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Is it illegal to cut out a face from the newspaper? Let's say there is a photo of a group of people in the newspaper. This photo is copyrighted by the newspaper publisher. By cutting out a single face from this photo I am modifiying the original work. I think it's not allowed to modify a copyrighted work. So it should be illegal. But because it is so ridiculous I am not sure about it. To keep it simple I am asking for an answer that applies to the U.S. | Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated. You can burn a book and shred a newspaper. Neither of those actions is making a copy. Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue. | Social media platforms are not publishers under UK law (at present), as such, they are not legally responsible for the content they host providing that there is a mechanism for alerting them to infringing material and that, when alerted, they remove it. As to "why", that is a political question. | 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. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | Copyright in a photo belongs to the photographer, not to the subject. A picture of S (the subject) is not S's property in any sense, unless the photographer has given or sold it to S. If the photo was linked to information about S, it might be personal Data under the GDPR (or UK-GDPR) if so, S could request erasure, but various exceptions might apply. But even then S would not aquire the right to distribute or copy the image, or any of the other parts of copyright. | The Mugshot was most likely made by a state employee in the course of their work. Employees don't get a copyright for works from their work but their employers do so generally, as that is work for hire. However, the government is different: The US government specifically can't have any copyright from works of its employees. They are public domain. 17 USC 101 & 105 State governments are a little different. Technically they could be copyrighted unless they are laws and edicts, but states might disclaim such: Arizona employees make Arizona copyrighted works. California works require public access and are public domain unless the state specifically authorizes a work to be copyrighted. Florida and its employees can't have copyright in government works unless they specifically make a law that carves a work out from this beforehand. Indiana employees make technically copyrighted works, but they can't restrict use by obtaining a license or fee in any way under IC 5-14-3, making them quasi-public domain. A public domain image can be done with whatever you want. No strings attached, no rights of rightsholders violated. However, not everything made on behalf of the government is made by the government: Contractors do have the copyright in the first place, and then can assign it to a government, which does not make a work public domain. | It's questionable, because if you design your own visual interpretation of the T-Shirt then it isn't necessarily the one from the book and thus your art has it's own copyright. However, if the current Copyright Holder and Possible Trademark owner is selling the shirt it could be an issue because yours is not official but being sold as one. If you're making it for non-sale and just cosplay, than you have a better arguement. | A figurine, or other artwork, that is clearly based on the published images, or on the published description, of a fictional character in a copyrighted work would be a derivative work. To publish, display, sell, or distribute such a work without permission would be copyright infringement, and the copyright holder could sue for damages. Whether something is a derivative work is a question of fact, and the details can matter. In general, the more vague and generic the fictional description, and the more original elements not derived from the fiction are included in the work, the less likely the new work is to be held to be derivative. But any significant element clearly taken from the previous work may be enough to make it derivative. |
Violation of disabled person's 4th amendment civil rights Video for context: https://www.youtube.com/watch?v=k5yNlwCQpO0&list=LL&index=1 Jim Hodges was walking down the street from jury duty. A female police officer stops Jim because she believed he was carrying a weapon in his back pocket. Officer 1: "Whats is this in your back pocket?" Jim: "It's a navigational aid. What's the problem? Are you a Tyrant?" Officer 1: "Yea, I am actually. What's your name and DOB?" Jim: "I don't have to answer that. Do you have reasonable articulate suspicion?" Officer 1: "I do" Jim: "What is your suspicion?" Officer 1: "It looked like you are carrying a gun in your back pocket. I'm stopping to insure you are carrying it properly" Jim: "Well have you insured it is a firearm?" Officer 1: "No you keep turning so I can't see it. You don't have to be a dick to me" Jim: "Well, you are being one to me" Jim pulls out his fold-able walking cane (He is legally blind) from his back pocket DISPELLING the concern about carrying a gun. She proceeds to ask him for ID and he refuses to give it. The initial officer's sergeant shows up and he demands ID. After refusing a second time, he is handcuffed. They start searching Jim and he advises them that he does not consent to a search of his person. They reach into his pocket, pull out his ID and run it. His ID comes back clean. Officer 1: "Was that hard?" Jim: "It going to be for you". The sergeant throws his hands up in disgust to what he hears. "Arrest him for resisting". Jim was charged with "resisting arrest without violence". All Charges were immediately dropped. Officer 1, Was suspended without pay for 7 days. The Sergeant was demoted & suspended without pay for 7 days. Relevant Florida case law: Macon v. State (Fla app. 2003): Allows resistance of unlawful arrest without violence Questions: Were Jim's rights violated? Is there a aggravated violation due to Jim being legally disabled? Are Police allowed to search a detained persons pockets for merely a detention after being advised they are not allowed? | I don’t believe there is an aggravated violation due to his disability, but it is quite likely that a court will find that to be a violation of his rights. Florida’s stop and frisk law 901.151(2) would indicate the original stop and temporary detention was valid, but once the item in his back pocket had been identified, 901.151(3) requires that the detention be immediately terminated. After the identification, he was no longer being legally detained, it was thus either an illegal detention and a violation of his 4th amendment rights or a consensual encounter under Florida law, and if consensual no requirement to Id. But just because it was a violation of his rights doesn’t mean that he will automatically win a lawsuit if he brings one. Jones v. State, 584 So.2d 190 (Fla. 5th DCA 1991) holds that you can’t be charged with resisting arrest without violence (aka 843.01), when the arrest itself is unlawful. I suppose Hodges could be charged with “obstructing” which is covered by the same statue, but more ambiguous than “arrest”. | None The First Amendment says: Congress shall make no law ... abridging the freedom of speech, ... Jack has exercised his freedom of speech and has not been fined, imprisoned or otherwise punished by law. Freedom to speak does not ensure freedom from consequences We can use your example of anti-LGBTQ comments or we can substitute any other thing you like: anti-veteran, pro-veteran, anti-Trump, pro-Trump, anti-Ice Hockey, pro-Ice Hockey or, of course, pro-LGBTQ. Jack can say what he likes on any of those subjects and anybody else can take offence to them and act accordingly. In terms of voters in an election - this the ultimately epitome of free speech, they can vote for who they like for whatever reason they like. In terms of people serving on a board, they voluntarily restrict their freedom to speak because of their duty to the organisation they represent. Whatever their views in private, by agreeing to take on the duty they agree that they will act in accordance with the ethics and ethos of the organisation in public. If they don’t, they can be disciplined; usually for the catch-all offence of bringing the organisation into disrepute. Providing the organisation follows its internally mandated procedures and affords natural justice (I.e. it follows due process), no court will overturn its right to act according to its principals. | I will only offer a general answer as I have no desire to enter the quagmire of potential sub-judice bearing in mind the cited case seems to be under investigation according to the BBC article: The Metropolitan Police has apologised and referred itself to the Independent Office for Police Conduct (IOPC). The IOPC has since instructed the Met to conduct the investigation, but said if the complainant was unhappy with the outcome he would have the right of review. Beyond the requirements to pass various courses and achieving regular re-accreditation to carry a Taser - either as an Autorised Firearms Officer (AFO) or an Autorised Taser Officer (ATO) - there are no specific rules covering its use not already covered by the OP's links. The relevant legislation is no different from, say, using a baton, applying handcuffs, spraying PAVA, or just by getting hold of someone to stop them running away - it must be reasonable in the circumstances. There are three areas of law that permit a police officer to use force, Taser or otherwise: Section 117, Police and Criminal Evidence Act 1984: Where any provision of this Act — (a) confers a power on a constable [e.g. to make and arrest]; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power. Section 3, Criminal Law Act 1967: (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. (2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose. Common Law allows a person to use reasonable force to: (a) Defend himself from an attack. (b) Prevent an attack on another person [..] (c) Defend his property. All officers are trained to use the National Decision Model to assist with "dynamic risk assessment" when considering using force. If an officer cannot reasonably justify its use as being necessary and proportionate to a perceived threat then, in all likelihood, it may well be at the very least unlawful assault. What offences an officer commits, if any, will depend on the particular circumstances. | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. | This is the Texas law pertaining to self defense, which says that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force". Relatively little of the law pertains to firearms, and none of it restricts the right to self-defense based on whether you are a resident, or you are using your own firearm vs. a borrowed one. The one provision, subsection (b)(5), that refers to firearms is an exception whereby force is not justified, namely if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. (Sect. 46.02 is about conditions unlawful carrying of weapons, which covers such things as under-age carrying of certain knives, or not having control of your weapon, or being a felon in possession, etc. 46.05 is about machine guns, explosives, zip guns etc.) Deadly force is covered by a separate section, 9.32, adding the requirement that the actor "reasonably believe[] the deadly force [to be] immediately necessary". (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Note that "deadly force" is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury". Sec. 9.33 likewise allows deadly force to be used analogously in defense of a third person, and intreestingly, in 9.34(b), "A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency". In addition, deadly force can be justified in defense of property, per sec. 9.41, if you "reasonably believe[] the force [to be] immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property", and you may also use force to recover or re-enter the property (as long as the force is used "immediately or in fresh pursuit after the dispossession", and "the actor reasonably believes the other had no claim of right when he dispossessed the actor; or the other accomplished the dispossession by using force, threat, or fraud against the actor"). Sec. 9.42 then provides the possibility of justified use of deadly force in protection of property, if the force is immediately necessary (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. The short version is, if deadly force is justified in the particular circumstances, then deadly force with a borrowed weapon is justified. However, there are federal laws regarding non-resident aliens possessing firearms. 18 U.S.C. 922(g)(5)(B) says that It shall be unlawful for any person...who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))...to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce Under subsection (y) there are exceptions for licensed hunters, government representatives etc. You can also petition the Attorney General for an exception. The point is that federal law would make possession of a firearm illegal for most visa types: here is the list. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | It is not the court's function to educate you in the law and civil procedure. If you don't know then the onus is on you to learn at whatever cost that comes at in time and money. You have a right to justice - you don't have a right to zero cost justice. Just like having a right to bear arms doesn't entitle you to a free gun. | Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president. |
