility (SEF). All it has to do is register with the CFTC as a DCM or SEF and it is in regulatory compliance (these aren't trivial undertakings and could require months of interactions with the agency and $100,000+ of legal work to accomplish, but there is a clear path to doing so). does it mean that if a company creates a question (Yes/No) on financial assets (like an option traded on an exchange) will be considered as a binary option regulated by the CFTC while a non-related financial question is considered as gambling? No. The case held that the questions, for example, about who would win the next Presidential election, constituted a "swap" regulated by the CFTC and not gambling. It simply said that since the CFTC has jurisdiction and since Polygon.com had not complied with CFTC rules for conducting that activity, that it had violated the law. | Yes When you enter the jurisdiction of a country, you are subject to its laws. You are not, in general, subject to punishment for things you did before you entered its jurisdiction but if possession of bitcoin (or anything else) is illegal in that country, then possessing that thing makes you subject to prosecution. | According to Blackmail Overview :: Justia (emphasis mine): A blackmailer typically has information that is damaging to the victim, and uses threats to reveal that information in order to coerce the victim. Blackmail is considered a crime regardless of whether the information is true or false. The central element of the crime is the blackmailer’s intent to obtain money, property, or services from the victim with threats of revealing the information. So it's still a crime, at least in the US. But the enforcement problems are tracing the original emailer, which, due to (I assume) multiple email relay IPs, address spoofing, etc, and the big issue of identifying the actual individual who pressed the metaphorical "send" key on the bulk email script, the jurisdiction of that person, etc. As Ron pointed out, BitcoinWhosWho shows no one has fallen for it, even though millions of these emails get sent every day, gauging from the number that I get myself. | 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. | Is it legal to sell currency at a price lower than face value? Yes. In fact, to donate is the act of transferring for free the ownership of something. Outlawing a transaction that is less extreme than a donation would be inconsistent with the lawfulness of donations. A significant departure from the market exchange rate does not affect the validity of currency exchange. A "sale" of currency in terms of itself is not illegal, since the transaction can be viewed as a combination of two transactions performed instantaneously and involving the fiction of an intermediary currency. Offers of currency for less than face value also happen very often when transacting the bonds issued by a country's central bank. Any two parties can transact those bonds in secondary markets. The scenario you describe obviates redemption periods, fluctuation risks, and various formalities, but those differences are inconsequential from a legal standpoint. | Yes If it is illegal to transfer money between the jurisdictions then any contract that requires that to happen is unenforceable. This is a subset of "sovereign risk" in a trans-national deal. |
Are arbitration agreements subject to a 6 year statute of limitations in NJ? Generally, breach of contract in New Jersey must be filed within six years of the date the cause of action accrues. Does this apply to enforcement of arbitration agreements? | Are arbitration agreements subject to a 6 year statute of limitations in NJ? Yes. Remember the precedents from NJ that I cited in response to one of your recent posts: a state may not "subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts" This implies that the statute of limitations for arbitration agreements is the same as for contracts in general. If it were otherwise, that departure would constitute a greater burden on whichever party happens to oppose the enforcement of the arbitration agreement. | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! | Short Answer Must a law be broken for a court to hear the case? Generally speaking a union or management group involved in a labor dispute has to allege that the other side did something that entitled them to some sort of relief under the applicable labor laws and any surviving provisions of the collective bargaining agreement of the parties. But an adjudicator can only extremely rarely impose the economic terms of a new collective bargaining agreement, and then generally only after the parties have been ordered to participate in mediation and failure to produce a collective bargaining agreement. The far more common resolution of a failure to reach a new collective bargaining agreement is to allow a strike or lockout to continue until an agreement is reached. But, in rare circumstances, typically when a strike is not permitted for public policy reasons, a third-party arbitrator can sometimes impose economic terms for a new collective bargaining agreement when efforts to negotiation new terms fail. This said, different subjects of labor disputes, and different kinds of employment (in industry or occupational type) are often handled differently from each other. Canada has at least twenty-one different labor boards or tribunals to handle different kinds of labor disputes, each with its own separate authorizing statute. Long Answer There Is More Than One Set Of Labor Laws In Canada Labor law is a somewhat tricky thing that doesn't always follow general principles of contract law. There is considerable statutory guidance in this area that is not present in ordinary contract law, and it isn't entirely one size fits all. In particular, the labor laws that apply to public sector unions are different from those that apply to private sector unions, and there are some industries and occupations that are regulated differently than others in the union-management relations area. For example, the actions that janitors at a private medical facility may legally take in a labor dispute are different from the actions that doctor-employees at a private medical facility may take, which are different again from the actions that military personnel in a government owned and run military hospital may take. Special rules and forums are also often implicated if the employer is in the midst of a bankruptcy. The main details regarding these categories of laws are discussed under the last heading of this answer. The exact extent of a labor board or tribunals' authority depends upon the nature of the dispute, whether the dispute is public sector or private sector, and if the dispute is in the private sector, whether it involves one of the 10% of so of private sector unionized employers that are governed by special federal laws that apply to critical or pervasively multi-province or international industries. There Are Several Main Kinds Of Union-Management Disagreements When a collective bargaining agreement is or was in place between a recognized union and an employer unit as defined under the applicable labor laws (which are not always defined in the same way in every union, with factories, for example, usually organized on a work place basis, but the movie industry, in contrast, usually organized on an industrywide basis), there are several of kinds of disputes that can arise. Disputes Over Future Contract Terms One kind of dispute is a dispute over what the economic terms of a future collective bargaining agreement. Usually, in the context of private sector employees that aren't subject to any special rules, the decision making authority will not impose particular economic terms on either side, although it might order the union and management to mediate their dispute with a labor law mediator selected in a method provided by the old collective bargaining agreement or by law. If a mediation order has been entered, there could conceivably be a violation of that mediation order arising from failing to negotiate in good faith, but failing to negotiate in good faith usually involves failing to listen to what the mediator and/or the other side has to say for a reasonable amount of time, or failing to present any opening offer in the negotiation that the other side could accept if it wanted to, or presenting an offer so absurd (e.g. a $1000 dollar an hour minimum wage of entry level janitors in 2022) that it amounts to not making an offer at all. But generally speaking, unless some special circumstances (e.g. public employees or critical essential employees of some kind defined by statute) are involved a court won't impose economic terms on either party and won't consider a mere failure to compromise meaningfully from an initial stance after hearing out the other side to constitute bad faith negotiation. The law applicable to collective bargaining in Canada (as of April 2008) is reviewed here. Unfair Labor Practice Disputes The other kind of dispute between a union and the management group that it is dealing with, is that one side or the other has engaged in something that is defined by law as an unfair labor practice. For example, in Canada (although the same conduct would usually be ignored by authorities in China or France) if union members kidnap the labor negotiators for the management team and detail them in a windowless room without access to the outside world, that would probably constitute an unfair labor practice by the union, while a management action to hire goons to intimate the union members, or informants to spy in the inner discussions of the union negotiators would probably constitute an unfair labor practice on the management side. Obviously, I've presented some very extreme examples, and the interplay of what does or does not constitute an unfair labor practice in light of the relevant statutes and case law is arcane to the point of being byzantine in practice, with lots of legal guidance and lots of room for lawyers for both sides to disagree over how to apply the law to the facts. Also, some of these disputes may be defined as criminal conduct to be handled by criminal prosecutors, rather than in the labor law context, or may be handled in parallel in both forums. The authority deciding the matter can consider allegations of unfair labor practices and impose sanctions or issue court orders accordingly, if there are. Disputes Over Contract Implementation There is also a third kind of dispute, over how a collective bargaining agreement that is in place should be implied in practice to incidents involving particular workers or to particular employer policies. For example, there might be a dispute over whether a particular employee was properly fired for good cause, or over whether a proposed fringe benefits plan is consistent with the collective bargaining agreements terms. These are frequently hired by an agreed panel of arbitrators that handles all of the disputes that arise over the term of a collective bargaining agreement. But this kind of dispute is really beyond the scope of the question. Disputes Between Union Members And Unions Over Union Operations Another kind of dispute sometimes handled in a labor law forum in accordance with union-management laws is a dispute that arises between one or more union members and their own union (e.g. a disputed election of union officers). See, e.g. here (reviewing the substantive law that applies, while largely glossing over the procedural side of these disputes). But this also appears to be beyond the scope of the question. Who Is Authorized To Resolve Or Address Particular Disputes? I have avoided using the term "court" in lieu of the "authority deciding the question" because I am not familiar enough with the procedural side of Canadian labor law to know who this authority is, and that is something that is likely to vary based upon the kind of employer involved, the nature of the dispute, and the stage of the process that the dispute adjudication process for the dispute has reached. At least in the first instance, these kinds of disputes are almost never handled by ordinary courts that handle non-union related civil or criminal matters, unless an unfair labor practices dispute simultaneously constitutes a criminal offense that is prosecuted like any other crime. There are at least twenty-one labor boards or tribunals in Canada. One for the federal public sector, one or more for national private sector essential industries at the federal level, one for all private and public sector workers in Quebec, and a respective public sector and private sector body in each of the other nine provinces. These boards or tribunals handle labor disputes in the first instance and possibly an initial review of a delegated hearing officer's decision, but at some point their decisions are appealable by some process to one or more provincial courts in the case of the at least nineteen provincial level labor boards or tribunals, and ultimately to the Canadian Supreme Court, and to one of more federal courts (and at a minimum ultimately to the Canadian Supreme Court) in the case of the two ore more federal labor boards or tribunals. It is also conceivable in at least some cases that the union and management could agree, either post-dispute, or in some cases even pre-dispute under the previous expired collective bargaining agreement, to have matters that they set forth as the subject-matter subject to this treatment, resolved by a panel of private arbitrators rather than the usual labor labor tribunals or boards. The particular forum that applies to a particular kind of labor law dispute in Canada doesn't really change, however, the basic sketchy outline of the substantive Canadian labor law described above that applies to whomever is the adjudicator between the union and management in a particular labor dispute. The article on collective bargain cited above states: In Canada collective bargaining is shaped by a tight statutory structure used to regulate almost every aspect of of the union-manangement relationship. Such legislation closely regulates the formation of the collective bargaining relationship, governs the conduct and timing of the bargaining process, places restrictions on economic conflict, and may, in some cases, mandate certain terms of the collective agreement. The legislation confers broad administrative powers on labour relations boards or tribunals, which play a major role in the application of the legislation (Carter 1995). Labour tribunals regulate both management and union activity and may restrain some forms of employer interference with union organizing and bargaining activity as well as the untimely use of economic sanctions by trade unions. Unlike the United States, the labour relations jurisdiction of the Canadian federal government is much more extensive than that of the state governments. Legislative authority in Canada is divided among eleven different jurisdictions, ten provincial and one federal. As a result of various court interpretations of the Canadian Consitution, the jurisdiction of the federal government has been restricted to undertakings falling within its specific legislative authority and to conduct falling within its criminal law power. Due to the constitutional division of legislative authority, most private sector employees in Canada fall under the jurisdiction of the labour laws of the province in which they work. Approximately 90% of private sector workers are provincially regulated.In addition to workers employed in manufacturing, mining (excluding uranium), forest products industries, construction, service industries, and local transportation, employees of provincial and local government are covered by provincial jurisdiction. Although the federal government’s labour relations jurisdiction covers a relatively small percentage of private sector employees, these include workers in a number of important areas of the economy including: interprovincial or international air, rail shipping and trucking operations; broadcasting, banks, uranium mines, and grain elevator operations. All federal public sector employees fall within federal jurisdiction but are covered by a different collective bargaining statute than federal private sector employees. The article then continues to explain that: In 1967, the Public Services Staff Relations Act (PSSRA) was passed, creating a new and distinctive collective bargaining structure for employees of the federal government and providing for arbitration or the conciliation/strike route as its final dispute resolution mechanism. The PSSRA granted collective bargaining rights to workers in federal departments, a number of federal agencies for which the Treasury Board is the designated employer, and a number of government agencies or separate employers who administer their own labour relations programs. Since the passage of this legislation, all provincial governments have given their public servants the right to collectively bargain, including the right to strike in some jurisdictions and arbitration in others. In Quebec, all workers, private, public and parapublic, come under the Quebec Labour Code. In Manitoba and Prince Edward Island, public servants are granted the right to collective bargaining through their respective civil service statutes. The remaining seven provinces have special public-sector labour relations statutes, which grant the right to collective bargaining. Since the middle of the 1970s, the public sector has become the most highly unionized segment of the Canadian economy. Collective bargaining has been extended to cover not only workers in the public sector employed by federal, provincial and municipal governments, but workers in the parapublic sector not directly employed by governments, but rather by organizations extensively supported by government funding—this includes teachers, health-care workers, police officers and firefighters. The evolution of the collective bargaining process, which now includes public sector workers in health care, education, government services, has affected not only the way public services are provided but has also contributed to higher levels of taxation and forced the re-definition of the meaning of public services. For example, in Quebec, publicly funded religious schools operated on something akin to U.S. voucher systems are subject to its labor laws which are more or less similar between private sector and public sector unions and are dealt with by a single tribunal with any distinctions between the two treating unions at these schools as public sector, rather than private sector unions. | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. | If such a company oversteps one of these parameters for lawful operation, are arbitration clauses binding in respect of these breaches, in removing judicial recourse for the customer in court, rather than in arbitration venues? In this situation, the arbitration clause (assuming it was actually entered into) is binding and there is no meaningful judicial recourse through a civil lawsuit. It does not bar criminal prosecutions or administrative agency action. And what . . . scenarios give rise to causes of action that can immutably transcend arbitration clauses? Civil actions seeking redress from sexual assaults are exempt from arbitration in the U.S., pursuant to H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was signed into law on March 3, 2022. | The statute of limitations in Oregon appears to be six years (per the link provided by Nate Eldgredge in the comments). This would be extended if there was a partial payment or written affirmation of the debt by the debtor. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | The government of California has an extensive manual that says what you can and cannot do. To terminate a lease (a rental agreement for a year is a lease), there would have to be just cause for eviction (p. 65), such as failing to pay rent, violating terms of the agreement, cockfighting, and so on, and that does not include being a pain in the neck. Nor would the need to make repairs justify terminating a lease. On p. 79 they clarify that retaliatory eviction for exercising their legal rights is prohibited per California Civil Code 1942.5, and will result in fines. P. 35 ff. covers landlords entering: you may enter to make repairs, but must give 24 hour written notice (6 days if mailed), entering between 8am and 5pm business days, but you can also arrive at alternative times orally. If the local code-enforcers require you to do some modifications on the property, that is a separate matter and does not create a just cause for terminating the lease. For instance, if the electric service is not properly grounded and they require you to fix that, that does not constitute the structure "being destroyed". If the repairs make the building actually and certifiably uninhabitable, you might be on the hook for finding lodging for the tenant for the period of the repairs, so ask your attorney about that. Assuming that the tenant is not somehow responsible for the problem being repaired, then you will almost certainly have to keep the person for the duration of the lease. |
Why can’t claims under s214 Housing Act 2004 be issued in the small claims track? Accordingly myriad materials online including as authoritative as Shelter, section 214 claims must be brought under the Part 8 procedure, even where the maximum possible award would fall well within the threshold for the small claims track. What is the purpose of the Part 8 claim procedure, and why must s214 claims use it? | Why use Part 8? Because the Civil Procedure Rules say so. See Practice Direction 56.2(2.1): ...the claimant in a landlord and tenant claim must use the Part 8 procedure as modified by Part 56 and this practice direction. And Rule 56.1(1)(f): (1) In this Section of this Part ‘landlord and tenant claim means a claim under – ... (f) section 214 of the Housing Act 2004. What is its purpose? Shelter's handy guide offers this: The Part 8 procedure is used where a rule or practice direction requires or permits it [see above], or where the claimant seeks the court's decision on a question that is unlikely to involve a substantial dispute of fact. | The emails both are and are not hearsay If the landlord seeks to use them as evidence that you did the things stated in the emails, that’s hearsay. However, if he seeks to use them as evidence that he received complaints about you, that’s not hearsay. Notwithstanding, this is no doubt a hearing in a tenancy tribunal or small-claims court - strict rules of evidence generally don’t apply in those. The emails are therefore likely something that will be admissible even if they are hearsay. | Assuming you have a six-month Assured Shorthold Tenancy, you don't have to give any notice at all. As long as you are not in occupation after the end of the tenancy (which means moving out before it ends), that's it. For example, this page from Shelter says: The general rule is that the tenant can leave on the last day of a fixed-term tenancy without giving notice, and this will end the tenancy.[2] If the tenant remains even a day longer than the last day of a fixed-term tenancy, a statutory periodic assured shorthold tenancy will arise, which the tenant can end by serving a valid notice to quit. [2] Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. This is extremely bad news for landlords, who don't (necessarily) get any notice that they have a void. In general, I would say you ought to give a month's notice (full disclosure, I am a landlord), on the other hand, if they haven't fulfilled their responsibilities perhaps not (but you may have an exaggerated idea of their responsibilities). If you do this, don't expect to get a good reference from your landlord! (Which is going to make it harder to find somewhere else to live). You should also anticipate difficulties in recovering your deposit (you are legally entitled to it back, but that doesn't mean your landlord can't be difficult about it - possibly even requiring you to sue for it). I have just noticed the second part of your question. If you do nothing (in other words, stay in residence), at the end of your Assured Shorthold Tenancy you will switch to a periodic tenancy. The landlord can't force you to switch to another six-month contract, but on the other hand, if you don't, they are perfectly entitled to give you two months notice. If they are smart, they will give you this notice now, so that you can only stay for two months on the periodic tenancy. Note that the letting agent has an incentive to get you and the landlord to sign another contract (they can charge the landlord a fee for it), so they may not be being entirely honest about whether a periodic tenancy is an option. (On the other hand, a poor landlord may be more interested in locking a tenant in for six months.) | The beginning of the tenancy is defined in section 45(2) of the Housing Act 1988 as: the day on which the tenancy is entered into or, if it is later, the day on which, under the terms of any lease, agreement or other document, the tenant is entitled to possession under the tenancy. (This applies to the statutory instrument because it is made under section 21B of the 1988 Act, and definitions carry over from primary to secondary legislation in this way.) The definition probably matches what people would expect. Section 21B, and the 2015 Regulations, just say that the landlord has to give this information to their tenant. But it follows that if the tenancy has begun, then the landlord's obligation also begins. It binds from day 1. Therefore, the government is justified in saying in the booklet: The landlord, or the letting agent, should give the current version of this guide to the tenant when a new assured shorthold tenancy starts. Because of all the other paperwork involved, it's most common for the booklet to be given as part of the bundle of documents when the tenancy agreement is signed - so, along with the inventory and so on. This is typically not too distant in time from when the tenant is entitled to actually move in, and landlords will often only sign on the day itself even if the tenant has completed their part of the formalities earlier. Perhaps your doubt is about whether it is "OK" for the landlord to provide the booklet before the actual start date of the tenancy, as opposed to waiting until the tenancy is in effect. In the same way, we could imagine a prospective tenant wanting to see the energy performance certificate well before agreeing to sign anything. Does the landlord have to give them another copy on day 1 of the tenancy, even though it's the same as the copy they already have? In fact, there are specific different rules for those other items of information. The most recent gas safety certificate must normally be given "to any new tenant of premises ... before that tenant occupies those premises" (SI 1998/2451 reg.36(6)(b)) The EPC must be given to any prospective tenant at the earliest opportunity, and in any event must have been given to "the person who ultimately becomes the buyer or tenant" (SI 2012/3118 reg.6, and compare the definition of "prospective tenant" in regulation 3). The EICR must similarly be given to new and prospective tenants before they occupy the premises (SI 2022/312 reg.3(e)). So these are meant to be given before the tenancy begins. They are part of what the prospective tenant should know before deciding whether to sign the agreement. The government's model tenancy agreement has checklists for landlord and tenant in relation to these documents, plus the "How to rent" booklet. That is consistent with the idea that the tenant is meant to have this information on the day that the tenancy is to begin, whether that's because they're just being given it now, or because they've already seen it. Armed with all the knowledge, they can now proceed to signing the agreement. Indeed, the content of the "How to rent" booklet makes it less useful if it's provided after the agreement has started. A lot of the material is about searching for a property, making sure that you are prepared to sign, and avoiding bad behaviour by potential landlords. Even though it would meet the letter of the law to only get this information after signing (but still on the day), it also meets letter and spirit to get it on the day, before signing. Or if you had it even earlier, it would be a bold argument to say that the landlord hadn't given you the information just because they emailed it to you a week before the tenancy actually began - especially if you have checked the appropriate little box on the tenancy agreement to say you received it. Nonetheless, because the only practical consequence for landlords is their ability to serve a s.21 notice, it's also common for them to play it safe and send another copy of the booklet before sending the notice itself. They will also often send updated copies as they arise, even though the regulation doesn't require it; some insurers ask for this just to really cement the chance of making a proper s.21 notice. I'm not aware of judicial precedent on early delivery of the booklet, but we can get some guidance from a recent Court of Appeal decision on s.21A, Trecarrell House v Rouncefield [2020] EWCA Civ 760. This case examined the nature of breaches and remedies that prevent serving an eviction notice. The conclusion was that if the tenant received a gas safety certificate "before or with" the s.21 notice, then the landlord has fulfilled their obligation - they are not irreparably in breach just becuse they did not give that information at the beginning. What matters for the Housing Act is that the tenant received it by the time that it was needed for the s.21 process. Likewise, it would seem that if the tenant had the "How to rent" booklet from the landlord before the beginning of their tenancy, then the landlord is not in breach - because the tenant has the information the whole time even though the act of giving the booklet predated the tenancy itself. | It has to be 'liquidated damages', since a penalty clause is unenforceable. It has to have a reasonable relation to the party's legitimate interest. The point is that it has to represent a good faith estimate of the actual damage. | No All parties must agree to change a contract. On the face of it, the New Tenant has to be “acceptable to both the Landlord and the remaining individual or individuals comprising the Tenant (the Remaining Tenant)”. It goes on to describe what the landlord may consider in making this assessment; there is no such imposition on the Remaining Tenant. However, there is implicit in a contract a requirement that the parties must act reasonably when using discretion. If Remaining Tenant repeatedly rejects every proposed New Tenant then this raises the question of if they are acting reasonably. Have you clearly articulated why the proposed replacements are unacceptable and are those reasonable reasons? | According to Consumer Rights 2015, is there a deadline from when the issue is raised to the trader to then taking action to fix it, or is it based on what deadline I set on my letter? The "deadline" is one that is reasonable in the circumstances. See s.23 of the Act: [...] (2) If the consumer requires the trader to repair or replace the goods, the trader must— (a) do so within a reasonable time and without significant inconvenience to the consumer, and (b) bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage). [...] (5) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of— (a) the nature of the goods, and (b) the purpose for which the goods were acquired. [...] If I do send a letter, for instance, notifies him for court, to which address should I send it to? His official one in gov.uk, where he claims he didn't notice or his yard? The Civil Procedure Rules Pre-Action Protocols do not dictate where such a letter (referred to a letter before claim and described here and here) must be served but the usual requirement is to an address at which the potential defendant resides or carries on business within the UK. See Rule 6.8(a) for example. | The local authority has indicated two things: It wishes to apply for an urgent interim care order. The application for this order should be dealt with at a hearing other than the case-management hearing. Therefore, the parties should talk about the following things, and their discussions should be focused on any order or direction that might be applied for: the purpose of the hearing; any directions that will be applied for; whether any part of the hearing will be contested; and the length of the hearing. The local authority shall inform the court in writing by 1.5.19. |
How are government actions held accountable to constitutional promises? For instance, in the U.S., prosecution while promising the blessings of liberty constitutionally should determine rights through a precedence of innocence rather than protected classes, plea deals, sworn testimony, guilt by association, and closed source licensures in the exclusionary U.S. Patent and Trademark Office. Further, take political slogans for example the right to try and exclusion, or the stove bans for if the consumer cannot build it, you must ban it. Are they valid in existing commercial, trade, or justice department law? | Generally speaking the "blessings of liberty" phrase from the preamble to the US Constitution is not relied on for anything. It does not grant additional power to Congress or the Federal government as a whole, neither does it restrict the Federal government beyond the restrictions already included in the body of the Constitution. Congress often accepts hearsay when it takes testimony before a committee. Such testimony need not comply with the rules of evidence that apply in court. I am not clear what you mean by "to pretext privacy and the right to try", please clarify this. I am not aware of any "right to try" under the Federal or State governments. The word "pretext" is not usually used as a verb in this way. Edit The link on "right to try" goes to a Quora question about laws passed by Congress later being held to be unconstitutional. That does happen. but I have never herd it called "the right to try". The link on "pretext" goes to a security.se question about a "convict internet". I don't see what that has to to with the preamble to the Constitution. 2nd Edit The "blessings of liberty" phrase from the preamble has nothing to do with laws against discrimination, neither authorizing nor restricting such laws. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | The operative clause is constrained to interpretations that are consistent with the prefatory clause. "But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." DC v Heller 554 U.S. 570 (2008) The majority in Heller, after interpreting the operative clause "return[ed] to the prefatory clause to ensure that [their] reading of the operative clause is consistent with the announced purpose." In their case, since their interpretation of the operative clause was consistent with the announced purpose in the prefatory clause, the prefatory clause may seem to have no effect. However, they make the point that other interpretations of the operative clause can be ruled out by cross-checking against the announced purpose from the prefatory clause: "petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right." The court writes that if the petitioners had their way, only state-organized militias would be the beneficiary of the 2nd Amendment protections. However, the majority does not read the prefatory clause this narrowly. "[If] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny." The majority reads the prefatory clause to refer to a "citizens' militia": "the Militia comprised all males physically capable of acting in concert for the common defense". | Generally speaking if it is substantively unconstitutional for the government to punish a certain kind of criminal conduct, then this provides a basis for a "collateral attack" on the conviction to set it aside (in a post-conviction motion in state or federal court), even if the criminal defendant serving a sentence has already appealed the conviction directly (i.e. to the court of appeals and all higher appellate court that review that court of appeals) to the fullest extent possible and lost. But this is not self-executing. Someone has to file a court case on behalf of the person incarcerated to make it happen. It does not generally entitle the criminal defendant to compensation for wrongful incarceration or to a return of fines paid, although it would end the authority of the state to incarcerate the individual going forward or the compel that individual to pay the balance of unpaid fines. There might be a right to have the case sealed, but the ruling does not automatically remove the conviction from the criminal record of the defendant. And, getting the case sealed is likely to be harder in the circumstance where all of the sentence for the unconstitutional offense has been fully served. When a past conviction does not meet the standards of current law from a procedural context, in contrast, this may be raised in pending direct appeals, but is rarely something that can be brought up in a post-decision collateral attack on the conviction unless certain other exceptions apply (e.g. sometimes if a collateral attack pending before the decision is still pending at the time of the decision or in certain extraordinary cases involving due process concerns that cast deep doubt on the validity of all convictions obtained by that means), and even in cases where it is set aside, does not pose a double jeopardy bar against a new prosecution for the crime that meets the appropriate procedural standards. The U.S. Supreme Court is currently considering the proper treatment under these rules of its holding that non-unanimous juries were an unconstitutional manner by which to convict someone of a felony, which is a procedural rule, but may fall within the exception that makes the new rule retroactive anyway. For cases on direct review, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane and then by the Court in Penry v. Lynaugh. Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that new rules of constitutional interpretation—those not 'dictated by precedent existing at the time the defendant's conviction became final'—will not be applied. However, [a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding. Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct beyond the power of the criminal law-making authority to prescribe or constitutes a new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished. In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review. As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making the resulting conviction or sentence . . . by definition . . . unlawful. In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt. As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful under the Constitution. In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits a certain category of punishment for a class of defendants because of their status or offense. Under the second exception it is not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. From here. | No Section 2, Clause 1 says: ... and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Impeachment is explicitly carved out from the President's power to pardon. | A Presidential candidate has no legal immunity for litigation or prosecution different from that of any other political candidate. The First Amendment provides significant protections for expressive conduct of a candidate for political office. Presidential candidates do have a few special privileges, most notably, secret service protection and at a late stage, access to certain intelligence briefings not available to the general public. Judges and prosecutors often seek to avoid the appearance of impropriety interfering with a Presidential election campaign and this may influence, for example, the scheduling of proceeding against a candidate. But there is no actual immunity from either criminal or civil liability for a Presidential candidate that is different from anyone else. | The basic legal principles are as follows. First, a government may pass a law criminalizing an act, for example this Ugandan law which penalizes homosexual acts, their attempt, and aiding and abetting same. Second, a government has the subpoena power to compel a party to provide evidence to be used in a criminal prosecution, unless there is some specific restriction enacted in the country – I find no applicable restrictions in Uganda. In principle, the government could subpoena records of an internet service, in order to find violations of the law. Enforcement of the subpoena is relatively simple within the country, but enforcement against a website in Norway, for example, would be virtually impossible, in that Ugandan courts do not have authority in Norway and Norwegian courts will not recognize such an order. Uganda is not a party to the Hague Service Convention, so the Norwegian courts will simply not consider the subpoena. | The basic constitutional underpinning is the Commerce Clause and the 14th amendment (see Americans With Disabilities Act of 1990, Pub. L. No. 101-336 § 2(b)(4)). As a general rule, if you do a thing that has potential commercial impact involving another state (such as growing feed for your animals and therefore not buying feed from a farmer out of state), then Congress can pass laws that restrict such actions. ADA was not constructed specifically to address seating on trains: that is just a consequence of the law. |
Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties? If two parties sign an agreement and one party can prove that the other party did not demand that the terms be enforced when it could have, can the other party argue that the entire contract is void and unenforceable because the parties never intended to enforce it in the first place or due to waiver? For example, an employee was initially hired for a one year term at $50 an hour after which the employee transitioned to an at will employee. The employee continues working for the company for several years. After a few years the company renews the employees contract for 8 more years at $75 an hour but continues to pay the employee $50 an hour and the employee never demands the higher salary. Let's further assume that the second contract contains several other benefits for the employee but the employee continues to act as if the first contract is in force. For example, the first contract did not provide dental insurance, the second one did and the employee never demanded dental insurance. Suppose the second contract contains certain provisions that the employee wishes to enforce during his 7th or 8th year of employment. Can the employer argue that the entire contract is null and void since the employee never enforced the other provisions of the contract? Can the employer argue that the employee "waived his right" to the second contract by not enforcing it and acting as if it never existed? Are there any case precedents that can be applied to prove either way? | Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties? No. Parties' temporary or systematic waiver of their contractual rights does not alter the validity or terms of that contract. Parties entitled to resume enforcement of their rights anytime. A party's noncompliance with his obligations gives the counterparty a viable claim of breach of contract, although the proper approach would be to first try to solve the dispute outside the court. In the employment scenario you describe, the employee is entitled to --at least-- back pay as per the second contract (the difference between $75 and $50) subject to the statute of limitations, which under NJ is six years for contract disputes. See Hagans v. Nickerson, Superior Court of NJ (Oct. 2022), (citing NJSA A:14-1(a)). This precludes the recovery of some of the back pay if "the employee wishes to enforce during his 7th or 8th year of employment". A "retroactive" enforcement of other rights might be available, depending on the nature of those rights and other details. But nothing prevents the employee to henceforth enforce all of his rights pursuant to the current contract. Can the employer argue that the employee "waived his right" to the second contract by not enforcing it and acting as if it never existed? As explained above, no. Nor does it make sense for the employer to argue in terms of "a right to the second contract". A contract establishes a set of rights [and obligations], whence "a right to a set of rights" would reflect the employer's poor understanding of the ramifications of the contract he signed. | A company generally cannot compel an employee to agree to a non-compete, but they have a wide variety of alternatives for inducing employees to do so. Most obviously, they may threaten to fire employees who refuse, whether immediately or at the end of their current term, as another answer observes. Indeed, if Big Company makes an NC a condition of employment then they are likely to insist on the same for employees they obtain from Original Employer. Firing employees for refusing to sign does, of course, put them in the job market as potential competitors, but the company may well find it acceptable to do that on their own terms. In particular, Big Company can ensure that those who won't sign go out the door with minimal knowledge of Big Company's clients, trade secrets, etc. other than those obtained from Original Employer. And that leads into other forms of inducement. Big Company can do some or all of the following things, depending on the particular employment situation: offer bonus compensation for signing promote those who sign and / or demote / reassign those who don't change job duties for those who refuse to sign do all manner of nastier things to be unfriendly to employees who refuse to sign Some of those fit directly into Big Company's perceived interest in avoiding employees using Big Company internal information to jump ship and compete with them, and others could fit into Big Company policy about which jobs require an NC. Some are just pressure tactics, but that does not necessarily make them unlawful (nor are all variations on the others necessarily lawful). | The general principle of common law contracts is that parties can contract to do whatever they like unless there is a law that says they can't. As employment contracts are one of the most regulated type of contract and as I am not familiar with UK employment law (which may vary depending on which country of the UK governs it) this answer will be general in nature. Probation will not affect the training question. Probation gives the employer the right to terminate employment without cause or reason during the probation period; it gives the employee no rights. In general, the contract is the contract: if you agreed to pay for training if you leave within the first 12 months then that is what you are legally obliged to do. You may be able to avoid paying for training in Work Health and Safety as in most jurisdictions an employer is legally obliged to provide this without charge. That said, if the employer misrepresented the role then the contract may be void or voidable - this would need real legal advice and evidence of the misrepresentation. All of that said, if you explain your problem to the employer it is quite likely that you will be able to part ways amicably and without involving the law - that would be best all around, | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. | I had a contract with a company, but that company changed its name. Is my contract still enforceable? Yes, because what matters is the entity itself. A contract is not stricken merely because one or more parties changed names or labels. | 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. | Because a contract is simply an agreement between two parties to exchange anything of value, there are many, many more types of contracts. If the company hires you, you would have an employment contract. If you agree to pick up a shift this week for someone who will pick up a shift for you next week, you have a contract. If the company lays you off, you may end up with a severance agreement. If you sue them for race discrimination you may enter into a contract to settle the case for a million dollars. If you want to protect that money from your fiance, you might enter into a prenuptial agreement. If you get divorced anyway, you might split up custody of your children in a shared parenting agreement. All of these agreements would constitute contracts. | It depends on what you mean by backdated. If you mean that the terms of the contract provide that they apply to a period which pre-dates the date on which the contract was entered into then this is fine. The parties are free to negotiate terms which govern their past behaviour. If instead you mean that the contract purports to have been entered into in the past then no, that is not legitimate. Depending on the circumstances this can amount to fraud or forgery. In practice it is common for people to misunderstand the difference and so you will often find contracts backdated by inserting the past date as the date of the contract (the 2nd type) when the correct approach is to have a clause which specifies that the terms apply from an earlier date (the 1st type). There is also an implied question here about what those terms should be for the backdated period. The parties are free to agree what they like in order to "rewrite history" but failing that, what are the terms governing the period after the fixed term contract came to an end? The contract itself may contain an automatic renewal clause. Failing that there are a number of possibilities. From Practical Law (pay-walled): In the circumstances you describe (the parties have continued to deal) one of the following legal outcomes is likely: A new agreement has been entered into. A contract may be created by actions as well as words. For more information about contract formation, see Practice note, Contracts: formation The old agreement has been continued, on the same or varied terms. Just as a contract may be created by actions, it can be varied by them too. Contract clauses seeking to limit the parties' freedom to vary the contract, for example by imposing formal requirements for a variation, may themselves be varied. For more information on variation generally, see Practice note, Contracts: variation. There is no contract, but only a duty to pay a reasonable sum for services requested. For more information on restitution generally, see Practice note, Remedies: restitution In determining which of the above applies, a court will look at: What the parties have said and done about extending the contract or continuing to deal. The extent to which their behaviour is consistent with the terms of the old agreement. If the parties continue to do business in a way which is consistent with the terms of the expired agreement, this will support an argument that their relationship is governed by its terms. Whether a court will hold that the expired agreement has been extended in its entirety or that just some of the old terms apply will depend on the facts. However, the following cases suggest that where there have been no disputes over specific terms in the post-expiry period, the entire original agreement may apply: [rest omitted for brevity] Disclaimers: my answer is based on general contract law. Landlord and tenant law is complex and specific rules may well exist in your case. The terms of your lease may also affect the situation. We don't give specific legal advice here and you should speak to a solicitor about you situation if in any doubt. |