Is it perjury to report not being a parent if one has an adopted child? A person is on the witness stand. He has an adopted child under 18 but no biological kids. He is asked if he is a parent. He says no. Did he commit perjury? | In new-jersey, the offence of perjury is defined at 2C:28-1 of the Code of Criminal Justice A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. The Code also provides an opportunity for retraction. Assuming that the statement is material, whether answering "no" is perjury will depend on the witness's understanding of the question and his belief about the truth of the answer. If we assume that the witness understands the question to be about parentage in general, including by adoption, and if we assume that they know they have an adopted child, the answer "no" would be perjury. If instead we assume that the witness understood the question to be narrowly about biological parentage, or if they had forgotten at the time of their answer that they had an adopted child, then the answer "no" would not be perjury. | How does John protect himself from false claims (e.g. if the woman decides to roll down the stairs and blame him)? It would be very helpful if John has evidence of Oxana making false statements about him or others, and/or of Oxana threatening to make them. False accusations are common --and hardly ever prosecuted-- in a context of divorce. Examples of that are police reports (here and here) and excerpts of court proceedings that ensued during my father's (desisted) proceedings to divorce his 2nd wife (for additional excerpts, see also at 22:49-24:29). According to one of those police reports, my father's 2nd wife allegedly extorted him with "You'll have to pay me even until my ring!" (see page 15 of the pdf file) at the time they were going through the divorce proceedings he filed. Based on your description, it is not far-fetched that John could end up experiencing a similar mess as reflected in these police reports. Note: I don't know whether the poorly written quote from page 15 of the pdf was my father's translation of their interactions or whether he merely transcribed them to the police. Is there any downside to basically putting a camera in every room of the house except hers? John is strongly suggested to check Ohio law to avoid criminal charges. For instance, Michigan statute MCL 750.539d(1)(a) prohibits to "Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.". As a wife, Oxana would be reasonably entitled to that privacy in rooms other than --and including-- her room. Moreover, placing cameras in every room will not preempt false accusations. For instance, Oxana could still calumniate John by falsely alleging that he and the daughter went to a hotel to have intercourse. How do you find a good divorce lawyer? Before you even decide to retain a lawyer, see this report about New Jersey Family Court, where judges and attorneys allegedly are in the habit of dragging divorce cases for as long as it is profitable to the lawyers (obviously, at the expense of the parties pursuing the divorce). I don't really follow --and have never litigated-- divorce matters, but the multi-year divorce & custody case of Tsimhoni --formerly presided by Michigan infamous judge Lisa Gorcyca-- illustrates that NJ is not the only state where parties fall prey of legal malpractice. John should search for Ohio court opinions related to divorce matters and get acquainted with the applicable concepts, laws, and doctrines. For that purpose, one free, very useful resource is http://www.leagle.com/leaglesearch . Court opinions usually cite relevant statutes, whence John can get an idea of what laws are decisive on divorce matters. Is it reasonable to ask for some sort of record of past outcomes (are there standards to provide full and complete records like for financial companies)? It is reasonable, but no, there are no such standards at all. An attorney will most likely allege grounds of attorney-client privilege, the extensive time that would be needed to redact court documents, and possibly other excuses to deny John's request. Instead, John should go to the court in his county and study as many files of divorce cases as he can. A number of courts display some information of cases in their website. For example, some Michigan trial courts have deployed Odyssey (see here and here), whence a party could search from home whether an attorney has litigated cases in that court and how long they've taken. To see the contents of complaints/motions/etc., John can read them only in the courthouse, unless the county court has configured Odyssey (or its equivalent) to allow the public to read the contents from elsewhere. I don't know what progress Ohio courts have made on this. Regardless of the attorney's transparency to share with John any redacted records about his performance, another important variable is the judge. In this regard, see the next item. Is it reasonable to ask to pay way less if the lawyer fails to get certain terms? Unfortunately, that is neither reaonsable nor realistic. Just from meeting with John, it is impossible for the attorney to know aspects such as: whether John is truthful and the meritorious party; how much trouble Oxana will cause during the divorce proceedings (see the aforementioned police reports); how vexatious the opposing counsel will be; whether John will weaken or sabotage his case during an unforeseen situation or lose control as a result of exasperation; whether the case will be presided by a judge who follows the law (instead of incurring personal bias or influence trafficking); if the judge engages in influence trafficking instead of following the law, whether the attorney is in cozy terms with that judge; whether the opposing counsel is in even cozier terms with that judge; in the event that the matter is appealed, any of the three previous items may apply; whether the parties settle (or John desists for whatever reason). Given the multitude of unknown/uncertain variables and possible outcomes, no person (attorney or otherwise) could establish beforehand the semi-contingent pricing that you have in mind. Do the lawyers even do anything other than fill out paperwork? Yes, they do, but that doesn't necessarily mean that what their work is any effective. Even if the lawyer is diligent, the court might negligently fail to enforce its own orders. | The husband of the mother of a child is presumed to be that child's parent until that presumption is disestablished. In New York State, when a child is born to a married mother, a court may decline to consider DNA evidence when it is not in the best interests of the child to do so. In substance (although not exactly from a legal perspective), a failure to promptly contest the paternity of a child of a married mother gives rise to a de facto adoption. Article 5 of the New York Family Court Act in its definitions section, § 512, makes clear that it applies only to children born out of wedlock (and it too has an equitable paternity term at § 532). So, the statutory deadline in Article 5 allowing a child with no legally determined father to have a determination made at any time before the child turns age twenty-one does not apply to this case. Instead, this case is governed by New York Family Court Act, Article 4. New York Family Court Act § 418(a), which governs paternity cases where a child is born during a marriage provides that: (a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act. If DNA evidence is considered, the biological father will be determined to be the father, but if it is not considered, the husband will continue to be the legal father. A leading case exploring when the best interests of the child test prevails over DNA evidence from New York is In the Matter of Shondel J., v. Mark D., 853 N.E.2d 610 (N.Y. July 6, 2006). In a key passage, it states: Equitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 2 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division dismissing a paternity petition in which a mother sought to compel her husband to submit to a blood test as a means of challenging his paternity. We agreed with the Appellate Division that the mother should be estopped. As that court pointed out, the mother expressed no question about her child's paternity until some two and a half years after the child's birth. She had held the child out as her husband's, accepted his support for the child while she and her husband lived together and after they separated, and permitted her husband and child to form strong ties together. Estoppel may also preclude a man who claims to be a child's biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man. The rationale is that the child would be harmed by a determination that someone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy's biological father who did not seek to establish his paternity until more than three years after the child's birth, and who acquiesced as a relationship flourished between the boy and his mother's former husband, was estopped from claiming paternity. The courts "impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship" ( In re Baby Boy C., , 84 NY2d 91, 102 n [1994]). Finally, the Appellate Division has repeatedly concluded that a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity.2 Where a child justifiably relies on the representations of a man that he is her father with the result that she will be harmed by the man's denial of paternity, the man may be estopped from asserting that denial.3 . . . Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings -- to serve the best interests of the child. This continues to be good law. See, e.g. In the Matter of Thomas T. v. Luba R., 148 A.D.3d 912 (March 15, 2017) (paternity by estoppel established when child at age four did not know biological father's name and had established a strong father-child-like bond with mother's currently partner citing Shondel). Under the circumstances, if any of the three parties: the mother, the husband, or the biological father, sought to prevent consideration of DNA evidence after ten to fifteen years of marriage during which paternity was not denied, it is very likely that the Court would agree and not change the legal paternity of the child. In this case, the biological father would not gain legal visitation rights and would not owe child support, and neither the husband nor the mother would lose their presumed parent status, nor would they be entitled to child support. If the husband, mother and biological father mutually agreed otherwise, the paternity by estoppel argument might be overcome and any issue of support would be governed by the mutual agreement (although a guardian ad litem for the child might be appointed sua sponte by the Court and have standing to object to the agreement on behalf of the child notwithstanding the mutual agreement of the other three parties). This would terminate husband's status as a parent and entitle biological father to visitation. But, otherwise paternity by estoppel would prevail. Incidentally, this statute and case law position is constitutional. The U.S. Supreme Court has held that a man who conceives a child with a married woman does not have a due process right in establishing his paternity of the child, so any right that the biological father may have arises from statute and the common law, rather than from the U.S. Constitution. Michael H. v. Gerald D. (U.S. 1989). | It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal. | Police can lie However, in the United States they have to read you your Miranda warning (most other democratic countries have similar warnings): You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. They have told you everything they are required to tell you - effectively “we are not on your side.” After that, they can lie their asses off. Of course, they wouldn’t ask you for a DNA sample - they’d ask you if you’d like a glass of water. Then they’ll take the DNA from that. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | Based on the question, this was not perjury; if the officer did not review the footage, the fact that his testimony was in error indicates a mistake, nothing more. To even consider a perjury charge, the prosecuting authorities would need evidence that the officer knew the testimony was wrong when he gave it. You do not indicate the jurisdiction, so nobody can say whether an appeal would lie (since new evidence has come to light), whether the conviction could be quashed for procedural failure (if multiple requests for evidence were really not received) or whether a complaint could be made against the prosecutor, the defence lawyer, or even the judge. But no case has ever been strengthened by brandishing about words like 'perjury' without being able to substantiate them. | 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. |
If I dispute a debt, and the creditor agrees to waive it, do I implicitly acknowledge the debt by accepting the waiver? A debt collection agency engaged a law firm to send me a letter of demand. The debt is 5 years old and I am not aware of it until I received the demand letter. From my perspective, I don't owe the debt. I asked for more info but they decided to waive it instead. Do I implicitly acknowledge the debt by accepting the waiver? I don't know enough about the subject matter to provide the needed context or to ask a good question. Please let me know if I'm lacking clarity and I'll try to elaborate. Thank you | You don’t “accept” a waiver Waiving a right is a unilateral action - you aren’t involved. You can neither accept it nor reject it. What you can do is rely on that waiver as an estoppel to them changing their mind latter. | The language that you're referring to, where it states that if they do not provide responses to legitimately served discovery requests in a timely manner, that they would be responsible for attorney fees, this does not refer to your attorneys fees that you incurred in defending the suit. It refers to attorneys fees that would (actually could) arise out of a hearing on a motion to compel, in the event they never answered. If that occurred, the law allows you to ask the court to award you reasonable attorney's fees as well as sanctions, but only those having to do with getting the court to make them answer. Importantly, despite the rule that states this is a potential repercussion for continually failing to answer, they rarely get awarded. This usually only occurs when the court has already warned them, after you (i.e., your attorney) has willingly given them extensions, the court has given them further extensions, and they still failed to produce/respond. Typically an attorney will allow the other side substantial extensions of time, and this is something you may not even know about. When you say they completely ignored the deadline, I'm assuming you mean the deadline on the discovery notice that gets served with the papers. Interrogatories and Requests for production of documents rarely get done anywhere near the deadline in the rules, which is a mere 3 weeks. Many times, it takes much more than this to track down everything that was requested. This is why extensions happen all the time and unless you're asking, this isn't something your lawyer will even discuss with you. When you say they "didn't offer a remotely reasonable settlement until after the deadline and didn't finally dismiss the case until months after the deadline," I'm assuming you mean they didn't make a reasonable demand (it sounds like you were the defendant). This is actually very common, and in fact, it is very early on to make (or reduce the original) demand low enough that the Defendant will accept it prior to the discovery deadline and all the depositions have passed. (When I say deadline, I don't mean the one you're talking about, I mean the actual discovery deadline, which is set forth in the scheduling order; this can easily be 9 months from the time an Answer to the Complaint is filed.) If you're referring to the token deadline put in the first set of interrogatories served, this not a "real" deadline anyone of the attorneys expects to be adhered to. Further, this a very quick settlement and you should be happy your attorney disposed of your case so quickly. As you pointed out, you are paying a lot of money every day the case lives on. In fact, the money you saved by settling early is substantial. If your attorney had gotten the documents and responses and had to wade through all of them, organize them, send follow up requests, take depositions, etc., you would be out easily another $10,000. Your lawyer did you a favor, because a less honest attorney would tell you to wait, to see if there is a defense, just so they could pad their bill. Many times when it is clear that the case is going to settle, the lawyers will serve pro forma discovery, and will say to each other not to bother answering while they attempt to settle. They are timely served if you cannot settle, but it's clear that settlement is the ultimate goal. This is very typical when the defendant almost certainly has exposure, but when the plaintiff's case also has some holes. Because of issues on both sides, they agree a modest settlement to dispose of the matter, quickly, is the best course. When you say the settlement explicitly involved each party paying their own attorney's fees, all settlements contain this clause. I have never seen a settlement agreement where a party agreed to pay the other's attorneys fees. It's just not done. In the rare case it is, it's part of the structure of the settlement and it flows to the Plaintiff, not the Defendant. This may occur in a civil rights case where there are no real damages, but the statute allows for attorneys fees to be awarded if even one-dollar is awarded. So, in a case like this, sometimes the plaintiff will accept their attorney's fees being satisfied as the settlement, (usually along with some sort of consent decree), so as to curtail the abhorrent behavior. If you want to discuss these issues with your attorney, they are not billable: they are administrative pertaining to your bill; hence, you can do so without fear of being charged. If you're nervous, tell him ahead of time you'd like to discuss your bill. He won't try to bill you for this, as he can't, and furthermore your case is settled so your file is closed. To answer your question explicitly: No - your fees are not recoverable. This is not only because you've already settled, but you were never entitled to them anyway. To answer your question about the point of sending discovery at all if you are not going to expect answers and the goal is to settle, (1) is to preserve the right during the discovery period, in the event settlement negotiations break down; (2) to give the other side a picture of how sharp your attorney is, and that he/she will be asking the right questions and they will be invasive; and (3) this is just how it is done. What you've described is how almost all low level cases proceed. Lastly, just to address what you said about it taking a few months from reaching a verbal or "handshake" agreement and having the settlement actually be recorded by the judge and a dismissal issuing, this is just something that takes a little while. Depending on the type of case it is, the court may need to approve the settlement. Even when it's not necessary for the court to approve the settlement, it takes a while to go back and forth on the language, draft the stipulations of dismissal and so on. A few months is right on target. It sounds to me like you had a pretty effective and honest lawyer who could've dragged this out for much longer. Advice for the future, in case you ever find yourself needing the services of an attorney again: If you have these types of questions, you should ask them as they come up. Again, it's not something that you can be billed for, and your lawyer should be happy to answer. Some lawyers are better than others in remembering to explain what the technical stuff means, and what the game plan is. However, the client has a responsibility too, which is to ask if you don't understand. | My lawyer answers my question, thinking he is giving legal advice to a non-client when he is actually answering a client's question. But if you read the FAQ, posts at law.stachexchange are not legal advice. In fact, questions that are so specific as to risk becoming a request for legal advice are routinely closed. But let's go further: The issue at hand is not the one your lawyer is hired to help you with. He is not your lawyer for that issue. Even if we considered the relationship through law.stackexchange legal representation, the conversation would not be privileged. You are posting in a public forum, and expecting reply in the same way. You are free to waive the privilege of communication with your lawyer, and you are doing that by using this way of communicating with him. At this point, the only thing your lawyer would have done would be voluntarily giving for free some info that he could have billed you for. What exactly would be the issue here? It is exactly what pro bono is for. The only way to breach confidentiality would be if your lawyer were to convey things that you said to him confidentially to the public, but here it would not be relevant if the OPs author were already his customer or not. | A contract need not be written to be valid and enforceable. However, if there is no written contract, then in a dispute the burden of proving (via a preponderance of evidence) a contractual obligation falls on the party asserting it. In the scenario you describe it sounds like that would be impossible for the processing company. | Written Contract If there was a written contract, the fact that it wasn't signed is not relevant. While a signature is evidence of agreement with the terms there are other ways that acceptance can be indicated: like you paying them $600. Wrong Information Where the error is fundamental to the performance - e.g. you needed shipment to Alaska and they were offering shipment to Alabama, the contract would be void ab initio. That is, it never happened and everyone needs to be returned to their original positions as far as possible. However, in general, an error by one or the other party in their understanding of what was agreed does not invalidate the contract. For example, if you told them it was a "small" dog because it was small for a Great Dane but under an objective classification, it is, in fact, a "large" dog the contract must be completed and either you or they wear the additional cost of doing so. Whether they are entitled to ask for additional payment "due to some wrong information" depends on who took the risk under the contract for its correctness? Barring a specific term, the risk usually lies with the party that provided the "wrong information" but some contract will assign the risk for one party's errors to the other party - subject to a requirement to act in good faith. If they are not entitled to additional payment, they have to perform the contract for the original fee. If they are entitled, then you have to pay a reasonable price increase - you are not generally entitled to cancel. All of this turns on the specific terms of the contract and the exact nature of the "wrong information". Consumer Protection Law CPL in your state or their state or both will almost certainly have something to say about this beyond common law rules of contract. | No. An engagement letter is a written confirmation that you have hired a lawyer which also sets forth the contractual obligations of the parties (i.e. the basis upon which attorneys' fees will be charged in the case). Instead of serving as an "estimate" or "approximate quote" of the fees to be charged, it is evidence that there is an attorney-client relationship and it sets forth the contractual terms of that relationship. Unless the engagement letter is for a fixed fee (which is uncommon but not unheard of), it only sets forth a method for determining what legal fees are owed and does not predict in advance what those fees will be. An engagement letter often does set forth a "retainer" amount that must be paid when the lawyer is hired, but a "retainer" is more akin to a security deposit on a lease than an estimate of what the total charges for the representation will be. Lawyers are required as a matter of professional ethics to put these things in writing. Of course, it wouldn't be improper for an engagement letter to include an estimate of the fees that will be charged in a representation as well as the other matters described above. But, that would be rather unusual. Firstly, since these people didn't even type my mobile number correctly, I'm uneasy about them drafting a legal agreement for me, where I wanted each and every clause to be thoroughly checked. I'm not confident of them being thorough. This certainly doesn't make a great first impression, although it reflects more on the quality of the office staff than on the legal acumen of the lawyers. I wouldn't blow a simple typo in writing a phone number out of proportion. How do I tell them that I do not need their services? Advise them by telephone, or better yet by letter, email or text, that you have decided not to retain their services. Does their sending of an engagement letter mean that I pay them for their time of drafting the letter? The firm probably could charge you, but it is customary not to charge for drafting an engagement letter. I wasn't expecting an engagement letter. I was expecting something like an ordinary email which said something like "this is our approximate hourly fee". Lawyers, as you might expect from their line of work, need to be more formal as a result of their legal ethics requirements, so this is very normal. The engagement letter constitutes a contract between the parties if the engagement is commenced. An informal communication, followed by a formal one, could lead to confusion over which one applies and could lead to mistakes where someone given an informal communication never received the required formal engagement letter. their hourly fees (which does not look reasonable to me) Lawyers are expensive, and good lawyers are worth it. The supply and demand issues are particularly intense in India because there are fewer lawyers there capita than in many other countries. | united-states Upon my death how do I physically write the actual release of debt without an attorney, so my children are not held responsible for my debts. You should hire an attorney for a few hundred dollars, so the job is done right. Even if you do nothing and your children do nothing, your children are not obligated to pay your debts out of anything other than your own assets at death, unless they have personally guaranteed those debts. And, if they have personally guaranteed those debts, you can't release them, only the creditor can do that. If your children owe debts to you, you can release them from those debts. But, you should hire an attorney to do so in order to avoid ambiguity. The biggest question would normally be whether or not the discharge of debts owed by your children to you should count in the process of dividing up the assets you have left after the debts you owe to third-parties at death, or not. | Unless your lease clearly denies the possibility of prorating, the emails are binding (and yes, emails count as in writing). The landlord ought to honor the conditions outlined in the emails, and it is not your fault that the manager was ignorant about his or her employer's/landlord's policies at the time the manager computed the prorated amount. Additionally, if the lease only speaks in terms of 20-day notice, then it implies that prorating may apply. It is possible that the lease contains language in the sense of when the notice becomes "effective". If so, that would require a more detailed review of the language therein, since even in that scenario you might prevail on the basis of the doctrine of contra proferentem. Here the difficult part seems to be that you are not in the US. Because the amount at issue is not high enough, the grievance/complaint would have to be filed in Small Claims court. And, as far as I know, the parties cannot be represented by a lawyer in Small Claims court. You might have to file your grievance once you are back in the US. |