Where can one find an up to date copy of sections 212-215 of the Housing Act 2004? Legislation.gov.uk has up to date copies of many laws as they are most recently amended, but not of the Housing Act 2004. Where can an up to date version of this law be found online or in person? | I don't know where you looked, but the Housing Act 2004 on legislation.gov.uk is up to date according to its header: [the] Housing Act 2004 is up to date with all changes known to be in force on or before 12 January 2023. There are changes that may be brought into force at a future date. Sections 212 to 215 fall within Part 6, Chapter 4 of the Act. With hindsight, you may be looking at an earlier version. So for awareness, if the entry's header is: green, then it is up to date. Any provisional amendments (i.e. yet to be enacted) there might be can be found using the "view outstanding changes" drop down option if there is one. red, then there are changes yet to be made which can be found via the "view outstanding changes" drop down option. blue, it's either the original version that has not had any amendments, or it's an earlier version that can be navigated to/from by selecting the the tick box "show timeline of changes" and the sliding calendar above the header. | I skimmed the text of the act and didn't see anything about expiration, so that suggests that it doesn't expire. Normally such a provision would be prominent near the beginning or end. | Jurisdiction: england-and-wales Preliminary issues Firstly, as some of the comments have highlighted, this could be a scam. I have personally come across such a scam on two occassions. The scammer rents a property short term (e.g. 2-3 weeks) on AirBnB. They then pose as a landlord or letting agent and advertise the same property as a long term let. They collect a deposit and rent from any person who wants to be a tenant. They may even copy the keys and give each "tenant" a set. On move in day, you arrive at the property to find that you are not the only person trying to move boxes in. It has always struck me that landlords are generally very careful to vet their tenants by checking ID, proof of address, obtaining references, and running credit checks. Yet tenants rarely do any vetting at all of their landlords. A very basic and easy check you can do is to purchase the title register (not title plan) for the property from the Land Registry. This costs £3 and will give you the name of the person who owns the property. If the property is an apartment then you will generally want the leasehold title register (not the freehold). Once you have the name, you can then ask your landlord to provide proof that they are that person. Secondly, you've tagged the question united-kingdom, but the UK is actually comprised of multiple legal jurisdictions and housing law varies among them (particularly in Scotland). I'm answering this on the basis of england-and-wales. Third, questions asking for legal advice on real situations are off-topic here. My answer will just address the general issues and shouldn't be taken as advice for your situation. Contract and due dates There is nothing in contract law which prevents obligations from arising before the date that the contract is agreed. It is not unusual for parties to draft contracts which govern past behaviour. In that sense, it is perfectly acceptable to agree a contract on 12 August which requires rent to have been paid on 8 August (albeit it would be inadvisable to agree such a contract as you would immediately be in breach if you had not already paid). On the other hand, a contract which purports to have been agreed on a date which is earlier than when it was actually agreed, can amount to fraud. I would be wary of a subsequent email which purports to allow a later due date which contradicts the contract. Unless there is a clause in the contract allowing for the landlord to postpone due dates, the email is unenforceable and your real due date is still 8 August. The attempt to change the due date is effectively a variation of the contract, and a variation which is not permitted in the contract itself needs to be executed as a second contract. That means you need all the elements of a contract: offer/acceptance, intention to be bound, and consideration. The problem here is the latter. The landlord is providing consideration (a later due date) but you are offering nothing in return. Holding the room "The agent told me they cannot hold my room too long due to the high volume of interest in booking the rooms." "Once you have signed this agreement you will be liable for the full rent set out in the agreement unless released from your tenancy by the Landlord or Management Company." These two positions are contradictory. If you agreed a tenancy (as implied by the second quote), then you have a contract which is legally binding on both parties. The first quote is incorrect - there is nothing to "hold" because the room is already yours. On the other hand, it may be that what you agreed was a holding deposit agreement (rather than a tenancy agreement) which is merely a commitment on the part of the tenant to forfeit a sum of money (which by law cannot exceed 1 week's rent) in the event that the tenant (as opposed to the landlord) decides not to proceed with the tenancy. The wording from the second quote (liability for full rent) implies that it is a tenancy agreement rather than a holding deposit agreement. Or, in the alternative, that it is an illegal holding deposit agreement which asks for more money to be forfeited than is lawful. You'll need to read your full contract to understand what it is. If it's a tenancy agreement, it will be obvious from the wording that you have actually rented the property. Obligation to pay rent "My question is do I have any legal responsibility to pay for the entire rent by the new due date (25 August) for APT1?" Unfortunately, if you have signed a tenancy agreement, then you are legally bound to fulfill your obligations under it (provided such obligations do not break the law). If it contains a clause stating that you must pay 51 weeks's rent, then that is what you must do. "If they told me they cannot hold my booking any longer, do I need them to confirm in writing that I'm released from the agreement?" As a general rule of contract law, nothing needs to be in writing unless (a) the law requires it to be in writing or (b) the contract requires it to be in writing. You agree non-written contracts all the time when you go shopping, use the bus, etc. The same applies to taking actions which are governed by a pre-existing contract e.g. giving your taxi driver verbal directions once you are en-route. The phrase "unless released from your tenancy by the Landlord or Management Company" says nothing about the release needing to be in writing; therefore it can be verbal (provided that there isn't another clause somewhere else in the contract which requires it to be in writing). Be aware however that verbal statements can be difficult to prove. | I checked actual cost. It is just under $400 per month for one license. Here is a cost breakdown if you want some things a la cart and others blanket license. They are a LOT of money and are cost prohibitive unless they are used as a part of your legal practice. That said, everything available on Lexis or Westlaw are available at other, free sites. If you are looking for state and federal statutes, as well as precedent setting cases, those can be found on Findlaw (and other similar sites). Each state also publishes all of their statutes online, as well as law court decisions. The same is true of statutes and legislation. Legislative history can be obtained at any law library. These places also have free access to West and Lexis on their public computers. So they charge a premium for the convenience of having everything in one spot, as well as a variety obtain of other services that wouldn't be relevant to lay persons (like Accurint). I should amend to say Lexis/West does have things that you cannot just get online such as treatises practice guy, forms, etc. What I meant when I said that you can get pretty much everything for free online was statutes, case law, regs, etc. | You can read about Magnuson Moss here, but it only applies to warranties on goods, not services. As you note, the warranty on the unit is still valid. As for agreeing, it is not unusual that a consumer is not aware what all they are agreeing to when they buy a house. One of those myriad signatures that you put on myriad documents was your agreement to contract terms in the pile of papers that you were handed. If you trace through the entire pile of pieces of paper, you should find something saying that you agree to "all of the attached conditions", which is where you are supposed to say "Wait, what conditions?". | There isn't enough information to give a reliable answer in the abstract. It is a hard concept for lots of people to understand, but words don't have the same meaning in every context. Law is not physics or chemistry. Words that mean one thing in a particular instrument or statute could mean another thing somewhere else, even if exactly the same words are used. More context would be helpful in determining a meaning. It could be a reference to a type of use, like AirBnB or other short term rentals (e.g. use as a hotel or hostel). It could also be a reference to a type of building that is not permanent such as tents, RVs, or other non-permanent structures intended for residential occupancy. Usually, a look at what the adjacent and framing language of the covenants say would clarify the intent as would some sense of the kind of structures built or intended to be built in the vicinity. It also isn't clear from context if the emphasis is on "residential" (e.g. in a property with a storage facility included), or on "temporary" (e.g. in a posh suburb). | This could be a violation of the Fair Housing Act, but Fair Housing v. Roommate.com, 521 F.3d 1157 says that we find that the FHA doesn’t apply to the sharing of living units The crux of the argument is that a room in a house is not a "dwelling", since it is not a complete living unit. Whether or not courts outside the 9th Circuit follow suit remains to be seen. Florida state law (760.29) states exceptions to its anti-discrimination laws, covering for instance Any single-family house sold or rented by its owner, provided such private individual owner does not own more than three single-family houses at any one time. If that is the case, then the exemption exists if the rental a. Without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate licensee or such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such licensee or person; and b. Without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of s. 760.23(3) Another exemption exists if Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his or her residence. Your attorney (hint) will be able to interpret that complicated section of the law. | 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. |
How is discrimination by an employer litigated in the United States? Assume that the complainant has sufficient proof of racial discrimination in their workplace, and wishes to have it investigated. What is the regular course of action in such case in the United States? From reading the Civil Rights Act of 1964, my understanding is that: The complainant writes a claim to the Commission on Equal Employment Opportunity (Title VII, Sec 706(a)) The commission mediates to resolve the matter informally, which may take up to 30 days (Titile VII, Sec 706(a)). Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney. How often does it actually happen? Is there any relevant case law? How will the civil court try the case? Will the judge reference the Civil Rights Directly? What is a likely punishment? Why is the process convoluted by adding an extra step in form of the commission? Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong. Is the enforcement any good? | Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney. Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees. The details of the process and the relevant deadlines are available at the EEOC's website. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a "Notice-Of-Right-To-Sue" which allows the private employee to hire a lawyer and sue the employer. How often does it actually happen? The EEOC handles about 90,000 charges per year and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About 25% of these cases go to trial. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution. So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description. Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim). The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself. About 14,000 of those charges each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About 250 of these cases (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages. An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential. The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time. Is there any relevant case law? Yes. Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act. There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits. On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever. How will the civil court try the case? Will the judge reference the Civil Rights Directly? It is a little unclear what you are asking here, but I will do my best. Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge. In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form. In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits. Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average. What is a likely punishment? Punishment is mostly the wrong term. It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable. To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment. But, when an employer is found to have discriminated intentionally, which is most of the time, punitive damages can also be awarded, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also dollar limits on awards based upon the size of the employer. Why is the process convoluted by adding an extra step in form of the commission? Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain. The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails. The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity. A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary. The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them. Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong. Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers. The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system. This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own. Is the enforcement any good? Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result. In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation. Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis. The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover "test applicants" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts. There is a certain irony in this, because employers who are willing to hire someone who belongs to a "protected class" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a "protected class" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers. Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove. Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process. For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise. There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict. | In general, in the US, employers have very wide latitude in how they decide whether or not to hire someone. There are specific factors like race, sex, national origin, disability status, etc, on which they cannot discriminate, but otherwise they can do as they please. It would be perfectly legal for a company to decline to hire you because you had previously sued them. | The Fifth Amendment right against self-incrimination applies only in criminal trials, but it permits a witness to refuse to answer a question in either criminal or civil cases, including in a deposition. If he had committed crimes or thought that his answers might have incriminated him, he should have declined to answer. I'm not terribly familiar with this case, but it occurs to me that a lot of the allegations against Cosby go pretty far back; it could be that he was talking about something so far back that he wasn't exposed to any criminal liability. In a case like that, it may even be that a judge had already ordered him to answer the question. Assuming that he voluntarily answered the question, he has waived his right against self-incrimination and the testimony is generally admissible. | The US Supreme Court only has jurisdiction in federal matters. So if someone is suing under federal law, or there is a constitutional question, the Supreme Court is the place to go for a definitive answer. However, states have their own laws. The Supreme Court cannot tell New York that it must apply the attractive nuisance doctrine, as it is neither a matter of federal law nor a constitutional matter. New York is free to make its own laws on the subject, and the New York courts are free to interpret those laws as they see fit. In fact, federal courts are required to defer to New York's interpretation if New York's laws apply to the case, even if the case is in federal court for some reason (like diversity of parties.) See the Erie doctrine (which, coincidentally, involves yet another case about railroad injuries.) | The Fifth Amendment always protects someone from being forced to testify against themselves if it would implicate them in a crime (see, among others, Ohio v. Reiner, 532 U.S. 17). Any person can assert the privilege, regardless of their role in the trial, with the possible exception of the plaintiff (who is the one person who wanted to go to court). Like always with the Fifth Amendment, they can answer some questions but not others (but if they do answer a question, they need to fully answer it). In civil cases, the Fifth Amendment itself does not keep the jury from making adverse inferences against whoever invoked the privilege; if you refuse to testify, they can assume that it's because testifying would be extremely damaging in that particular case. However, most states have rules against that, and so invoking the privilege in state courts generally works like it does in a criminal case (where the jury basically ignores that the question was even asked). In federal courts, if a case is being heard under diversity jurisdiction (plaintiff and defendant are from different states but the claim is not a federal claim) the state rule is supposed to apply; if the claim is a federal claim, the federal rule applies and adverse inferences are allowed. While the Fifth Amendment can be invoked by anyone, there may be consequences. In many states (where adverse inference isn't allowed), a witness who will just invoke the Fifth and answer no questions can't be called, because it's a complete waste of time. If the plaintiff invokes the Fifth to not answer key questions, then the court can potentially dismiss the case; they have the right to assert the privilege, but their lawsuit might suffer for it. In federal court, another possibility that's been done several times before is that the civil case is just put on hold until the criminal matter is resolved. Sources: “The Fifth Amendment Can & Will Be Used Against You In a (Federal) Court of Law” Taking the 5th: How to pierce the testimonial shield Plaintiff as Deponent: Invoking the Fifth Amendment | In the case of the US, the only anti-discrimination laws that would cover an event is the Civil Rights Act of 1964, under the rubric "public accommodation", in Title II. But that law does not prohibit sex discrimination. The extent of "public accommodation" is not clearly defined, but generally is held to be about "a place", and would include "entrance into this facility". It might be illegal in California, though, since the Unruh Civil Rights Act is more generic, not excluding sex on this point. The main issue would be whether this organization is a "business". | From the U.S. Equal Employment Opportunity Commission (EEOC) website: An employer must have a certain number of employees to be covered by the laws we enforce. This number varies depending on the type of employer (for example, whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union) and the kind of discrimination alleged (for example, discrimination based on a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information). All employers are covered, whether or not a particular regulation covers a particular employer is dependent on the number of employees. For example, age discrimination is covered by employers who have more than 20 employees and Equal Pay Act coverage is for virtually all employers. From the same web site: People who are not employed by the employer, such as independent contractors, are not covered by the anti-discrimination laws. Figuring out whether or not a person is an employee of an organization (as opposed to a contractor, for example) is complicated. If you aren't sure whether a person covered, you should contact one of our field offices as soon as possible so we can make that decision. The EEOC has regulations covering: Title VII of the Civil Rights Act of 1964 The Pregnancy Discrimination Act The Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 Title I of the Americans with Disabilities Act of 1990 Sections 102 and 103 of the Civil Rights Act of 1991 Sections 501 and 505 of the Rehabilitation Act of 1973 The Genetic Information Nondiscrimination Act of 2008 The EEOC is an agency responsible for creating rules and regulations and enforcing civil rights laws against workplace discrimination. The regulations and enforcement actions are based on a large number of laws, any one of which may or may not apply to a particular employer. Exemptions are based on a particular anti-discrimination law, not on the agency itself. Each anti-discrimination law has a different set of entities to which the law applies and different sets of exemptions. | Civil cases are frequently decided by arbitration (a non-court process), so there's nothing particularly problematic here. Both parties have to agree to participate in the process, and one may (but need not) assume that there is a clause that the losing party has to live with the outcome. Odds are good that the parties are paid to participate, so there would be incentive to accept the verdict. One difference between this show (apparently) and a normal binding arbitration clause is that with the latter, this is part of the original contract which would state that all disputes must be resolved by such-and-such arbitration firm. Such verdicts are generally enforceable, unless there is some extreme impropriety (e.g. the defendant bribes the arbitration firm to flagrantly overlook the law). In the present case, torts as well as contracts can be the subject of a show, and the arbitration agreement would be separate from and after any underlying contract. A lot depends on the agreement that the show has participants sign. The Facebook-jury would, of course, not pass any form of scrutiny in a real court. So it is possible that afterwards, an unhappy party can press the case in real court, without prejudice. |
Can/shall I sue Domino's if I felt the manager was being racist? Edit: Lol , looks like it's hitting right at the spot for the racist. Look at the down votes and comments. Go ahead , be the idiots you are. Can I sue Domino's if the manager was being rude and also I feel he was doing that because he was racist? When I called Domino's for an order that was delayed by 20 minutes, instead of apologizing he started saying "Don't be choppy!" When I said can you process it faster now, he said: do you want it to be even later? (kind of threat.) Or do you want to come and pick it up by yourself? I felt he started saying that because of my thick accent. I feel he was rude instead of apologizing because of my race. Edit 1: After few down votes and thoughts , I think I was not being clear enough and need to clarify a bit more. I am not planning to sue Domino's because of the late delivery (for which I was frustated for sure). I called them for the second time sitting in the car park and waiting for more than 20 mins. As I was fruststed, my statements were "Are you going to deliver it , I don't have all day to wait around Now comes the part which seems unfair and racist to me and countless other minorities (South-east Asians) (yes, I know , because we share that feeling and disucuss, if you dont have any idea, pease sit back and realx and don't jump your gun) Ok now back to sequence of events: Dominos manager then responded (with a threatning/demeaning voice) -- Do you want to be even late? !! -- DO you want to come and pick it up yourself? (Again the tone was demeaning) Should he have said , do you want it to be even late ? No. Should he have said , Do you want to come and pickup now , I think he should have not . Now I know it's hard to prove and some one called me Karren empathising with the Manager , but give me a break, that's his job to attend the customers and you can't threaten customers for repurcussion , that's why there is consumer Law. And I think he was able to threat/demean me, with the consquecnce of (me) not getting the service, because he thinks certain race can be pushed around and that's racist. I don't want million dollars as the out put of lawsuit (not sure if this is the right word), but some times Sociey does not auto-correct itself. If I want to fix this legally (as I want), I think a lawsuit , a judgement and punitive action should be able to discourage such bahaviour. And , to all our privileged posters, I hope you will keep your biased view off this post. | Can I sue? (Shall I sue? Is up to you) Yes, anyone can sue anybody but that doesn't mean it will be successful. The likely candidate for making a claim seems to be under the tort of Emotional Distress, however, note that... Since the definition of offensive conduct is subjective by its very nature, the courts have set high standards to make out a claim for intentional infliction of emotional harm. To be successful, the plaintiff must show that the defendant intentionally or recklessly engaged in extreme and outrageous conduct which caused severe emotional distress to another person. Source ...but according to the OP and comments, this criteria does not appear to be have been met. | FDIC Regulation 500 prohibits discrimination in making loans on the basis of "National origin" but not on the basis of immigration status. This story from The Nation says that Bank of America is denying accounts to non-citizens, and arguing that it is legal because of increased risks, although there are current court challenges to this. Perez v. Wells Fargo Bank, N.A is a case now pending challenging loan denials based on immigration status. This has particularly come up in regard to DACA recipients, rather than people with LPR status. The US "public accommodation" laws probably do not apply, as a bank is not usually considered a place of public accommodation. Any specific state laws prohibiting discrimination on the basis of immigration status might apply. In short, this is an issue still not clearly settled. There seems to be no law or regulation requiring banks to ask for citizenship information, much less to deny accounts based on it, and it would be well to seek a bank with a different policy if possible. The above is very US-specific. Many countries do limit banking access based on citizenship, i understand. I am not a lawyer, and this is not legal advice. Before challenging any bank action, you may well wish to seek advice from a lawyer. | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | What's the legality of this situation? It's unlawful and you should seek support for it. That document you linked to appears to have resources that could help you, such as support lines and counselling centres, etc. Am I being discriminated against by these landlords(companies)? I would say so. It sounds like you're being discriminated against on grounds of race and ethnic origin. It appears to violate the General Equal Treatment Act. However, I do want to stress that there may be completely reasonable factors as to why landlords are rejecting your appointment requests. For example, it would not be discriminatory to refuse housing on the basis that you don't have the appropriate income, or you have a poor credit rating, or you don't have any previous rental references. It can be very difficult to prove discrimination if any of the above factors apply, since the landlord could simply cite one of those reasons instead. | must all interaction be through a lawyer after receiving the first letter? Consistent with others' answer, no, you don't need a lawyer. But your question in and of itself is indicative of the steep learning curve you would need to undergo in order to avoid "shooting yourself in the foot", as the saying goes. By this I am not encouraging you to get a lawyer (in fact, here on stackexchange and elsewhere I promote litigation in pro per). Instead, I encourage people to learn about the applicable statutes, procedural laws, how to conduct legal research, and to draft/present their arguments in court. Here are some suggestions regarding your response letter: Avoid sarcastic admissions such as "Right, for sure I am at fault for the employer's [fill_in_the_blanks]". If you ask for a clarification, clearly state that you expect reasonably sufficient detail as well as any and all records that substantiate the alleged damages. Although that won't strictly limit the allegations the employer can make in court proceedings, the attorney's reply might help evidencing the employer's vexatious approach later on. Avoid wording that may be misinterpreted as consciousness of guilt. Be assertive and truthful. Keep in mind the lawyer is gauging (1) how easily he can intimidate you, and (2) whether he can make additional claims to harass you via court proceedings. From now on, all your interactions with the attorney and the employer should be in writing (preferably email, given its reproducibility). When unethical individuals are aware that their position is devoid of merit, they are very tempted to indulge in false accusations (of threat, for example). Thus, communications in writing constitute objectively verifiable proof of who is acting unlawfully. Even if the attorney premises on your contract (or employment agreement/manual, or company's guidelines) the alleged damages, the clauses at issue might be illegal and therefore void. For instance, from 2007-2012 my former employer (an Indian IT intermediary) prohibited me --via contract-- to disclose my salary. The contract contained the typical lawyered babbling, but that doesn't mean that all of it was legal. In 2013 I realized that the prohibition violated Michigan law, and he had no option but to strike the entire clause. That being said, I didn't sue him for that, but for other more important matters which are currently pending review in the U.S. Supreme Court. Absent any further context in your inquiry, it is hard to make additional suggestions on how to proceed. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | No employer has ever the right to withhold your pay check for work you have done. It is strictly illegal. Even if they had 100% evidence that you caused damage and were responsible for that damage, they still can't withhold your pay. They have to pay you, and then they can try to take you to court. The reason for this law is exactly cases like yours, where people try to avoid payment. If the "powerful attorney" tells you that you are not getting paid, then that "powerful attorney" is making a big mistake, because any lawyer would love to take your case to court and see the judge cutting the "powerful attorney" down to size. If you don't want a lawyer now, then you can write a letter by registered mail telling them that you worked for them, how much the payment due is, that they are legally required to make that payment, and that you will take them to court if they are not paying. If there is a conflict between law and a "powerful attorney", the law wins, and the law is on your side. |
My crypto exchange closed my account for no reason, how can I defend myself against it? A couple of years ago, I opened an account in Bitpanda, deeming it a serious and professional crypto exchange. In the last year I haven't carried out any operations, a few days ago I decided to go back to do some trading. I had to supplement my account with new personal info, selfies and photos of my passport. All approved, so I moved to the platform, click on deposit, where I noticed that the maximum deposit I could make was 0 euros. Then I tried to make a withdrawal, but that too was disabled. So I contacted the support and this is what they told me: After a further check by our security department, we have to permanently close your account for security reasons. Also, it is not possible to create a new account or reactivate an existing one. Please note that we cannot provide any further information on this decision and will not deal with any complaints about it. The bottom line is that they actually stole my money, for no reason, as I have never done any weird transactions. Even if it's little money, it seems to me an injustice. Is there anything I can do about this action? UPDATE 2 JAN 2023 On December 29th, I opened a dispute and after 4 days with no response, I look at my ticket directly on the website, so what a surprise when I saw that my dispute was closed without any reason. | Think through what really happened. You are using terms like fraud, while they may be thinking they're doing fraud protection, or otherwise following laws and regulations. You wrote that you didn't use it for a long time, could the credentials have been compromised? It sounds highly implausible that a platform would defraud a single user. Either there are many more people with similar stories, or your claim is a bit suspect. Think about what your goal is. Reactivating the account, or getting the balance back? Is the balance big enough to spend time and money? Check with which legal entity you have a contract. AFAIK BitPanda is Austrian, so they cannot refuse a GDPR information request on what they have about you all that easily. Consider communication in writing, by registered mail. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | The applicable law is the New Zealand Anti-Money Laundering law. The regulations describing exactly what is covered don't mention Bitcoin cleaning, but the "wire transfer" and "currency exchange" bits probably cover such a thing. I certainly wouldn't like to be the test case. There was also this case in Europe. | So, in short, the bank did what you asked them to do (close your account). What do you think they did that might be unlawful? | In most cases, there is no direct legal recourse for such a withdrawal. Money in a joint account is co-owned, and any account holder may withdraw any of it for any lawful purpose. As the article "What is a joint bank account?" from Bankrate.com states: The money in joint accounts belongs to both owners. Either person can withdraw or spend the money at will — even if they weren’t the one to deposit the funds. The bank makes no distinction between money deposited by one person or the other, making a joint account useful for handling shared expenses. But a joint bank account should only be opened with someone whom you trust, since that person has equal control over the account’s funds. If the account holders have a contract or legal agreement that controls what money can be withdrawn and for what purposes, then a violation of such an agreement might be a cause for legal action. But merely opening a joint account does not create such an agreement nor imply it. | 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 guy does not imitate his brother, but instead claims that money donated will be split with him -- however, his brother has no agreement/idea with this. That's called Fraud (Wikipedia), "...a deliberate deception to secure unfair or unlawful gain..." and will be recognized as such in almost every legal jurisdiction in the world. At very least, it's against Patreon's Terms of Use: "Fraud - Don’t post information that is false or otherwise misleading. Impersonation - Don’t impersonate anyone. Don’t use another’s account, or allow others to use your account." The way this would not be fraud is to clearly state on Patreon that you are raising money for your brother, and to involve him in the process and have him choose to accept the money before you start to collect it. If he won't accept the money, don't collect it in the first place. | 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. |
What's counts as "taking active part in the hostilities" under the Geneva Convention? The Geneva Convention relative to the Protection of Civilian Persons in Time of War states that Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely ... In the comments to an answer to another question, there were questions as to the definition there. When is a soldier taking "active part" in the hostilities? Are they considered to take an active part when they are sleeping? Awake but eating dinner? Does it matter if they are armed at the time, or merely "in uniform"? Are there (other) times when a uniformed member of the military would not be considered "taking active part" in the hostilities? Or are they considered to be taking an active part simply by being a uniformed member of a belligerent party? | Members of the armed forces who are not hors de combat are taking an “active part” Hors de combat is not there for padding - its a defined term of the Convention: A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. A person is not hors de combat simply because they are: Sleeping Eating Unarmed Out of uniform Defecating Fornicating Drunk | If your motivation isn’t material, you aren’t a mercenary Under the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989: A mercenary is any person who: a Is specially recruited locally or abroad in order to fight in an armed conflict; b Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; c Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; d Is not a member of the armed forces of a party to the conflict; and e Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces. Furthermore, if these people were serving in the Ukrainian military, even In dedicated foreign units, they aren’t mercenaries. | In Illinois: The General Assembly has established numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. Basically, if you are a licensed medical profession, or have had successful training in CPR provided by the the American Red Cross or the American Heart Association, and you try in good faith to save somebody's life and fail, you are not liable for their death, under the assumption you did not cause harm in the first place (i.e. you can not stab someone in the chest, attempt CPR, and be exempt from lawsuit(s)). Note that this doesn't apply to just CPR or physicians. This also covers dentists, Pharmacists, Optometrists, Physical Therapist, etc. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin A medical condition like an allergy is not necessarily a physical disability. The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment. | Your question is about "Would it be kidnapping if I was injured and someone took me to a hospital without my consent", so I don't understand these other answers which say "it depends on the situation". The key point is what you mean by "without my consent". Good Samaritan laws are also relevant, which offer defenses to people who do things that would otherwise be unlawful when they are doing it with good intentions to help someone who they believe is injured or would become injured without their intervention. The main things to consider are the degree of injury, which is a spectrum ranging from no injury at all to being dead, and whether the injured person is conscious. Are you so injured that you are unconscious? In most jurisdictions, being unconscious is considered as you consenting to any actions which are done with the intent of giving you medical assistance, which is on a spectrum of saying "hey are you ok?" or shaking you in order to wake you up, all the way up to treatment including major surgery. So by being unconscious it is usually automatically consent, but if you are awake and are refusing help or treatment, even if you could die if you didn't receive treatment, it would be easy to argue that you were not consenting and that any treatment/assistance etc was unlawful. This situation sometimes happens, and EMTs are often trained to wait until the person goes unconscious to then give them medical assistance/transport etc, but assisting someone before they go unconscious could still be argued as permissible, if the injured person was so distressed that they were unable to give/refuse consent, or at least if the assistor believed that to be the case. This is why if someone has a major medical problem and is unconscious, hospitals can resuscitate them and even perform surgery without them signing a consent form. By being unconscious, it is considered that they are consenting to any necessary surgery to help them, even including amputation or other negative consequences. Conversely, if someone has a valid Advance healthcare directive on file which forbids measures such as resuscitation, they will be considered not to consent, and will usually be left alone without life-saving assistance. Resuscitating/performing surgery on someone in this case can be cause for damages to the injured person, because it would have been clear that they did not consent to such assistance. | If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations. | The international laws of war are generally much easier to apply in the context of a group of people claiming to be a state, than in the context of a group of people who do not claim to be a state. For example, one of the critical questions for classifying an individual under the laws of war is whether the enemy combatant is publicly identified as a soldier of the entity against which a country has declared war. In the context of an entity that claims to be a state, like Daesh, the distinction between identified soldiers, civilians, and covert combatants is relatively workable to apply. There are actually tens of thousands of people who personally identify themselves as regular soldiers loyal to a particular Islamic State with a defined territory, chain of command and political leaders, and there are millions of people who personally identify themselves as civilian subjects of Daesh who are not soldiers, and there are probably even people who personally identify themselves as covert combatants for Daesh - like some of the European terror incident perpetrators we've seen over the last couple of years. People applying the laws of war still need to do their best to accurately determine who fits in which category, but the categories in question are bona fide meaningful categories that are mutually socially agreed to by everyone involved that are reasonably well defined. Recognition of something as a "state" for law of war purposes is also something quite different from recognition of something as a state for diplomatic purposes. Inherent in the laws of war is the understanding that one side may believe that the other side is an usurper or illegitimate government. In contrast, in conflicts with many organized groups that are clearly non-state actors in the eyes of all involved, the distinction between publicly identified soldiers of a state and covert combatants is often ill defined. Calling people citizens or subjects of that non-state group is likewise hard to analogize to the kinds of situations contemplated when the laws of war were devised. Does one have to be a "member" of the organization to qualify as a subject? Does one have to provide "material support" or conspire to carry out some specific acts? Or, does subjective support or a bare public statement of allegiance on a facebook page or bumper sticker suffice that did nothing material to aid the cause suffice? This matters because, under the laws of war, subjects of an enemy can be interned humanely even if they are not combatants, and the lawful treatment of public and covert combatants is very different under the laws of war. | "War crimes" are codified in international treaties (especially the Geneva Conventions), and in determinations by courts and in statutes made in domestic legal tribunals. This is one area of law, however, where it is often considered acceptable to impose criminal liability on people in a country that have not adopted a relevant treaty, and have not adopted domestic law prohibiting the conduct, on that theory that it is mandatory, globally binding, customary international law which it is proper for third parties to impose upon people and countries that violate it. The analysis in the case of war crimes is not as contractarian as in other areas of international treaty enforcement and international law. |
Counter DMCA Google play Suppose that a person received a DMCA takedown notice about a month ago and has filed a couple of counter notices, but and always gets an automated response saying "We are unable to take further action on your request because it does not provide all required information." No action has been taken on the counter notice. What information must be provided? What evidence? | Given that filing a DMCA counter notice is essentially an invitation to a lawsuit, consulting a licensed lawyer in your jurisdiction before filing a counter notice is highly recommended. To understand what is happening, one must understand the relevant intent of the "safe-harbor" provisions of the DMCA (Digital Millenium Copyright Act). Essentially, there are/were two "complications" of standard copyright doctrine to the internet: The standard of Anonymity online, which makes filing a traditional lawsuit more difficult. Because of the nature of the internet, a) few people host their own content, either using a hosting company directly (like most websites do), or post their content on someone else's website (like Youtube and StackExchange), which makes them distributors, traditionally liable for infringement, (and much nicer targets for litigation, because they have deep pockets). However, without the ability to post on someone else's website, the internet as we know it wouldn't exist (we'd basically blogs, and maybe email). Both of these issues were "solved"/dealt with via the takedown notice/counter notice system. A displayer of other's content (e.g. Youtube or StackExchange, ISPs, etc.) has "safe harbor" protection from liability for hosting copyright infringing content, provided that they respond to a properly formatted takedown notice within the specified time frame. Someone one the other side of this, who believes that they do have the legal right to utilize such content, either due to owning it, licensing it, or fair use, can file a counter notice, and upon receipt of a properly made counter notice, must return the content in a specified time period 10-14 days. This "solves" both of the above issues: The intermediary service is no longer legally liable, instead acting as a message carrier, and if the person uploading the disputed material believes that the DMCA should not apply, they can reverse the takedown, by filing a counter notice that allows the original claim filer to file a standard lawsuit. Essentially, the hoster gets to say "I want no part of this, this is between you guys, I'm just a messenger". But what does a counter notice need to contain? 17 U.S. Code § 512g(3) states that a counter notice must contain 4 things (legal code below, my comments are in italics): Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: (A)A physical or electronic signature of the subscriber. This is a legal document, you must sign it, either physically or electronically. (B)Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. Clarification of what material is specifically being requested to be made accessible again; this information should also be in the original takedown notice (C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. This is essentially the bit that gives legal cover for the hoster to restore access to the disputed content, and places the liability on the counter notice filer's shoulders. Note that this is under the penalty of perjury, so jail time can concievably result if this is made falsely. (D)The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. Essentially stuff that makes it easy for the filer of the original takedown notice to sue you. Sources: https://www.law.cornell.edu/uscode/text/17/512 https://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim/ | It has as much legal standing as the evidence that supports it. See a lawyer to evaluate your position, obviously. But if the evidence is clear that there is no infringement, then the cease and desist letter doesn't mean much. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | People running web servers are generally liable for contributory culpability, when some user breaks the law by putting the material on the server. There are legal mechanisms for relieving the server guy from this burden. The best-known mechanism is "DMCA takedown", where you publish contact information so that an offended person can serve up a proper legal claim that you are distributing material that they own copyright to. If you follow the rules, you may enjoy "safe harbor" protection against contributory liability: one of the requirements is that you have to take infringing material down. The specific requirements can depend on the nature of the liability and jurisdiction, but generally involves a "hands off" involvement where the person has no knowledge of what's going on on his server. So just disclaiming responsibility does not work. There are other more serious violations, such as distribution of child porn or transmission of top secret information. Jurisdiction is not totally central to internet questions, and I could sue you (the server guy) in US courts, or (depending on the offense: copyright infringement of a particular item) in UK courts. Nailing this down specifically to Sweden is harder, but recall that The Pirate Bay had a whopping judgment against them. | 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. | First of all, taking a video made by someone else, making alterations and then distributing the resulting work is probably already a copyright violation. There are exemptions like fair use (check the comments for an example), but just taking a whole video, mirroring it and reposting it without any own contribution very likely does not constitute fair use. The people who do that don't avoid copyright infingement. They just try to avoid getting caught by any automatic system YouTube has in place to detect copyright infringements. But avoiding automatic filters does not mean to avoid DMCA takedown notices, cease&desist letters or lawsuits from real humans who find a mirrored version of their video and feel that their copyright was violated. However, alterations to a creative work can be a creative work in itself. So regardless of the fact that one violated copyright in creating a derivative work, that derivative work might still be eligible for copyright in its own right. That means someone who reposts a video originally made by party A and then altered by party B would violate the copyright of both A and B at once and thus expose themselves to potential legal actions from either party. But the question is if simply mirroring a video constitutes the necessary threshold of originality to make the resulting work eligible for copyright. In most courts, it probably would not. | If an infringement suit is filed, the plaintiff(s) would have rights of discovery. They could subpoena the source code in such a case for comparison. They could take the depositions of EvilCorp's developers and ask them about the libraries that they used. There might well be other ways to achieve the same effect. | Nothing in 17 USC 512, which includes the DMCA Safe Harbor and Takedown procedures requires an online service provider to notify others who may have made copies of content (including archive sites) claimed to be infringing that a takedown notice has been received or that access to the content has been blocked or removed. A separate DMCA takedown could be sent to the archive site. The internet archive honors robots.txt files set to deny access to a particular site, page, or section of a site by removing from public view all archived versions of that content. This is often done when a new owner acquires a domain and it is repurposed or put up for sale. To the best of my understanding there is no legal requirement that an archive act in this way, but the IA at least does so. |
Can I resell my Amazon gift card? I bought an Amazon gift card, and I would like to sell it to my friend. However Amazon Gift Card Terms and Conditions §2 states: Gift Cards cannot be reloaded, resold, transferred for value or redeemed for cash, except to the extent required by law. Is there a a law that will allow me to resell my gift card? Or would I be violating the terms that I agreed to when I purchased it? | At the federal level, gift cards seem to be treated as a special case of electronic fund transfer. 15 U.S. Code § 1693l–1 and the corresponding regulations presently regulate disclosure of fees and expiration, and do not directly say anything about sale of such a card. There might be relevant state laws, though Washington state laws mostly mirror the federal law (also allowing issuing a card with an expiration date if given for no value to a charitable organization). You can actually get your last $5 back in cash in Washington per RCW 19.240.020. A gift card / certificate isn't a "thing" in the way that an apple, hammer or table is, it's a contractual relationship. If you own a thing, you can freely re-sell it to whoever you want (assuming there isn't an express statutory prohibition against the sale of the thing). You cannot universally sell (assign) a contract right – there is a default preference that you should be able to, but Amazon has in this case said "No, you can't". | When a platform has the right to kick you out as they deem fit, without any evidence why they did it, does that change if you have a paid? It depends on the purpose of payment and the terms & conditions it triggers. Your description reflects that payment entitles the user to have no ads "and stuff" (?). Payment does not necessarily entitle the user to continued access, diligence from customer service, or other features. Without fully knowing the platform's terms & conditions regarding payment it is impossible to identify what obligations (other than not displaying advertisements) your payment creates on the platform. The information you provide here is insufficient for assessing whether you have a viable claim such as fraud or breach of contract. On the other hand, the platform's apparent arbitrariness and lack of response might support a finding of unfair or deceptive practices if the platform does not honor or proportionally reimburse your payment. Many jurisdictions have legislation prohibiting practices which are unfair, deceptive, or unconscionable (example: MCL 445.903). Oftentimes statutory law establishes an agency in charge of addressing customers' complaints. | Your friend's relationship with the game company is one of contract. You don't say what the contract terms are, so it's impossible to say whether they were breached by your friend or the company. In any case, it is likely that the only remedy your friend could seek is damages, probably limited to whatever outstanding portion of the subscription they have not had the benefit of. It seems unlikely that it will be a large enough amount to be worth pursuing. As a private company the game provider can choose to contract with who they wish, or not as the case may be (unless they can be shown to be discriminating against protected characteristics). | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. | It is legal Because of the first sale doctrine a person may freely sell a copy that they legitimately own. Copyright preserves the owner's right to make copies - Copy-right; once they have made (or authorised) a copy then the physical embodiment of that copy (record, CD, DVD, book etc.) is personal property and can be bought and sold like any other piece of personal property. The prohibition on copying its contents remains. | This a bit dubious. You write "I know you can make a digital copy of a book or CD you own." but that is true only under limited circumstances. Making such a copy for one's own personal use would likely be fair use (in the US). Selling copies would pretty clearly be copyright infringement. Giving away free copies to significant numbers of people would also be infringement. Temporarily lending copies ro a small number of people might be considered fair use or might not. For the board game, you could allow others to play with the copy you own in person. But COVID makes that unsafe. Assuming the game art is under copyright protection (some older games might have protection expired) selling such images or making them widely available would clearly be infringement. Making them available only during the course of play to a limited group, with technical measures to prevent or discourage copying and no fee charged might pass as fair use, and the game company might well not want to pursue the matter in any case. If you create new art which can be used for the same game, it would be somewhat less likely to be considered infringing/ Even then selling access would probably be trademark infringement, and perhaps infringe the copyright on the rules of the game. There would be legal risk in doing this sort of thing. | Is sales person required by law to give a copy of signed contract at the time you sign up for service? No. If I would ask for copy of all documents from that company are they required by law to send her these copies? No. Is there a law that mandates process on how contracts should be signed in California? There are many, however, they relate to specific classes of contract. In general, it is not a requirement that a contract be signed or even written; verbal contracts are totally legitimate. Given that every single transaction where money changes hands in return for goods and/or services is or is part of a contract it is not feasible that they all be signed. Have you bought a cup of coffee today? Did you sign a contract when you did? Here's the thing Your friend has learned several valuable business lessons: the first is some people in business will rip you off. If you are a consumer then you have (some) legal protection, however, if you are in business then the courts and the legislature expect you to look after yourself. Your friend has signed a contract. Pretty much, any court will consider that what they signed would be the entire contract unless there was compelling evidence to the contrary. Her word that the sales rep said there would be no break charges would not on its own be compelling evidence. Your friend has an obvious incentive to lie. Here is the second lesson: don't sign anything unless and until you have read and understood it; hire a lawyer if you need to in order to understand it. Now, either under the contract the company is legitimately allowed to charge these fees or it isn't. Without having a copy of the contract you have no way to tell. Thus the third lesson: always keep your own copy of everything you sign. What your friend can do is: nothing. Don't pay the bill, write to them saying that she disputes that she owes them any money at all. If you want to be provocative, suggest which court would be most convenient if they want to prove the debt. Odds are this will go no further. If they do proceed with a summons then they will need to state their case. At that point she can request through the court a copy of the contract they are relying on. If their claims are legit she can simply roll over. | As far as I am aware there is no prohibition against bartering firearms in general. This would be an odd prohibition since it is legal to gift and lend firearms. However, some of your situations change this. could I legally manufacture and exchange a firearm If you manufactured a firearm with the intent to sell you would be required to have an FFL. If this was a one-off sale of a firearm you manufactured at some point in the past for personal use this can be legal without an FFL. There are some additional requirements for the transfer. No party is a known criminal It is illegal to sell or give a firearm to someone you know to be a prohibited possessor. Not all criminals are prohibited from owning firearms, but this helps keep you safe. No party inspects the ID of the other or performs a background check This is state dependent. Some states make you go through an FFL for all transfers, others are much less strict. New Hampshire does not require private sales to go through an FFL if you know the buyer personally. Each party is known to be or appears to be old enough to own a firearm legally This is required for your scheme to be legal. One party barters regularly in this manner using firearms and firearm components This person is now engaged in the business of selling firearms and must be a registered FFL and jump through all the corresponding hoops. No party is licensed to sell firearms Not typically required, unless you do this in a regular basis. |
What constitutes murder in war? So, there is a man, Gibril Massaquoi, on trial in Finland for things he allegedly did during the Liberian Civil War. Among the charges is murder. Here's the thing: in war, it is generally to be hoped that everyone involved has premeditated ending the lives of their opposite number. This would make every soldier ever to serve in war a murderer according to civilian rules. So, what is the cutoff for soldiers in an active war to commit murder? | As with all international law, it depends on "who says so": I will draw on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War as most relevant. Article 3 distinguishes combatants from non-combatants, saying that Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. They then specifically prohibit murder: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture but this only applies to non-combatants. There simply is no prohibition against killing combatants (unsurprisingly). Liberia acceded to that treaty, so for instance if one of their soldiers murdered a non-combatant, in principle they should try that soldier for the crime of murder under Liberian law. If some random dude (not a soldier) murders anybody in Liberia, in principle they should try him for the crime. Soldier may kill enemy soldier, even when the killed soldier is sleeping and poses no immediate threat to the soldier who kills him. That's the nature of war. In the case of Massaquoi, he might have been prosecuted by Sierra Leone, but negotiated immunity in Sierra Leone in exchange for information on his RUF colleagues. There was no such tribunal or arrangement w.r.t. his involvement in Liberia, and Finland opted to conduct an extraterritorial trial based on war crimes (not the killing of combatants). His acquittal was based on the lack of evidence that it was him that did the reported deeds (I don't know if there is a publicly available judgment, but it is 850 pages and in Finnish, so toivotan onnea projektille. | I'm not sure what jurisdiction you're referring to, but here are the state involuntary manslaughter laws. Broad brush, the elements tend to be: Someone was killed as a result of act by the defendant. The act either was inherently dangerous to others or done with reckless disregard for human life. The defendant knew or should have known his or her conduct was a threat to the lives of others. However, you're really backwards planning from a jail vs. army decision, so you might actually be after something like felony hit and run, which can most certainly result in incarceration. The elements of felony hit and run generally include leaving the scene of an accident regardless of fault (hit and run typically becomes a felony when someone was injured in the accident). Since the elements vary from jurisdiction to jurisdiction, it makes sense to look them up wherever the accident will take place in the book. If it takes place in the U.S. this is a state-by-state compendium. Then you can tweak the story to satisfy the applicable elements and induce the jail vs. army decision (even if army policy prohibits it, it's still pretty common fiction!). | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | There is a factually similar impeachment case. But there might be a court case fitting these facts as well. No such case is annotated by West under 14th Amendment, Section 3 either with the note or on its list of citations. It is also not mentioned in a law review article looking a WV civil war era jurisprudence up to 1872 when WV's new constitution was adopted. I suspect that the case you are looking for is a pair of related cases (neither of which involves West Virginia), one tried by the Chief Justice of the U.S. Supreme Court alone on a habeas corpus petition when riding circuit, and a related decision of the Texas Supreme Court involving the same defendant. Griffin's Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358; 25 Tex. Supp. 623 ; 2 Balt. Law Trans. 433; 3 Am. Law Rev. 784 (Circuit Court, D. Virginia, May 1, 1869) and In re Caesar Griffin, 25 Tex. Supp. 623 (Tex. April 1869). The official summary of the fact and procedural posture of the main case on point was as follows: Caesar Griffin, a negro, was indicted in the county court of Rockbridge county, for an assault with intent to kill. He removed his case as under the law he had the right to do into the circuit court for that county, and was there tried by a jury which found him guilty and assessed his punishment at imprisonment for two years in the penitentiary. He was accordingly sentenced by the court to that imprisonment While on his way thither, in the custody of the sheriff of Rockbridge county, he sent out this writ which was served on the sheriff. That officer produced the petitioner in the district court then in session in Richmond, and made return to the writ that he held him by virtue of the conviction and sentence of the circuit court for Rockbridge county, making the record of the trial and conviction there a a part of his return. This return the petitioner traversed, denying that there was any court or judge in Rockbridge county as pretended by said pretended record, and that the paper exhibited was any record as alleged. The state of Virginia appearing by the attorney-general, Mr., Judge H. W. Sheffey, the judge of the circuit court for Rockbridge by Bradley T. Johnson, Esq., and the sheriff by James Neeson, Esq. they joined issue on this traverse. The petitioner then proved that Judge Sheffey had been a member of the house of delegates in 1849. That in 1862, he was speaker of the house of delegates, and that his votes were recorded for affording men, money and supplies to support Virginia and the Confederate States, in the war then flagrant with the United States. It was admitted that he was duly appointed on February 22, 1866, by the then government of Virginia, to be judge of the circuit including the county of Rockbridge; that he immediately entered on the duties of that office, and that he has ever since and still is discharging the functions of the same. The cause was argued at great length in the district court, before the district judge in December, 1868, who ordered the discharge of the petitioner, whereupon an appeal was prayed by the sheriff under the habeas corpus act of 1867 [14 StaL 385], to the circuit court, and the petitioner admitted to bail. Before the circuit court could meet other writs of habeas corpus were sued out by other parties convicted of felonies, two of them of murder, on the same ground as in this case, and the petitioners were discharged. A motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of prohibition against the district judge, to restrain him from further exercise of such power. The supreme court advised on the motion, and never announced any conclusion, but shortly afterward the chief justice opened the circuit court at Richmond, and immediately called up the appeal in Griffin’s Case. This statement is necessary for a full understanding of the pregnancy of the chief justice’s statement that the supreme court agreed with him as to the decision he rendered in this case. In consequence of the failure to oust the state officers disfranchised under the fourteenth amendment by these and similar judicial proceedings, congress in February, 1869, passed a joint resolution directing that all such officers should be removed by the military commanders of military districts into which the late Confederate States had been divided. Thus all the old officers of the state government of Virginia were removed except a very few, and new ones appointed not obnoxious to the denunciation of the federal bar — the supreme court of appeals of Virginia; the judges thereof having been removed by the major general commanding, he appointed as judges in their stead, a colonel of his staff, and two others, who had held or did then hold commissions in the United States army. The president judge of the court performed his functions and drew his pay as colonel and judge advocate on the staff, overlooking the execution of the laws of the military, and at the same time those of presiding judicial officer of the state. The procedural posture of the case and its result match your description even though the state does not, and there is a supreme court connection even though it is not a U.S. Supreme Court decision. The West Virginia association is probably a mental mangling of that case with a somewhat similar case from right time frame, a WV murder conviction overturned due to all white jury requirement by U.S. Supreme Court in Strauder v. West Virginia, 100 U.S. 303 (1880). | If I were a federal prosecutor (which I'm emphatically not), I might try to charge you under 18 USC § 32 (a) (5): a) Whoever willfully— [...] (5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft; [...] shall be fined under this title or imprisoned not more than twenty years or both. Since you clearly know, or believe, that this has the potential to interfere with piloting, which would obviously be a serious danger to people on board the aircraft, I'd argue you would be acting with "reckless disregard for the safety of human life." If your conduct results in anybody's death, then life imprisonment and/or the death penalty are also on the table, under 18 USC § 34. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | I assume this took place in Washington state. There are a number of self-defense provisions in Washington law. The first, RCW 9A.16.110, is primarily about reimbursements for prosecutions of acts of self-defense, but includes an applicable limit on prosecution: No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030. This provision is relevant, since executing a prisoner on death row is not a crime (the state Supreme Court recently struck down the death penalty, so I assume this took place before that ruling). RCW 9A.16.020 states the more classic law on justified use of force, saying The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:...(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary; Statutory law does not define offense against his or her person. Grabbing a person and strapping them down for some harmful purpose would normally constitute battery under the common law, but in this instance it is privileged, so it is not an offense against the person). RCW 9A.16.030 says that Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. The person is under court order to be executed, and it is not lawful to resist that order. The guard, however, RCW 9A.16.040, may use deadly force pursuant to the legal mandate to carry out the court orde ((1)(b)"to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty"). |
In Indian law are courts required to give similar verdicts for similar cases? From what I understand this power is discretionary to courts other than supreme courts. But there isn't much material on it. Is there any grey area that I might be missing ? And are the decisions of supreme court binding on high courts of states ? | The difficult part is deciding when two cases are similar. Precedents from higher courts govern what the law is in a case. But, a lot of what trial court judges do is to boil down a mountain of evidence to determine authoritatively what facts actually transpired before applying the law to those facts. This involves immense amounts of discretion and judgment. Also, while in some cases the law provides very clear guidance to a judge about what to do, in other cases, the law is vague enough that two different judges can reach two different verdicts, both of which are legally correct, on the same set of facts. For example, in a divorce case (involving made up facts and law to illustrate the idea), suppose that the two main assets of the family are a house and retirement account of equal value and that the facts as applied to the relevant law say that the value of the assets must be divided equally between the husband and wife. One judge could award the house to the husband and the retirement account to the wife, while another judge could award the retirement account to the husband and the house to the wife. But both judges would have complied perfectly with the law. Similarly, in a divorce there are a variety of different custody plans for children that could all conform to the law and different judges could choose different plans and each be correct. As another example, suppose that a bulldozer destroys a house and the person whose house is destroyed sues for money damages. The judge is presented with two different appraisals from equally qualified appraisers for the value of the house, both of whom superficially at least, are using proper appraisal methods. But one appraiser says the house was worth 1,000,000 and another says that the house was worth 1,500,000. Realistically, any verdict the judge renders between 1,000,000 and 1,500,000 could be upheld as legally correct. Because the process of turning evidence into legal verdicts involves so much discretion and so many judgment calls, and because it is rare that two cases are factually identical, the goal of giving similar verdicts for similar cases, is difficult to achieve and difficult even to evaluate in real life. It is almost certain that similar cases often result in dissimilar verdicts, and not infrequently the reasons for this (like using personal ideologies as opposed to what the law demands to resolve close cases) are not good ones. But deciding how common that is, or in what kinds of cases it is most troubling that this happens, is very hard to determine. | Contemporary decisions of domestic British courts (e.g. the Supreme Court) are not binding in foreign jurisdictions. They may be persuasive for courts there, because there is a common legal tradition and the U.K. judiciary is often considered to be quite good. Some countries have preserved a right of appeal to the Judicial Committee of the Privy Council (aka "The Queen in Council"). This body is basically the same judges as the Supreme Court but sitting in a different room. As the JCPC their decisions are precedential in wherever the appeal came from, and potentially elsewhere if the law in question is the same. Corollary: JCPC decisions are not precedential for British courts, unless the JCPC goes out of its way to say so. In these cases, the JCPC applies the law and constitution of the origin country, which can include retained pre-independence British laws as well as the common law. That country could pass a subsequent statute or constitutional act overriding the JCPC's decision (as Parliament could in the U.K.), so that country retains ultimate control even though one of "its" courts is a shared one sitting in London. This arrangement can cause dissonance. For example, some Caribbean countries would like to execute people, but that is prohibited in the U.K.; the JCPC continues to permit executions to go ahead in some cases, even though that would be illegal if the same judges were in a different room hearing a British case. There are very occasional cases from Brunei, whose law is determined by the Sultan and includes aspects of Islamic law not known in the U.K. legal tradition. | What are the legal consequences of substantive factual errors in an opinion? None. I assume that this specific ruling is not affected in any way by the text of the opinion? Correct. I assume that even an opinion of the form "We got high and decided to rule wrongly for fun" wouldn't actually negate the ruling? Probably not, but it might precipitate a constitutional crisis or lead to an impeachment. How does this affect the precedent? It doesn't. Will courts in the future consider the true facts of the case (whatever they perceive them to be), No. will they accept as legal fiction that the facts were as the Court describes them? Yes. Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on? In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case, Generally speaking the lower courts are bound by characterizations of the facts made by the appellate court. But, it depends to some extent on the procedural posture of the case. In most cases, the findings of fact made by the trial court following an evidentiary hearing are binding on appellate courts in the U.S. unless they are not supported by any admissible evidence presented at trial, but there are some exceptions to this rule and there is considerable art as well as science that goes into properly characterizing the evidence presented at trial. But, for example, many appellate cases are appeals from a dismissal of a case on a motion to dismiss at the outset of a case, in which all allegations of the Plaintiff's complaint in a civil matter are taken as true for sake of argument, and the legal issue presented is whether the Plaintiff can prevail if all of those facts are true. In a case in that procedural posture, assuming that the appellate court reversed the trial court and found that the facts alleged state a claim upon which relief can be granted, then the remand would be to move forward with discovery and other pre-trial procedures in the case and ultimately a trial, if necessary, to determine the actual facts of the case as opposed to the facts as alleged by the Plaintiff in the complaint or petition. Not infrequently, when appellate courts are divided over what happened in the trial court, one side of the debate, looking at the raw testimony and exhibits presented at trial, will conclude that the admissible evidence presented at trial did not support the findings of fact in a mixed question of fact and law made by a trial court judge, while another side of the debate will accept the trial court judge's findings of fact uncritically. It often isn't easy to know, from reading an appellate court opinion alone, which side is which in this regard. can it use the true facts of the case as long as it obeys the ruling itself? Usually not. Usually, facts relied upon by an appellate court are by definition the correct facts (apart from clerical errors - e.g., an appellate court once misspelled my name in a court opinion, and the lower court wasn't bound by that mistake). This said, as noted above, the precise procedural posture of the case, nature of the court's opinion, and scope of the remand order is highly relevant to what a court can do on remand. | Does this create precedent? NO This was a Crown Court case, only the Supreme Court and the Court of Appeal can set precedent which it did with similar circumstances in R v Hill 1989 | When a judge decides a case there will be An order - e.g. "Smith shall pay Jones £100,000" Reasons for the decision - i.e. a description of the evidence, and the judge's findings of fact and legal reasoning. Sometimes a party, even though they have completely won, is nevertheless aggrieved by some things the judge has said in the Reasons (or in the way the judge has handled the trial - e.g. the judge's interventions). For example the judge may have said that the winning party was not a credible witness but they nevertheless won because of the evidence of other witnesses who were found to be credible. The rule in England and Wales is that you can only appeal orders. So if the order is completely in your favour you cannot appeal just because you don't like the reasons. | In the US this is generally governed by state law: RCW 4.24.350 in Washington state. The criminal jury is not empowered to make such a decision, but a separate civil trial for malicious prosecution would be possible. Plaintif (ex defedant) would have to prove that the action was instituted with knowledge that the same was false, and unfounded, malicious and without probable cause in the filing of such action, or that the same was filed as a part of a conspiracy to misuse judicial process by filing an action known to be false and unfounded The basis for the lawsuit would be the objective facts that prove that the prosecution was false and malicious, and not the fact of acquittal or the subjective opinion of a juror. | Chaudhry v Prabhakar is unlikely to be applicable Giving specific advice one-on-one in a field of known expertise when specifically asked creates a duty of care. Giving general advice on a mass-communication forum to general questions when all parties are aware that specific legal advice is specifically off-topic doesn’t. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. |
How was retroactive copyright extension ever approved of? In the US, copyright has been retroactively extended multiple times. Steamboat Willie for example has repeatedly been snatched away from the public domain in the last minute. It was first due to enter the public domain in 1955. Then in 1986. Then in 2003. Last extension (that I know of) was until 2023 which is the year I write this. But at the same time, ex post facto laws are expressly forbidden by the United States Constitution. So how is it possible that ex post facto copyright extensions have been passed multiple times? As I see it the victim here is the general public. Is it simply that they haven't sued for rights? Or did they? If I sign a contract that I will hand over my poem to you in two weeks, can I just change my mind and say "no, now it's three months" whenever I feel like it? AFAICT that's exactly what's been happening here. | See Golan v. Holder (2012). This related to an extension of copyright protection for works that had already fallen into the public domain. an extension of copyright is still a "limited time" allowed by the Constitution historical practice, including by the first congress, is evidence that giving copyright protection to previously unprotected works is okay there is a rational basis that such extensions promote the progress of science fair use continues to be available as a defence/exception Further, no one is liable for copies of works made while a work was in the public domain. This was not imposing retroactive, ex post facto punishment. But see Justice Stevens's dissent in Eldred v. Ashcroft (2002) for such an argument—not in the punishment sense, but analogizing to a taking (the majority held that the Sonny Bono Copyright Term Extension Act was constitutional). | There is no copyright in an idea. A retelling of a story could be a derivative work, and the making of it a violation of the author's rights to authorize the creation of derivative works (17 USC 106 in US law. article 2 of the Berne Copyright Convention). However, the originals of most "fairy tales" are long out of copyright, and new versions of them may be created and published in any form, for pay or not, by anyone who chooses to do so. Some "fairy tales" are in fact original creations recent enough to still be under copyright protection. (at most 95 years in the US for works published before 1978, 70 years after the death of the author in many countries). In those cases a new version would probably be a derivative work, and require permission from the copyright owner. In some cases a particular author added significant elements to the plot of a fairy tale or folk tale recently enough that the version which introduced those elements is still protected by copyright. In any such case, a new version or retelling that included the new (protected) plot element might well be found to be a derivative work, and so require permission. Basing any retelling only on versions clearly out of copyright will avoid this problem. | I'm going to focus on one part of your question, because I think it is informative to the entire question: "By publishing those data in a copyrighted book are they now in the public domain?" Insofar as copyright is concerned, the "facts" are simply never copyrightable. What is copyrightable is the expression of the fact. So you publish a book and it contains many facts. You retain copyright over how you expressed the facts, meaning the word choice, format of presentation and so on. The discussion of this point always leads people to ask the following two questions: What if the "facts" are closely related to the way they are expressed? For example, a phonebook contains "facts" about phone numbers. The individual numbers are not subject to copyright. But if the way they were organized was clever (i.e. not merely alphabetical) the presentation may be copyrighted. Doesn't that line get blurred? Why doesn't "the presentation order" count as a "fact?" It does get blurred! And courts use nuanced case law and judgment to figure out which side of the line a given thing is. However, one backstop is that if AN EXPRESSION is so closely related to the IDEA BEING EXPRESSED that the IDEA cannot be otherwise expressed, then then the EXPRESSION is not subject to copyright protection. To answer your specific questions: The book is subject to copyright. The facts in the book are not. Someone else could publish a book with the same measurements so long as they are expressing the facts with sufficient difference from the original. I'm not familiar with CUSIP numbers. However, there are two things to say here. (A) it sounds like you are describing a contractual relationship between the people who have the numbers. This is not governed by copyright; it is governed by contract between the parties. If these numbers could be treated as a "trade secret" they might be protected IP in that way. But given that they are likely circulated at least a bit, they don't seem like candidates for "trade secret" protection. To your question, "what is the effect of one person leaking?" If "trade secret" law was doing any "work" here... then yes, the trade secret would be undone once the information was public. But like I said, its likely this is actually all about contracts not intellectual property protection. (B) The "facts" of "which number is associated with which instrument" is likely NOT subject to copyright at any time. The specific numbering code COULD BE copyrighted, but in reality is almost certainly TOO CLOSELY tied to the IDEA being expressed to be copyrighted. Could the number be expressed otherwise? If not, then its likely not protected by copyright. -- Big take away here: You seem to be confused about the concept of "facts" getting into the public domain. That's not exactly what copyright is about. Copyright would protect the expression of facts. An expression can become public domain if it is sufficiently old or if the creator designates it as public domain work. But simply "putting something out there" does nothing to alter the copyright status of the thing. | Copyright law is not based on contracts, and does not require agreement. No one may distribute copies of a copyrighted work without permission from the copyright holder. For instance, in the US, both Persons A and F can be sued because Title 17, Section 501 of the US Code says: (a) Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright or right of the author, as the case may be. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it. Copyright infringement isn't an issue of violating terms you agreed to with a private entity. Your duty to not infringe copyright was imposed by your country's legislature, who does not require your personal agreement to do that. | If the author died in 1946 then copyright in his works expired at the end of 2016. The work is in the public domain. The relevant section of the Copyright Designs & Patents Act 1988 extends to the whole of the United Kingdom, but not Crown Dependencies or colonies. You need to be sure that the work is the author's own work. If someone else has contributed then the copyright endures until it expires 70 years after the death of the last of the authors. The same applies to art. If you want to reproduce artwork, say for a cover/sleeve design, that would also have the artist's copyright, which lasts for 70 years after that person's death. The typography of a book has copyright which lasts for 25 years from publication. | You misunderstand the nature of copyright. Holding copyright allows you to decide how the work can be copied: there is no obligation on you to publish it if you don't want to. After your copyright expires you don't have to publish it either: the only thing that has changed is you can no longer prevent anyone making a copy. The lost works of Aristotle are in the public domain - if you can find them you can make as many copes as you like. | One big hole in any scheme that relies on copyright is that it could not preclude people talking about the previous content or talking about you. This is well established First Amendment law. For example, see Near v. Minnesota 283 U.S. 697 (1931), which holds that except in rare judicially established exceptions (relating to military information, obscenity, and inciting acts of violence), government censorship is unconstitutional. Thus, no statutory scheme could be used to prevent third parties who happened to have seen the material while it was freely available from re-iterating what they had seen, or talking about it, or talking about the author (you). People could even reproduce portions of the published content. Some types of reproduction would be protected as fair use in the US, especially if the reproduction is for the purpose of criticism. (17 USC 107, and this previous Law.SE answer) The closest approach would be to protect your work as trade secret, making sure that anyone that you share it with agrees to non-disclosure. But, if you "publish unique content under this pseudonym" there is no way to "arbitrarily or wholly revoke discussion about that content". If the cat gets out of the bag, while you may have remedies against the person who violated the non-disclosure agreement, you would not be able to prevent third-party discussion or reproduction. | The basic principle is that copyright never protects an idea, it only protects the expression of an idea. In the US, that rule is embodied in 17 USC 102(b) which 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. When significant, detailed, and specific plot elements are copied from a prior work, then that may make the new work a derivative work. Creation or distribution of a derivative work requires permission from the owner of the copyright (if any) on the prior work (source work). But the elements used must be significant and must be detailed. If all that is taken could be expressed in a summery contained in a single sentence or paragraph, this will not make the new work derivative. For example, such ideas as: Napoleon meets the Emperor of China and they form an alliance. [My idea] Sherlock Holmes helps to repel the Martian invasion described in The War of the Worlds. Conan Doyle's Professor Challenger is also involved. [Wellman's Sherlock Holmes's War of the Worlds] Aliens crash land on Earth in 1905, creating an alternate timeline. They seek to start WWI early, to stimulate technical development. [Benson's ...And Having Writ] would on their own not be enough to constitute a derivative work and thus infringement. But the more specific detail from the source work is used, the more likely it is that an infringement suit would win. By the way, the rule is the same whether the source work is a book, or a TV show, or an opera, or any other work subject to copyright protection. If the work is old enough, any copyright will have expired, but the format of the original does not matter, as long as it is "fixed in a tangible form" which includes video tape, DVD, computer file, or a script written on paper. About the only things that do not count as fixed would be an impromptu dance, song, speech, or story whch the creator performed or spoke without its ever having been written down or recorded in any way. |