Is it legal to sell something that uses another product as one of its ingredients? In example: If someone sells homemade ice cream where they have crumbled oreos and mixed in to make homemade Oreo ice cream, but generically named "Cookies & Cream" or If someone uses Great Value knockoff of M&Ms in their homemade cookie dough, and sells it as something like "Rainbow Chip Cookies" Assuming someone has the basic business licenses (to sell food): Is this legally ok to do with just the basic business licenses? If not, what would it take to be in compliance? Per fetweet's comment, I've added his questions which may help to answer the initial basic question. What are the guidelines per the FDA, for food related ideas? Does the FDA have anything to do with non-food ideas? Does a branded product that is used as an ingredient have to be listed as an ingredient with its branded name? What about in non-food ideas? What's the procedure for legally listing these branded products as ingredients with their branded names? Couldn't the branded ingredient be bypassed in being listed in the main product by using the ingredients listed on the branded ingredient instead? | Yes, it is legal to sell something that uses another product as one of its ingredients. And yes, you can include the name of the product in the ingredients list. That said, if you do it and are successful enough you will probably get a cease and desist letter! The Supreme Court held a long time ago in Prestonettes, Inc. v. Coty that a buyer can purchase a trademarked good, repackage it, and then resell it. The defendant of course by virtue of its ownership had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided. The court reminds us that trademarks are not copyrights; they not confer a right to prohibit the use of a word or words. ...unquestionably the defendant has a right to communicate... that the trade-marked product is a constituent in the article now offered as new and changed. In this case the name of the original product was included on the package in non-distinct lettering; stating that the original product was contained in the new product. I mention this because the ultimate decision is fact-specific.* So the Supreme Court tells us that we can repackage trademarked goods. The court also tells us a bit about the label - we cannot call out the trademarked name as this might confuse consumers: If the [trademarked name] were allowed to be printed in different letters from the rest of the inscription dictated by the District Court a casual purchaser might look no further and might be deceived. So, what about that FDA, what do we need on the label? You find this answer in 21 CFR 101.4(b)(2). (b) The name of an ingredient shall be a specific name and not a collective (generic) name, except that: (1) Spices, flavorings, colorings and chemical preservatives shall be declared according to the provisions of §101.22. (2) An ingredient which itself contains two or more ingredients and which has an established common or usual name, conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of Agriculture, or conforms to a definition and standard of identity established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, shall be designated in the statement of ingredients on the label of such food by either of the following alternatives: (i) By declaring the established common or usual name of the ingredient followed by a parenthetical listing of all ingredients contained therein in descending order of predominance except that, if the ingredient is a food subject to a definition and standard of identity established in subchapter B of this chapter that has specific labeling provisions for optional ingredients, optional ingredients may be declared within the parenthetical listing in accordance with those provisions. (ii) By incorporating into the statement of ingredients in descending order of predominance in the finished food, the common or usual name of every component of the ingredient without listing the ingredient itself. Here is an example of (i): But also note the picture of the box. That Hershey's Kisses trademarked image indicates that there is an agreement between the companies. So only use this image as an example of 21 CFR 101.4(b)(2)(i) ingredients labeling - the box cover is not an example of nominative use. *This is nominative fair use and has been discussed in other questions on this site. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc.: one party may use or refer to the trademark of another if 1) The product or service cannot be readily identified without using the trademark; 2) The user only uses as much of the mark as is necessary for the identification; 3) The user does nothing to suggest sponsorship or endorsement by the trademark holder. | Many products can be used for illegal purposes, so selling something that could be used for illegal purposes won't generally result in liability for the producer. Think of software used for computer system and network security testing; it's both useful for legitimate testing and securing systems, but of course it can be used by hackers to find and exploit security holes. Clorox can be used to clean the bathroom or poison someone. If you look at the Terms of Service for https://donotpay.com/learn/terms-of-service-and-privacy-policy/ , you'll see DoNotPay is Not a Law Firm DoNotPay provides a platform for legal information and self-help. The information provided by DoNotPay along with the content on our website related to legal matters ("Legal Information") is provided for your private use and does not constitute advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need advice for a specific problem, you should consult with a licensed attorney. As DoNotPay is not a law firm, please note that any communications between you and DoNotPay may not be protected under the attorney-client privilege doctrine. and Your use of the Service is subject to all applicable federal, state and local laws and regulations. Unauthorized use of the Service is prohibited, and violators can be prosecuted under federal and state laws. Virginia law and Federal law will govern the interpretation and enforcement of these Terms. That's for the web service, but it's useful to point out the distinction between a user using DoNotPay for themselves and getting a script to read in court, and the DoNotPay service actually participating in a court appearance representing the user. The reason DoNotPay pulled the plug on the court appearance, as pointed out in the article https://www.businessinsider.com/donotpay-ceo-says-risks-jail-ai-robot-lawyer-used-court-2023-1 is that DoNotPay's AI "robot" lawyer was going to actively argue in court, and the state bar objected, because that's what only lawyers are licensed to do. If the DoNotPay source code was released and someone used it on their own computer to analyze a legal situation and give themselves options and offer decisions, this could probably be seen as little different than someone reading books that analyze the law and strategies and offer options of how to go about representing oneself in a court. The software would be used to make decisions before and after court; the software is not actively arguing and making decisions for the user in court. Of course, in this brand new world of AI, the final assessment of whether or not AI software can be used to give others (or oneself) legal advice - either in court and/or prep for court - will likely have to be finally determined by litigation and courts. The idea of open source or closed source could possibly come into play to determine exactly how the software works, but would not be the sole criteria to determine if the use of the software is legal or not. The software could be simply a "decision tree" (little different than textbooks) that follows a hard-coded if/else script, such as If you get a ticket, go to court; if you plead guilty, this is what happens; if you plead not guilty, these are your options. Or, the software could have true AI aspects, i.e. it develops arguments for being not guilty from your past legal history, and develops and responds to the court's actions with counter arguments, and actually gives opinions to the user on what they should do. If the software is open source, we all see how it works and if it is a decision tree or real AI (and the software can also be modified by users and other developers.) If the software is closed source, we can't see how it works, and we don't know if it is a decision tree or AI, unless it it is opened, possibly through court order during possible litigation to determine if it is giving legal advice. Again, AI is a brand new thing in the legal world. | You can write anything you want (basic First Amendment protections): the question is whether one would be liable for damage that arises from what you're written, or whether you can distribute what you've written. Distribution may be restricted, thanks to the Commerce Clause (hence FDA regulations, which figure prominently in the analysis). Most software writers are not medical practitioners, and vice versa, and what the software writer does is implement something described by a competent medical practitioner. It is logically possible that a med. practitioner might also try to write software (no problem) and distribute it (possibly a problem); or, a software writer might read up on something on Wikipedia and try to implement it (again, no problem) or distribute it (possible problem). Damages can be sorted into two categories, implementation errors and scientific errors, and having ruled out deliberate sabotage, we are left with negligence. If the software writer failed to use suitable care in writing code that sums a set of numbers, the software writer has been negligent. If the person purporting to have the qualified scientific knowledge mis-states the formula, that person has been negligent. It is possible for many parties to be negligent (the programmer failed to be diligent in understanding the software requirements; the medical professional failed to adequately explain what was required of the program). The FDA does regulate medical devices, and "device" is construed pretty broadly (condoms are non-exempt class 2 medical devices). There is FDA guidance on medical software which makes it clear that the device manufacturer shoulders the regulatory burden. Anytime you manufacture a tangible thing (which is within the scope of FDA regulation for medical devices), you have to have the thing approved. Many (most?) medical devices implement software, and are thus within the scope of FDA scrutiny. It is not illegal to write software that ends up being implemented in an unapproved medical device, but the unapproved medical device itself is illegal. It is reasonably likely that purported medical software (not a gadget with software build in) would be held to be a non-exempt device. To know if something is exempt, you would look at the exemptions list, and determine that your program (or thing) is not on or implied by anything on that list. The visual acuity eye chart is a class 1 exempt item, as is the manual toothbrush. There is no way to specifically look for things that are only software, or that contain software, so the search through the list would have to be guided by knowledge of the subject area. Canada is helpful in explaining when software is a regulated medical device. This is non-probative w.r.t. US law but gives you an idea what is likely to be considered a "device". Under Canadian law, the software would be clearly a regulated medical device. The FDA has a power-point that attempts to say something about the matter which warns you that you are on your own and "You will need to go back to study and use the source regulatory documents" to make the determination. Eventually, slide 13, they hint that if you intend the software to be used in diagnosis, prevention, or treatment, then it is a device (so, yes, the aforementioned software would be a device, and probably not exempt from regulations). General purpose software (word processors, web browsers, communications software, etc.) are not indented to be used for a regulated purpose, although they can be so used, and thus they are probably not subject to FDA regulation. There is a murky relationship between regulatory approval and liability. Being approved by the government does not convey immunity to negligence suits (see Wyeth v. Levine), but being approved can have weight in determining whether a party was negligent, since regulatory scrutiny ostensibly filters out errors that could have been caught. Federal approval does not preempt state tort law, as the court ruled. Regulations pertaining to medical devices hold for anything that qualifies as a device, and is not defined (negatively) in terms of disclaimers. If you sell a medical device but label it saying "this is not a medical device, it is not created by a competent medical practitioner", that doesn't make it not a medical device. Unfortunately, what counts as a regulated device is based on intended use, and there is an obvious connection between disclaimers and intentions. Taking MS Word as an example, MS does not as far as I know say that "Word is not intended to be used as a medical device". It can certainly be used to diagnose, teat, and prevent medical conditions, but so too can a screw driver or pretty much anything else. The number of non-medical uses vastly outweigh the medical uses, so it would be deemed not to be a regulated device. A program which prescribed a set of prayers to be uttered in case of illness would be subject to First Amendment override of any FDA regulations. Quack medical devices are prohibited (that's why there is regulation of devices in the first place), but discerning the fine line between permitted actions based on nutty beliefs and forbidden actions is not easy. The FDA also has guidance on the distinction between "Complementary and Alternative Medicine", which does not clearly state that, for example, a software reading of your cakra-energies based on a computer program's questions is not a medical device. They do say of mind-body medicine (mentioning yoga, biofeedback and tai chi as examples) that "CAM practices in this domain would not be subject to our jurisdiction under the Act or the PHS Act", but then say "any equipment or other products used as part of the practice of mind-body medicine may be subject to FDA regulation, depending on the nature of the product and its intended use" (hence a yoga-enabling program may be subject to regulation). | TLDR: it's illegal to BUY it. It's illegal to USE it. Know your suppliers. That's certainly an interesting question, in light of how the market has changed in recent years, particularly due to Amazon/eBay, but even moreso due to Amazon Fulfillment and competitors. Over on diy.se, this is a constant vexation, because we see people buy crud like this all the time, and they need help installing it. And we find it's illegal to install, not even safe, and needs to be sent back in lieu of listed product. The advanced nations do have a highly effective apparatus for screening and blocking dangerous goods. However, these protections are geared toward bricks-and-mortar retail. Can you count on something bought at Wickes, Redoute or Home Depot? By and large, yes. Is it legal to export it to you? Yes, for all practical purposes. The people selling it are in an unreachable bastion in a foreign country that would not cooperate with their extradition, and would interfere with investigation. The government knows perfectly well that the stuff is complete crud, and doing so aligns with its national policies of raising hard currency and building industrial capacity, while harming the capacity of other nations. Is it legal for the item to be listed on Amazon or eBay? Amazon and eBay say "Yes". Their position is that they are merely a platform which connects buyers and sellers. They surely have excellent lawyers. Amazon is more like eBay than you might realize. Amazon opened their retail site to third party sellers. Third parties can sign up as additional sellers of a particular SKU, or write their own product listings. Since Amazon's behavior has been unchallenged, the answer seems to be "yes". Is it legal for Amazon to bring it into their warehousing systems? Amazon also opened their warehousing system to third party use. That can be for companies that don't sell on Amazon... or it can be for companies that do both Amazon and off-Amazon sales; in the latter case you order elsewhere but Amazon fulfills (ships) the item. When a company both sells the item on Amazon and it ships from an Amazon warehouse, it qualifies for "Prime" shipping where Amazon offers that. Amazon also offers "Commingling" for established SKUs. The idea is that if you have widgets in the Madrid warehouse, and I have widgets in a Warsaw warehouse... and a Madrid customer buys mine - why not ship them yours since they are all the same? I get credit for the sale and Amazon "owes you one". When you get a sale in Madrid, Amazon has one in Barcelona so they ship that one to your customer. Commingling is great, but what happens when I inject a pallet full of those SKUs - and they're counterfeits? Amazon doesn't know the difference, and your Warsaw customer gets my counterfeit. So do Amazon's Berlin and Wroclaw customers. Amazon ships them around the network to balance the warehouses, and now my counterfeit has contaminated the supply. I'm sitting in China. Whatcha gonna do about it? Again, Amazon has top lawyers, who have surely done their diligence. Still, the program is ambitious, and e-commerce giants break the law all the time with their ambitions. In the US, there's the "Express Shipment" rule, which allows small orders ($800 or less) with no duty and an informal entry process. So they ship to Mexican warehouses, and then bring the items over by the truckload. Wait, how can a truckload be less than $800? Because they don't bring it over until there's an end-user customer order, and they argue "these are for individual customers". This qualifies them to breeze through customs, bypassing the quality and safety controls that prevent Home Depot from doing the exact same thing with a truckload that hasn't found customers yet. Is it legal for you (as the end consumer) to import it? No. The rules for Conformité Européenne are that the importer is responsible. When you as an end customer buy mail-order from China, you are the importer. Under EU law, if you bring a CE-marked item into the EU, you are responsible for meeting the CE design standards, and doing in-house lab testing to affirm the performance of the product. By having the CE mark on the thing you imported, you are attesting to having done that. Further, the various nations may require that a certified independent testing lab verify your testing and claims. This was historically done by national testing labs like BSI, TUV, CSA or UL. However by treaty they are largely cross-recognized: US OSHA keeps a canonical list of "Nationally (by USA) Recognized Testing Labs" (NRTLs) that every other agency and many other countries defer to. Big Clive is probably fine, since Clive's purpose is public ridicule, not usage. Is it legal for you to install it in your house? Oh, heck no. Every nation has rules as to what certifications equipment must meet to legally be installed in a building's electrical system. For instance North America's El NEC, widely adopted or copied, has 110.2: 110.2 Approval. The conductors [wires] and equipment required or permitted by this Code shall be acceptable only if approved. "Approved" means by competent testing labs; i.e. OSHA's list of NRTLs. So no, you can't install non-approved equipment in any jurisdiction with a similar rule (and you pretty much need such a rule for inspections to have any teeth). | In general, anyone can buy potentially dangerous chemicals. My local service station sells petrol, my local liquor store sells alcohol, my local supermarket sells ammonia, my local pool shop sells chlorine, my local hardware store sells poisons and my local chemist sells drugs. The world is full of dangerous stuff and all of it is for sale. Certain governments may regulate the sale of certain products. Such regulations may cover packaging, storage, quantities, reporting and limits on who can be a buyer or seller. For example, who can be a buyer of Uranium is pretty strictly limited. The decision about what and how to regulate is a political one, not a legal one. In general, governments apply a cost/benefit approach (including political costs/benefits). The fact that one (or a small number) of people use something inappropriately must be balanced with the cost that regulation imposed on government and legitimate users. Also, in most parts of the developed world people are allowed to take risks with their own bodies - climbing mountains, surfing, parachuting and, yes, injecting themselves with foreign substances. It’s unwise but it’s not illegal. I am unable to assist you with who would be responsible for regulating such matters in France but I can suggest that neither the FDA nor the EPA would be relevant in the USA because its neither a food nor a drug (FDA) nor is it being sole in quantities that are likely to adversely affect the environment (EPA). | The word "use", for purposes of trademark law, is a term of art meaning it is used in a way that may be a violation of law if not licensed. Not all uses of trademarks are violations. Similarly, there is a difference between using the name of a company and the brand of products or services sold by that company. In any case, using a trademark or trade name to REFERENCE a company or brand is not a trademark infringement. For instance, I don't need any license to tell you that I own a Dell or HP or Apple product, or that my software will run on a Dell or HP or Apple product. The use of a logo is, however, more sensitive and likely to require detailed legal analysis, if not an actual license. | You may, though you may have to be careful about that you say. Providing information about alternative medicine is legal in the US. You can read this article which addresses unapproved medications and therapies from a medical policy perspective, touching lightly on legislation. There are restrictions, enforced by the FDA and the FTC, on what you can sell and claim for your products, in case you sell dietary supplements or are in some other way making a business of purportedly curing people. Here is a starter page about FTC regulation of health claims. Here, for example, are some actions that the FTC took against companies for unproven CBD claims, such as an action against Bionatrol, with many kinds of purportedly false claims made "In connection with the advertising, promotion, offering for sale, sale, or distribution of CBD Products". It's not the claims that are illegal, it's making the claims in commerce that's illegal. The FDA regulates drugs and devices, and this page divides the FDA regulations into functional types such as "drugs" and "medical devices". It would be illegal to sell a "brain ray machine" that purports to cure cancer, but it would not be illegal to describe how to build one. There are a number of DIY treatments available on the internet, for removing ticks, slivers, for bandaging scrapes and so on, none of which have or require government approval (in the US). In some cases, such a website might infringe copyright or a patent, so that would be a way in which the website could be illegal (Four Thieves Vinegar). Without any further information on what such a website is saying, it's hard to be sure but this gives you the general limits on the legality of such a site. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. |
What was the significance of the word "ordinary" in "lords of appeal in ordinary"? The law lords of the House of Lords were formally known as the lords of appeal "in ordinary". Most of that phrase other than the final bit is self explanatory but the use of the word "ordinary" just seems quite odd. What is its intended meaning? | Between 1876 and 2009, there were three ways to be a "Lord of Appeal", a member of the House of Lords who was part of its committee exercising judicial functions. (Before 1948 it was not a formal committee; proceedings took place in the Lords chamber as part of the House's normal business.) You could be Lord Chancellor. The most recent LC to have done this was Derry Irvine, Lord Irvine of Lairg (e.g. in Boddington v British Transport Police [1998] UKHL 13). You could be a regular member of the House of Lords who was qualified to sit as a judge, by virtue of having held "high judicial office". In principle, this would include hereditary peers who had taken a legal career path, but most often meant life peers. That would include distinguished members of the judiciary who had been given a life peerage, former holders of the office of Lord Chancellor. and (since 1889) retired Lords of Appeal in Ordinary. For example, Lord Mackay of Clashfern (LC until 1997) continued to hear cases for several years on an ad-hoc basis. There were also current former Masters of the Rolls, Lords Chief Justice, and senior Scottish judges in this category. You could be appointed as a "Lord of Appeal in Ordinary", which means that you were named to the House of Lords in order to serve as a judge (and by convention, not to participate in debates and votes). The "in Ordinary" phrase expresses that you are a Lord of Appeal as your main job - not because it's an additional job on top of being a peer. Before the reforms of the late 19th century, any peer could participate in judicial business, at the discretion of the House in general. Some peers with legal experience were de-facto regarded as "law lords", and were the ones who by consensus took charge of appeal cases. The last time a lord without this experience tried to do this was 1883, in Bradlaugh v Clarke: Lord Denman (whose father had been Lord Chief Justice but who himself had no legal qualifications) tried to vote but the Lord Chancellor ignored him. That follows a precedent of 1844 (O'Connell v The Queen) that other Lords should gracefully decline to contribute, once the Law Lords had given their opinions. Even in that century, the emerging and eventually formalized category of "law lords" did not capture the nuance of who was making judicial decisions. The committee was typically "assisted" by professional judges, drawn from the serving judiciary, who would privately give their opinions to the actual named Lords. This was also the system used in trials of peers, where the House sat as a court of first instance if a peer was charged with a felony: nominally, any lord could take part in proceedings, but in practice the process would be stage-managed by a qualified Lord, with a panel of normal judges quietly doing much of the real work. | 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) | One direct statement about this is in White v. Tommey [1853] 10 E.R. 483, in which the House of Lords had to consider whether to allow a rehearing of a case which they had previously decided, on the basis that there had been misrepresentation the first time round which affected their judgement. The Lord Chancellor, Lord Cranworth, said: What ought your Lordships to do in this state of things? It was pressed very strongly on the part of Tommey by his counsel, that your Lordships in truth have no jurisdiction; that after a matter has once been heard and adjudicated upon in this ultimate Court of appeal, there is an end of it, that there must be an end somewhere, and that if it can be said that the trustees can be heard now to come and call in question the decree of 1850, what is to prevent Mr. Tommey coming afterwards, in 1860, and praying your Lordships to reconsider it again, and so toties quoties to the very end of time? In this case, the Lords sent the case back to the Court of Chancery in Ireland, setting aside their earlier orders relating to the appeal. This did not amount to a rehearing of the merits in the House of Lords, but their correction of a mistake in the proceedings and restoring the status quo ante. In an earlier case, Stewart v. Agnew [1823] 1 Shaw 413, another Lord Chancellor, Lord Eldon, observed: It is infinitely better that the matter should be here finally decided upon one hearing, even if the decision is wrong, than that there should be a new litigation unknown to our proceedings, as to this matter of rehearing; - nor can any one say where it is to stop. In general, it is to be hoped that the decisions of this House are right; but, whether right or wrong, it has been taken for granted that considerations of infinitely greater moment than the considerations which arise out of the particular mischief in particular cases, have led this House to determine, that where a matter has been heard between parties at the Bar, and the House has given its decision upon the merits discussed by those parties, the House will not rehear the cause. | Contra proferentem However, it's a principle that is rarely applied in practice since it's at the end of a long line of judicial reasoning that gets applied first. Ambiguity in contract provisions are usually resolved by the golden rule: Determine the ordinary and natural meaning of the words used Consider the context of the contract including its purpose, any "recitals" or "background" clauses and other relevant provisions If the ordinary and natural meaning is inconsistent with the context or gives rise to absurdities, modify the meaning as appropriate. In the vast majority of case, this approach will give a meaning the court adopts without needing to invoke the contra proferentem rule. However, in the minority of cases where the rule is applied it works like this. The ambiguity should be interpreted against: the party who prepared the contract (particularly for standard form contracts offered on a "take it or leave it" basis) the party seeking to rely on the ambiguous position (e.g. the beneficiary of a guarantee, indemnity, limitation or exclusion provision). Finally, contra proferentem may not apply because: it can be specifically excluded in the contract (which most drafters do) where the provision has been the subject of back-and-forth amendments by the parties it can be impossible to say that only one of the parties drafted it. | I'm sorry to deflate what is clearly a very philosophically interesting question, but the law is straightforward here. The truth, essentially, is the set of facts that you believe to be true. Yes. It means that you will not lie by omission, and that you will provide the relevant facts. No, you don't need to recount history since the first instant of the big bang. Only expert witnesses may answer by giving their opinion or evaluation. This is presumed accurate by their experience and where it is not accurate, the other side may present opposing expert witnesses to contest their conclusion or evaluation. Laypeople are permitted to answer only with their recollection of facts. Lawyers may not ask them what their opinion is, although by your definition every question is about opinion, since perception and memory is limited. But the question "What colour was Mr Smith's house?" and "What architectural style informed the facade of Mr Smith's house?" require different amounts of expertise and opinion. "Truth" isn't jargon, or even technical language here. I generally aim to be truthful, and so when someone asks me what time it is, I don't feel compelled to answer to the nano/picosecond. Would you call me a liar? Am I lying by omission? Similarly, if someone asks me what colour a car is, I don't feel compelled to say "I can't possibly know, because my perception may differ from yours. If you honestly feel that when someone asks you to be truthful about something, then you must either be lying, or lying by omission if you don't start your answer with the first instant of the big bang, your problem is not one of law. | That sounds a lot like the German Antragsdelikt (literally "crime by request"). That is a crime (defined in the criminal code), that can only be prosecuted if the victim requests it. Antragsdelikt mostly applies to less serious crimes, such as slander or petty theft, while "serious" crimes, such as robbery or assault must always be prosecuted (Offizialdelikt). Also, there are many minor crimes (relatives Antragsdelikt) which are usually only prosecuted by request, but where the prosecution can also decide to press charges if it is in the "public interest" (usually because the act is deemed a serious infraction). Similar concepts exist in Austria and Switzerland. | 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. | Because rituals are important You might well ask what is the point of the ceremony of the Black Rod: Black Rod is best known for their part in the ceremonies surrounding the State Opening of Parliament and the Speech from the throne. They summon the Commons to attend the speech and lead them to the Lords. As part of the ritual, the doors to the chamber of the House of Commons are slammed in the approaching Black Rod's face. This is to symbolise the Commons' independence of the Sovereign. Black Rod then strikes the door three times with the staff, and is then admitted and issues the summons of the monarch to attend. Societies are not run by laws - they are run by convention and custom. Take the universe and grind it down to the finest powder and sieve it through the finest sieve and then show me one atom of justice, one molecule of mercy. and yet... and yet you act as if there is some ideal order in the world, as if there is some... some rightness in the universe by which it may be judged. Terry Pratchett, Hogfather The purpose of Royal Assent is to preserve the convention and custom that the United Kingdom is ruled by a King to avoid dealing with the reality that it's ruled by the people just like you and me which is and should be a truly terrifying thought. This is not a dig at politicians, judges, and civil servants: it applies equally to your doctor, the engineer who designed your house and the plumber who fitted your toilet. What would happen if it was refused? Well, a constitutional crisis would happen. The UK and most other Commonwealth countries have had a few; they seem to find a solution. However, it's a crisis primarily because no one knows how it will be resolved in advance. This particular crisis is unlikely to arise: the last time it happened was in 1708 by Queen Anne who was acting on the advice of her ministers (who were answerable to Parliament for their actions). the last time it happened against the wishes of the government was in 1696 by William III. the last time a monarch considered it was in 1914 by George V who decided it should not be done without "convincing evidence that it would avert a national disaster, or at least have a tranquillising effect on the distracting conditions of the time". |
Can an Elder Mother kick out her adult child from her house? Imagine a adult child is living with her mother (and has been for a long time) who has some dementia issues. It is the mother's house and the adult child has been trying to help the mother. Then one day the two get into a heated verbal argument and the mother tells the adult child to move out? Does the adult child have to move out that night? If the adult child does move out, can be charged with elder abuse for leaving the mother alone when the adult child believes it is not safe for the mother to live alone. Part of the problem with the mother living alone is that she would need to get to the food store and her driving skills have detoriated. | First, a landlord cannot just expel a tenant, this involved getting a court order where the judge tells the tenant to leave. Second, she might think that "You're not a tenant, you're just living here" but that is pretty much what it means to be a tenant – she agreed to let the relative live there. There does not have to be a detailed lease written up, though the term of such unwritten agreements is usually month-to-month (this is all about the laws of the particular state, but no state authorizes instant expulsion). You would need to look at the laws of your state for the "abuse" question. Using Washington as an example, and trying to make the best case possible that bailing out is against the law, the potential legal concern is "abandonment", which is defined as an action or inaction by a person or entity with a duty of care for a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care. the failure of a vulnerable adult, not living in a facility, to provide for himself or herself the goods and services necessary for the vulnerable adult's physical or mental health, and the absence of which impairs or threatens the vulnerable adult's well-being. This definition may include a vulnerable adult who is receiving services through home health, hospice, or a home care agency, or an individual provider when the neglect is not a result of inaction by that agency or individual provider. RCW 74.34.200 creates a legal cause of action for abandonment, abuse, financial exploitation, or neglect of a vulnerable adult. Then one might sue for abandonment if one is living at home and receives care from a home health, hospice, or home care agency, or an individual provider But, "individual provider" is a defined legal term: a person under contract with the department to provide services in the home under chapter 74.09 or 74.39A RCW If the tenant is under contract with the state to provide services, then abandoning the vulnerable adult could get you sued. The courts do not declare that a duty of care exists because of a genetic relationship. A duty of care might be found from a contractual relation (one not involving a state social services agency), for example "You can live here if you take care of me". So there is a legal concern over abandonment, which the person should talk out with an attorney (which is possible since instant-eviction is not an option). Said attorney might also discuss the concept of guardianship. | Charlie is not a party to the contract between Alice and Bob Alice and Charlie have no contractural relationship and Alice cannot require him to do anything nor is he liable to Alice in any way. Alice’s issue is with Bob who has clearly breached his contract. Alice can sue Bob for damages and may be able to end the lease. There is no trespass because Charlie is there with the permission of the leaseholder. From Charlie’s position there is no reason to believe that Bob does not have the authority to give this permission so Charlie is not in breach of the law. The police will see this as a civil matter and won’t intervene. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | Yes. Typically, a will is drafted so that it applies not only to any current children but also to afterborn children. In a statement of family, in a Will, I would often say that: "children" as used in this Will including the following persons and any other person subsequently born to me or legally adopted by me. Then I would draft the guardianship and dispositive provisions using the term "children" without specifying a name. If children are born, but there might be a paternity issue, it isn't uncommon to state that "my children at the time this Will is executed are . . . . and I intentionally exclude from benefit hereunder or for any fiduciary position with respect to me, any other person claiming to be a child or other descendant of mine as of the time that this Will is executed, but do not intend to exclude subsequent children or children later adopted by me." | Yes The child owns what they own - it would be illegal for the parent to take the item and dispose of it or otherwise permanently keep if from the child (once they became an adult). However, parents are their children’s legal guardians and are responsible for the raising of their children including matters of discipline. It is both legal and appropriate for a parent to limit access of a child to their possessions. | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | renting a single room with three other guys each renting their own rooms means exactly what it says. What you are paying for is that room, plus shared access to the common areas. Without knowing exactly what your lease says, especially with respect to the common areas, it's difficult to give a proper answer. I suspect that the lease for your room says nothing about who can live in the other rooms. Unless the lease says otherwise, the landlord has full control of the common areas. (Compare with a large apartment building, with hallways, stairwells, lobbies, etc., which must be maintained by the landlord.) This isn't an unusual arrangement, but I've never understood why anyone, landlord or tenant, would want it. There's far too much potential for conflict. You, yourself, could be a totally obnoxious person that the other three guys can't stand, but they'd have to put up with you. Their only alternatives are to move out or to ask the landlord to evict you. Moving out would be a lot of trouble for everyone. But, depending upon jurisdiction, as long as you're paying the rent on time and not causing damage to the property, eviction could be a very difficult and long process. And eviction is hardly in the landlord's interest. It costs a lot of money and time, and might not be granted even if she did apply. Why might a landlord spend so much time at the house they're renting? I'd be concerned about the implications of a woman going out of her way to do yoga in an area rented to four men. That is the part that sounds most strange in this situation. How do I resolve this? I'd start looking for a room somewhere else. | Unfortunately, there is the law answer, and there is the family answer. The law answer is fairly straightforward - she deeds the land to you, and you leave it your husband if you precede him in death. The family answer is different. Many families have been torn asunder by inheritance issues. Your siblings seem to think they deserve a share, which is problematic if you are building there. Your choices are to split the land but buy your siblings out, establish a long-term structure lease on the land, or take the land and deal with sibling fallout. There may be other options an estate lawyer can recommend. Note that if your siblings are co-owners, then soon there will be many more as their children inherit. You need a local lawyer to do any of the above. |