What's the difference a petition, motion, suit & complaint? I've seen all of these terms being thrown around to describe overlapping concepts. I believe a suit asks the court for a monetary judgment whereas a "petition" just asks the court for an order for action. Is this correct? What's the difference between the other ones? Is there a specific type of form / process that needs to be used/followed to file each type of action in court? | In Civil Cases Petitions, Complaints, And Suits Suits The term "suit" is uncommon and verges on colloquial. It is a shortened version of the term "lawsuit" a.k.a. civl action a.k.a. court case. The term "lawsuit" refers to the entire case that is initiated by a Petition or a Complaint, rather than just a single document. The term "lawsuit" excludes court cases that are criminal and brought in the name of "The People." When one "files a lawsuit" or "files suit" one initiates a court case by filing a Complaint or a Petition with a court.* In some circumstances, a lawsuit is commenced by delivering the Petition or Complaint and other documents to another party to the case first, an action called "service of process" and then filing it with the court, while in most cases, filing the Petition or Complaint with the court comes first and service of process comes second. Petitions v. Complaints A Petition and a Complaint are each documents used to initiate a civil action (sometimes called a lawsuit or a court case) seeking some kind of relief from a court. For all practical purposes, the differences between Complaints and Petitions is purely stylistic and a matter of custom and history. Normally there is a filing fee for filing a Petition or Complaint. When a court case is commenced with a Complaint, the document that someone who is sued must file is called an "Answer". When a court cases is commenced with a Petition, the document that someone who is a party to the case must file to dispute that the relief requested in the Petition be granted is called a "Response" or an "Objection". When Is Complaint v. Petition Terminology Used Roughly speaking, the initial document is almost always called (in U.S. practice at least) a "Complaint" in contexts where the primary relief sought would have been for causes of action brought in courts of law in the English common law system before the merger of law courts and equity courts a.k.a. courts of chancery. See generally, this Law.SE answer. For example, the document initiating a lawsuit (a.k.a. civil action) for breach of contract, or for money damages in tort (e.g. a personal injury lawsuit), are almost always described as a "Complaint." The term "Petition" is most often used to describe an initial document seeking relief from a court in particular kinds of cases associated with historical equity relief and often don't seek money damages or don't have a clear winner or loser. Petitions are used, for example, to initiate a probate case, a guardianship or conservatorship case, a bankruptcy case, a divorce case, a request to change your name, or a case seeking to incorporate a municipality or special district. It is also customary to call an initial document seeking relief from a court a "Petition" when the relief sought is a "Writ". So, for example, one files a Petition for Writ of Certiorari, a Petition for a Writ of Habeas Corpus, and a Petition for a Writ of Mandamus. A "Writ" is a court order directed to someone who is not a party to a lawsuit directing that person (usually, but not always, a government official) to do something. Notwithstanding this general rule, however, in cases seeking money damages, possession of real estate (i.e. evictions), and possession of specific items of personal property (a.k.a. "replevin" actions or "claim and delivery" actions), cases are generally initiated with a document entitled a "Complaint" even though some of the post-judgment relief awarded will consist of writs (e.g. a writ of garnishment or a writ of execution in a case seeking a money judgment, a writ of restitution in a case seeking possession of real property, and writs of attachment and writs of assistance in cases seeking possession of personal property). In some kinds of cases, such as lawsuits to quiet title to real property, or lawsuits alleging breaches of fiduciary duty, the initiating document is sometimes called a "Complaint" and sometimes called a "Petition" in an inconsistent manner. The Federal Rules of Civil Procedure calls the document used to initiate a civil action a "Complaint" and many state rules of civil procedure follow the lead of the Federal Rules of Civil Procedure. In those jurisdictions, the term "Petition" is often used to refer to court cases that aren't governed by the ordinary rules of civil procedure. But this distinction isn't followed strictly. Some kinds of Petitions and Motions that initiate civil actions are still governed in whole or in part by the ordinary Rules of Civil Procedure. Application v. Petition Also, sometimes the word "Application" is used in lieu of the word "Petition", in part, because it is seen by reformers as a more "plain English" and less technical word than "Petition". The term "Application" rather than "Petition" is also sometimes used, in part, to avoid confusion with the more general non-legal sense of the word "Petition" to mean an request made outside the legal system to a public official or other individual requesting that they do something, or a document signed by numerous people seeking to allow a candidate to run for office or allowing a citizen's initiative to be placed on the ballot in an election, for example. Motions The General Rule A "Motion" predominantly refers to an oral request or written request made to a court requesting that the court do something during the course of a civil action a.k.a. lawsuit a.k.a. court case after the case was initiated with a Complaint or a Petition. Motions don't necessarily have to be filed by parties to the case, even though motions are usually filed by parties to cases. For example, a non-party to a case could file a "Motion to Intervene" to be made a party to the case, or could file a "Motion to Quash" or a "Motion for Protective Order" to seek to limited the scope of, or invalidate, a subpoena served upon a non-party. Motion are filed, for example, seeking to add a party, to dismiss a case, to amend a document previously filed in the case, for an extension of time to do something, to exclude evidence at an upcoming trial or hearing, to convert a case from a jury trial case to a non-jury trial case, to change a trial date, or any manner of other things that require court action. Requests for post-judgment relief in an existing case and post-judgment litigation of custody and child support matters in divorce cases are also called Motions. A court filing that doesn't ask a court to do something is often called a "notice" or "status report" or "return" (a "return" is a report to the court that something that should have happened in a court supervised process actually happened). Other terms are used as well. Normally, there is not a filing fee for filing a Motion in an existing case. Motions That Start Court Cases But because the law is not entirely consistent in its terminology, the term "Motion" is in rare instances used to refer to a document used instead to initiate a new court case concerning a very narrow special proceeding in a court. For example, in Colorado, where I practice, some of the court cases that are initiated by a Motion include: A Motion to Compel or Stay an Arbitration proceeding. A Motion to Confirm, Vacate, or Modify an Arbitration Award. A Motion to Compel a legal entity to turn over its records to one of its owners. A Motion to authorize an otherwise public trustee foreclosure of deed of trust for real property to go forward. A Motion to have a money judgment entered in another state recognized in the state where the Motion is filed. The basic notion is that in the kind of court cases initiated by a Motion rather than a Petition or a Complaint, the intent is that the entire court case should involve a procedural process similar to the process of resolving a single isolated motion within a larger court case, as opposed to the full legal process involved in an entire court case initiated by a Complaint or a Petition. Another term used to initiate a court case, often a limited special proceeding without involving the procedural incidents of a full fledged civil lawsuit is an "application." Normally there is a filing fee for filing a Motion that initiates a new court case. In Criminal Cases Criminal Cases Are Not Lawsuits The term "suit" or "lawsuit" is normally reserved for civil cases and is not used to refer to criminal cases brought in the name of "The People". Often a criminal case brought in the name of "The People" is called a "Prosecution". Motions The term "Motion" is used the same way in criminal cases as it is in civil cases. As in civil cases, the term Motions is used for post-verdict fillings requesting relief from a court in existing criminal cases, such as a Motion to Seal a record in an existing criminal case, or a Motion to set aside a verdict after it is entered. Also, as in civil cases, there are some criminal cases that can be initiated via a "Motion" which are generally narrow special proceedings intended to be adjudicated with the procedural trappings of a motion filed in another case rather than the procedural trappings associated with a full fledged criminal case. Sometimes these filings to initiate new special proceedings in criminal cases are called "applications" rather than "motions". For example, a request to a court to issue a criminal search warrant would often be called a "Motion for Issuance Of A Search Warrant" or an "Application For A Search Warrant." Petitions In criminal practice, the term "Petition" is normally reserved for an application for a Writ, such as a Petition for a Writ of Certiorari, or a Petition for a Writ of Mandamus. Complaints v. Indictments In Criminal Cases Criminal law practice uses the term "Complaint" differently than in civil practice, however. In criminal law practice, the key distinction is between a "Complaint" which is a document commencing a criminal prosecution against a criminal defendant filed by a prosecutor (or where the law authorizes it, by a non-lawyer such as a police officer or crime victim), and an "Indictment" which is a document commencing a criminal prosecution against a criminal defendant issued by a grand jury. A document initiating a criminal prosecution without using a grand jury is also sometimes called an "information" or a "complaint and information". (N.B. the State of Colorado is misclassified in the map above and does not exclusively use grand jury indictments to commence felony cases. It should be blue and not gray in the map above.) Serious crimes prosecuted in federal courts, and in some (mostly Eastern U.S.) states have to be commenced with an indictment rather than a complaint. In most states (mostly in the Western U.S.), however, a prosecutor can initiate almost any kind of criminal case with a Complaint, and criminal cases initiated by grand jury indictments are the rare exception reserved mostly for organized crime cases, cases involving politicians or with political implications, and cases against law enforcement officers. Generally speaking, in criminal cases commenced by an indictment, there is no right to a preliminary hearing to determine if the criminal charges are supported by probably cause before a judge, while there is generally a right to a preliminary hearing for that purpose before a judge in most serious criminal cases commenced with a criminal complaint. | The exact form used can vary based on the court. At the federal level, the Administrative Office for the US Courts has a standardized form, although I don’t know that district courts have to use it. State courts obviously wouldn’t be expected to use the federal form, and I’m having a harder time turning up a blank state warrant form. The standard elements are in the federal form, though. A search warrant will have a header identifying it as a search warrant and will have something identifying the court that issued it. It will be signed by some sort of judge. The body of the warrant will be written as a command to the police to do a search, telling them where to search and what to look for. There will generally be some standard language about what to do with the property once it’s seized. | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial. | Venue The location where you file the claim is the court that will hear it unless: you both agree the judge orders a different venue based on submissions from the parties (unlikely in a small claim) Costs Costs awards in small claims are rare and generally do not extend to the legal fees and if they do, the amount is capped. Costs for reasonable expenses of witnesses are slightly more common. In general, costs are limited to what is reasonable - to get the costs of travel and accommodation for the Liverpool solicitor, the party would have to argue that there was no available equivalent representation available locally. This might be arguable if you need a QC expert in say, international maritime law, it seems unlikely for a small claims matter. Personal Comment Don't go to court for £100 - settle the damn thing or walk away. In the time and worry you spend on it you could earn that sum five times over. | It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action. | Someone has pulled a sample motion of this type off of PACER (the public access Internet portal to civil filings in federal court). The example is more formal and structured than a lot of state court motion practice would be, however (e.g. few state court's require or encourage motions with a table of contents and a table of authorities). This example is 36 pages long, and many states don't even allow motions to run for more than 10-15 pages without leave of the court to do so in advance. There is a New Jersey federal court example here which is also on the formal and fussy side (although, in part, because the motion isn't just an arbitration motion and is also raising several additional unrelated issues which if omitted would cut it in half). See also one here. Another example, from a California state court, is closer to the mark for a typical state court filing. A court that handles residential landlord-tenant matters is probably even more "casual" and probably expects motions to get to the point more quickly. The core content is probably solid, although it would have to be customized to reference the state law statutory and procedural rules rather than the federal rules of civil procedure, and to analyze and set forth the facts of your case rather than those of some random person whose pleading is linked. This would also have to be adopted to state court practice standard, which typically uses different formatting for captions, signature blocks, whether or not line numbering is required, etc., and is often subject to other requirements. Some require that a certificate of service be filed as a separate document, while others routinely incorporate it in the main document. Many state courts require that a proposed order be submitted with a motion as a matter of state or local court rules, a few states require a cover sheet to be filed with motions, many states require you to confer with the other side in the case and to recite their position opposing or supporting the motion, or something in between, before filing it, and some courts require you to notify them once the deadline for a response has passed, regarding whether an opposition has been filed to the motion's request for relief or not. Similarly, some states courts require that motions be "verified" (i.e. have their allegations confirmed under oath) or supported by an affidavit setting forth the factual matters alleged in them. New York State structures a lot of motions as "orders to show cause" in which the court preliminarily reviews the relief requested and issues an order telling the other side that it will do something if they don't file an objection showing good cause for the court not to rule in that way by a given day, which must be formally delivered (i.e. "served") upon the other side by a deadline. I don't know if New Jersey local motion practice is similar. Many court systems also charge a "new case" filing fee for motions to compel arbitration that does not apply to other kinds of motions. Ideally, you'd want to review some motions (about pretty much anything) to get a feel for how this is usually done in New Jersey. |
Do contracts require pages or clauses numbered? A question asked by another member about missing pages in a lease brings to my mind the question of whether there is a legal requirement for contract pages to be numbered so that it is e.g. obvious when a plaintiff or defendant has simply omitted inconvenient pages ? I generally see clauses being numbered, but I don't know if this is a requirement or not - I have no legal training myself. I am particularly interested in my own country (Ireland) and the UK and EU but other jurisdictions are of naturally of interest. | I do not believe that there is any requirement to number clauses, paragraphs, or pages, and I have certainly seen contracts where none of these are numbered. It is a common practice to number provisions in some way, in particular to make reference from one to another easier. But not all contracts include such internal references. Contracts presented in electronic form, such as on a web page, may not have any clear concept of separate pages, and so page numbers would be pointless on such contracts. Page numbers on contracts printed out are common, but I do not know of any legal requirement for such numbers. For contracts presented in electronic form, one can ensure against unauthorized modification by including a checksum or hash of the contract text. If a one-way hash function is used, it will be quite hard to produce a text with a different content but an identical hash value. This technique could also be used on printed contracts. However, I do not recall seeing this technique used in practice. | Can the renter declare the contract to be void because of the death of the only other party to the contract? No. The estate of the decedent steps into the shoes of the decedent and the executor of the decedent's estate can enforce the lease. What if one of the heirs comes to the renter and tries to add additional conditions? The heirs do not have the authority to modify the lease without the tenant's consent, although the tenant knows that the lease may be less likely to be renewed if the tenant does not consent. Also, the heirs, strictly speaking, don't have the authority to do anything. Only an executor duly appointed by a court does. | My questions are, where does this put me legally and what are my options? . . . Also, if I want to keep the tenants, how should I proceed? And if I don't want to keep them, do I have that option? Your Rights With Respect To The Tenants If the agency is telling the truth and the agreement made with the agent was for four tenants but their records and document only listed three by accident, you probably can't insist on additional rent or evicting the fourth tenant because if your agent does something on your behalf, that is binding on you just as much as if you had signed them up personally in that manner. This is true even if the agent didn't actually have the authority to rent the place to four people based upon your communications with the agent, because the agent has "apparent authority" to bind you in your agent's dealings with the prospective tenants. You probably have the right to insist that the fourth tenant sign the lease to conform to the actual agreement that was reached (four tenants in exchange for the rent stated in the lease). If the fourth tenant refuses to do so, that would be a repudiation of the lease/contract and would prevent him from claiming that he is a valid tenant of the property pursuant to the agreement reached with landlord through his agent. If the fourth tenant refused to sign, you could therefore insist that the fourth tenant pay additional rent or be evicted if you wanted to. On the other hand, if the agent is not accurately relating the facts, and there was never any agreement to have more than three tenants (as your communications with them and the written lease suggest), then you would have the right to evict the fourth tenant or insist on additional rent from that tenant. But, it might be hard to prove that the agent is not being accurate because it sounds like the agent and the tenants will testify consistently with each other and there were probably no other witnesses to the discussions between them. The Fourth Tenant Might Have Liability Anyway Also, at common law, you could sue the fourth person for unpaid rent during the period that the tenant was actually there anyway, since the fourth tenant was in "privity of estate" with you. (If someone actually signs the lease then they are in "privity of contract" with you.) England abolished the doctrine of privity of estate in most circumstances for residential tenancies in 1995. But, it is possible that this fact pattern is one of the situations in which the privity of estate doctrine remains in force since the 1995 reforms largely apply to assignments of leases by people who are tenants on the original lease, rather than occupants of a rented property who never signed a lease and never received a formal assignment. I don't have the legal research tools to confirm that accurately. But, none of the U.K. Landlord and Tenant Acts currently in force that I could locate addressed that issue, so the common law rule may still apply in this situation. If the doctrine of privity of estate does allow a suit against the fourth tenant based on occupancy without signing a lease, the incentive to even try to get the fourth tenant to sign a lease is very small indeed - you get no benefit at all from it other than slightly easier proof in an unpaid rent collection lawsuit if the agent's story is believed. If it doesn't the considerations earlier in this answer still apply. Practical Considerations All of this being said, there is also a practical consideration to consider. It you try to kick out the fourth tenant or impose additional rent on the fourth tenant, if the fourth tenant refuses to sign the lease, or if you believe that the original agreement did not include the fourth tenant, you still have to weigh the pros and cons of bringing an eviction or unpaid rent lawsuit. The lawsuit will cost you money (requiring you to advance money even if you are awarded attorneys' fees which may be impossible to collect from the tenants). You won't get your attorneys' fees for the lawsuit if you lose and will also have to pay their attorneys' fees if you lose. Tenants whom you are suing are unlikely to be cooperative on any other matter upon which you want their cooperation, and may bad mouth you, for example, in online consumer reviews. Unlike a typical eviction where the rent is not paid, it is very likely that the eviction will be contested, and if it is, the court could order the fourth tenant to sign the lease, but provide you with no other remedy if the court believes the story put forward by the tenant and the agent. If you don't sue, you won't incur attorneys' fees, you can still evict everyone if the rent isn't paid, you can still try to collect unpaid rent from three other people, and you are much less likely to have a dispute with or non-cooperation from the tenants. The only benefit you get from having a fourth person on the lease if that was the original deal (or if you can't prove that it wasn't the original deal) is that you have one more person you can sue for back rent if the rent isn't paid. If I decide to break my agreement with the agency, do I have grounds to do that? Terminating The Agent Often you can terminate an agreement with an agency without cause. If the agency agreement says that you can, you are free to do so and probably should because at a minimum they are sloppy and poor communicators. Generally speaking, even if you can't terminate the agreement without cause, you can terminate the agreement for cause, and the contradiction between their prior communications with you and their current communications with you probably constitute good cause to terminate the agreement both if they are telling the truth not, and if they are not accurately recounting the facts now. But, to be clear, terminating the agent won't affect the rights of the tenant. Suing The Agent If you clearly do lose money because the three tenants on the lease don't pay rent and for example, you get a judgment against them which can't be collected due to bankruptcy or them moving abroad to a place where it is not economical to collect a money judgment from them, or just not having any assets or income (or some combination thereof), and it turns out that the law does not allow you to sue the fourth tenant, and the fourth tenant was not judgment proof, you would probably have a right to sue the agent for the lost rent caused by the agent's negligence in failing to get all four tenants to sign the lease. But, the cost of proving that in a typical case would not be worth the money since this would be much harder to prove than simply proving that someone signed a lease agreeing to pay rent and didn't pay rent as agreed. If the agent didn't agree to pay for your losses voluntarily it might not be worth the time, trouble and risk of not prevailing in that lawsuit to pursue, even if you could get attorneys' fees for your suit against the agent if you won (which you probably could in England). The risks of doing that include paying the agent's attorneys' fees is you lose. | Contracts are a relationship between two or more people Just as it is meaningless to speak of marrying yourself, it is equally meaningless to speak of a contract with yourself. Even if you were to draft such a thing, you would not have standing to sue because you can’t sue yourself. Your example probably isn’t a “one person contract” It’s a contract between the car owner (person 1) and the car yard (person 2) - probably a corporation. The fact that person 1 is representing both parties to the contract doesn’t make it a “one person contract”. There are potential conflicts of interest with this but they are not necessarily ones that can’t be overcome. However, if the car owner runs a business as a car dealer as a sole trader, then, no, they cannot make this kind of contract. | It is hard to tell what the statement in the OP that "95% of the contract disputes are won/lost directly by the contract itself" was intended to mean. It isn't literally true. A breach of contract claim requires a showing in every case of (1) the existence of a contract giving rise to a contractual duty, (2) an unjustified breach of one or more of its valid terms, and (3) to recover more than nominal damages, a showing of the amount of damages caused by the breach. In the simplest of breach of contract cases, say, a promissory note default case, proof of the existence of a signed original promissory note, and business records regarding the defendant's payment history establish all of these elements, and establish a prima facie case that the defendant is unable to seriously contest. One possible intended meaning of the statement that you are paraphrasing is that usually the existence or non-existence of acts allegedly giving rise to a breach of the contract are undisputed and that the litigation primarily boils down to what the contract required in the fact of undisputed extrinsic evidence of breach of contract. This is not my experience. The overwhelming majority of contract lawsuits are basically collection actions for non-payment of an invoice, for foreclosure of a lien, or for eviction for non-payment of rent, in very simple transactions, where the party with a payment obligation has undisputedly failed to perform and the performance by the party to whom payment is due is not seriously disputed either. Probably 90%+ of contract cases have this character and are resolved by default judgment. A majority of the remaining < 10% of contract cases settle with the plaintiff getting some payment or acknowledgment of debt from the defendant, usually with payment plans reached primarily based on considerations mostly related to ability to pay (which isn't legally relevant but is as a practical matter critical in the subsequent collection stage), even if there are minor or unlikely to succeed disputes over liability and damages issues on the merits. Somewhere on the order of about 0.4%-4% of contract lawsuits involve cases where there are bona fide dispute regarding whether payment was made, or whether there was a legally recognized justification for non-payment such as the failure of the party to whom payment is owed to fully perform their obligations under the contract. The interesting cases usually involve disputes over whether someone earned the amount that they sought or instead failed to perform as agreed in some manner other than payment. When there is a written contract, in the overwhelming majority of cases, the validity and terms of the written contract are undisputed, and efforts to argue that there were any side agreements or subsequent modifications of the original written contract are very challenging to prevail upon. Disputes over breach and justification for breach are more common than disputes over the terms or meaning of a written contract, even though these are certainly disputed sometimes. And, of course, there are frequently disputes over whether there was a contract, and if so, what its terms were, in the case of express oral contracts, and contracts that are implied-in-fact or inferred from the course of dealings of the parties. Another possible interpretation of the paraphrased sentiment is that usually the language of the contract determines what your rights are in a case. Certainly, the rights of the parties usually do boil down to what the language of the contracts requires. Some Statistics The Colorado state courts publish an annual report with statistical data every year. The annual report for the year 2017 was typical. In District Courts (the courts of general jurisdiction) there were 247 civil bench trials (about a quarter of which are tort cases), and 218 civil jury trials in civil cases (about three-quarters of which are tort cases), which consist mostly of contract cases, but with a minority of tort cases and property rights case and cases involving statutory rights (it excludes evidentiary hearings in domestic relations or mental health or probate cases, or pre-trial evidentiary hearings such as hearings on preliminary injunction requests, eviction hearings, non-judicial foreclosure summary hearings, and criminal or quasi-criminal trials, hearings and cases) out of 89,632 civil cases filed. About 12,000 of these are contract lawsuits (52,000 are pro forma tax lien filings). Thus, there are about 240 contract case trials out of about 12,000 contact lawsuits, with about 2% of contract cases going to trial (about three-quarters of the time before judges instead of juries) (this excludes a very small number of disputed contract claims adjudicated within probate cases each year). In County Courts (the courts of limited jurisdiction for claims under $15,000 in 2017), there were 801 civil bench trials, 14 civil jury trials, out of 140,462 civil cases filed (the vast majority of which are breach of contract cases and 98%+ of which are decided by judges usually in trials of one day or less, instead of juries), with about 0.6% of contract cases going to trial. This counts evictions as well as straight out contractual debt collection lawsuits as contract cases. There were and 1,657 small claims court trials (always before a judge rathe than a jury and limited to disputes of $7,500 or less with limitations on lawyer involvement) out of 7,118 small claims cases filed, but the mix of cases is very diverse so mapping that to resolution method isn't really workable, even though more than half would be contract cases. Essentially all of the small claims cases that don't go to trial are default judgments and day of trial settlements. By comparison, there were about 460 federal court contract cases filed in Colorado in 2016 (about 0.3% of all contract cases filed in Colorado in any given year). These cases go to trial at a rate similar to the 2% rate for state court of general jurisdiction contract cases (perhaps 7 bench trials and 2 jury trials a year) (this figure excludes bankruptcy court cases which each have multiple disputed or undisputed contract claims within them). Certainly, it would be safe to say that less than 1-2% of contract lawsuits filed in Colorado go to trial. In all cases that don't go to trial, there was a default judgment (most common), settlement (next most common), or resolution in pre-trial motion practice (least common but more common than contract cases going to trial, let alone a jury trial). | Hardly ever While all doctors in private practice has a contract with each of their patients: For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence. While tort damages aim to restore the plaintiff to the position they were in before the tort and contractural damages aim to place them in the position they would have been in had there been no breach, for medical malpractice there is no practical difference. | A promise that a court would not enforce by injunction can still be valid consideration and be part of a valid contract. Failure to carry out such obligations would lead to some measure of money damages, most likely. On the other hand, provisions specifically barred by law, or against public policy, such as a promise to commit a crime, are void from the start, and form no part of a valid contract. Such provisions may be treated by a court as if they had just been left out, or if they were essential to the contract, or formed the sole consideration, the whole contract might be considered void. If a term is too vague for a court to determine if it has been violated or not, the court may try to clarify it, or may just ignore it. Just what it would mean for a tenant to "undermine the leadership" of a landlord is not clear to me, at least. That might well be held to be "too vague". As to "not complain" it may be that a tenant has a legal right to make official complaints, which cannot be waived by contract. Or it may not, depending on the local laws. | Generally speaking, you signature and delivery of the lease to the landlord makes it possible for the landlord to enforce. Particularly when, as in the question, the landlord presented the lease to you as an "offer" which you accepted without modification, it is probably binding upon the landlord even if the landlord does not sign it or return a copy with the landlord's signature. In jurisdictions that have a statute of frauds, your part performance by sending checks in the lease period consistent with the lease, and the landlord's part performance by continuing to allow you to occupy the premises without objection, would probably make the statute of frauds (which generally requires a signed writing by the party against whom a lease is enforced) to be inapplicable. On the other hand, if you materially changed a version provided by the landlord, there is a real question over whether there has been an offer and acceptance, or a meeting of the minds, agreeing to the new lease. Materially here meaning changes that are more than updating your contact details and go to the heart of the lease contract. |
Is it legal to go take my license plates off a car I sold, without realizing I should keep my plates? I sold a car a year ago in TX and didn't realize that I should take the plates off. The buyer has taken full advantage of this and is racking up lots of tolls in my name. Fortunately I'm able to get the tolls dismissed by showing the bill of sale and vehicle transfer form I filed, but they say they won't stop sending me bills until the guy registers the car in his name, so I have the repeated hassle of going to contest these bills. It's annoying enough I'm tempted to try to find the car somewhere I believe he frequents and just take the plates. I don't know if that would be considered stealing, since I was supposed to remove them anyway, but something tells me this would be a bad idea. I've had all kinds of ideas, for instance, I found that I still have a non-sentry key, so I could theroetically remove the plates but hide them inside the vehicle, which couldn't possibly be considered stealing but would motivate him to register it. The main thing I wonder is if he could sue me for some kind of monetary damages arising from missing something important because he sees that he suddenly has no plates and doesn't want to risk getting pulled over. Or gets pulled over on his way to something important, etc. | License plates in Texas are governed by the Texas TRANSPORTATION CODE, TITLE 7. VEHICLES AND TRAFFIC, SUBTITLE A. CERTIFICATES OF TITLE AND REGISTRATION OF VEHICLES, CHAPTER 504 LICENSE PLATES Texas code section 504.901. TRANSFER AND REMOVAL OF LICENSE PLATES (subsections (b) and (c)) provide that (b) On the sale or transfer of a motor vehicle to a person who does not hold a general distinguishing number issued under Chapter 503, [i.e. not a dealer] the seller may remove each license plate issued for the motor vehicle. The license plates may be transferred to another vehicle titled in the seller's name if the seller obtains: (1) the department's approval of an application to transfer the license plates; and (2) a new registration insignia for the motor vehicle. (c) A license plate removed from a motor vehicle that is not transferred to another motor vehicle must be disposed of in a manner specified by the department. It seems that the seller is not required to remove the plates when selling the vehicle Section 504.010 ISSUANCE AND PLACEMENT OF LICENSE PLATE. provides that: (a) On payment of the prescribed fee, an applicant for motor vehicle registration shall be issued a license plate or set of plates This seems to tie the plates to the registration, which means to the person registering them as well as to a particular vehicle. Section 504.943. OPERATION OF VEHICLE WITHOUT LICENSE PLATE provides that: (a) Except as provided by Subsection (b), a person commits an offense if the person operates on a public highway, during a registration period, a motor vehicle that does not display two license plates that: (1) have been assigned by the department for the period; and (2) comply with department rules regarding the placement of license plates. Section. 504.944. OPERATION OF VEHICLE WITH WRONG LICENSE PLATE.provides that: A person commits an offense if the person operates, or as the owner permits another to operate, on a public highway a motor vehicle that has attached to it a number plate or registration insignia issued for a different vehicle. An offense under this section is a misdemeanor punishable by a fine not to exceed $200. It would seem that under 504.943 or 504.944 (and the related 504.945) the person who bought is committing a misdemeanor every time that the person drives it on public roads or streets. The seller could inform the buyer of this and request the buyer to get new plates, or report the buyer to the police as having improper plates, which would allow them to stop the buyer for having improper plates. Use of certified mail would preserve a record of the notification of the buyer. Note that notification is in no way required before reporting to the police, but might induce the buyer to get new plates on his or her own. Secretly removing the buyer's license plate would probably not be theft, as it seems that the plates actually remain the property of the state, but would at the least involve trespass. It seems unwise at best. | I am not a lawyer, I am not your lawyer, I am unfamiliar with the jurisdiction I demand you give me your hat! You're not going to, are you? The point of that is that you are not obliged to do anything just because someone demands that you do. Now, if I had a court order that required you to give me your hat ... It appears that there is some confusion over who owns some land in Nebraska. This is a problem; it is not your problem. From my understanding which is entirely based on this: A warranty deed is a type of deed where the grantor (seller) guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee (buyer). you would be extremely unwise to sign such a deed since it is in no way clear that you (or anyone) does have clear title. Now I take it that you are not interested in owning land in Nebraska and even less interested in getting into a legal battle over it. If that is the case then I suggest that you consult a local lawyer and ask for his advice on the following plan of action: You and your wife will renounce any claim that you may have if: You do not guarantee that you have any claim or title, The person to whom you are making this grant indemnifies you against any legal action that may result, They will prepare the documents, Your lawyer will review them, They will reimburse you for your lawyer's fees. Come back and tell us how this works out. Edit to address subsequent questions Can you be responsible for costs? Well, anything is possible but it would be extremely unlikely. If there was any wrongdoing it was many years ago by someone else! If you approach this in a reasonable way and attempt to assist in reaching a resolution (so long as it doesn't cost you time or money) then it is highly unlikely a court would award costs against you. What about background checks? This would be a civil case. It would not appear in your criminal history. While it is a matter of public record all it really means is that you and someone else had a dispute that required a court to settle; happens all the time. | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | The booklet from the condominium management could legally be seen as a part of the lease, and you should have been aware cars can be towed without notice, and have in fact agreed to that by living there. The fact that the tow company entered your car really isn't relevant; they are tasked with removing the car, and by law, they must do everything they can in order to tow the car while not causing damage. They will be insured and bonded for damage during the tow and liability for storage at their lot; but in order to safely tow the car, they must have access to the parking brake, the gear shifter (if manual), the steering wheel (to straighten the tires, if needed, which could be a problem if the steering wheel is locked), etc. They can legally enter the car to ensure a safe tow if the car is unlocked, or use a "slim jim" or other tool to unlock the door, disable the alarm if needed, etc. If the tow company damaged the car while towing, or you find property is missing from inside the car when the care is returned, your issue is with the two company and not the condominium management. See Virginia Code § 46.2-118. Prohibited acts by tow truck drivers and towing and recovery operators | When the buyer hears "to avoid sales tax" and hears the seller describing as a gift something that s/he knows was nothing of the sort, a reasonable buyer would know that this was at best suspicious, and would find out if this was legal. But assuming that the buyer accepted the seller's suggestion ignorantly and in good faith, the buyer can file a report of the transaction and pay any tax that should have been paid. The exact way of doing this will vary based on the laws of the buyer's jurisdiction (state-level if in the US) which is not given in the question. Such a report and payment might not prevent the local tax authorities from assessing an additional penalty. Criminal charges seem unlikely, but would be possible. If the seller was a used car dealer, the authorities might want the buyer to testify against the seller. They buyer might be wise to consult a lawyer with expertise in sales tax issues in the buyer's jurisdiction. Such a lawyer could advise on exactly what the buyer's legal obligation was, and how to avoid or minimize penalties or other consequences. | tl;dr: No, the dealership generally won't be able to recover the car if its act of parting with the car involved "entrusting" it to someone. That said, it can pursue Doe for fraud. U.S. Background First off, when the dealership gets swindled the situation is distinctly different from one where the car is stolen from the dealership. If stolen, we'd expect the dealership to be able to recover the car, as in O'Keeffe v. Snyder, 416 A.2d 862, 83 N.J. 478 (1980). If swindled, we'd expect the dealership to be out of luck, as in Phelps v. McQuade, 220 N.Y. 232 (N.Y. 1917). Why the different result? It comes down to the idea that when the car gets moved on to an unsuspecting buyer, either the innocent buyer or the dealership is going to get hurt by the bad act. This is because only one party (buyer or dealer) is going to get to keep the car, and the other is going to be upset. The court has to essentially choose who is going to get hurt. The way it does this is by looking at how the car left the dealer's lot. In cases of swindling, the dealer at least had some say in the matter: it "entrusted" the car to the swindler by what's called a "voidable" title. This is enshrined in the UCC: § 2-403. Power to Transfer; Good Faith Purchase of Goods; "Entrusting". (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. (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyerin ordinary course of business. (3) "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goodshave been such as to be larcenous under the criminal law. There's an old saying: "title, like a stream, only rises as high as its source." In the case of a theft, the thief didn't have title in the first place and thus can't transfer it. So we'd expect the dealer to get the car back (buyer gets hurt) In your case, the swindler's bogus check falls under UCC §2-403(1)(b). Thus the swindler gets a voidable title and then has the power to transfer the car to an unsuspecting buyer. So we'd expect the buyer to keep the car (dealer gets hurt). Note: the title is "voidable" because, if the dealer realizes the check is dishonored, it can void the title. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | This is not a place for specific legal advice, but you shouldn't be afraid of the small claims court; I'm doing that myself and it really is a low-risk and straightforward way to get money that is owed to you. Step 1: Get the boiler repaired or replaced as necessary. Keep the receipts. Don't be tempted to get an upgrade or anything else to push expenses that are legitimately yours on to the other party; find out what the cheapest thing is that you can reasonably do to fix the problem and then do that. Step 2: Write a letter to the seller in which you set out the facts of the case and demand the cost of the repairs. Also include any other expenses you have had to incur, like money for your time off work while the repair is done. End it with "If you do not agree to pay this money within one month then I will take action in the county court to recover the money". Send it by recorded delivery and include a copy of the repair receipt (NOT the original). Step 3: If you do not get your money then go here and follow the instructions. You have to pay an up-front fee to the court which gets added on to the amount you are claiming. That is the only money you are putting at risk if you lose. The whole thing is as informal and straightforward as possible, and is purposely designed so that you don't need a lawyer, nor can you or the other side claim for the cost of a lawyer if you win. This is why your lawyer is pushing you to do this by yourself: he knows that his fees would be out of proportion to the amount in question, and you wouldn't be able to get that money back even if you won. The only other wrinkle is if the other party has moved far away: in general if a hearing is needed then it will be held near them rather than near you, so you might have to travel. |