Could the 14th amendment, section 3, keep Trump from holding office for a second term? It seems widely agreed upon that even if a President breaks a law, he can only be removed from office through the impeachment process. However, could an incumbent president who wins a second term be kept from being seated due to the 14th amendment (section 3)? It reads (emphasis mine): Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Apologies because this is a multi-part, not-straightforward question: Does the above bolded part correspond to breaking any specific laws? That is, how would one show that a person engaged in insurrection or rebellion, or given comfort to enemies? If this could be demonstrated by finding someone guilty of a particular law, in theory couldn't someone bring federal charges against Trump for doing so? (assuming one of his many bad faith acts like cooperating with Russian election interference, or tweeting classified information appeared to be breaking said law). Couldn't this happen even if a Republican controlled senate decided not to remove him from office after being impeached? That is, even if it wouldn't cause him to be removed from office, couldn't he, separate from impeachment, be convicted of a crime while still holding office? If he was found convicted of a crime which fit the above bolded passage (and didn't engage in some shenanigans like pardoning himself), who would keep him from taking office? (i.e. enforce the law). I apologize if I'm grossly misinterpreting things here. My background knowledge is just from Wikipedia and constitution.findlaw.com, and I couldn't find any articles dealing with Trump and the 14th amendment, section 3 (all results were about him trying to unilaterally change citizenship laws, so for a different section). | I apologize if I'm grossly misinterpreting things here. You are grossly misinterpreting things here. Your mistakes aren't terribly uncommon, but you are completely and totally wrong in what you are suggesting. Does the above bolded part correspond to breaking any specific laws? That is, how would one show that a person engaged in insurrection or rebellion, or given comfort to enemies? The language intentionally mimics the only crime defined in the U.S. Constitution, which is treason, defined in U.S. Constitution, Article III. If this could be demonstrated by finding someone guilty of a particular law, in theory couldn't someone bring federal charges against Trump for doing so? (assuming one of his many bad faith acts like cooperating with Russian election interference, or tweeting classified information appeared to be breaking said law). None of the things you imagine could constitute treason. 'Enemy" is a term of art that means a country that the United States is actually at war with, militarily, by providing aid and comfort to the other side that aides them in waging war with the U.S. Cooperating with Russian election interference isn't treason. Inaction isn't treason. The President probably has an absolute legal right to disclose information that is classified for national security purposes. The President is immune from civil and criminal liability for his official acts while he is President. If the President, from his private funds, and not as part of his officially duties, personally paid Taliban soldiers bounties to shoot and kill American soldiers, that might be treason (since the U.S. is at war, within the meaning of the treason statute, with the Taliban). Cooperating with Russia, despite the fact that it has done so is not treason. Even then, federal prosecutors would not press these federal charges against the President while the President was in office. And, the President would be immune, in all probability, to state treason charges for conduct while in office. So the President would have to be prosecuted after leaving office. On the other hand, Section 3 of the 14th Amendment does not require a criminal conviction to be effective. The intent of Section 3 of the 14th Amendment was to deny civil rights in the post-Civil War governments of the United States by Confederate officials and military officers. In practice, Congress used the authority it was granted to remove political disabilities from all but about 500 of the hundreds of thousands or millions of people eligible for this treatment under the 14th Amendment. Couldn't this happen even if a Republican controlled senate decided not to remove him from office after being impeached? That is, even if it wouldn't cause him to be removed from office, couldn't he, separate from impeachment, be convicted of a crime while still holding office? The federal government prosecutes treason. Ultimately, the President is the one who decides whom the federal government prosecutes. So, the President as a practical matter could not be convicted of treason while still holding office, even if he committed acts which actually constitute treason, unlike anything could be plausibly alleged in this case. If he was found convicted of a crime which fit the above bolded passage (and didn't engage in some shenanigans like pardoning himself), who would keep him from taking office? (i.e. enforce the law). A future President can pardon the crime of treason by a former President. Ford pardoned Nixon of crimes that Nixon committed, and many Presidents have pardoned treason convictions at times close to the adoption of the U.S. Constitution and to the adoption of the 14th Amendment. But this just can't come up in this case. You'd need a treason to have been committed before someone was elected. | Yes. US Constitution, at Article two, Section two, provides that the President has the power to nominate the justices and appointments are made with the advice and consent of the Senate. There is nothing restricting the President from doing this on any particular day from beginning to end of his term, and also no restriction on when the Senate may give their advice and consent. | It says if some portion of the electorate is deprived of the right to vote then the state looses an equal proportion of its representation in Congress (and therefore electoral college votes). There is an exception "rebellion, or other crime". So if a state disenfranchises X% of the population for rebellion or crime they do not lose X% of their representatives/electors. | 18 USC 1752: (a) Whoever— (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; [...] shall be punished as provided in subsection (b). (b) The punishment for a violation of subsection (a) is— (1) a fine under this title or imprisonment for not more than 10 years, or both, if— (A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or (B) the offense results in significant bodily injury as defined by section 2118(e)(3); and (2) a fine under this title or imprisonment for not more than one year, or both, in any other case. (c) In this section— (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— (A) of the White House or its grounds, or the Vice President’s official residence or its grounds; [...] An ex-president does not have "lawful authority" to occupy the building. They may be not only removed, but also arrested and criminally prosecuted. "Squatter's rights" or other eviction protections would come from the District of Columbia's local laws, over which federal law takes precedence. So they would not apply here. | Charged: yes. Another answer has mentioned incitement to riot in 18 USC 2101. There is also incitement to insurrection in 18 USC 2383. This carries with it upon conviction a prohibition on holding office under the United States, both in the federal law itself and also via Amendment 14 of the Constitution of the United States. There are laws under which charges could be brought, and there is certainly no impediment to bringing them after M. Trump's term of office ends. Bringing them before then raises questions of presidential immunity, but I strongly doubt that speaking at the start of a "Save America March" can be construed as an action in any official Presidental capacity. Convicted: only maybe. M. Trump's statements have to extend beyond what is protected by Amendment 1 and actually be incitement to insurrection. Although there is a strong case that seeking to kill the Vice President of the United States ("Where's Mike Pence?" as people shouted) and the Speaker of the House of Representatives ("Tell Nancy we're coming for her!"), seeking to obstruct the function of the Congress, and seeking to remove the Electoral College certificates, are indeed insurrection; as possibly is whatever the woman who refused to stop brandishing a knife at the door of the building was intending to do; reading the transcript of the whole speech given at the start of the "Save America March", it is difficult to point to where M. Trump specifically incited any of those things. One can make circumstantial arguments, but the words actually uttered then and there merely encouraged marchers on a "Save America March" to march to the Capitol and cheer people on, "demand" that congresspeople "do the right thing", and "make your voices heard". This is in contrast to M. Trump's son and daughter in law who explicitly mention "fight", "fighter", and "fighting", 7 times by Eric Trump by my count and 4 times by Lara Trump. And of course Rudy Giuliani not only said "fight" but also proposed "trial by combat". In more potential criminal trouble than even them is lawyer and prominent Trump supporter, L. Lin Wood, who explicitly called, without equivocation, several times over a period of days, on Twitter and on Parler, for the Vice President of the United States to be executed by firing squad. There will certainly be mixed fortunes in the Trump family from this. Whilst there may be a case against Eric and Lara, and possibly Donald Sr.; Ivanka Trump did not speak beforehand that I know of, and is reported afterwards to have asked her father to go and speak to the mob about stopping, which she also did directly, albeit ineptly ("American Patriots — any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful."), herself via Twitter for a short while. | Yes the Senate could adopt a secret ballot rule, but other constitutional provisions combined with high partisanship make it practically impossible that the final results will be done through secret ballot. As other answers have mentioned, Article 1, Section 3, provides for the Senate to have sole power of trying impeachments. Similarly by Article 1, Section 5, each House may adopt its own rules. That means that yes the Senate can create its own rules that say the conviction vote will be done by secret ballot. However, adopting these rules only achieves a pyrrhic secret ballot. The very same section that provides for each house to make its own rules (Article 1, Section 5) also states: ...and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal. This means that if any vote is taken including this secret ballot vote, after doing so any member can ask for the Yeas and Nays of all members to be put into the Journal. The journal is the official record of each House. Thus while the vote was first taken in secret at least any member of the Senate will have access to the subsequent recorded vote, provided at least 1/5 of the Senate wishes to have a recorded vote. While not all is lost, the Senate could declare that this record itself is to remain secret, all 100 Senators and most likely many of their staff members will know how each Senator voted. Additionally, the Speech and Debate Clause states that: for any Speech or Debate in either House, they shall not be questioned in any other Place. Thus if a Senator were to publicly read the vote results into the record of a public committee hearing or during a filibuster or for really any other procedure (as rules of germane debate are very very lax in the Senate, but that is an issue for another question) that information could easily become public record. So while yes the rules can be changed to use secret ballot, a fifth (20 Senators currently) could ask for the Yeas and Nays to be entered on the Journal and this defeats the purpose of the secret ballot. So the only reasonable way to keep a secret ballot as the final dispositive record of a vote is to convince more than 4/5ths of the Senators to not ask for a recorded vote. In this sense it is certainly allowed and possible for the Senate to vote by secret ballot. | An oath of office cannot be legally enforced through the courts, other than to demand that officials take it in order to take office, and to bar people who have taken it and then engaged in treason or sedition from holding public office in any federal, state, or local office, military or civilian, in the United States. This is something which is required of all federal and state and local public officials under the U.S. Constitution, which states in the third paragraph of Article VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The U.S. President's parallel oath of office is found in the last paragraph of Section 1 of Article II of the U.S. Constitution. It states: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." But, while taking the oath is required, it is also the case that: An oath is not justiciable. The FBI cannot investigate adherence to oaths because they are not enforceable as codified law. A prosecutor cannot establish that an oath has been broken by proving certain legal elements beyond a reasonable doubt, and a judge cannot adjudicate it. There is one exception to this rule, however. Section 3 of the 14th Amendment to the U.S. Constitution states: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. So, an oath of office does impose a justiciable duty to not engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies of the United States, upon pain of not being able to hold any state or federal, military or civilian public office without a two-third majority waiver from Congress (in addition to any other consequences that may flow from this conduct without regard to having taken an oath). But, this is a very slight slap on the wrist indeed for committing treason or engaging in sedition (which are criminally punishable by decades in prison or death) after having sworn this oath. Justice Joseph Story noted in his "A Familiar Exposition of the Constitution of the United States" (1842) that: A President, who shall dare to violate the obligations of his solemn oath or affirmation of office, may escape human censure, nay, may even receive applause from the giddy multitude. But he will be compelled to learn, that there is a watchful Providence, that cannot be deceived; and a righteous Being, the searcher of all hearts, who will render unto all men according to their deserts. Considerations of this sort will necessarily make a conscientious man more scrupulous in the discharge of his duty; and will even make a man of looser principles pause, when he is about to enter upon a deliberate violation of his official oath. The purpose of an oath of office is simply to deny public offices to people who are not willing to publicly state that the legal system in which the people taking them will operate is legitimate. An oath to support the constitution is the modern equivalent of the feudal European ritual of "bending the knee" to one's legitimate feudal superior. This ritual was highlighted, for example, in the Game of Thrones books by R. R. Martin, which is based loosely on the fights over legitimacy in 15th century England's "War of the Roses". Another legacy of this historical tradition is the duty of someone in military service to salute his or her superior officer. As a historical note, these seemingly toothless rituals have, historically, been surprisingly effective a screening out hard core extremist leaders trying to bring down a government based upon claims that the whole system is illegitimate when new regimes are established, and following civil wars and insurgencies. Many regimes, democratic and non-democratic, in Western political history, have imposed similar requirements. When they have done so, this has seriously