Is a school legally responsible for ensuring a child gets home after school? Let's say Bob is a child in school who usually rides the bus home to his parent's house after school. However, one day he doesn't get on the bus, instead walking to a friend's house, where he proceeds to do things his parents don't approve of. Let's say the parents complain to the school about letting their son regularly walk off to misbehave rather then ensuring he gets on the bus as they expect. What's the schools answer? Is the school liable for the child not making it home? Are they responsible for making sure the child gets on the bus and arrives home, or has their own responsibility for the child ended the moment the bell rings for the last class? Could they be sued if Bob gets run over trying to go to his friends house one day after his parents had told the school Bob was suppose to be taking the bus home? Does the age of the child matter? I could see the rule being different for a 19 year old compared to a kindergartener, but if so where is the line drawn on age vs school responsibility? | In South Africa. the duty of care in regards to children and the schools they attend only begins when the child enters the classroom for the first time. All parents are advised that, in the case of primary school children, it is not sufficient to drop young kids of at school. Parents must take them to their specific classroom. The duty to care officially ends when the school day ends. For primary school children that is 13-15 and for highschool children that is 13-45. Teachers are expected to work until 16-00, but the legal obligation for children to attend school ends when the school day ends. A lot of schools don't transport children anymore and have blanket policies of parents being responsible to take children to any extra mural events outside the school. It has just become increasingly harder to ensure children's safety, and many schools are uncomfortable with the liability it creates. The duty of care can be extended to schools who have hostels. In this case, hostel parents take up the role of parents. | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. | Unfortunately, the police are correct The limit on filing a civil claim (a lawsuit where you seek monetary compensation) is before you turn 40. If you were 11 in 1985 then it is too late to sue your assaulter. For criminal prosecution, the law was changed in 2016. Prior to the change, the limitation was the same as for civil cases. After the change, there is no limit but only if the offence was committed on or after 1 January 2017. Assuming that your reference to Kelly is to this guy - the alleged offences were committed in the 1990s and the prosecutions are under Illinois, Minnesota and Federal law (the Federal crimes alleged are not the sexual assault of a minor). Each state has it's own rules. | Various elements could be legal, or not. For example, it is legal to require students to do things in order to pass a class. It is legal to require a student to write a program for a course (entirely, or in part). It is legal for a teacher to give a "group grade". It is not clear whether it is legal to require the student to assign copyright or license to the teacher / school – it may be legal to require a student to pay for their class, and copyright transfer might be valuable consideration for such a contract (assuming that there is a contractual relation at all as opposed to a statutory mandate – e.g. "high school"). If this is a public school, you can't make students pay for a mandatory class, therefore you cannot require assignment of copyright. It is very probably illegal for the student to access the educational records of other students, but the app could be developed with dummy data. | Without knowing the specifics on Florida Goverment's regulations, the term Umbrella School is used to designate school like organizations that over see multiple homeschoolers and that they are meeting state educational expectations. Often they will hold events which will allow homeschoolers to compete in school sports as well as set curriculums (sometimes), and field trips and social events (A stereotype of Home School Students is that they are poorly socialized compared to those who attend traditional public or private schools.). They should meet legal qualifications, but it's a bare minimum at best. I would recommend calling a local school administration office for best guidance, but saying Home School (Florida Unschoolers Umbrella School) would likely cover your bases. I'm sure you're not the first person to ask this question. | If the parents left the brother, let's call him Bob, full or partial ownership of the house in a will, or a long-term right of tenancy, then he has a right to live there. If they left no will, their property will be handled according to the local law on intestacy. The details vary from one Australian state to another, but if neither has a living spouse, their children will probably split the estate. This will probably include a share of the house, and so Bob will have a right to live there, unless a different division is made. Or the house could be sold and the proceeds split. Bob would not have a right to live there merely because he had been living there for some years, or even all his life. Nor would Bob have such a right if he had been caring for his parents, not for that reason alone. Everything depends on who winds up owning the house. Generally the owner or owners get to decide who may live in the house. A person could also be given or left a right of occupancy. A co-owner normally has a right to live in a house. But there is no automatic right of a child to live in his or her parents' house. | Why would this be a concern? The adults have some duty in an elementary school setting to monitor the children in the restroom in any case. Separate restrooms are an employee perk, not a liability driven decision. | The relationship between a school board and the other state officials is purely a matter of state law. Generally speaking, a state can impose generally applicable regulations that govern public school districts, and to a lesser extent, so can the federal government. Whether this particular remedy is available in Florida would depend upon the relevant statutes. But, I very much doubt that this particular tactic is authorized by law. Instead, the normal course of action would be to apply to a state court for injunctive relief compelling the school district to follow the law, or to withhold funding for the school district as a whole. Normally, a state school board cannot directly control compensation of school board members or school district administrators. Of course, there could be some obscure provision of Florida law that authorizes this of which I am not aware. It is worth noting that Governor DeSantis, the incumbent Governor of Florida, has a track record of "not coloring within the lines" of what the law states that he has the authority to do. |
Do principles of common law apply everywhere? For example presumed innocent until proven guilty is a principle of common law. Does it apply in every country which has common law? | No, but... Common law does not apply in countries that follow the legal school of Code Civil, aka civil law legal system, such as Germany or France. Some basic principles are common between them and common law: While there's generally no right to a jury, the innocence part actually stems in both cases from ROMAN law: in dubio pro reo - in the case of doubt, (you have to decide) for the accused. The similar Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies - is the source: It was butchered into "innocent until proven guilty", but the sentiment is the same. Other countries that have no relation to common law are based on Sharia and Fiqh. There is absolutely no relation to Roman law either. However, there is a presumption of innocence, or as one of the largest Scholars of Islamic law Caliph Ali ibn Abi Talib said in the mid-600s: "Avert the prescribed punishment by rejecting doubtful evidence." However, what is considered doubtful is quite different. On the other hand, presumption of guilt was the foundational principle in other legal systems! | The law was first promulgated on June 8, 1940 By the 76th Congress. The original text is here. It doesn’t seem to be a particularly important piece of legislation and I can find commentary on it and I’m not going to read the debates - if you do, please get back to us. Two points to note, it was passed at a time when most of the rest of the world was at war and the US was quietly preparing to be at war and it seems to be intended to fill a gap in state law since conviction under state law is a defence under Federal. | This is a great question because it's a useful vehicle for understanding a cross-cutting principle of law: baselines and exceptions. I find that thinking of law as a system of baseline rules and exceptions to these rules is a great way to organize and make sense of the mess that is 'the law.' A police officer testifying about what you told them, whether it helps you or hurts you, is hearsay. So, as you correctly pointed out, the baseline assumption is that that testimony can't come in. But, the hearsay rule is famous for having a ton of exceptions to it. Two relevant exceptions here are: (1) statements against interest, and (2) prior inconsistent statements. If what you told the police officer was a direct admission of liability, or a statement that contradicts the theory of the case that you're presenting to the jury, either or both of these exceptions are going to kick in and make that hearsay admissible. These exceptions are not going to kick in, however, for hearsay statements that help you. A humorous, but related, aside, is that there's some jurisdictional differences in how far the 'statements against interest' exception goes. In some jurisdictions it only applies to admissions of liability, but in other jurisdictions it also applies to simply embarrassing statements. My evidence professor illustrated this by, out of the blue, mind you, saying, in class, "I stopped wetting the bed when I got to college," and then explaining that in the latter type of jurisdiction, that statement would be admissible. He then paused after the class had finally stopped laughing and said "that's not true, by the way...I stopped in high school." | I'm not sure if you are asking for each of the countries listed, but I am assuming that they are there merely for example. In the US, the are a variety of different rules for its different court systems. As a rule, each State can make its own rules for its court system, and the overarching Federal system has its own rules as well, although they run off of the same principles. As such, the answer varies on which state the court is located in and possibly the type of document. In California, for example, different documents have different retention times for different documents. For example, documents for civil cases default to 10 years of retention, while adoption paperwork is retained permanently. For a criminal matter, the judgement (the final product that says if the accused is found guilty or innocent, and for what crimes) is retained permanently, while all other documents are retained for the greater of 50 years or the maximum length of sentence imposed. When the retention period for a document is over, the document is not automatically destroyed(at least in California). Instead, the appropriate official sends an official notice to all the parties in the case that the document is to be destroyed, and if no response is received to transfer the documents, the documents can be destroyed. (Source:http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=68152) Note: I have said "document" throughout, which originally meant a piece of paper. However, recently, documents have been submitted electronically, and sometimes older documents are electronically scanned. | There are great jurisdiction by jurisdiction differences in the statutes of limitations that apply to crimes. Some jurisdictions have no statute of limitations for any serious crime (e.g. Canada and if I recall correctly Virginia). Others have statutes of limitations for almost all serious crimes other than murder (e.g. Colorado). Where there is a statute of limitations, the primary issue is that the ability of the prosecution and defense to secure reliable evidence that will allow a jury to enter an accurate verdict. This potential to conduct a fair trial can be compromised by a delay in pressing charges. Alibi witnesses can die or disappear to someplace that they can't be located, the location of the alleged crime can change in ways pertinent to proof, memories of witnesses in general can fade. Records or correspondence that could show intent can be destroyed. This is particularly a burden for an innocent criminal defendant who did not know that he or she needed to prepare a defense and gather evidence to respond to criminal charges. Some states toll statutes of limitations during a period of a victims minority or incapacity when brining charges may not be feasible. Other states have a long statute of limitations in rape cases where there is DNA evidence available that can conclusively tie a defendant to the scene of the crime (lack of consent would still have to be established), but a shorter statute of limitations in other rape cases. Murder and fraud are the most common offenses to lack a statute of limitations, in the first case, because it is considered the most serious crime and because the victim is unable to report the crime, and in the latter case, because fraud, by its nature and by the perpetrator's design, may go undiscovered for very long periods of time. Is there a line of reasoning to decide which classes of crime have a limited window for prosecution? While I've given some examples of the considerations that apply, ultimately, this is a legislative and political decision and not a legal one. You can't determine by reason alone which classes of crimes will have a limited window for prosecution. Different legislative bodies make different decisions on the same issues at different times and in different places. | 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. | All of this is illegal. You do not give a jurisdiction so I will use NSW, Australia as an example but many countries' laws have similar effect. Australian Consumer Law prohibits misleading and deceptive conduct: It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. It doesn't matter that what you have said is strictly speaking factual - the way it has been said is likely to mislead or deceive. However, what you are proposing goes further and IMO crosses the line into fraud (s192E of the Crimes Act): 192E Fraud (1) A person who, by any deception, dishonestly: (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. In addition to the illegality, stealing other people's money is morally wrong by any reasonable standards of morality. | 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. |
Diversity of Citizenship in Federal Court Jurisdiction? According to this thread, one of the three criteria in filing suit to compel arbitration in federal court is diversity of citizenship. Suppose Party A enters into a business contract with Party B. Party B sells the business to Party C in such a way that Party C inherits any previous contractual agreements signed by Party B. Party A and Party C now dispute the interpretation of the contract signed between Party A and Party B. Party A and Party C live in one state. Party B lives in another state. While Party B is no longer directly liable for the contract, he is able to provide testimony (if subpoenaed) regarding the interpretation of the contract that would be helpful to Party A. Does any of this constitute diversity of citizenship in regards to federal jurisdiction? Or once Party B sells the business the fact that he signed the agreement with Party A and/or can testify as to the intent of the lease is meaningless? | Diversity of citizenship concerns parties to an action. In the given circumstances, Party B is a witness, not a party. That is, whether A sues C or vice versa, neither would name B as a defendant. The determination of diversity jurisdiction occurs in the initial stages of the suit. Because A and C are citizens of the same state, there is no diversity of citizenship. Similarly, if Bob and Alice sign a contract when they live in different states, but then one moves to the other's state, and then a controversy arises under the contract, there is no diversity of citizenship. For reference, 28 USC 1332(a): (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. | Choice of law A contract can include a choice of law clause that states the laws that apply to the contract. For the USA this would usually be the laws of a particular state. Most courts in most jurisdictions respect the choice of law clause - that is, if say a suit is brought in a new-south-wales court on a contract with a choice of law of californina, the court will (probably) apply Californian law to the contract. However, a choice of law clause does not affect non-contract law like torts, equity, criminal law, consumer protection law, and "no contracting out" laws. So, for the above example, while the contract will be interpreted using California/USA law, other claims will be assessed under New South Wales/Australian law. For an example of how this works in practice, see ACCC v Valve Software. It was never in doubt that the contract was under Washington, USA law, however, the "no refund" term, while valid in Washington violated Australian Law and was unenforcable and, more critically for valve, was misleading and deceptive, costing them AUD 3 million in fines (plus legal costs). Choice of Forum In addition to specifying the relevant law, a contract can also suggest the appropriate forum: "disputes shall be subject to the non-exclusive jurisdiction of Californian courts". A clause that oversteps the suggestion and states the forum categorically is likely to be void on public policy grounds: a contract cannot exclude courts that have jurisdiction. A choice of forum clause is one of the factors a court will consider if one of the parties petitions that it is the wrong forum and the case should be transferred to the right forum. They are influential but not determinative and go into the mix with all the other relevant factors. Arbitration A well-drafted binding arbitration agreement will almost always be effective if it complies with local law. Courts have a very strong bias in favour of enforcing arbitration clauses. | Different jurisdictions have different attitudes and histories. The difference is probably more cultural than legal and both leases are quite likely legal in both jurisdictions. In general, US jurisdictions tend towards laissez-faire capitalism and contracts have a buyer beware slant. Civil-law European countries are much more collective and have very strong consumer protection. Canada and other Commonwealth countries fall somewhere in the middle. | Natural persons are not and cannot become juridical persons. Juridical persons are entities that are not natural persons, but which it's necessary or convenient to treat in many respects as though they were natural persons. The categories are mutually exclusive. There is no "contract" involved in citizenship from a legal standpoint (there's a concept of a "social contract," but that's a philosophical justification for government and not an actual legally binding agreement with specific terms); citizenship is not subject to commercial law in any way. Incorporation has nothing whatsoever to do with citizenship; a natural person is not incorporated, and is a citizen as a natural person. That citizenship is the ordinary notion of citizenship. | Nothing prevents firms from putting clauses like that in the disclaimer. If you're talking about goods (rather than services), much contract formation is governed by the Uniform Commercial Code, which 49 states have adopted (and which Louisiana has adopted part). However, the real question relates to whether that kind of language will be enforceable in court. A common way to attempt to avoid litigation is to insert a clause that requires arbitration of disputes (instead of litigation). The Supreme Court upheld the Federal Arbitration Act (FAA) in Southland Corp. v. Keating, 465 U.S. 1 (1984), so this can be successful. Contracts that have class-action arbitration provisions are a little dicier, but in AT&T Mobility, LLC v. Conception, 563 US 333 (2011) , the court held the FAA preempts state laws that disallow class arbitration. | The purpose is to avoid the possibility that the solicitor will inadvertently end up providing advice to more than one side of the same dispute or transaction, putting the solicitor in a conflict of interest situation. In the simplest case, the solicitor might already represent the landlord that the tenant is seeking to discuss legal rights vis-a-vis. Even if the advice is merely hypothetical, this is not O.K. A solicitor has a very high duty of loyalty to the solicitor's clients. Providing aid of any kind to someone adverse to the solicitor's clients that benefits that person, even if another solicitor would probably say the same thing, is a serious breach of that duty and is forbidden and sanctionable. It could get the solicitor kicked out of the profession in a worst case scenario. The duty of loyalty includes a duty to take reasonable care not to inadvertently or negligently act disloyally. There is also a risk of a more subtle sort of conflict that has to be evaluated since many disputes and transactions are not just two sided. For example, perhaps a solicitor a big commercial tenant client on the brink of a settlement with a particular landlord after lengthy and extensive negotiations (perhaps in a business lease renewal deal), and another prospective tenant client might, for example, have an interest in leasing the same property as your existing client at a higher rate. Representing both tenants/prospective tenants could creating a conflict between your two tenant clients. Screening clients based upon their landlord relationships helps solicitors to identify these conflicts and to prevent them from arising. More generally, the best practice is for a solicitor to make sufficient inquiry prior to providing any legal advice to a prospective new client, to avoid having clients that have a conflict of interest with each other. This regulation (to the extent that it is really as specific as suggested) is simply a codification of this general rule in a specific, commonly recurring situation. In large law firms, every single legal professional in the firm typically spends the first half hour or so of every day reviewing lists of new prospective clients and parties related to them in order to screen for potential conflicts of interest. (I used to have to do that when I worked in a large, international law firm for a while.) There would typically be one or more paralegals or administrators in the firm who do nothing but manage that conflicts of interest screening process. Obviously, however, this requirement is a lot less burdensome if you are solo practicing solicitor who almost entirely represents individual human being and family tenants with isolated residential leases, and works in a large city where few clients have any connections to each other. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | Yes. The formation of a contract requires (among other things) that the parties intend to be legally bound. Their sending the offer from a corporate email address shows this. You replying in the same way shows your intention. Signatures are optional. Consider, verbal contracts are binding; how do you sign those? |
Are police allowed to be ignorant of the law? As I understand it, the limited liability that police enjoy requires that people bringing civil cases against police must prove that the police officer should have had a reasonable knowledge of the civil rights that they accuse him of breaking, for the civil case to be successful. If we excuse the rhetorical gymnastics of not expecting law enforcement to be knowledgeable of the law, how does this excuse of ignorance fit into the adage that "ignorance of the law is no excuse for breaking it"? If a police officer is allowed to be ignorant of laws in defense of a civil claim, how can it then be said that another law adage, "everyone is equal under the law," is true? | As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful. This isn't quite right. The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a "well-established" constitutional right. A rule of law is "well-established" when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional. This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law. What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation. One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations. The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an "objective" test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented. A police officer who acts without actually knowing the law does so at his or her peril. | First of all, to clarify some numbering, HR 4635 (107th Congress) was not actually passed. The language was passed as part of HR 5005, becoming Public Law 107-296, and this provision now appears at 49 USC 44921. The exact text of this provision is: A Federal flight deck officer shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the officer in defending the flight deck of an aircraft against acts of criminal violence or air piracy unless the officer is guilty of gross negligence or willful misconduct. The language makes it clear that this is only referring to civil liability. So, if the officer is defending the flight deck, and they are sued for damages resulting from their actions, the plaintiff will not win (assuming the law is correctly applied). But this law says nothing about whether or not they can be prosecuted for a crime. In any case, the officer in your example does not appear to have been defending the flight deck, so this law wouldn't apply at all. In your example, the officer's defense against a murder charge would probably be based on defense of others. There is a discussion on Justia. It seems that a key question would be whether shooting the unruly passenger was proportional - was there a reasonable fear that the passenger was actually going to kill someone? | So, lets say for argument's sake the search is illegal (we'll discuss scenario later). Is the murder weapon inadmissible? No. Evidence seized in an illegal search is inadmissible for use in court, as to allow it would reward the state for breaking the law. At time of arrest it's still evidence and depending on what other evidence comes out might not be inadmissible (More on this later). If the knife is the only thing linking the driver to the murder, then it's inadmissible. What would happen to the driver, who was most likely the murderer? At this stage, the driver might be arrested and charged... inadmissibility is a matter for pre-trial motions, which takes place after the cop made the search. Whether the guy is a murder or not, he is a suspect who has been accused. Can the police arrest him, and investigate him with the hope of finding other evidence that would be enough to sentence him for the murder, despite the inadmissibility of the actual weapon? This all takes place before the inadmissibility of evidence is declared, so they certainly could investigate the guy, cuff him, read him his rights, book him, Danno, and put him in jail to help build their case. HOWEVER, if the knife is the only thing linking the man to the crime, then all of this becomes what's called "Fruit of the Poisonous Tree". Because the knife was used as the sole evidence to secure search warrants against the suspect, and should the knife become inadmissible, anything that resulted from the execution of the warrants is itself inadmissible. is the murderer in practice immune from being charged for this case, since the weapon cannot be tied to him? Not entirely. Rarely is a murder weapon needed to secure a conviction. Not only that, but while the search is illegal, there is an exception called "Inevitable Discovery" which holds that evidence seized illegally initially may still be admissible if the cops can show that the legally obtained evidence would have led to the knife. Suppose they had CCTV footage and captured the man entering the area of the scene and found out he had a connection to the victim, and got a warrant that would have included his car... that would mean the knife is admissible even if the search was illegal. If the weapon is considered inadmissible, is it returned to the suspect? If yes, would it also be returned even if it is of a type that the suspect is not legally allowed to own? Yes to both, though when it would be returned is subject to possible use in other investigations. Additionally, while I don't know of any knife ban laws in the U.S., there are examples of contraband seized by arrest for a different offense was not returned when the initial offense was overturned on appeal, meaning the contraband evidence was no longer validly seized and thus that half of the case was overturned... but the defendant wasn't returned his drugs. Is the weapon permanently inadmissible for all future, or could it be used in a later court proceeding? No. I'm starting to suspect I know the TV show and episode that inspired this question, but the search violated suspect 1's rights and thus was inadmissible for his trial. However, if a second suspect was discovered as the evidence was developed, and the investigation lead to the knife (say... suspect 2 had access to suspect 1's car... like say... through his job at a car wash that suspect 1 was patronizing... and planted the knife in suspect 1's car to frame him) then the knife is admissible because of inevitable discovery rule. Now, the TV Show I alluded too, and you'll forgive me as it's been a while, the events were that the cop pulled over suspect 1 for a valid reason (busted tail light, intentionally done by suspect 2 to get attention) and saw the knife on the backseat of the car, which is not a violation of search and seizure rules. The bloody knife was in plain view and gave probable cause to arrest and search the entirety of the car. If you leave evidence in a place where the officer can see it, they can seize it in a car at least. Places like the glove box, under the seats, or the trunk would properly hide it and not allow the officer to search the car, but through the windows is just fine. | can really anyone in Germany call the police on others without proof of anything? Anyone anywhere can call the police without proof of anything as long as they have a phone. The question is, what will the police do about it. Police in Germany are more professional and less corrupt than in many countries in the world (e.g. they are much less corrupt than police in much of the United States or police in Southern Italy or Mexico, or in much of the "third-world"). Most German police are unlikely to exercise their power unless they are genuinely deceived into thinking that you committed an actual crime. But, German cops are human too. Some German cops are bad cops and even good cops aren't perfect truth detectors or bias free. and if so what are my rights? There has to be some evidence to arrest you or prosecute you, but testimony from people who claim to be eye witnesses is a form of evidence and proof. People are routinely convicted of crimes (everywhere in the world) based solely upon the testimony of other people with no additional proof. This is usually a good rule. As a society we don't want the criminal justice system to let people who commit crimes that are witnessed by lots of truthful witnesses and testified to, to go free just because there is no non-testimonial evidence. But because people lie (or are simply mistaken about the truth) sometimes, it isn't a perfect way of determining who is guilty and who is innocent. You also have the right to lodge a complaint of criminal defamation with the police in Germany and in Germany hundreds of thousands of such cases are prosecuted by police every year. Making false accusations against you (or even just insulting you in an extremely offense manner) as they did is a minor crime in Germany. and the person I mentioned had 2 of his employees with him but I am sure and I know for a fact they are on his side and I had no witnesses with me so how can I prove I am innocent? if they agreed on making up a story against me? The possibility that people will be wrongfully arrested and wrongfully convicted of crimes because people lie and authorities believe the people who are lying is a constant risk. The best you can do is to tell your story consistently and honestly and hope that you are believed. But it is impossible to eliminate the risk that people will lie and be believed and that you will suffer the consequences, even if you are doing everything right. In the long run, you may want to avoid people who you think would lie and make false accusations around you, and to have the presence of either friendly witnesses and/or audio/visual recording at times when you are in their presence. You may also, as a long run strategy try to figure out if there was anything you could have done to prevent them from being out to get you so badly that they would make false accusations against you. While I don't want to blame the victim, and often enough, especially for example, if you are a foreigner or otherwise different in a homogeneous community some people are doing to hate you for no reason, sometimes their real motivation may be a failure to follow social norms that are not actually illegal, or a misunderstand that could be cleared up. | I will assume that your question pertains to the United States. In other jurisdictions, different rules could apply. Context matters. The usual penalty for spoliation of evidence (the technical term for what you describe) in a civil case is a judicial determination or jury instruction that the evidence destroyed would have established the relevant part of the other side's case had it not been destroyed. In all of these cases, your failure to take affirmative action to preserve the evidence once you knew that there was a bona fide likelihood that you would be sued could be held against you by making an adverse determination that the evidence would have been unfavorable to you and possibly also money sanctions. You could not be held in contempt of court for this if these events happened before a case was commenced. In a criminal case, where you are a defendant, you have an absolute right to not incriminate yourself and do not have to take affirmative action to preserve evidence, although this right is limited to criminal cases and your failure to preserve evidence can still be held against you in a civil case. Certainly, in situation 4 you are a potential criminal defendant, so the 5th Amendment protection would apply. In situations 1 and 2, where the precautions were not put in place to facilitate a crime, the 5th Amendment would protect you if you were a potential criminal defendant, but suppose that you are a bystander like a third party ISP representative. If you were a third party, at a minimum you would have to be put on notice of the police need for the evidence, would probably have had to have had the police ask you for the evidence, and of course, would have to be aware that the destruction was imminent and have the power to prevent that destruction. If all those conditions were present, you might be guilty of obstruction of justice (there are precedents for inaction knowing of the consequences in the fact of a police question amounting to obstruction of justice). In situation 3, this kind of action pretty much amounts to being an accessory to some crime before the fact (unless someone was successfully deceived by a very elaborate story) and would likely make anyone involved part of a conspiracy to commit the crime that the destruction of the papers would facilitate. While the papers themselves might have been evidence of a crime or civil wrong, the destruction of the papers might itself be considered part of the crime, regardless of what could be established regarding the actual content of the papers. | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | There are two separate questions here, it seems to me. First: are law enforcement officers required to respect your house rules and avoid making a mess? At least in the United States, the answer is unequivocally no. If the only "damage" suffered is that you need to sweep the floor, or put your clothes back in drawers, that's not the police's problem. You have not suffered any damages that a court is going to reimburse, and your best case scenario, even if you win a suit against the police, is an award of one dollar as nominal damages. Second: are law enforcement officers required to reimburse you for any physical damage they caused while executing the search warrant? The answer here is tricker, and depends on the search warrant. If the warrant is invalid, then the answer is yes. But remember: just because, for example, the cops are looking for the guy you bought your house from, who moved out a month ago, that doesn't mean the warrant is "invalid." Just because the cops got a bad tip, or suspected you wrongly, or were in some other way wasting their time--as long as the warrant is technically proper and they were able to convince a judge it was reasonable, the warrant is valid. Even if the warrant is invalid, you may need to sue the police to get anything reimbursed. If the warrant is valid, in practical terms, you will almost certainly need to sue the police to recover anything, and you will have to show the Court that the police's actions that damaged your property were so extreme that they were outside the reasonable scope of the warrant. For instance: the warrant is for a large item, like a stolen car: the police cannot smash holes in your walls to make sure the car isn't hidden inside. If they're looking for drugs, they may be able to. If the officers' actions are consistent with the scope of the warrant, then you are not going to recover anything. The warrant is, basically, permission from a judge to enter your home and perform those actions, and they will not be liable for them. A number of relevant cases are discussed in this article: http://www.aele.org/law/2010all01/2010-1MLJ101.pdf | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). |
Can a Tenant Dispute the Validitiy of a Lease Signed by the Landlord's Spouse? Suppose Rachel & Jared ("Tenants") enter into a lease agreement with Robert and Robert's wife, Elizabeth, signs the lease: This lease is made on January 1, 2023 between Rachel & Jared Smith ("Tenants") and Robert Gates ("Landlord"). Elizabeth Gates signs her own name on the lease. Nowhere does the lease state that she is acting as an agent for her husband. The lease also explicitly states that the lease is between said Tenants and Robert Gates. Rachel & Jared dispute the validity of the contract because: the lease states that Robert is the landlord and it was signed by Elizabeth Jared says he was not aware that Elizabeth signed the lease Robert claims he appointed Elizabeth to act as his agent. Can Rachel or Jared dispute that? Suppose both Rachel and Jared signed the lease but only Rachel was present when Elizabeth signed her name on the lease. Can Jared later argue that Elizabeth was not acting as an agent for Robert and that he never intended to enter into a lease agreement with Elizabeth (as her name was not on the lease when he signed it & only Rachel saw her signing it)? Can Elizabeth or Roberts enforce this lease against the tenants? Would it matter if Elizabeth name is on the title of the house or not? If Elizabeth name is on the title she may be able to enter into a contract agreement in her own right without acting as an agent for her husband. On the other hand, the lease may still be void because it contains conflicting information regarding who is actually entering the agreement. Additionally. Jared may argue that he only intended to go into contract with Robert since he thought he was actually the owner. Does the husband need to prove that he authorized her to act as an agent on his behalf? Is it better if Elizabeth signed her own name or that of her husband's name? What relevant doctrine & case law can be applied to this case in NJ? | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. | Has this contract been translated (badly) from another language because the construction of the clause is cumbersome and confusing? Does the contract say that I can have guests over 1 night without charge? Without charge, yes. However "Without Landlord's prior written consent, Tenant has no excuse to accommodate ..." so you need the landlord's permission for overnight guests. If so does it only start charging on nights after the first? No, if a person stays more than 1 night (with the landlords permission) then this triggers the landlord's right to charge. See below for how much they can charge. Is it supposed to be 10% of monthly rent $137 per guest per night? "With temporary commendation, day-based, and additional 10% of rent each person is applied." The term is ambiguous, I can see three ways that this would be interpreted: If you have a guest who stays more than 1 night in a month they can charge 10% for that guest for that month (i.e. 2 to 31 days all for the same price). For 2 people for 2 days this would be $1,400 x 10% x 2 = $280. They can charge 10% of the monthly rent per night that the guest stays. $1,400 x 10% x 2 x 2 = $560 As, 1 except the rent would be pro-rata. $1,400 x 10% x 2 x 2/31 = $18.06 Assuming that the landlord put forward this contract the interpretation adopted in the absence of other evidence would be the one least advantageous to the landlord i.e. 3. However, there is other evidence - the landlord accepts that the rate is pro-rata - he has just failed to account for the 10%, so 3. again. How is overnight defined? Well, is it defined in the contract or by the law where you are? If not, it would take its normal English usage - "for the duration of the night". If they arrive before sunset and leave after sunrise the next day then they have stayed overnight. What if they came over at 9am and slept in the day? It says nothing about requiring your guests to sleep. If they party overnight then they are overnight guests. If they sleep all day but don't stay overnight they are not overnight guests. What about 2 am? If sunrise is after 2am then this is not overnight. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. | Yes; While contracts can be made in written and oral form bigger acquisitions normally are in written form. Also consider this: They can't prove that they told you that the balcony is not usable. Thats a big negative in buying a property and they would need to have it documented. If they still refuse consider seeking professional help. In my country lawyers offer "fast help" that isn't legally binding but costs you only 10$ and helps you finding out if your case has any possibility to get accepted/if you're right. EDIT: Regarding the reservation fee: You can dismiss that. You didn't reserved that object, you reserved a house with balcony. | 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. | The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be "secure", therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer. As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general "everybody has a duty to everybody else" law, the damage would have to be foreseeable. It is said that "If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction". This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | My answer would be different if either Alice or Bob was the landlord, or the landlord had a separate agreement with Alice and Bob. If a single lease is written, per the comment, that Alice and Bob are components of "the tenants", and "the tenants" have rented the named premises, then they all have equal rights to occupy the whole premises under the lease. If the landlord is professional I will further presume they all have joint and several liability for the whole rent; it would be inequitable to alienate Alice with joint and several liability from any part of the premises without her consent. If there is a separate roommate agreement that allocates rooms and expected share of rent or controls behaviors, then that is a contract that can form as a meeting of the minds of the roommates where they each trade something of value, such as exclusive use of a room. The narrative suggests an original verbal agreement that Bob would like to change. That's nice but Alice doesn't have to agree; or can agree with other changes of value to her such as the ratio of expected rent reflecting the ratio of use and access to the space Alice would have. |
How is Biden’s lawyers turning the documents over not a material breach of client-attorney confidentiality and a violation of the 5th, 6th Amendments? If a client confessed to plans, in-going activity or intent to commit a crime, an attorney may disengage. I would argue imposing a duty on an attorney to disclose their reasons if it requires court approval would be a violation of prohibition against self-incrimination. But I cannot wrap my head around how is Biden’s Attorney’s turning over the 10 classified documents to the DoJ not a violation of attorney-client confidentiality? Maybe one can argue that the in-going off-site storage of them is an implied plan(?), but if an attorney doesn’t have a duty to give all doubt to their client to formulate all potentially effective defenses that the prosecution would have to overcome, then who does? Following this logic, The attorneys should have simply presumed error. Which seems a reasonable presumption since the documents weren’t “found” missing out of their binders or folders like in Trumps case. They don’t seem to fit a consistent narrative of wrong doing since it includes both ally information (UK) and adversary stuff (Iran etc.). And even if it did, why would he not return it or hand them over all together? The attorneys (ridiculous to even have to discuss it in this angel) had no probable cause of wrong doing. They should have simply returned it to those departments that were to keep them safe instead of effectively reporting their client. Question: Is there a case law exception carved out of the Fifth Amendment’s prohibition of self-incrimination for criminal conduct related to documents classified as confidential or affecting national security? If so, how is political persecution can be safe guarded on false treason and similar charges? (You just need to have your own attorneys “turnover” some documents in your behalf, and no one’s ever going to believe you — not assuming that is the case here, rather that Biden recklessly handled those documents) UPDATE: The initial reports were wrong. POTUS’ attorneys did NOT give the documents to the DoJ, but appropriately gave them to the National Archived; Biden made a statement to this effect which, unless in the hypothetical, made the question moot. The attorneys hence made no implied statement to implicate POTUS wrong doing by choosing to return the docs to DoJ as though a form of reporting crime, but returned the documents to the Archives implicating no wrong doing on their client’s part. Statement | Documents are not protected under the 5th Amendment, so a person can be compelled to produce documents that may incriminate them. The person cannot be forced to testify against themselves, however – they can invoke their right to not testify against themselves. The attorney-client privilege canon has some exceptions, for example (4) to secure legal advice about the lawyer's compliance with these Rules or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services (bearing in mind that POTUS is required by law to turn all documents over to the national Archives, so turning the records over is "compliance with the law" and a think that an attorney would do for their client, though this event is quite belated). No subpoena was issued and no testimony was given, so the Fifth Amendment is irrelevant. | In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge. | You would think so, but no While at first glance, President Trump sending a staff member to testify under oath in his place (to nullify any personal risk of perjury?) appears to epitomize the concept of "hearsay"-- a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement --there are some subtle but important distinctions and exceptions in play. I'm going to list them off in increasing order of relevance. FOIA penalties are civil, not criminal The official DOJ website lists off the penalties for Freedom of Information Act violations: The court may award reasonable attorney fees and other litigation costs against the government when the complainant substantially prevails. See 5 U.S.C. Sec. 552(a)(4)(E). Action Against Individual Employees: Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records. Additionally, the court must award attorney fees and other litigation costs against the government. When the statutory requirements are found by the Court to have been met, the Merit Systems Protection Board (MSPB) must promptly initiate a proceeding to determine whether disciplinary action is warranted against the office or employee who is primarily responsible for the withholding. The MSPB, after investigating and considering the evidence, submits its findings and recommendations to the agency concerned which then is required to take the corrective action recommended by the Board. See 5 U.S.C. Sec. 552(a)(4)(F). Additionally, there now exists independent jurisdiction for such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982). Failure to comply with a court order to produce the records in question may also result in punishment for contempt for the responsible employee. See 5 U.S.C. Sec. 552(a)(4)(G). So the strongest penalty against any individual government official who violated FOIA would be losing their job, or civil contempt of court. In principle the prohibition against hearsay applies equally to civil cases as criminal ones; in practice, because the stakes are lower, courts may take a somewhat looser attitude towards hearsay in civil cases than they would in a similar criminal case. Rule 807(a), "Residual Exceptions" Rule 807(a) gives courts large latitude to determine whether or not to admit hearsay evidence: (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. In this situation, the presiding judge, Reggie Walton of the D.C. District Court, clarified what he would consider "sufficient guarantees of trustworthiness": U.S. District Court Judge Reggie Walton issued the rare order to the White House last week after expressing dissatisfaction with a previous explanation submitted by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. Weinsheimer said he had checked with an unidentified official in the White House counsel’s office and determined that no new declassification was triggered by Trump’s latest tweets. However, Walton said given Trump’s suggestions of a rogue element undercutting his orders, some assurance directly from the president or someone who had spoken to the president was necessary. As Meadows had, one presumes, literally spoken to the president, this satisfied the presiding judge's own explicit standard of "sufficient guarantees of trustworthiness" for when hearsay may be admitted into evidence. Rule 807(a)(2) is also relevant here, in its caveat that hearsay may be accepted into evidence when it is "more probative...than any other evidence that the proponent can obtain through reasonable efforts". Arguably, forcing the POTUS to neglect his duties running the country and "ending the pandemic" long enough to testify in what is, in many ways, a run-of-the-mill FOIA case, would take too much effort to be "reasonable". Which brings me to the next point: Rule 804(a)(1) and Rule 804(b)(5), "Unavailability of the Declarant" Rule 804(a)(1) discusses a specific exception to the hearsay rule when the declarant can't or won't personally testify: (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies As POTUS, it makes sense that Trump would have some degree of privilege or immunity from being deposed. If a sitting President could be dragged into court at will over any government litigation, no matter how mundane, to personally testify, it would be impossible to perform the functions of their office. Think about all of the live issues winding their way through the courts right now that Trump has tweeted about. Now, imagine the demands on his time if he was dragged into court to testify regarding every single one: "Sorry Angela Merkel, I have to cancel our international summit this year, I'm giving a live deposition in 50 different court cases in the next three weeks and I don't have time to do 'foreign policy' right now. Hope no new World Wars break out! Good luck!" Of necessity, a POTUS has to be permitted to delegate 99.9% of legal representation on matters of public policy to other Executive Branch officials, when it comes to who actually needs to be physically present in court. And since he is privileged from personally testifying, that means exception 804(b)(5) applies: (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: .... (5) [Other Exceptions .] [Transferred to Rule 807.] We discussed how Rule 807 applies in this circumstance up above. But I want to circle back to the idea that the President has to be able to delegate statements of official policy to other authorized government representatives, such as Meadows, because of the clinching exception: Rule 803(8)(A)(i): Public records of governmental policy aren't excluded by the hearsay rule Rule 803(8)(A)(i) tells us that: statements of public policy (such as, whether the government is going to declassify, or has already declassified, every document relating to the Russia investigation, specifically including Mueller report and FBI interview redactions) made by public offices or their official representatives (such as the POTUS's chief of staff, authorized to speak on behalf of the POTUS, clarifying the Executive Branch's stance on declassification) are not excluded by the hearsay rule: The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: .... (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities This makes sense given the purpose of the rule against hearsay. It's supposed to prevent innuendo and rumor from sneaking into the factual record when the facts are in dispute: "I heard the defendant's mom say the defendant said he did it," related by the defendant's mom's bingo buddy, would deservedly raise some eyebrows around the bingo table, but isn't the kind of solid evidence an impartial trial requires. Statements of public policy and government action by public officials, on the other hand, have a lot more authority and credibility than what a friend of a friend of the defendant heard the friend say the defendant said. Meadows isn't (just) some random golf buddy of the President who overheard what the President was thinking when he made these tweets; he's the President's official delegate to the court, conveying the Executive Branch's official position on declassification. Such official statements are ordinarily presumed maximally trustworthy and reliable, at least partly for logistical reasons. Similar to how we can't ask Trump to cancel all the COVID task force meetings to clear his schedule and testify about some tweets, we can't drag every government officer who makes an out-of-court official public statement or record into court to certify it--at least, not every single time. The judicial branch of the government takes the word of other branches of the government mostly at face value†, and does not consider public records or statements in an official capacity as "hearsay" to be excluded from evidence. So the TL;DR version is: No, Meadows coming into court to convey this statement on behalf of his boss would not be excluded by the hearsay rule. †Significantly, statements or records regarding policy might be excluded as hearsay, per 803(8)(B), if the opposition demonstrates that the statement or record is somehow fishy or unreliable: "(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness." But in this instance, in order to demonstrate a "lack of trustworthiness", the plaintiffs in the case--BuzzFeed, CNN, and the Electronic Privacy Information Center--would have to show that the government was actually declassifying and unredacting all material related to the Russia investigation, contrary to what Meadows claimed in court. Since the government is not actually doing this, the President's social media rants notwithstanding, the plaintiffs would be unlikely to prevail if they tried to use 803(8)(B) to get Meadows' testimony excluded as hearsay. | There are basically two kinds of conduct that you identify. One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse. For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one. Given that: I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage. Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer. The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. Also, unless he discusses confidential advice that he provided to his client when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue. Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions). What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations. Your strongest leverage will be the written statements from the employer. But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal. Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting. If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching. | In general, under the common law, a contract cannot validly require a person to commit or abet a crime. Thus if an NDA requires one to lie about or actively cover up a crime, it is void (in that aspect, at least). But there is, in most cases, no affirmative duty to report a crime, except for certain individuals in particular situations. Thus an NDA that simply requires silence may be valid. There have been many Federal and state laws passed to protect so-called "whistleblowers" (people who draw attention to criminal or improper actions of which they have confidential knowledge. Many of these are listed and described in the Wikipedia article "Whistleblower protection in the United States" Exactly what protection is offered varies widely. Many of these deal with public employees or government contractors, not private employees. In the case of Garcetti v. Ceballos, 547 U.S. 410 (2006) the US Supreme Court held that statements made in the course of a person's position as a public employee, rather than as a private citizen, have no First Amendment protection against employer discipline. Whether a private employee will be protected against retaliation or the penalties listed in an NDA depends on the area of the alleged violation, and the specific facts of the case. One would be wise to consult a lawyer knowledgeable in this specific field before relying on such protections. | First thing is, the statement has to be with a specific governmental sphere, such as in a submission to a court, or a document with some legal weight submitted to a party where the government has mandated that the declaration be "sworn" (an employment application involving security clearances; a DMCA takedown notice which has a connection to copyright law). Second, the statement has to be material, i.e. has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed" Kungys v. US, 485 U.S. 759. Third, you have to know that the statement is false (mistakes of knowledge are not perjury): the lie has to be willful. Fourth, the statement has to be literally false (Bronston v. US, 409 U.S. 352). W.r.t. the Bronston standard, a desire to not reveal a fact when testifying in a proceeding does not render the statement perjurious, when the statement is literally true but incomplete, thus telling the whole truth is not required (attorneys are expected to detect incomplete responses and press the issue on things not said). The edges of "literal truth" are a bit murky. What distinguishes Bronston from a number of cases of literally true perjury is that Bronston's testimony contained a clear sign that it was incomplete, but other "literally true" false statements (de Zarn, for example) contained nothing that an alert attorney could focus on. See US v. Robbins where defendant offered "11th and MacArthur" as the name of a corporation, the one in question, then falsely testified that it had no assets – the name of the corporation was actually "MacArthur and 11th Properties, Inc.". | The question has no definitive resolution other than the authorities cited and some other related authorities such as the protocol rules of the Secretary of State for diplomatic purposes and the Presidential succession statute. It has never been litigated any reasonable interpretations of the the constitution and relevant law could be argued. There is also some case law under the appointments clause regarding which departments count as principal departments. There is a broad consensus regarding the existence of 15 principal departments of the United States government and which departments those 15 departments are in practice. I would say that the majority view is that the highest ranking person in each department is the principal officer of that department (which is provided for by statute in the event of vacancies) but there is also an argument that only the Congressional ratified and Presidentially nominated Secretary of a department (and the Attorney General in the Justice Department similarly appointed) count. In the event of a dispute, either Congress or a court could resolve the issue depending upon how the issues ended up being presented for a decision. If asked, the White House Counsel would render a formal opinion that would be binding upon all members of the Executive Branch. Triller novel writer Tom Clancy has explored some of the scenarios as have other writers in the same genre, but since the 25th Amendment has never been invoked in this manner, there is no definitive answer or even a non-judicial precedent to provide us with guidance on the question. | Assuming that privilege applies, no Not all communications with your lawyer trigger privilege and if it doesn’t then the lawyer is not your lawyer and is under the same obligation to report as any other member of the public. If privilege does apply then they must keep your secrets. If they are defending you and you confess to the crime then they can: represent you if you plead guilty withdraw unless that would prejudice your defence continue to act providing that they do not: suggest someone else committed the offence set up a defence inconsistent with the confession they can: argue the prosecution has not made their case, that you are not guilty of the offence charged by reason of law, or argue for any other (non prohibited) reason that you should not be convicted. |
Can a Lease with Missing Pages be used as Evidence in Court? Suppose a 10 page lease agreement is signed by a landlord and tenant. After a number of years, some of the pages were misplaced but each of the parties signed the bottom of each of the 10 pages (not just the last page). Can one party use the part of the lease that was not misplaced to hold the other party to the terms of the lease in court? This assumes that the parts of the lease that are relevant to the trial were not misplaced. | Can a Lease with Missing Pages be used as Evidence in Court? Yes. Being relevant to the claim(s) and signed by the parties gives the filed pages evidentiary weight. If the filed evidence is disputed, its filing shifts to the adversary the burden of proving that the missing portions of the contract outweigh the materiality of that evidence or that the filed pages are unreliable (i.e., fake). Likewise, during discovery, the party who only preserved some of the pages could (1) request the adversary to provide a copy of the signed contract, and/or (2) submit a request for admissions in which the adversary is asked to admit or disprove terms of the lease that are at issue. | Am I at fault? Can I get my security deposit back from Landlord? The landlord is wrong, and he should reimburse you the totality of the security deposit. Clauses #1 and #16 would entitle the landlord to deduct from your security deposit only the portion of the 7-day period that is not already covered in the payment you made for 1st week's rent, which according to clause #1 starts on Sunday July 29. If I understand correctly, you signed the contract (and paid) on July 27, and then gave your 7-day notice on July 28. Since you paid an additional amount for Saturday July 28, then your 1st week's rent payment actually covers the entire 7-day period of your notice. Therefore, the landlord should reimburse you the entire security deposit. The contract nowhere indicates that the count of [post-notice] 7 days starts after the current rent-week elapses. But even if it did contain language in that sense, the dates you mention render that hypothetical clause void. Lastly, clause #16 refers to giving a written notice, which is what you did by sending him the text he obviously read and understood. Therefore, his statement that "you did not provide proper notice of moving out" clearly is false. What should I do? If the landlord insists to retain the security deposit, your option is to file a complaint in Small Claims court (I don't know whether this has a different name in PA). Depending on PA procedural law, you and the landlord might be cited for mediation prior to being assigned a court date. A process in small claims court is pretty straight-forward, but only you can determine whether the hassle of attending mediation and court hearing is worth. If anything, it (1) certainly gives you some [minimal] exposure to litigation, and (2) teaches the landlord to abide by the very rules he drafted in the contract. 8/30/2018: Edited to address OP's follow-up question of whether section 250.512 of the Landlord and Tenant Act precludes recovery of security deposit (see comments) After analyzing the statute you found, Pennsylvania courts have still held that a tenant's failure to provide a new address does not preclude recovery of the security deposit. See Adamsky v. Picknick, 412 Pa.Super.Ct. 544, 549 (1992): we find the lack of notice argument is tenuous at best since appellant's reason for withholding the deposit was not because he did not have appellees' new address, rather, he withheld it because he maintained there were damages for which he should be compensated. That conclusion is squarely applicable to your situation. The landlord's only pretext for withholding your deposit is his inaccurate statement that "you did not provide proper notice of moving out", and for that matter he refers to nothing else than the rental agreement. The rental agreement nowhere requires you to provide your new address. One decision that does not constitute legal precedent but still might help persuading Small Claims court in your situation is Back v. Taylor, 19 D. & C. 3d 606, 609 (1980). After citing section 250.512(e) of the Landlord and Tenant Act, the court states: That section sets forth certain guidelines as to when tenants can obtain double recovery. Defendants have only sought recovery of the deposit and therefore, the above cited section does not apply. (emphasis in original) Unless you were pursuing double recovery (see item (c) of the statute), it would be very questionable --to say the least-- why a [Small Claims] court should decide your dispute any differently than in Back. Another non-precedential decision analyzing the same statute is Shoemaker v. Henry, 35 D. & C. 206, 209 (1984). Also in the context of double damages, the court stated: We cannot believe the only purpose [to require a tenant to provide his new address] was a negative one, that is, to cancel a right to double damages for failure to comply. A more rational explanation is that its purpose was to provide a landlord with an address to which the damage list could be sent. (brackets added) The statute apparently was enacted well before the prevalence of electronic communications. If your landlord has any way to send you a "damage list" (as it seems to be the case insofar as he replied to your text), then the rationale in Shoemaker should apply in your situation. If you are not even pursuing double recovery, then it would be unavailing for the landlord to cling to the language in item (e) of that statute. Therefore, you are definitely entitled to your deposit even if you did not provide to the landlord a new address. It is up to you whether you want to go for double damages, in which case the decision in Shoemaker might or might not be persuasive in Small Claims court. Beyond that, the Adamsky opinion constitutes legal precedent which favors your position. | Yes, a contract implied in fact can supersede a written contract: if it both (1) arises after the parties have entered into their initial agreement and (2) if the subject matter of the agreement is not subject to the statutes of frauds (i.e. to a statutory requirement that agreements of this kind must always be in writing). A course of dealings before a written contract is signed if the contract states that it is the entire agreement of the parties, or appears from context to be the entire agreement of the parties, may not be considered pursuant to something known as the parole evidence rule (which is actually a rule of substantive law and not evidence, despite the name). An agreement that is required by statute to be modified in writing, something called a statute of frauds, might or might not be susceptible to being modified in this way. Sometimes, failure to comply with a statute of frauds is excused if the parties have partially performed the unwritten agreement, sometimes the statute is applied more strictly and cannot be overcome. Indeed, in Colorado, where I practice law most of the time, there is actually case law that specifically provides that even if a written contract states that it may only be modified in writing, that any oral or implied in fact agreement which could form a contract in the first place may supersede the written agreement. Proving that the course of dealings actually constituted an actual modification of the contractual obligation, may, in practice, be a challenging matter, however. In practice, there is probably a stronger argument on the available facts in the question, that there has been a waiver of the requirement for further provision of the service that may not be undone retroactively, but may be reasserted prospectively with fair notice to the other party, with the written contract remaining in force. The judge or jury would have to listen to the facts from the parties about their course of dealings and communications, about the nature of the "requirement", and about the pertinent terms of the written contract, and more generally, the larger context of the transaction, and then would decide which interpretation seemed closer to the truth, or if another explanation of what happened was more plausible. This dilemma and uncertainty is generically a problem any time that the parties course of dealings deviates significantly from a written instrument. These kinds of cases are never clear slam dunks for either party in the event of litigation. | Multipage contracts, like any multipage texts, will likely bear some level of originality and so they will have a copyright owner. Absent a license allowing you to reuse the text, you will not be allowed to do so. The fact that you were a party to a contract represented by the text does not change your position: your contract does not have anything to do with the copyright of its text, therefore you still need to honor the copyright as if you were not a party to the contract. It is not uncommon that the copyright will be owned by the lawyer who drafted the text. Your business partner who supplied it would have employed/contracted one. Or, the lawyer could have provided the text to your business partner together with the copyright (less common). Why wouldn't fair-use be at play here? Don't you already get the permission to copy and modify the contract from the original party when they send it to you? (Is such right only limited to original execution?) The original party, whether it is the copyright owner or just a license holder, can send the text to you for possible copy and modification in the course of executing the contract with that party only. The copy that you receive is provided solely with the express purpose to make you an offer (so that you know the terms of the contract) and give opportunity to suggest modifications i.e. make a counter-offer. To reuse the text with another party you need a permission/license from the copyright owner. Fair-use won't play here because you'd be using the text for the purpose it was created for—executing contracts—as opposed to, say, writing a research paper on language/phrases used in legal documents. Does it at all invalidate the agreement itself if the party that supplied the contract doesn't actually own the copyright to it? After all, if you're not legally allowed to have a copy of the text that specifies the terms of the contract, how would it be possible to adhere to such terms? Most contracts do not even need to be in writing. The text will be just one of the evidences if your contract, not the contract itself. No matter whether you obtained the text legally or not, it still does its job as evidence. Whilst you may well be sued for the copyright infringement, in no way will it affect the validity of your contract, which will still hinge on those well-known 6 elements having nothing to do with the copyright of the text. | 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). | What the landlord is doing is forcing you to abide by the terms of your lease agreement. You most likely agreed to a 1 year lease on a signed document, which means you're pretty much screwed because if he wanted to, he could force you to fulfill the lease and pay him anyway. However, his remarks about when you can notify to terminate are wrong. See end of answer. About Terminating Your Lease Early However, there are a few loopholes you can exploit. The easiest one is to get him to increase your rent. Ask about it, tell him that you're considering staying but tell him you want to know if he's going to increase the rent by much. If he declares that he is going to increase the rent, perfect. Get him to send it to you in writing (which he is legally required to do). Just in case though, have him on speaker phone and record every conversation you have from now on without telling him. This is legal (see this answer) and is a powerful form of evidence, so exploit the hell out of it. If you can get him to tell you that he's going to increase your rent, then you can legally submit a notice to terminate tenancy on the grounds that you do not wish to pay the increase. In this case, the amount of notice that you have to give is capped to the day that the rent increase is to take place. If you try this, do everything you can to get it in writing. Don't feel proud of snaring him and immediately announce that you're leaving because of this as soon as he says it on the phone, because you're screwing yourself out of going through the proper channels to make sure you not only win, but you've made your case air tight. Also, feel free to let you landlord know that he owes you money. Landlords in Ontario have to repay you a capped interest rate on your last months' deposit every 12 months. This rate is decided annually and for 2015 is capped at 1.6%. If your landlord wants to be anal about the rules and stick the letter of the law to you, do it back. Becoming a pain your landlords ass is a great way to get them to either become more flexible, or make a mistake that will give you an out. Notice that if he does increase the rent, he can demand that you increase your last months deposit and force you to pay it. You could "accidently" make him aware of this right in a conversation where you are concerned about a rent increase immediately after letting him know that he owes you money for the interest. "I'm concerned about the rent increase because I have to increase my deposit by law too." This way, he'll hopefully have the thought "I can avoid having to give him any money by increasing his rent by the same interest rate, so he'll owe me what I owe him, therefore I owe nothing. I'm so smart!" Then he cheerfully gives you a notice to increase rent, at which time you invoke your right to terminate tenancy on short notice due to an increase in rent. Your Landlord Is Wrong All that aside, your landlord committed an illegal act when they refused your notice to terminate, because he's denying you your rights under the RTA. From the Residential Tenancies Act: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47 The details adjust a little bit depending on your circumstances, but the conditions in section 44 are basically to ensure the following: You are giving 60 days notice. You are not giving 60 days notice where the termination date you provide is less than the previously agreed term, except in special cases like the one I mention about increased rent. There is nothing in section 44 that can be confused to mean that you must wait until you have passed the end of your term before you can decide to leave. I suspect your landlord is deliberately interpreting the use of wording like "may terminate at the end of" to imply you have to wait to give your notice. A notice of termination is not a termination. It is a notice that in the future, you are going to terminate. Let's remove the confusion by replacing the word "terminate" with "vacating the premises and not paying another cent". That should remove any ambiguity that could be abused. So frankly you can simply go straight to the board, file the appropriate form with them and just pack up and leave when you've reached the date specified in the notice to terminate. Your final month is covered by your deposit. File the form immediately, let them know about the conversation you had with your landlord, then go to your bank and cancel the cheques you've already written (except for your deposit cheque) and simply ignore the landlord, carrying on with your moving plans. You should ask the Board if this illegal act has any ramifications. Perhaps because he has done this, this gives you an immediate out or something else. Call the Board and tell them what happened and ask them. They have an obligation to inform you correctly. Sources: Landlord Tenant Board of Ontario FAQ Final Note The Board is there to serve you, free of charge. They have a duty, as it is their explicit directive, to assist you in all matters regarding being a tenant. Phone them, talk to them at length, demand assistance. They are to inform you of your rights and guide you on the appropriate action, forms and procedure to assist you in resolving any issues you have. Note that I wrote the whole bit about getting out of your lease early legally before I refreshed my memory on the fact that you can/should give your 60 days notice before the end of your lease period. That makes the case much simpler as a I note in my answer. I left the information I already wrote however because it could be applicable or at least be of some help to others. Also note that if you're saying that the landlord came to get more cheques on the basis of his lie that he used to refuse your attempt to legally leave, then you'll need to cancel those cheques. That costs money. That alone is enough of a case to take him before the Tribunal and force him to repay the cost of those cancelled cheques. You may even successfully claim further damages or the Tribunal may voluntarily award you money for the actions your landlord is deliberately taking to deprive you of your rights. Talk to the Board. | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | Is it just a matter of stylistic aesthetics? Yes. 12 months is probably more common in a lease form sometimes used for tenancies of a fixed number of months different from 12. 1 year is probably more common in a lease form sometimes used for multiple years instead of just one, but rarely for part of a year. This is assuming, of course, that the 12 months are consecutive and not some weird time share. |
SAR before claim: tactical and legal considerations A claimant C intends to sue a business B, which is also a data controller. Independently of the prospect of any civil action, C is entitled to make a SAR (Subject Access Request) to B under the Data Protection Act 2018, and may be tempted to do so in order to have all available information at his disposal for maximum perspective and advantage in proceedings. Is there any way in which a SAR to a data controller with whom one has had no dealings for some years could disadvantage C in subsequent proceedings? For example, could either B or a judge draw any inference from C’s decision to submit a SAR? | I can't comment on tactical considerations, but legally there is nothing preventing submitting a Subject Access Request to support litigation. The case law has developed (and been somewhat inconsistent) over the years, culminating with the "no other purpose" rule being clarified by the Court of Appeal in Dawson-Damer v. Taylor Wessing LLP, [2017] EWCA Civ 74 by saying that... ...a SAR would not be invalid if it had been made with the collateral purpose of assisting with litigation. Delivering the leading judgment, Arden LJ noted (at paragraph 107) that the EC Data Protection Directive “makes it clear that the rights given by the Directive are to protect fundamental rights conferred by EU law. We have been shown nothing in the DPA or the Directive which limits the purpose for which a data subject may request his data, or provides data controllers with the option of not providing data based solely on the requester’s purpose”. Source and further reading | Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an "execution of contract" under the T&C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention "consent". Under GDPR, this is a distinct justification besides "execution of contract". You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | There are two related aspects to this question: can multiple legal bases cover the same processing purpose, and how must this information be presented in the privacy notice? In the following, this answer will address the following sub-questions, listed here alongside a short summary. Do you need a clear mapping between processing purposes and corresponding legal bases? Yes, such a mapping is effectively necessary to satisfy your GDPR obligation to be able to demonstrate that all your processing activities are covered by a legal basis. If one legal basis doesn't work out, can you fall back to a different one? No. This is nonsensical considering how the individual legal bases work. However, it is possible that similar processing activities serve different purposes under different legal bases, and it can be worth evaluating different legal bases when trying to determine which one you should rely on. How should legal bases be presented in a privacy notice? While a Termly-style generic list of potential legal bases is common, there are good reasons to believe that this fails to achieve the GDPR's transparency goals. It is better to clearly associate each processing purpose with its legal basis. Appendix: positive examples of structuring a privacy notice Do you need a clear mapping between processing purposes and corresponding legal bases? Yes, the data controller must always have a clear understanding regarding which processing activity is conducted under which legal basis. Under Art 5 GDPR, personal data shall only be “collected for specified, explicit and legitimate purposes” and processed “lawfully, fairly and in a transparent manner”. “The controller shall be responsible for, and be able to demonstrate compliance with [these obligations]”. To be able to demonstrate that each processing activity is covered by a legal basis, it is necessary in practice to have a document that spells out the specific legal basis relied upon for each processing purpose. Some data controllers are formally required to maintain such Art 30 Records of Processing Activities (ROPAs), but keeping track of core information makes sense for all data controllers. The ICO writes in their guide on lawful basis for processing: You need therefore to keep a record of which basis you are relying on for each processing purpose, and a justification for why you believe it applies. There is no standard form for this, as long as you ensure that what you record is sufficient to demonstrate that a lawful basis applies. This will help you comply with accountability obligations, and will also help you when writing your privacy notices. It is your responsibility to ensure that you can demonstrate which lawful basis applies to the particular processing purpose. If one legal basis doesn't work out, can you fall back to a different one? Probably not. Processing for different purposes. In some cases, it will happen that data is processed for one purpose initially, and for another purpose under a different legal basis subsequently. For example, a web shop might collect payment information in order to execute a contract to buy goods. But once that contract is fulfilled, it is likely that the webshop will have to archive some of that information for multiple years due to legal obligations around financial recordkeeping. While in both cases the processing activity is similar (storage of the information), the purpose is different and so the legal basis can differ. In this context, it is useful to consider Art 6(4), which discusses when data that collected for one purpose can be reused for another purpose. This is possible whenever those purposes are “compatible”. Multiple legal bases for the same purpose. Some data controllers try to apply multiple legal bases to the same processing purpose, in the hope that some will stick. For example: We're showing personalized ads based on your consent. But if you decline consent we will show you personalized ads because we have a legitimate interest in making money. And if you object to the legitimate interest then showing you personalized ads is necessary for performance of a contract we have with you, namely in section 7(23)(f)(ii)(ξ) of our terms of service where “Service shall make reasonable effort to ensure that Content shown is relevant to User”. This doesn't work. Specifically in the case of consent, consent can only ever serve as a legal basis if the data subject has an actual choice. If the data controller just falls back to a different legal basis in case consent is declined or withdrawn, that choice is hollow. Similarly, having a fallback for legitimate interests makes no sense. The core aspect of a legitimate interest is that there must be a balancing test between the legitimate interests and the data subject's rights and interests. A legitimate interest can only serve as a legal basis if it outweighs the data subject's interests. A core factor here is whether the data subject can reasonably expect their data to be processed for the given purpose. Data subjects can object to the legitimate interests, which may make it necessary to re-run the balancing test taking into account the objecting data subject's individual circumstances. But it is quite possible that the legitimate interest still overrides the data subject's interests, so that processing can continue. On the other hand if the objection prevails, it is difficult to conceive a scenario where there could exist some fallback legal basis to continue despite the successful objection. Specifically for the issue of using Art 6(1)(b) necessity for performance of a contract instead of other legal bases, the EDPB has published guidelines 2/2019. They explain that whether processing is indeed “necessary” must be considered from the perspective of the data subject, so that many purposes like “service improvement” or advertising cannot be covered by this legal basis. Something does not become truly necessary for a contract just because it was unilaterally inserted into a terms of service document. Determining an appropriate legal basis. However, thinking in terms of fallbacks can be quite useful for determining an appropriate legal basis. In general, legal obligations or necessity for performance of a contract should be considered first, falling back to a legitimate balancing test otherwise. Consent is a choice of last resort when no other legal basis would apply, since consent can authorize nearly any processing activity, no matter how risky or disadvantageous to the data subject, if the consent was obtained in a valid manner. How should legal bases be presented in a privacy notice? The GDPR is slightly ambiguous here. Per Art 13(1)(c), your privacy notice must provide the purposes of the processing for which the personal data are intended as well as the legal basis for the processing It is possible to interpret this in two ways: you list the purposes of processing, and separately any legal bases that you may rely on for any purposes; or you list the purposes of processing, and for each purpose you also list which legal bases you rely on for that specific purpose. Providing an abstract list of legal bases. You very commonly see the first approach, that essentially just summarizes Art 6(1) GDPR for the convenience of the reader. This boilerplate approach is of course attractive for privacy policy generators that do not understand the context your specific processing purposes. While the relevant EDPB guidelines on transparency don't take a clear stand on this matter, I have doubts that this first approach is fully GDPR compliant. This fails to provide required transparency. The Art 13 and Art 14 information obligations are an expression of the Art 5 GDPR principles like “lawfulness, fairness and transparency”. Merely listing any potentially applicable legal bases does not make it transparent to the data subject what data is being processed under which rules. But knowing the legal basis covering a particular processing activity has direct impact on the data subject's rights such as the right to revoke consent, to object to legitimate interests, or to erasure. This fails to specify the actual legal basis. Such a generic listing might also fail to fully satisfy the conditions for certain legal bases. Where the legal basis is a “legal obligation”, it is not sufficient to generically refer to legal obligations in abstract. Rather, Art 6(3) says that The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by: (a) Union law; or (b) Member State law to which the controller is subject. Thus, I would expect a fully compliant privacy notice to actually reference those laws, at least in a general sense (e.g. compliance with court orders, or for financial recordkeeping). Specifically in the case where legitimate interests are used as the legal basis, Art 13(1)(d) says that those legitimate interests shall be provided. Guidance from the EDPB WhatsApp decision. While the Transparency Guidelines linked above are not excessively helpful here, there is a body of regulatory interpretation for example in the form of the EDPB binding decision 1/2021 regarding WhatsApp. In section 5.1, it is discussed whether the WhatsApp privacy notice at the time satisfied Art 13(1)(d). Here, the EDPB quite unambiguously argues that only the second approach – per-purpose information – can be compliant. From para 56 and 59 in the decision: The EDPB is of the view, […] that providing full information on each and every processing operation respectively is the only approach that will ensure that the data subjects can: (a) exercise choice as to whether or not they might wish to exercise any of their data subject rights and, if so, which one(s); (b) assess whether or not they satisfy any conditionality associated with the entitlement to exercise a particular right; (c) assess whether or not theyare entitled to have a particular right enforced by the data controller concerned; and (d) assess whether or not they have a ground of complaint such as to be able to meaningfully assess whether or not they wish to exercise their right to lodge a complaint with a supervisory authority. […] The EDPB considers that in the Legal Basis Notice WhatsApp IE has not specified the provided information with regard to the corresponding processing operation such as information about what categories of personal data are being processed for which processing pursued under basis of each legitimate interest respectively. Practical impact. Termly's templates fall short of this standard, but their fine print also makes it clear that their service does not provide legal advice and that they aren't responsible for anything. It may also be worth considering that your privacy notices will likely face less scrutiny than WhatsApp, as in the decision cited above. That a very strict standard was applied to WhatsApp also has to do with Facebook's/Meta's/WhatsApp's history of playing games around appropriate legal bases and its extremely large user base, also involving children, making it very important to provide clear and comprehensive notices. Appendix: positive examples of structuring a privacy notice My suggestion would be to think about these transparency obligations in a tabular manner where you have an Excel sheet with columns for purpose, data involved, retention periods, and legal basis: purpose data retention legal basis personalized ads cookie identifiers, interest profile 6 months Art 6(1)(a) consent server security logs IP address 3 months Art(6)(1)(f) necessary for legitimate interest showing comments to other users username, comment until you delete the comment Art 6(1)(b) necessary for performing service ... ... ... Many data controllers will have exactly such information anyway when they keep Art 30 Records of Processing. Based on these records, it is then possible to write an accurate and understandable privacy notice that clearly relates processing purposes with other required information. I have seen privacy notices that use exactly such a tabular approach, though it's more common to provide a sub-section per purpose. For example: Purposes for which we process your personal data: Personalized ads. If you give consent (Art 6(1)(a) GDPR), we will show you personalized ads. For this we will set a cookie identifier (→ about cookies), and collect a profile of your interests based on the content that you interact with. The profile will be deleted 6 months after you last interact with our site. ... Showing comments to other users. When you post public comments, we will show them to other users. Providing this service is necessary to perform our contract with you (Art 6(1)(b) GPDR). The comment will publicly display your username, the date when you posted the comment, and the contents of the comment. The comment will be shown indefinitely, but you can delete it at any time (→ help center). Such an approach also fits well with a “layered approach” to transparency, where you split the information of the privacy notice across multiple pages, so that data subjects only have to read about those processing activities that are relevant to them. For example, an online marketplace company might have different notices covering browsing the listings on their site, buying a product, seller-side activities, and their employee recruiting processes. Another reasonably good approach I've seen is to have a section per aspect required by the GPDR, and to then provide a list that goes through each processing purpose. This is essentially a flattened version of the above table: Processing purposes: personalized ads server security logs showing comments to other users Legal basis for processing purposes: for personalized ads: your consent pursuant to Art 6(1)(a) GDPR for server security logs: our Art 6(1)(f) GDPR legitimate interest in ensuring the security of our services against hacks, DDoS attacks, or other criminal acts for showing comments to other users: Art 6(1)(b) necessity for performing our contract with you: showing comments is a core feature of our website, as covered by our terms of service (→ link). Which data is processed: for personalized ads: cookie identifiers, interest profile based on the content you interact with for server security logs: your IP address, a timestamp, and which pages you visit on our site for showing comments to other users: your username, date when you posted the comment, and the contents of the comment How long your data is kept: ... | Art.5(1)(f) contains: Personal data shall be: (f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’). Art. 25 and Art. 32 also contain similar requirements. What is appropriate has to be determined, as the GDPR does not contain an exact definition. However as processor you don't have to worry about that, as Art.5(2) Contains: The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’). But you need to inform the controller if you think an instruction violates the GDPR. But it is up to the controller to decide what to do. Art. 28(3) requires a contract between controller and processor which requires the processor to: (...) that the processor: (c) takes all measures required pursuant to Article 32; (h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller. With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions. But again, the controller is responsible for this contract. | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. | National security letters can compel the production of some kinds of (non-"content") user data, and (according to Wikipedia) typically contain a nondisclosure requirement forbidding the recipient of the letter from disclosing it. I assume that a witness has received and complied with a national security letter, and a non-government party wants to ask the witness questions which outside the courtroom, the witness would be forbidden to answer by the national security letter. The witness, or the government if represented in the lawsuit in question, may object to the questions. The purpose which justifies the secrecy requirements of a national security letter is also likely to justify the exercise of state secrets privilege. If the judge thinks a statute might otherwise be violated, they might intervene in the absence of any objection, or consider alternative remedies like an in camera hearing. If the court does not intervene to prevent the evidence being given, and the witness is charged with breaching the secrecy law, this would raise complex questions about the interpretation of the law imposing criminal penalties. The common law doctrine of absolute privilege for witnesses giving evidence in judicial proceedings applies in the United States, and could be raised in defence to any criminal charges. | 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. |
Does the concept of reasonable adjustment apply to other protected characteristics than disability status? In England businesses are required to make reasonable adjustments in the case of mental or physical disabilities so as to create an inclusive environment of equality. But are such adjustments required for other protected characteristics to make a place of work or business adequately inclusive like providing halal or vegan food for a single individual where there is otherwise no necessity or demand for it? | No. See section 20 Equality Act 2010 which imposes the duty to make adjustments only in relation to a person's disability: (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. ... For completeness, section 6 defines a disabled person for the purposes of the Act: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities (2) A reference to a disabled person is a reference to a person who has a disability. ... | Maybe s158 of the Equality Act 2010 allows proportionate action to redress disadvantage, different needs or disproportionately low participation by people with a protected characteristic. For example, woman make up 16.5% of the UK’s engineers. Given they make up more than 50% of the population one could reasonably come to the conclusion that this is disproportionately low. If this was an engineering scholarship, this would fall within the exemption. In contrast, woman are 52% of UK lawyers - not a disproportionate number for either gender and not engaging the exemption. However, female judges are only 39%, arguably disproportionate, so if the course is a post-graduate one preparing people to enter the judiciary, that’s probably ok. Women are 75.5% of teachers, so a scholarship for male students in that profession is ok too. | Yes, it's legal. It would be lawful discrimination on objectively and reasonably justified grounds Here's why: On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010: (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. however, the company may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine): (1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c) participation in an activity by persons who share a protected characteristic is disproportionately low. (2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity. It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine): This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim. A clear example is provided: Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them. Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) (emphasis mine): Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158. That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below). However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality. While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful. | In the US, there have been a few cases (EEOC v. The Children's Home, Inc., Michael W. Naylor v. City of Burbank) in the realm of employment discrimination. There may well be more cases which are settled without going to court. There are somewhat more court cases in the UK, see here for a number of relevant categories. In addition, there are significant cases regarding discrimination against gay males, for example Bostock v. Clayton Co, decided by SCOTUS this summer. | The employer might be liable for a discrimination claim, under the doctrine of disparate impact. See Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc and references cited therein. The idea is that an employer can be liable absent proof of intentional discrimination when a practice disproportionately affects protected classes of individuals, and the practice is not justified by reasonable business considerations. So it would depend on why this particular state of affairs in employment came about. There is a test known as the 80% rule which attempts to quantify the notion of "under-representation" as evidence of discrimination. This test (not widely respected by the courts these days) might constitute evidence of discrimination, if a protected class is demonstrably under-represented. The current standard seems to be by comparison to random selection. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, the court found that a grooming policy had a disparate impact on members of a religion (Sikhism), and was thus contrary to Title VII of the Civil Rights Act of 1964, although a requirement to shave does not obviously discriminate on the basis of religion. This points to an important element of a successful disparate impact claim, that there has to be a policy with a causal effect. In the above scenario, there is no proposed policy that has this effect. Note that the burden of proof is on the person suing for relief – they must have a theory of something the company does that causes this hiring pattern, a practice that is discriminatory. The identified policy (whatever it might be) could be justified by a business necessity defense (Griggs v. Duke Power Co., 401 U.S. 424), by showing that the practice has a demonstrable relationship to the requirements of the job. That, b.t.w., would not excuse a racially or religiously discriminatory hiring policy for a factory manufacturing menorahs or kinaras. If a company recruiting locally in Boise ID had a 75% black work force, it would be reasonable to suspect that something was up. But legally, without showing that this results from a unjustified policy of the company, mere statistically anomalous distribution is does not sustain a claim of discrimination. | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard it. | Normally, an employer can decide whether someone is allowed to go on leave or not. If someone has a covered disability, that must be accommodated, except to the extent that the disability makes the person unable to perform a bona fide job qualification that cannot be accommodated by any practical means. Employers have some latitude and discretion in evaluating this question and a doctor's opinion, while it is relevant evidence that an employer should consider, isn't binding on the employer. This is because physicians can differ in their opinions on a particular case, and because physicians don't necessarily know exactly what is and isn't necessary to perform a job satisfactorily. Business owners are entitled to decide what duties go with a job, and within reason, what kind of performance of those duties meets their standards. As the case summary linked to in the comments explains: "Counseling is a medical appointment and the determination as to whether it can be required for employment is dependent on whether it is “job related” and consistent with a “business necessity” as described in the ADA." Under the circumstances described in the question, it is likely that this requirement would be found to have been met. Also, an employer could place an employee on medical leave without requiring counseling or therapy as a requirement to return, so long as some other performance standard was established for the employee. On the other hand, the employer's discretion is not unlimited. If a judge or jury finds that an employee was clearly capable of performing the job in a satisfactory manner (e.g. by noting that the disabled employee outperforms many non-disabled employees in the same position who are not put on leave), then that finder of fact could conclude that the employer had engaged in illegal discrimination based upon disability, rather than legally exercising an employer's discretion. There are, inevitably, gray areas, and no one doctor's opinion is enough to resolve that question definitively. | The Immigration Act 2016 introduced the so-called 'right to rent' provisions under which a landlord can be prosecuted for renting accommodation to someone who is not legally in the UK. Everyone in the UK, Brits included, is subject to the Act. This gives the landlord the right to examine your work permit and to see if your visa is valid. The landlord will make a copy of the information. This makes the landlord a data controller which imposes restrictions on how the information can be used. Because this became controversial, the Information Commissioner published a brochure on the things a landlord can do with your data. All things considered and based upon what you wrote, if the landlord did not get your permission to use the data, then it's likely he is in breach. But this does not mean it's actionable or that it would be advisable to make a formal complaint to the Commissioner. If you want to pursue it, you can use the Commissioner's "Report a Concern" page as a starting point. Alternatively, you can lodge a formal complaint with your landlord and he will have to respond to it. What does the law say? The act giving the landlord the right to access your data is in the 2016 act linked above. Everything else is in the Data Protection Act 1998. The ILPA Information Sheet is at "Right to Rent". "The information sheet was updated on 01 November 2016 to take account of the second commencement order issued by the government, on 31 October 2016, bringing further provisions into force." The information sheet is recommended reading for anyone in the UK on a work permit. Disclaimer: I'm a member. |
Can academic writings be a source of unwritten law? This might be a weird question but can academic writings be a source of unwritten law like customary law ? And do things like customary law and something like this require a judiciary to interpret or deduce it ? | In practice, common law courts turn to academic writing, either law review articles or legal treatises or the "Restatements of Law", on a regular, but infrequent basis. These sources are not binding sources of legal authority but can shed persuasive light on the logic behind a legal rule or the course of action that has been taken in previous similar cases. In civil law countries (i.e. those not descended from the legal system of England), there are far fewer circumstances in which court precedents are sources of law. Much of the gap in credible sources for how ambiguities in the statutory law should be interpreted in these countries comes from academic writing. In a typical civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judges. Again, academic writings are not binding legal authority, but in the absence of alternative sources for material interpreting statutes, they are very persuasive. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | 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. | The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (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; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary. | Plagiarism is an academic category about the thoughts from another scholar/author. Copyright is a legal category about the words of another writer. When a student or a degree candidate present a paper or a thesis, they implicitly or explicitly claim that it is their original work, except for sections which are marked as the work of others. With a thesis for a degree, there may be a form where the candidate confirms this in writing, which brings the law back into the academic sphere. There are many situations in a school or even university context where there is no such claim of originality. Imagine the exam question "what is the third law of thermodynamics?" There would be no need for the student to give a source, because nobody asked for it and nobody could possibly believe that the student just invented that law. If the question was about who discovered the third law, they should say so. Schools which prepare their students for academic work should introduce both concepts and train their students in proper citation at some point. But not too early. | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). | The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes). |
Is it indirect discrimination or otherwise unlawful to maintain a menu that does not include vegan options? A restaurant R has a menu of various things but does not include vegan options. As veganism is a protected philosophical belief under the Equality Act 2010 and the Grainger test, this omission affects vegans disproportionately. If the restaurant was a steakhouse intended to cater specifically to meat enthusiasts or ideological carnivores, then I could imagine the non-accommodation as being a legitimate end to a proportionate aim, but otherwise, has a restaurant not committed unlawful discrimination against vegans? | Caveat about the "Grainger test" as applied to veganism Grainger plc v Nicholson is a 2010 employment discrimination case. It established a five-point test for whether a philosophical belief triggers the protection of the Equality Act 2010. See the judgment here, §24. A 2020 preliminary hearing in Casamitjana v The League Against Cruel Sports found that the claimant (= plaintiff, for US readers) held a belief in ethical veganism that did meet the five-point test. I would note that Casamitjana’s beliefs are much stronger than "simple" veganism. The judgment at §17-§22 enumerates a list of Casamitjana’s behaviour, much of which goes well beyond what the average vegan undertakes, such as avoiding the use of bank notes (manufactured from animal products) or public transportation (buses kill insects). I would assume that "simple" vegan beliefs could still meet the "philosophical belief" test, but I can see obvious differences with the Casamitjana case and would not advise anyone to rely solely on it. The restaurant case I refer to this excellent answer regarding a different hypothetical. The key question is whether the restaurant’s choice of menu is "a proportionate means of achieving a legitimate aim". In that case, the restaurant might argue that they chose what dishes to offer based on the cook’s ability, on a commercial strategy of selling only high-end dishes, or other similar considerations. (Note that I have not practiced law in E&W, and any real-world respondent would do well to consult a qualified sollicitor before relying on that argument.) As a non-legal answer, I would also argue that such an application of the Equality Act 2010 would be extremely burdening. For instance, ethical vegans could sue any restaurant offering any non-vegan options at all (regardless of whether there are vegan options on the menu, they would not want to patronize such a restaurant), or transportation company using leather seats in their vehicles; Orthodox Jews might sue any business open on Saturdays; and so on. However, I do not know how that objection could be worked into a legal argument. | In placing an order (for anything, not just in a restaurant) and in the supplier accepting it then a legally binding verbal contract has been created. There are terms that come into being implicitly: some come from statute law and some from common law. For example, in most jurisdictions there will be either a common law or specific statute that requires the product to be of merchantable quality and fit for the purpose the customer explicitly or implicitly made known to the vendor. In a restaurant, this means that the food must be presented in a way that enables you to eat it and it must be fit for human consumption. It also means that, in the absence of a time for delivery being specified, that the meal must be delivered within a reasonable time. Reasonable has a specific legal meaning and is an objective test: what an ordinary, reasonable and prudent person would expect in the specific circumstances. It is clear that a reasonable time varies with the circumstances. Reasonable in McDonalds is different from reasonable in a 3 Michelin star restaurant and also different from the same McDonald's when it is obvious to the customer that they are currently insanely busy. If the supplier does not supply the goods and services within a reasonable time then they have breached a term of the contract. The customer has several options: repudiate the contract and sue for damages if this is a breach of a condition of the contract (a condition is a term that is fundamental to the contract; late delivery of food probably isn't a condition), repudiate the contract and sue for damages if this is a major breach of a term of the contract (late delivery probably is), sue for damages if this is an intermediate breach of a term or a breach of a warranty. Enough generalities, for your specific queries: What law in involved in restaurant orders? Contract law, consumer protection law, health and safety law, business law, food hygiene laws, tax laws etc. etc. If I go into a restaurant and order hundreds of dollars of food, then leave before it arrives, I would imagine there is some recourse that the proprietor could take. Sure, there is a contract, you breached it, the restaurant can sue for damages. In addition, they could make a complaint to the police that you have acted fraudulently by ordering food you never intended to pay for. However, if I order a single item and it doesn't show up for over an hour, despite me inquiring about it's status, would I be compelled to pay? It depends on if an hour is a reasonable time or not. By inquiring you have demonstrated that you don't believe that it is but you may not be "an ordinary, reasonable and prudent person". If the breach is actual and egregious enough then you probably have the right to repudiate the contract; that means the contract is at an end and neither of you have any further obligations under it including an obligation to pay. That said, you would be on surer ground if you attempted to renegotiate the contract to make time a condition. "Look, if the meal is not here in 15 minutes, I'm leaving"; if the restaurateur accepts this renegotiation by, for example, saying "I'm terribly sorry, we will sort it out" then your position is much clearer. | There is no intention to commit theft, so there is no criminal act on the part of the customer. Even if there was a criminal act, the ability of the restaurant to detain the cusomer (citizen's arrest) is very limited in most jurisdictions. The restaurant can ask the customer for his name and address, but there is no legal obligation on the customer to provide this. Refusal to do so, however, might be evidence of intention to avoid paying and at that point the restaurant might call the police. The customer can leave, and the restaurant can pursue the debt through the civil courts if they have means to do so - they may have CCTV of the customer and his car registration which can be traced. Petrol stations, where people often fill up and then realise they can't pay, usually have established "promise to pay" procedures where they take the customer's details and the customer has 48 hours to pay before police or civil enforcement action is taken. | Yes, it's legal. It would be lawful discrimination on objectively and reasonably justified grounds Here's why: On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010: (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. however, the company may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine): (1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c) participation in an activity by persons who share a protected characteristic is disproportionately low. (2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity. It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine): This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim. A clear example is provided: Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them. Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) (emphasis mine): Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158. That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below). However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality. While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful. | Prohibitions against dancing, especially drinking and dancing in the same venue, have a long history in the United States. It was not until 2017 that New York City repealed its Cabaret Law, which forbade dancing at establishments that served food and liquor without said license. So the purpose is to not get fined if people dance at your bar, club, or restaurant. If you're asking if it serves a purpose in terms of public interest, that's a question for Politics SE. | It’s legal The regulations provide limits on various bacteria. If the product is made from raw milk, the manufacturer must implement a testing regime for those bacteria. If it’s made from treated milk, they avoid this cost. | A business has the right to refuse service, except in the case of unlawful discrimination. "Sued us" is not a protected characteristic. Unless part of the settlement was that the business must serve that customer in future, there is no way this could be considered contempt. | I only address the core legal question. The first question regards where the review appeared: on the facility's own web page, or on some third party web page? In the latter case, there is the possibility that soliciting a modified review in exchange for something of value violates the terms of usage for that web site. There are also US federal regulations pertaining to advertising, as well as state regulations. The federal regulations are here. The main question is whether what you say constitutes an endorsement, as specified here. They define an endorsement as: any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The regulation in fact gives some helpful examples (reading them helps to clarify what an "endorsement" is), the last of which involves a dog: Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog's fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides. Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides. The distinction at issue is whether the suggestion of receiving something of value might influence a person's statements. You can pay for a positive review, as a reward for saying nice things, as long as the reviewer had no reason to think that they would get get something in return for a review. Taking your review to be an endorsement, as required here, Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. The regulation does not require you to reveal every thing that came into your mind in writing the review, but it is pretty clear that suppressing the concern about vaccination paperwork and the star count constitutes a dishonest statement of opinion of the endorser. Material connections must also be revealed: When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser In the 7th example under material disclosure, they describe a blogger who received something of value in connection with a review: the blogger should clearly and conspicuously disclose that he received the gaming system free of charge I should point out that these regulations are written by the FTC, and the implied interpretation (such as that the blogger should disclose... with no clearly stated penalty for failure to disclose) is an FTC interpretation. 15 USC 52 prohibits false advertisements for services affecting commerce. This is the jurisdictional aspect of their complaint against Cure Encapsulations, where defendants paid for reviews on a third-party website (this case involves a relationship between defendant and a fourth-party company that apparently hunts for and pays reviewers). This is apparently the first instance in which the FTC has gone against a business for paying for reviews on a third party web site, so it's not a foregone conclusion that they will prevail in court. Still, Chevron deference means that they will probably win at least on the jurisdictional question. The main difference is that in the Cure Encapsulation case, the violation was even more egregious in that the individuals were not even customers, and in this instance the would-(not)-be review was not the honest opinion of the endorser. |
Married couple traveling abroad, what proof exists When traveling abroad, how does a nation state know that a couple is married? What laws are in place regarding hospitalization and next of kin? What happens to a same-sex couple traveling to a nation that is not amicable to same-sex unions, say India? | 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. | Can I go to USA with my B1B2 visa and marry her within a week and come back to Canada, will this be legal ?? Yes. Or would it be an visa fraud that I misuse my entry to USA for marriage and will cause problems for my Future Green Card application ?? No. It is only visa fraud if you lie. Or would it be misuse of entry only if I marry to green card holder ( which she is not yet) and not come back to Canada and apply for visa status adjustment there in USA ? As long as you leave the US within the period of admission granted to you on entry and otherwise abide by the conditions of B-1 or B-2 status, there is no violation. If you attempt to enter in B visitor status with the intention of marrying and not leaving, but rather adjusting status, however, the immigration officer is entitled to refuse entry, and if you attempt to adjust status after entering in B visitor status, you may find yourself having to prove that you did not have the intention to do so when you entered. If Yes, What kind of marriage it would be ? A marriage between two non-immigrant or marriage between non-immigrant ( Visitor) and immigrant (Her) As noted in a comment, l don't think this matters. As she just got her work permit and SSN but not appeared for her asylum interview yet, Do I need to apply for any kind of k visa for marriage ? Or she needed to be green card holder first then I can apply for k visa. K visas are for the fiancé or spouse of US citizens (and their children). You don't need to worry about K visas. If I can marry her with my B1B2 visa as she is not green card holder or citizen yet. Should I also have to wait 90 days in USA before marriage so that USCIS not consider it as misuse of my entry in future when I apply for green card once she get her green card after completion of her asylum case. Gaming this is a recipe for trouble. Your best bet is to hire an immigration lawyer and follow your lawyer's advice. If you can't afford an immigration lawyer, you can get some generalized advice over at Expatriates. If in my l-94 Form I am just allowed to stay for 2 weeks in the USA but i stay 90 days then marry her and come back to Canada. Then what will be its consequences for my Future green card application. If you overstay a 2-week period of admission and then leave the US you will trigger a few adverse provisions of immigration law. If the US finds that you had intention to do this when you entered, for example, and lied about it, you could trigger permanent inadmissibility for misrepresentation. What would be the best possible solution for our case ? How should we proceed so that we don't have any kind of immigration problems for future. Find a good lawyer. Getting married in the US is fairly easy. Using your marriage to immigrate to the US requires a bit more care. | What should and shouldn't happen isn't going to do a damn thing about your passport situation. Your passport isn't being 'held', it's in processing at a place that is currently not operational due to an unprecedented virus outbreak. No one is acting like a criminal or treating you like one, you are just unlucky. If your situation is that dire, you have no choice but to get a temporary passport. I seriously doubt an Indian court is going to side with you on this one. Just because the passport office is legally allowed to operate, doesn't mean that they are actually able to. If, for example, COVID-19 hit enough of their workforce, they won't have enough people to operate properly and they'll have no choice but to close. And no, '2 or 3 people' is not enough to operate such a large scale, sensitive operation with high security requirements, even just to return passports . | I have never heard of anything like this. I guess when you say "registered in that place" you are referring to Russian resident registration. The US doesn't have such a system, so this sort of certificate wouldn't even make sense. | When a country makes criminal laws, these laws usually apply to anyone present in the country, and acting in the country. But the country is free to declare that some law might apply to its own citizens in a foreign country, or even foreign citizens in a foreign country. Assuming the laws about using marijuana say nothing about the country, that most likely means it only applies to using marjuana in the country itself. But if the US government decided that taking marijuana in Canada is illegal for US citizens, then nobody can stop them. In this case, Canada would not extradite you (unless Canadian law says that it is criminal for Canadians to use marijuana in another country), and Canadian police would likely not collect evidence. So even if illegal, it would be hard to convict you. PS. The "polygamy" case would be interesting, I think you would have to read the exact wording of the laws in every country. Some countries will say that you can't get married twice, and the attempt to get married a second time while already married is bigamy. In that kind of country you wouldn't have committed a crime within that country. Also, you would only be married to the first wife. | There are certain requirements of Statehood according to the Montevideo Convention on Statehood of 1933, which is just a codification of international customary law: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. Is it "legal" to buy a piece of land and claim it to be another country than before(either inventing a new one or migrating it to an already existing one)? According to international law, it is. Sure. But just because you say something is the case, doesn't mean it is. Always. Sometimes it is. But for present purposes, let's say that if you found an uninhabited island and said that you were a country, that wouldn't be the case - nor if you bought it from a man living on it. If you found some land that belonged to another country and decided to claim it as that of an existing country, then it would depend on the specific circumstances. That's exactly what happened to the Krim island in the Ukraine(now Russia maybe?), right? I don't think so. As far as I know, the annexation of territory isn't considered sale. In any case, the ownership of this land is still under dispute. So, if it's possible without the influence of these international institutions, trying this in an area with their influence would be easier, right? If trying this means declaring some land you have purchased to be a new sovereign state Nope. You probably still don't meet the requirements for statehood. If trying this means the acquisition of some land by an existing sovereign state Maybe. Probably not. The Montevideo Convention requires that statehood not be gained through force; while member states' interests may be greater where they are more invested, the requirements for acquisition of territory are the same no matter where you are. What would prevent me from creating my own nation? Money, defensibility, recognition, the fact that you probably don't own any land that you "buy" (depending on the jurisdiction and real estate system), the fact that you generally can't unilaterally declare yourself a sovereign state. | Legally speaking, very many nations grant asylum, and religious persecution is one of the most basic grounds for granting asylum, following the 1951 Refugee Convention. This newspaper article compares asylum statistics in Ireland versus other parts of Europe. The Irish immigration authorities spell out the details for an asylum application. Note that you must already be in Ireland, to apply for asylum in Ireland (you should apply when you enter the country). One could also apply to Norway (almost an English-speaking country), but again you have to be in Norway to do so. There is a generic solution to the "what if I'm not in country" problem via the UNHCR, which can propose resettlement into various countries. I need to add that getting a visitor's visa from certain countries can be extremely difficult. To take an example, Norway (which is fairly open to refugees) is pretty up-front on the chances of getting a visa, based on country. To take a random example, they are not very optimistic about visitor's visas from Iran, and they say "we consider how probable it is that you will return to your home country or the country you live in when the visit is over. We consider the situation in your country and your own situation", "If we believe that it is unlikely that you will return, your application will normally be rejected" and "If you plan to visit Norway as a tourist, you will normally not be granted a visa". This is the fundamental problem that refugees face, the problem of getting there. One country that allows visa-free admission from Iran is Turkey. This guide (which is in Farsi so I can't comment on) provides practical information on the UNHCR asylum process "the political asylum process for Iranians in Turkey": that may indicate that apostasy is a different matter. Other evidence suggests that this option is worse than staying put. Only for the sake of discussion, Svalbard is a theoretical possibility. Svalbard (next to the North Pole) is part of Norway, but Norway treats it as being somewhat outside of Norway. It is outside the Schengen visa area, and it is a visa-free zone, meaning that nobody requires a visa to visit or live there. This is due to the Svalbard Treaty whereby Norwegians and treaty nationals have equal rights to the islands, and while most nations are not treaty signatories, it has been policy to extend those rights to everybody. The Governor does have the power to expel anyone who is a burden on local society (e.g. unemployable). Normally one would have to get a Schengen area visa to get there, which would be an obstacle, but it is apparently possible to get a same-day visa-free transit at Oslo Airport, if travelling non-stop to Svalbard (I cannot find a definitive policy statement on this matter, but I also am not sure where exactly to look). There are some air routes from outside Schengen where the first Schengen stop is Oslo. The Governor's office gives appropriate warnings about local problems (ridiculous prices, housing shortage, work shortage, more polar bears than people, really cold). | I exclude Shari`a law because I don't know, but generally there would be no legal recourse that depends on the lie. A marriage is not legally viewed as a contract with enforceable obligations, so a woman could not be forced to bear a child against her will if she had earlier promised to do so, and she could not be penalized in any way. The man still has the ability to obtain a divorce. There is a difference between a fault-based divorce and a no-fault divorce, where a fault-based divorce may be quicker (dispenses with the requirement for months of separate living). In a jurisdiction that has fault-based divorce, the traditional grounds are cruelty, adultery, desertion, imprisonment, and physical inability to engage in sexual intercourse undisclosed before marriage. The latter does not include the inability to get pregnant. Division of marital assets is governed by law, where the principles of division are not punishment, they are equity (although states split into "community property" vs. "equitable distribution" based on the distinction "what is equitable" versus "50-50" – equitable distribution states do not sanction punishing a spouse for misconduct). There are also "marital torts" for certain kinds of wrongful acts, such assault, infecting a spouse with an STD, defamation etc. But as is the case with any tort, there has to be a legal duty between the parties, and that duty has to come from operation of law and not just agreement. There is no legal duty to always tell the truth or to bear children. |
What makes you the legal owner of a computer game (copy)? I bought a lot of used old computer games to create a collection. Some games consist of: The physical game disc (CD or DVD) (sometimes) a product key which is printed onto the manual or the disc case The manual and the disc case And sometimes there is an account (for example Steam account) which registered the product key. Sometimes some parts of those I mentioned are missing or the product key was already registered on Steam. It leads to the question: Who is the legal owner of the game (copy) and allowed to play the game? Here are some examples: I bought a game but the product key is missing. Who is the owner of the game (copy)? Me or the one who has the key? Am I allowed to use a key from the internet if I got the disc? I have the product key but the disc is missing. Am I allowed to download the game .ISO file from the internet? I bought the disc and the product key. But the key is already registered on Steam. Am I allowed to crack the game so I can play it? I am living in Germany but I am also interested about the laws in the US. | Ownership is a fundamental concept in property law which can be difficult to apply to software, such as computer games. A physical record of information, such as a game disc, a piece of paper with a product key on it, or a computer hard drive with software installed on it, is personal property (chattels). You own these things. However, copyright law restricts what you can legally do with them. For example, the copyright holder generally has the exclusive right to make a copy of a program, which would generally include downloading (and saving) a game ISO. In recent decades, anti-circumvention provisions have been added to national copyright laws. These generally make it illegal to use cracks and other techniques for circumventing DRM, even if you “own” a copy of the software. What is “owned” is the right to assert a claim in court (a chose in action), which is also a kind of property. Specifically, the right to use proprietary software, or software license, is generally understood as a bundle of contractual rights, often documented in an end user license agreement. (While these contractual rights are a kind of property that can be owned, “ownership” of software can also refer to the rights of the copyright holder, which the more limited rights of a licensee are derived from.) Actually determining the legal effect of a software license is complex. As it is intended to create contractual rights, the terms of the contract (license agreement) are important, but not determinative. Consumer law may impose standard “fair dealing” terms which could have complex effects on the rights associated with a digital product in a particular jurisdiction. Because of the low money value involved, these complex legal issues are rarely tested in court. The specific questions you pose all appear to breach copyright or anti-circumvention law. However, you may have acquired contractual rights, including implied rights associated with your purchase of chattels, or dealings with a platform operator like Steam, which limit the copyright holder’s ability to take action against you. You may also have the right to do things that fall within a fair use or fair dealing exception in your jurisdiction. Again, the law is often untested, especially outside of the United States, because it is rarely in the parties’ interest to litigate. However, the exceptions to anti-circumvention law are often different to, and less permissive than, the exceptions to copyright. To further research your questions in a particular jurisdiction, I would look for exceptions to copyright and anti-circumvention law which protect consumers’ rights, if any, to back up or resell copies of licensed software. | Cheating in video games is not against the law. (If it's not for profit) IANAL The legality of cheating in video games has already been challenged in a court of law. You see, Nintendo didn't want people to cheat. Fearing it would lower the financial value of their games if you can beat them in just a few minutes. It was argued in court that a video game is no different than a book. If you want to read the end of the book, skip to your favorite chapter or skim quickly through a boring part you can. The conclusion is the game is yours to enjoy in anyway you want. Nobody can tell you how to play your game. There's an interesting and short documentary about the legal history of cheating in video games by the gaming historian. Also it doesn't matter what the TOS says. TOS is not legally binding Good news: another federal judge has ruled that violating a website terms of service is not a crime. But there's bad news, too — the court also found that bypassing technical or code-based barriers intended to limit access to or uses of a website may violate California's computer crime law. However, I've read you can be sued for breach of contract, if the site can prove any damages based on your cheating. I found that answer here on Law.SE and they didn't provide a source so I can't verify if it's true. | Since the Steam ID contains or may contain enough information for it to be possible to link your account to you as a physical person, it would definitely be considered "personal data" according to Article 4 of the GDPR. However, by agreeing to the DOTA2 terms of service, you have given consent for them to show your information to other players (or at least that is included in most terms of service I have read for other games. I have not read the one for DOTA2 specifically). Replays are an interesting corner case. If download of replays are only possible for other players or if the wording of the ToS says that you consent to displaying your user ID to anybody, that would mean that they would have covered their bases. As long as they comply with other parts of GDPR, like "the right to erasure" (Article 17) that is. If the API is accessible to anyone and not covered by the ToS you might have a case. If you only want to remove the traceability between you and the replays, you can always evoke Article 17 and delete your account. | From your question(s), as well as your various comments, I understand you to have two general inquiries: 1. Is there any infringement of copyright laws if you use things like the titles of books, games, apps, names, address (and any other number of things) which you will then put into datasets that will be licensed for proprietary commercial purposes? You may freely put titles, names of people, places or things into datasets without fear that you are infringing on copyright or any other laws. That is clear. Copyright law does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive it cannot be protected by copyright. So, there is no point in discussing the doctrine of fair use in this context, because Fair Use is a defense, or a legal safe harbor that is merely an exception to copyright infringement allowing people to use a copyrighted works under specific circumstances. As I understand your intended endeavor, you will not be infringing on any copyrights to the extent that you are merely using factual data, like names of copyrighted things for the purpose of creating a dataset or an application to help access it. This is why I say you need not concern yourself with the test for Fair Use with regard to this issue. The Copyright Office states clearly, despite what people may think, that there are no exclusive rights in brief combinations of words such as: • Names of products or services • Names of businesses, organizations, or groups (including the names of performing groups) • Pseudonyms of individuals (including pen or stage names) • Titles of works • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions • Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable. Hence, these things are not registrable under a copyright. While something may be potentially attached to or included in copyrighted material, is not in and of itself subject to the protections of these laws. If it (whatever it is) cannot be registered for a copyright, it is not copyrightable. Because copyright registration/notices have been optional since 1989, when the U.S. attached itself to the Berne Convention, whereby copyright protection is automatic as soon as a work is “fixed in a tangible medium of expression” (written down, recorded, painted, etc.) it’s protected. No notice is required. Registration only becomes required for litigation or enforcement purposes. But this is really extraneous to your inquiry anyway, as far as it applies to the actual data. When you get into copying whole databases for your purpose, that analysis is different. 2. You want to "scrub" the internet for information that you intend to put into your proprietary datasets and use for commercial purposes, some or most of which is already in a database or some organized form, and you want to know if there is some sort of copyright or duty owned to the person who originally databased the materials? Since ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection, if you want to compile this type of information from the internet for the purpose of creating datasets, or searchable databases, this is permissible. That said, there are protections for existing databases under copyright law, provided under the concept of a "compilation copyright". A compilation copyright protects the collection and creative assembling of data or other materials. Compilation copyrights protect the collection and assembling of data or other materials, such that databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101. The preexisting materials or data may be protected by copyright since the selections of materials and the form they take in an existing database may be original enough to be subject to a copyright. However, the data itself is merely information and is not protectable. The Copyright Act specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data. 17 U.S.C. § 103(b). As a result, "compilation copyrights" can't be used to place protection upon those things that are otherwise not protectable. In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act. Feist makes clear that even a copyright protected database does not hold the right to prevent an individual from extracting factual data from the database (so long as you're not copying the entire database as a whole). If you take an already compiled and copyrighted dataset in its entirety, you must obtain a license for its use. However, if you are merely amassing great amounts of data to then put into your own dataset, that you are free to do. The big issue will be (and you seem to realize this) where you will amass this data from. Some websites have specific licenses in place that say you cannot use or rework their content. However, many times these websites simply throw these license requirements out there for users to see, despite the fact that they may not be (and some would argue) are not enforceable. The courts have heard arguments that "contracts" (the end-user licenses) that protect databases and information on websites is beyond the protection available through copyright law should be "preempted" by the Copyright Act itself. The preemption argument goes like this: Federal law controlling something that is subject to interstate commerce or use, should be controlled by the federal laws. So,since the federal government has enacted the Copyright Act to govern any protections to any original works, states should be (arguably are) prohibited from having contradictory laws. Because of the ability of a federal statute to preempt state law, and the fact that the Copyright Act at 17 U.S.C. § 301 sets forth specific preemptions, no state may create rights that are equivalent to any of the exclusive rights provided under the Act. It is this concept of preemption that prevents copyright protection from varying depending upon the state where a work of authorship is created. Arguably, the same is true for the internet, and supposed contractual relationship created through licenses that dictates how non-copyrightable material may be used. In the case of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web Services, Inc. the court examined whether an end-user of a CD ROM phone database was subject to the license, when they extracted a large portion of the database and made it available over the Internet. The database was almost the same as the type of data in the Feist case-The lower court rejected all copyright claims and found that the shrinkwrap license that controlled the end user's right to use the data was both unenforceable (as a shrink wrap license) and preempted by the Copyright Act. As a result, there was no relief available to the creator of the phone database and the end-user was free to extract the data and use it as he saw fit. However, on appeal this decision was reversed (7th circuit). The appellate court did acknowledge that the database (on the CD) was not original enough to be protected by copyright (finding no copyright infringement by the end-user); However, they did find the end-user was breach of contract, since the shrink-wrap license prohibited the end-user's conduct. What this tells us is that these licenses (on websites) may or may not be enforceable. While the 7th Circuit found a contract right pursuant to the license, despite the preemption argument, another appellate court that is more liberal may find otherwise. Also, this was a disk, not the internet, which is the "wild west" of information, largely unregulated and unlitigated as it pertains to the legality and enforceability of (some) regulations that do exist. License agreements for site use on the internet are everywhere. If you take a database from some site that has a license saying you cannot take their work and add to it, or whatever, and you do add it to other databases that are not licensed and then make your own dataset - chances are you are NOT going to be infringing on anyone's copyright. That said, you may be in breach of contract (the license) if they find out about it, and sue you (using it doesn't put you in breach; only getting sued and having a court determine you're in breach puts you in breach. It may be a distinction worth contemplation, but that is up to you). The safest, bet would be to get a license from them to rework the materials. If the material is generic enough, and will be changed enough, that you are creating your own new (copyrightable) work - I'm not sure how they would know you "scrubbed the data in contravention of their license agreement ( I have NO CLUE if there is coding or metadata attached to it such that it's identifiable in that way. I have not tech background and do not endorse taking what's not yours). But if they can and do know, they could cause problems for you. Lastly, I will just say that the internet is littered with sites that claim copyrights, or impose unenforceable licenses on material that is ripe for public use. Just because it says it's theirs does not make it so. The inverse is also true. Just because a site does not claim copyright to something, does not mean it is in the public domain. I would recommend either sticking to public domain/use sites for your scrubbing endeavors, or seeking permissions from the sites who impose licensing requirements. Short of that, I would recommend (as I already have) seeking an formal legal opinion to say that you are not imposing on anyone's copyrights (this could only be done once you showed an attorney every place you took material from, as well as what the material is), and that the licenses from sites with generalized information that may try to limit use, are unenforceable. I would do this before you invest a lot of time or money into something that is largely based on the accumulation of other peoples work product. I wish there was an answer certain, but there just isn't without seeing everything in the end. | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | You can take pictures of public buildings and use them in your game, if you want. You cannot copy pictures (of anything) taken by someone else without the copyright owner's permission, so you need Google's permission to copy their photographs. The public building exception is specifically about architectural works and does not include e.g. murals drawn on buildings, or billboards. In such a case, you would need permission from the copyright holder (the artist, or employer). You might hope for a fair use exception (again, assuming you took the pictures yourself), which has a better chance of succeeding if this is a free game. | Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them. | "...claiming that the license can be revoked at any time." Of course a game company can revoke their license at any time. The company grants you a license to use the product, and a license is not an obligation on their part to provide the product, or a right to use it on your part. There's nothing illegal about a license or TOS that has clauses which stipulate when the license or TOS can be revoked changed or revoked. |
Exactly which individuals born in the United States are not subject to its jurisdiction? According to federal regulations, individuals born to foreign diplomats who are on the Blue List are not subject to the jurisdiction of the United States and thus are not US citizens at birth. But what would happen in the case of a child born in the US if One parent is a foreign diplomat, and the other is a US citizen? One parent is a foreign diplomat, and the other is a lawful permanent resident? One parent is a foreign diplomat, and the other has some non-diplomatic status such as F-1 student? (Aside: The Canadian Citizenship Act is much more explicit. A person born in Canada to a foreign diplomat parent will acquire Canadian citizenship at birth if the other parent is either a Canadian citizen or permanent resident [link].) | As long as they have diplomatic immunity, they don't have a residency status. If either parent didn't have diplomatic immunity, then the child is a subject to the jurisdiction and they become a citizen at birth. The short explanation with the reasoning can be found on the uscis website. Namely Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.” and If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen. | Short answer: You find a country who is willing to recognize you as stateless, and issue you travel papers. At that point you can enter the U.S. by applying for a visa. The USA really does not want to create stateless people. They are laboring diplomatically to eradicate statelessness. As such, the State Department will want to see that you are secure in another country's citizenship before they will repudiate your US citizenship. Otherwise, they are very reluctant. The State Department will insist you do the repudiation in a foreign country at a US embassy. If you want to become stateless with your feet in the United States, you'll likely have a legal fight on your hands. Regardless, it will cost you $2300 in filing fees (plus, all your back taxes) :) At that point, you become the problem of the foreign country. You aren't anyone to the USA, and you have to apply for a visa just like anyone else. When a stated person enters the US, immigration's pivotal concern is whether you'll leave the US consistent with the terms of your visa, i.e. return to your country of citizenship. Being stateless increases this risk, and being a USA expat increases that risk further, since you are so familiar and comfortable in the US. If you found yourself in the kind of piccadillo that would qualify a foreigner for refugee or asylum status, the US would consider it just the same as others, since those statuses include right of residency. Some countries manufacture stateless people, e.g. Syria will not grant citizenship to a non-Muslim born there. | There is arguably a legal right to non-citizen nationality either by statute or under customary international law, but the U.S. Constitution does not afford such a right and Article I, Section 8 grants Congress broad authority over the governance of such territories and over immigration and naturalization (i.e. to define citizenship beyond the minimum established in the 14th Amendment). | This is a law of American Samoa. American Samoa is not a state of the US. American Samoans are not automatic citizens under the 14th Amendment. The 14th Amendment says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". | It is well known and often repeated that China does not tolerate dual citizenship, except in the case of its citizens who have right of abode in Hong Kong or Macau. The Chinese Nationality Law is clear about this: Article 3. This is not true and you misunderstand what Article 3 says. Article 3 says (depending on your translation): The People's Republic of China does not recognize dual nationality for any Chinese national. The only way I think this can be interpreted is that, if a person were to statutorily have both Chinese nationality and foreign nationality under each country's respective laws, then the PRC would only recognize their Chinese nationality, and not recognize their foreign nationality. This article does NOT mean that nobody can have dual nationality under the law. In order to "recognize" or "not recognize" something, it presupposes that the thing exists. If nobody had dual nationality under the law, then this article would be meaningless, as there would be no point to "not recognize" something that nobody has anyway. This article only matters to someone who truthfully has dual nationality under PRC and foreign law. Given someone who truthfully has dual nationality under PRC and foreign law, since dual nationality is not recognized, which nationality is recognized and which is not? Since Article 3 says "Chinese national", it implicitly recognizes the person's Chinese nationality, which means it's the foreign nationality that is not recognized. (This, by the way, is essentially identical to the US position -- the US only recognizes the US nationality of a dual national.) It is true that true dual nationality of the PRC and a foreign country is uncommon, but that is mainly due to Articles 9 (which says a Chinese national naturalizing abroad automatically loses Chinese nationality) and 8 (which says that a foreign national who naturalizes to get Chinese nationality shall not retain foreign nationality). It is not because of Article 3. By the way, when I say someone who has dual nationality of the PRC and a foreign country, it does not include a Chinese national who has naturalized abroad, who is subject to Article 9 but continues to use/obtain PRC passports and/or continue to exercise the rights of a Chinese citizen. De jure, this person no longer has Chinese nationality, even if the PRC government is not aware of it yet. When discovered, they will be treated as only a foreign national, and that is consistent with my explanation, since this person does not de jure have Chinese nationality. Any documents issued to them reflecting Chinese nationality after their foreign naturalization, were issued in error. Article 3 is irrelevant for such a person since there is no question of "recognizing" dual nationality for a person who does not legally have dual nationality. So who are the people who truthfully have both PRC and foreign nationality? There are several cases. First, as you noted, this is possible for many people in Hong Kong and Macau, due to explanations of the PRC nationality law for those territories. For example, in the one for Hong Kong, items 2-4 say that Chinese of Hong Kong are Chinese nationals despite holding foreign passports. They do not have foreign consular protection while in Hong Kong and the rest of China, (unless they choose to apply for change of nationality to foreign nationality, effectively renouncing Chinese nationality). It says their foreign passports can be used for traveling to "other countries and territories" (implying that they cannot be used to enter Hong Kong or the rest of China). This supports my explanation of Article 3 above, that the PRC only recognizes the Chinese nationality of a dual national, and does not recognize their foreign nationality. Another case is a child born in China to one Chinese citizen parent and one foreign national parent who meets the conditions to automatically pass on foreign nationality to the child at birth according to that foreign country's law. According to Article 4, a child born in China to at least one Chinese citizen parent is automatically a Chinese citizen, without regards to whether the child also has foreign nationality at birth, or anything else. Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. And finally, we get to the case you mentioned, for children born abroad. Article 5 deals with children born abroad, and it says that a child born abroad to at least one Chinese citizen parent automatically has Chinese nationality, except when at least one parent is a Chinese citizen who has settled abroad, AND the child has foreign nationality at birth, in which case the child will not have Chinese nationality. Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. Because they wrote it with an "and", it means that children who had foreign nationality at birth but where neither parent was a Chinese citizen who has settled abroad, will have Chinese nationality at birth. If they had wanted to make it so that children born abroad could not have both Chinese nationality and foreign nationality at birth, they could have written it with an "or", but they didn't. Unlike some other countries, the PRC nationality law does not require that children born abroad be registered at a PRC consulate with a declaration that the child does not have a foreign passport in order to get Chinese citizenship. Nor does the PRC nationality law provide that dual national children lose their Chinese nationality if they don't renounce foreign nationality at a certain age. Since you specifically ask about children born in the US, they will all have foreign nationality (US citizenship) at birth (ignoring cases of children born to diplomats). So it only depends on the other condition (whether at least one parent was a Chinese citizen who has settled abroad). The PRC government interprets "settled abroad" as having foreign permanent residency (e.g. US green card). So assuming the only relevant foreign permanent residency is the US green card, here is a table summarizing whether a child born in the US has Chinese nationality at birth, based on the status of the parents: Chinese citizen without green card Chinese citizen with green card non-Chinese citizen Chinese citizen without green card Yes No Yes Chinese citizen with green card No No No non-Chinese citizen Yes No No The current procedure at PRC consulates (both in US and in other countries) is that they issue PRC Travel Documents (旅行证) instead of PRC passports to children born abroad, who have both Chinese nationality (as determined by Article 5) and foreign nationality at birth, who wish to travel to China. These Travel Documents are passport-like booklets, are valid for 2 years (can be re-applied for again after expiration), and contain a Chinese and an English info page, both of which say, among other things, The bearer of this Travel Document is a citizen of the People's Republic of China. [...] Having a US passport does not preclude the issuance of the Travel Document. In fact, the consulate expects the child in this case to have a US passport and requests the US passport information as well as the physical US passport during the application process, if the child already has one. The consulate clearly has no problem recognizing the child as a Chinese citizen even if they know that the child has US citizenship and a US passport. This Travel Document can be used to enter and exit China. When exiting China, the child would present both the PRC Travel Document and the US passport at PRC exit controls. The border control officer will recognize, upon seeing the Travel Document, that this is the routine procedure for a dual national child, and it will not lead to problems like when both PRC and US passports are presented (even though both the PRC passport and PRC Travel Document say inside them that the bearer is a citizen of the PRC). As you can see, having a US passport is not incompatible with the PRC's recognition of the child's Chinese nationality. If the PRC Travel Document is lost or expires while in China, the child can get a PRC Entry/Exit Permit (通行证), which again can be used with the US passport when exiting China with no problems. When back abroad, the child can again apply for a PRC Travel Document at a PRC consulate the next time they need to travel to China. Although it is possible for the child to be added to hukou while in China, the child should not apply for a PRC passport, as it seems this will cause problems when exiting China, as you mentioned. The child should stick to Chinese Travel Documents and Entry/Exit Permits. I have heard rumors that the consulate might no longer issue PRC Travel Documents to such a dual national child after turning 18 (perhaps forcing the child to renounce either PRC or foreign nationality), but I haven't seen any official source on this, and the PRC nationality itself does not mention any need to do anything at any particular age. As for renouncing US citizenship, US law requires that loss of US citizenship can only occur when the person intends to relinquish US citizenship, and young children are considered to lack sufficient maturity and understanding of the meaning of renunciation of citizenship, and be too much under the influence of parents, to have the necessary voluntary intent. The Foreign Affairs Manual presumes that an age of at least 16 is generally necessary to renounce US citizenship. See 7 FAM 1292(i)(2): Voluntariness and intent: Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have. Even in the absence of any evidence of parental inducements or pressure, you and CA must make a judgment whether the individual minor manifested the requisite maturity to appreciate the irrevocable nature of expatriation. Absent that maturity, it cannot be said that the individual acted voluntarily. Moreover, it must be determined if the minor lacked intent, because he or she did fully understand what he or she was doing. Children under 16 are presumed not to have the requisite maturity and knowing intent; | More or less, but this manual gives details on the "less" part, as interpreted by the US State Department. See The 1963 Vienna Consular treaty for the general agreement. Facilities derive immunity from their relationship to consular personnel and their duties. That means that in some cases, a consulate has no immunity. Diplomatic agents (such as ambassadors) and their families enjoy total immunity. However, some staff only enjoy "official acts" immunity. Immunities only apply to foreign nationals of the sending nation, and not to citizens or permanent residents of the US. Quite often, nations have consular offices outside the capital manned by locals with an interest in the sending nation, and they may carry out business in their own home. The individuals do not have regular consular immunity, they have only official acts immunity, and the premise where they do their business is not unsearchable, unless the premise is used only for official consular business (thus, not their own homes). Under the Vienna treaty, "consular premises" is a term of diplomatic art, referring to a subset of consulates, as the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post An honorary consul may uses his home for conducting consular business, but it is not immune from search (it is a de facto consulate, but does not qualify as a "consular premise" in the sense defined by the convention). Since such a consul does not enjoy absolute immunity, his residence is not un-enterable, as would be the case for an ambassador or regular consul. | Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? This is an unresolved issue. Some scholars believe that to be a "natural born citizen" you have to be a citizen on the day that you are born. Other scholars believe that a "natural born citizen" is someone who gains citizenship by a means other than naturalization. No binding precedents resolve the issue because the phrase "natural born citizen" is used nowhere else in the law besides qualification to be the President of the United States, and the issue can't be resolved until someone is purportedly elected because there isn't an actual case or controversy until then, and there haven't been an examples that have come up that have tested this issue. My personal guess is that the courts would make every effort to find that someone who has been elected by the citizens of the United States as President, despite the inevitable debate by the public over someone's qualification as a "natural born citizen" during the campaign, is eligible to hold that position, because to do otherwise would seem massively undemocratic. So, I suspect that retroactive citizenship at birth would be held by the courts to make someone a "natural born citizen" and eligible to serve as President. Then again, I could see this issue being resolved by the courts on basically partisan lines too with conservative judges tending to hold that a liberal candidate was ineligible for office, and liberal judges making the opposite conclusions about a liberal candidate. This is one fair reading of what happened in the case of Bush v. Gore. Would the answer depend on whether the person had been naturalized before 1994? The citizenship by naturalization is irrelevant to whether you have another grounds for claiming citizenship that was present at birth or did not arise from naturalization. On October 25th, 1994, the naturalization became redundant. | I have never heard of anything like this. I guess when you say "registered in that place" you are referring to Russian resident registration. The US doesn't have such a system, so this sort of certificate wouldn't even make sense. |
Can I become a US citizen if my mother is a US citizen? I'm looking to get my US citizenship, and I am wondering if it is possible to obtain a U.S. citizenship because my mother is a citizen and was so when I was born. I am looking at This Page but I am confused about a couple of things. I believe the following applies to me: In a general, a Child Born Outside the U.S. is a Citizen at Birth when the Child’s Parents Are Married to each other at the Time of Birth IF... One parent is a U.S. citizen at the time of birth and the birthdate is on or after November 14, 1986 AND... The U.S. citizen parent had been physically present in the U.S. or its territories for a period of at least five years at some time in his or her life prior to the birth, of which at least two years were after his or her 14th birthday. Does November 14, 1986 refer to the birthdate of the parent or the birthdate of child (me)? Assuming this applies to me, does "citizen at birth" mean I am already technically a citizen, or would my parent's have had to fill out some paperwork when I was born? The Page also mentions the age of 18. If my parents didn't file the paperwork for me to become a citizen at birth or before 18, does that mean it's impossible for me to get a citizenship through this method since I am over 18? I was born in Canada and have a Canadian citizenship. I'm not sure if that makes any difference. | "the birthdate is on or after November 14, 1986" refers to your birthdate (the birthdate of the parent is irrelevant). "Citizen at birth" means that, if the conditions describe hold, the person has been a citizen ever since they were born, and there is no requirement for parents to register their citizen children as citizens. Mention of age 18 is relevant in case a person's parents are not married to each other at the time of birth. A person who is a citizen at birth does not (technically) have to apply for a Certificate of Citizenship but if you want to document your citizenship, you have to file that form (but simply applying for a US Passport is much simpler and more useful). Since you are at least 18, you can file it on your own, otherwise the U.S. citizen parent or legal guardian must submit the application (which is another way that 18 becomes relevant). | No, it means the following are eligible: Natural born citizens Citizens of the United States, at the time of the adoption of the constitution The second part was to allow people that were citizens of the US in 1788 (but were obviously not "natural born citizens", since the US didn't exist when they were born) to be eligible for the Presidency. Check out Alexander Hamilton's draft of this clause: No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States. | A US citizen who resides abroad can register to vote in federal elections in the last state or territory where they resided in the US. So in your example, the US citizen who was resident in Puerto Rico, and who moves to Canada without first residing in any other state or territory, would register to vote in Puerto Rico. Since he is registered to vote in Puerto Rico, he does not vote in an election for choosing presidential electors since Puerto Rico doesn't have any presidential electors. Only the 50 states and DC have presidential electors, and each of them chooses the electors based on elections by people registered to vote in that state (or DC), so he would have to be registered to vote in some particular state or in DC to participate in an election for choosing presidential electors, but he does not qualify to register to vote in any of the states or DC, because he was not resident there last. Yes, US citizens who are neighbors in Vancouver, Canada, one of whom is a former New Yorker and the other of whom is a former Puerto Rican, would be registered to vote in two places (one in New York and the other in Puerto Rico). They would get two different ballots, and may even have different dates for elections (for elections that are not held on the November election day). They would have different offices to vote for, and, in the case of the ballot for the November election in a presidential election year, the New York ballot would contain an election for a slate of presidential electors, while the Puerto Rico ballot would not. | A US passport does not list height or make claims about ethnicity: what you have is a birth date and state, and photograph. A passport is taken to be strong proof of identity. You may apply for a new passport (turning in the old one), with a new photo. It may be necessary to provide "documentary evidence of identity" by appearing with an identifying witness (citizen or permanent resident) who has known you for 2 years and fills in an affidavit (both of you would need to bring some ID as well, so let's assume you also have a valid driver's license). It would be at the discretion of the accepting agent whether to believe that you and the "old" you are the same person. In the fictitious scenario, the person could videotape themselves undergoing the transformation, but ultimately, if one is sufficiently off the grid, then proving identity could be very difficult. | england-and-wales An adopted child can apply for their birth records once they are 18 years' old. There are different processes for doing this depending on the particular circumstances, and if they were adopted before 12 November 1975 they will need to attend a counselling session with an approved adoption advisor first. Source (detailing the different processes) Legislation | There is a form here which you submit to USCIS – immigrated not before 1906, not for a living person. However, to apply for citizenship, one must have been a permanent resident for 5 years, so given the date on the card (and assuming your father did not marry a US citizen), he could not have been naturalized before departure in 1959. | Legally your daughter is a US citizen How you go about demonstrating that is not a legal question, it’s a question about bureaucratic processes and off-limits for this site. | 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. |
Were people born in the Confederacy eligible to run for president? Since the Confederacy existed for about four years, presumably some number of babies were born there during that time. Technically, those people were not born in the United States. When those people reached the age of 35 (which would of course be after the war was over), were they eligible to run for president of the US? | Technically, they were born in the United States, at least under US law, and the law of any existing nation. The United States never recognised the Confederacy, nor did any other country. There are occasional wingnut groups who declare themselves separate from the United States, but a simple declaration of secession does not create a country – you also have to win the war. The Supreme Court affirmed that the secessionist states were always an integral part of the Union in Texas v. White, 74 U.S. (7 Wall.) 700 (1869). Since they only had jurisdiction if Texas was a state at the relevant time (some time on or before January 15, 1865), by accepting the case, they implicitly affirmed that Texas was part of the Union. Further, in the judgement itself, they explicitly stated that the acts of secession of not just Texas, but every rebel state were “absolutely null”. | First off: if someone in DHS is telling you this, your first, best, and really only option is to get advice from an attorney specializing in family law. Regardless of what we tell you here, without representation you will have a hard time with officials who believe otherwise. That said: I don't find anything exactly matching what you describe. The Uniform Adoption Code (AR Code § 9-9-200 (2014)) does not specifically address sibling groups at all. Adoptive parents do have rights to streamlined adoption of a sibling of a child they already adopted, under the Streamlined Adoption act (AR Code § 9-9-701 (2014)). In the section related to Placement of Minors (AR Code § 9-28-108 (2014)), however, is likely what the case worker was describing. Subsection (b) (2) reads, in part: (2) When it is in the best interest of each of the juveniles, the department shall attempt to place: (A) A sibling group together while they are in foster care and adoptive placement This is discussing foster care and adoptive placement, of course. I think the key wording is When it is in the best interest of each of the juveniles; that would be your argument (that it is not in their best interest). I see a 2011 case, for example, discussing a sibling group of four children not entirely different from yours; while there are not children with special needs, there is a child with major behavioral issues, and one of the (three) foster parents is considering adopting one of the children and "would be open" to considering others, but clearly isn't expecting to be required to do so. Note: I am not a lawyer, and particularly not one specialized in family law This is based on my reading of the 2014 Arkansas code. That is almost 2 years old. That said, I don't see any news articles or similar discussing limitations in sibling group placement in Arkansas recently, which is the sort of thing that usually would get attention. That said, this has also been something that HHS has been trying to encourage states to push for – more sibling group placement and awareness of sibling group issues – so it's entirely possible something could have changed. | The US election authorities already record who voted in which elections, and that information is a matter of public record. When I was active in politics some years ago, and at one point a candidate for local office, my campaign and others routinely purchased from the state a "voter list" for each district. This list showed each registered voter, with that person's name, address, age (to the nearest year), party of registration if any, and in which of the last several (I think 10) elections that person had voted. These were delivered in electronic form, and could be sorted and analyzed in whatever way the purchaser pleased. I understand that similar lists are available in every US state, I think from a legal point of view, a picture would reveal no more information than these already-public lists, and since they have not been successfully challenged as unconstitutional, I don't see that the pictures would be subject to such a challenge, unless it could be shown that taking such pictures had a chilling effect, that is, that taking them made certain categories of voters, such as minority voters, less likely to vote. I am not aware of any specific federal or state laws on taking pictures of voters. But if there were a chilling effect, that would probably violate the Equal Protection Clause of the Federal Fourteenth amendment. That clause has been central, or at least significant, in most challenges to voter restrictions, both successful and unsuccessful. But since, as far as I know, no state or other US jurisdiction has tried this, there is no caselaw on point, and one cannot be sure how such a case would be resolved. Whether this would be good policy is a very different question, and where it would be politically acceptable is yet another. Neither of those are on topic here on Law.se, although they might be on Politics.SE. | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | The general rule is that the ability to have a valid divorce has nothing to do with where the marriage was entered into, or the citizenship of the parties. Usually, any jurisdiction with sufficient contacts with either member of the couple has jurisdiction to enter a divorce. Hence, generally, people get divorced in the place that they live. The problem in this scenario is step 5. I think that it is highly likely that the U.S. Embassy is simply wrong, unless there is some serious irregularity in step 4. An annulment after four years of marriage, as opposed to a divorce, is highly irregular and would not be allowed in the vast majority of jurisdictions. But, maybe there are facts and circumstances that make it otherwise. This fact pattern, while it on one hand sounds like a "for a friend" question based on real facts, also sounds like some important details that may be outcome determinative have been omitted. | Why has this never been interpreted by SCOTUS? It has never been interpreted by any court, because the interpretation you're advocating is nonsensical, and nobody has ever tried to advance it in any court. Therefore, no court has had an opportunity to rule on it. Congress, however, has (at least implicitly) interpreted this clause to mean that all natural-born citizens are eligible to be president if they also fulfill the other requirements, regardless of when they were born, so that is the prevailing interpretation unless someone manages to challenge the interpretation either before congress or in a court. If such a challenge is made then there will be an explicit ruling. | It is almost totally legal. Federal law prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status, and Ohio law (ORC 4112) does extends the prohibition to ancestry and military status. So if the reason is "she's (not) a soldier", it's illegal, otherwise it is legal. | I think your confusion stems from assuming there is a universal definition of "minor" across laws, jurisdictions, and rights. 18 is the age of majority for the purpose of voting (26th Amendment), the death penalty, labor law (although age 14 is the minimum age for employment), and many other laws. But, 21 is the age required to buy alcohol in all states (by their own choice in order to receive highway funding). Nothing requires the age of majority to be consistent across different sections of code or statute or between jurisdictions (except when constitutionally prescribed, like voting age, or minimum age for certain elected offices). There are many counties that prohibit purchase of alcohol at any age. The age of consent varies between 14 and 18 across US states. Age 65 is a threshold for certain tax credits. You need to be 25 in order to be a member of the US House of Representatives, 30 to be a Senator, 35 to be President. You are only protected from age discrimination if you are 40 or older. Here is a rough list of various age-based thresholds for various rights, privileges, or responsibilities in the US. (I havn't vetted this whole list, and some are clearly satire, but the ones I know about are consistent with my understanding.) |
When Is it OK to Break a No-Contact Order? Location: Indiana, USA Background: A friend of mine has a temporary no-contact order placed against him for his girlfriend. His girlfriend didn't want the order, but the state placed the order anyway. She is still allowed to message him. Being a good egg, he didn't message her back and has followed the law waiting for his pre-trial agreement to run out and the order to lift. Concern: She sent him pictures - empty bottles of vodka and her bleeding wrists - and some messages something to the effect of I hate my ****ing life. I just want to end it. This is a pattern of hers that really messes with him (my friend) so he broke the order to console her, then she proceeded to tell other people (her friends and family) that he broke the order. Question: Does the law or judge ever make exceptions for events such as this? A deliberate breaking of a court order, but with good intentions? Or would he be facing the same punishments if word makes it back around to the court? Edit: I understand Necessity in Criminal Law may come into play here, but I'm unsure if this is a strong enough argument. | Does the law or judge ever make exceptions for events such as this? From a legal standpoint, your friend is at high risk of being found in contempt and thus be sentenced to imprisonment. Your friend should have called 911 rather than violate the protection order under pretext of consoling her. Asking from the standpoint of whether judges ever do this or that is pointless. The answer would be "yes, they make exceptions" even in scenarios which are plain aberrant. However, a judge's departure of the law quite often is not a reliable standpoint for understanding the law, but the result of his/her ineptitude and unfitness for judicial office. | You seem to have put a lot of thought into this - which is good. However, the short answer is: There is no legal solution. To address your points: And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault). Yes (at least in most jurisdictions). And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends. Here, it depends. What you describe is indeed what happens often, but not always. Rules vary a lot, and change, but there is an increasing trend to have joint custody in case of a divorce. The details vary, but joint custody can extend to joint physical custody or shared parenting, where both parents take turns looking after the child. This is possible in the United States. In practice, in case of separation the parents will have to work out a parenting plan - ideally together, or in court if needs be. What the result is will depend on circumstances, and on the opinion of the court what is in the children's best interest. This may or may not mean joint physical custody. Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility. Again, this depends. For example, with joint physical custody, there may be only small or no child support payments if both parents care for the children about equal time. And even if child support is due, there may be no alimony payments if the mother can work (even if she chooses not to). Again, a lot depends on the specific case and jurisdiction. Also, while it is not possible to reduce child support in a pre-nup (because theses payments belong to the child), you can (to some extent) limit alimony payments in a pre-nup. Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me? Here we are leaving legal territory. The short answer is: There is no way to ensure this, certainly not using legal means. The only good approach is to get to know your partner first, and make sure you have similar views on how to approach parenting. If she wants to be a stay-at-home mom, and you want to share both work and parenting (such as in a shared earning/shared parenting marriage) then you need to think (and speak) about how to reconcile these views. You may find that you are just not compatible on that point. Then take appropriate consequences. To put it plainly: In my opinion, if you do not trust your partner to respect your wishes on parenting together, she is probably not the right person for you to have children with. | Disclaimer: I don't know the specific regulations of New Jersey, so this mostly describes the general practise in the United States. However, it seems the rules are roughly similar in all states. During a divorce proceeding the court ordered the father to pay 1xxx a month in child support through the court/state supervision arrangement. This is common in the United States - child support payments are usually not sent directly from one parent to the other, instead the paying parent sends money to a government agency (or has it taken from their wages). This agency is usually called State Disbursement Unit - though in New Jersey the agency responsible is the New Jersey Family Support Payment Center (NJFSPC). So the father was probably ordered to pay via NJFSPC. Will it harm the case if the mother retrieves the money? assuming she notifies the court or her attorney? Or should she refuse the money? No, this should not harm the case. As you write, the mother should definitely inform the court and / or NJFSPC about the payment (the lawyer should know how to handle this). If the court order requires the father to pay via NJFSPC, paying directly to the mother is already a violation - so the father is likely not acting legally. While the accepted payment will likely count against the child support owed, it will not reduce the claim for child support in any other way - in particular it does not invalidate or reduce the court order to pay via NJFSPC. | Usually, an order would specify what happens. There is no hard and fast rule in this situation. | In the United States (and probably any common law country) a judge may find a person in criminal or civil contempt of court. One is in contempt of court if they refuse to follow the orders of the court. If one thinks the orders are wrong or improper the proper remedy is to ask for a stay of the order or file an emergency appeal and hope for a stay there. If no stay is received comply with the order until the appeal is heard. If we assume one does not follow the orders of a civil court, then that person will most likely be found in contempt of court. Originally this person will most likely receive a civil contempt charge, which will result in fines every single day the person is not in compliance with the order of the court. The [BC Supreme Court rules at 22-7][1] defines the parameters for failure to comply with court orders. At rule 22-8, it states that a person may be apprehended if they are found in contempt: (4)A person who is guilty of an act or omission described in Rule 12-5 (25) or 22-7 (5), in addition to being subject to any consequences prescribed by those rules, is guilty of contempt of court and subject to the court's power to punish contempt of court. (5)If the court is of the opinion that a person may be guilty of contempt of court, it may order, by warrant in Form 115 directed to a sheriff or other officer of the court or to a peace officer, that the person be apprehended and brought before the court. As an alternative type of sanction for civil contempt, the court can also have the person jailed until they comply with the order. In the United States, there is generally no limit on how long you can be jailed for civil contempt (the record is 14 years), and you have substantially lower due process protections (for instance, you don't have a right to a jury); both of those are because you can free yourself at any time by simply complying with the order. The court can also impose criminal contempt sanctions. Civil contempt is to get you to obey the order; criminal contempt is to punish you for disobeying. Criminal contempt sanctions are unconditional; it's a crime like other crimes, and a criminal sentence looks like "$50,000 fine" or "30 days in jail" rather than "$1,000 per day until you obey the order" or "jail until you obey the order." [1]: http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20C%20--/Court%20Rules%20Act%20[RSBC%201996]%20c.%2080/05_Regulations/17_168_2009%20-%20Supreme%20Court%20Civil%20Rules/168_2009_03.xml#rule22-7 BC Supreme Court rules, rule 22-7 | If they really ordered it, they entered into a contract, and you have a claim against them for damages suffered because the contract was breached. This would be a civil claim, not a criminal claim, in the Netherlands. However, if you're delivering an order that was sent anonymously, you have no way to prove that the person at the door is the one who ordered the food - and the onus would be on your to prove that it was. It could become a criminal act under a number of laws ("oplichting", "fraude", etc.) if intent can be proven but that's not easy - and you first have to get the police/public prosecutor interested in the case. It's quite comparable to someone ordering in a restaurant and not paying the bill, which is notoriously hard to prosecute criminally in the Netherlands. (Search for "eetpiraat" - dinner pirates) As a restaurant, you usually can only try to enforce a civil claim through the civil courts. | It's basically a question about the rules of court. While I can't say for sure about this case, a scheduled court date that isn't canceled, even in a stayed proceeding, is to be held. Non-appearance of a party or their representing lawyer is a bad idea as it might incur contempt of court. Such a court date can be used to (once more) inform the court and other parties of the stay. Paperwork that might have been delayed in postal service is then given over under the eyes of the judge, pretty much ensuring that the other parties did get them and nobody may cry foul play. Possibly the meeting can be used by the attorney to reschedule other court dates or depositions if the stay has a specific time length. Also note, that not all stays are for the whole case but might only rule to stay parts of it: a divorce case that includes a case for visitation of a child might stay the visitation part till a related case about where the child will live in the future is solved, but continue on the parts that try to sort out the divorce itself. Such non-stayed proceedings do proceed even under the stay of some others. | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. |
Subsets and Splits