influenced the political tactics used by factions that deny the legitimacy of the state and its incumbent leaders. Simply taking the oath undermines one's credibility as an insurgent leader, even if one does so in bad faith. In the United States, oaths of office were also key preconditions to the post-conflict settlements if the Whiskey Rebellion, the Civil War, and some of the lesser known episodes of a century of Indian Wars. As a more recent example, the requirement of an oath of office has materially influenced the 20th and 21st century political tactics of Sinn Féin, a political movement in Ireland, seeking to make the U.K. political subdivision known as Northern Ireland, which it deems illegitimate, a part of the Republic of Ireland. Notably, the U.S. Supreme Court in the case Powell v. McCormack, 395 U.S. 486 (1969), distinguished between a Congressional determination that someone has not satisfied the constitutionally established requirements to have an oath of office administered to them after they have been elected, which can be made by majority vote, and a Congressional determination that a member of Congress should be expelled by a two-thirds majority vote of the house of Congress to which the member of Congress has been elected. A Congressional vote to expel a member of Congress is a non-justiciable question that is not tied to the content of the member's oath of office. Similarly, judicial and executive branch officials in the federal government may be impeached by Congress, and removed from office through that process, only for "high crimes and misdemeanors" and not merely for otherwise failing to live up to their oath of office in a non-criminal manner (although what constitutes "high crimes and misdemeanors" is also a non-justiciable political question). Some legal authorities, however, have held that in some contexts, the oath of office does reflect an intent to empower executive branch officials to refuse to enforce what the President believes to be unconstitutional legislation, when its constitutionality has not yet been definitively adjudicated yet. But, courts have also held, for example, that a member of the U.S. military does not have standing to bring a suit claiming that military action in which he is involved was unconstitutionally authorized. This decision was reached on the grounds that the claim that the service member was forced to violate that service member's oath of office does not constitute a justiciable "injury in fact" to that member for standing to sue purposes. Smith v. Obama, No. 16-843, 2016 WL 6839357 (D.D.C. Nov. 21, 2016) at page 10 (as discussed here). | First, the practical answer is no: even if they ordered the President to go to war, the President can just refuse. The military is generally in the habit of listening to orders from the President, particularly if the question is "do we or do we not go to war;" the courts do not have the power to command the armed forces. They could try issuing an injunction instructing the military to go to war, but the injunction would be ignored. They could try holding people in contempt, but the President is in charge of almost all federal law enforcement (and can pardon criminal contempt), so that's not going to work. And even if the President could be punished for contempt, if he thinks intervening will result in the annihilation of the human race in a thermonuclear war, he will not issue the orders. But that's assuming the courts would even try to intervene. They wouldn't. Courts don't generally want to issue orders that they know will be ignored. In this case, the relief being sought (i.e. an order to do something) is a kind of relief that is up to the discretion of the court. So even if a court would be legally justified in issuing that order, they have an easy out. (For damages claims, Congress can just refuse to appropriate any money to satisfy them; no federal money can be spent unless Congress appropriates it). There's an even earlier out, though. Courts are not political branches of government; one of the basic rules of jurisprudence is that courts should not get involved in deciding something that's really up to the elected branches. Baker v. Carr had a list of factors to consider: a textually demonstrable constitutional commitment of the issue to a coordinate political department; a lack of judicially discoverable and manageable standards for resolving it; the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Foreign relations in general is very often grounds for deference, as is military strategy. Courts are utterly unqualified to determine proper diplomatic or military actions to take, or to evaluate whether the President's actions were enough to meet the requirement of "do what's necessary to restore security;" foreign policy is a case where a country needs a unified face (because other countries aren't particularly willing to deal with US internal politics), and where the courts could easily screw up what the government is doing; and whether to send Americans to war is a question that is clearly a matter for those accountable to the people. So, federal courts cannot analyze this question to decide whether or not the government has done anything wrong; it's for the other two branches to decide. |
Ambiguous(?) meaning Disputes handled by TeamX can only address the hours, not the quality. What does it mean: TeamX can only address hours in handling the dispute, not the quality or dispute can only address hours not the quality I find answers to this question I asked elsewhere very interesting and divergent, but asking here for the second opinion as I also got an answer from a court interpreter which was quite surprising in the interpretation of the sentence. | The sentence has a rather easy-to-spot subject (construction): Disputes [handled by TeamX]. This is the verb construction is can [only] address and it has two objects: only [address] the hours as well as not the quality. The only clearly belongs to the first object, but makes no grammatical sense with the second. The sentence would be arguably less ambiguous if there was a but after the comma for [but] not the quality. As such, the sentence is easy: TeamX can only handle (address) disputes regarding the length of work (hours). But TeamX can not handle disputes about the quality of work. | If the employment contract treats base pay as an advance on future commissions when an employee has not earned the minimum number of units, then the company is probably entitled to repayment of advances not earned out. On the other hand, if it treats the base pay as a guaranteed minimum, the company would not be entitled to a refund. The specific wording of the contract will be vial here. There may also be state laws regulating such an arrangement. Under Nebraska Revised Statute 48-1230.01 commissions not earned when an employee leaves must be paid: on the next regular payday following the employer's receipt of payment for the goods or services from the customer from which the commission was generated. | The entire purpose of the Entire Agreement clause is to say that this contract is the agreement, and anything previously negotiated is not part of the agreement. I don't know why they would fail to include that in the contract. | Technically the signage implied an agreement, and allowed you to infer one. But yes, I think that management could not legally insist on more than the posted price, whether for a lost ticket, or for a particular duration. (Unless the sign included "prices subject to change without notice" or something of the sort.) As a practical matter, challenge this is going to be a pain. The employees on the spot probably have no authority to vary the price merely because the amount programmed into the register differs from the posted sign. At least they will claim not to have such authority. And they won't release the car without being paid the $80 that they will insist is the proper price. To challenge this, a person would probably have to pay under protest, and then sue for a refund, I would hope in a small claims court. Most people will not go to that trouble for $10, which perhaps the management counts on. Publicity might be more effective. | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | Do I have any recourse for invalidating all or part of the contract? No. There is a presumption in contract law that when a contract is reduced to writing then what that writing says is what the parties agreed. Also, if you signed it, then you are legally stating: I read it, I understand it and I agree to it - don't sign things you don't understand. If your lawyer has produced something you don't understand then have them redraft it until you do. Would a successful suit against the lawyer for malpractice or negligence make any difference? No. A suit against you lawyer may get you damages from your lawyer but it will not affect the rights of third-parties. What is best practice for avoiding flawed contracts like this in the first place? Read and understand the contract. Educate yourself enough in the law so that you can do this. Your lawyer is there to give you professional advice; you are there to make your own decisions. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | There is a general common law doctrine of contract interpretation which tells us that ambiguities are construed against the drafter. In your case, had the employer intended to require two years of work (or else reimbursement back to them) they could have explicitly stated this. The fact is, the contract is written as it is for a reason, likely to entice you to accept the offer of employment. They softballed the requirements to get you to take the job and now they are trying to play hardball. I would hope that a court would find this and tell the employer to think about these clauses next time. The fact is, after a deal goes south is a bad time for an employer to start explaining what these terms mean. You have fulfilled your half of the bargain. If the facts are as you say they are then you satisfied the "best of my ability" condition. Another problem you might have is if the employer does not take you to court but instead continues to make threats, maybe sends a collections agency after you. In that case you will need to get an injunction to stop the employer. In other words, get a court to state that you do not owe them any money and enjoin them from continuing to as if you do. EDIT: as a commenter mentioned, a contract may explicitly provide that ambiguous terms will not be construed against either party. |
Is sex for rent considered prostitution in Australia There have been a number of articles about people who have been exchanging sex for rent or accommodation. Assuming that at some interval a person provides sexual services to another and in for this they are given some where to live (could be with them or at another location) could this be considered a form of prostitution? Or does money have to be exchanged to be considered prostitution. What test apply? | 'Prostitution' is neither wholly legal nor wholly illegal in Australia. Some prostitution is legal and other prostitution is not. The rules differ from State to State. In Victoria the relevant law is the Sex Work Act 1994 (Vic). The term 'sex work' is defined in section 3 of the Act. Note that, even then, not all sex work is necessarily legal or illegal. In Victoria, it is generally lawful for a person to take money (or money's worth) for sex, as long as it's not as part of a business such as an 'escort agency' or 'brothel' (each term is defined in the Act). However, it is an offence to: induce a child to perform sex work: s 5; induce a person to perform sex work using violence, intimidation, drugs or fraud: s 8; live off the earnings of another person's sex work: s 10; loiter near a school or church looking to procure or offer sex work: ss 12 & 13 respectively; operate, attend, etc an unlicenced brothel: s 15; advertise for people to become sex workers: s 17; provide or receive sex work services without a condom etc: s 18A; carry on the business of sex work (including an escort agency or brothel) without a licence: s 22 (but certain owner-operators are exempt: s 23); many other things. In conclusion, a person paying rent in the form of sex is likely to be legal, but they would have to use a condom, take steps to reduce the risk of sexually transmitted diseases, etc. Advertising 'come live here in exchange for sex' would, however, be illegal. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | As for the ex post facto question, an ex post facto law is one that makes an act illegal when it was legal at the time of the commission. Let's now look at the clause: (b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment. What amendment is made in section subsection a? Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following: “(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— “(A) any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title; “(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18, United States Code; or “(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”. This does not make any act illegal. It say "we don't mean by this that...", and does not make any act illegal. The basic definition of the crime is here: §2421A(a) Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both likewise §2421A(a). The bold part is standard language invoking the Commerce Clause, which is the source of federal authority in what would otherwise be a state matter. The italicized part, referring to intent, indicates that the website owner/operator has to have a wrongful intent, so it's not just a penalty against those who own or operate a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking. The First Amendment has a number of limits, for example you are not free to threaten or defraud, or advertise murder for hire, of advertise employment, housing or lodging (etc) discriminatorily (e.g. "Women need not apply" is illegal). The question would be whether the government has a compelling interest in limiting free speech (I think the court would say yes), and is this the narrowest restriction possible that accomplishes that interest (again, yes). So it would probably pass strict scrutiny. The purpose of the act is both to tune up the Communications Decency Act and to extend the Mann Act, which makes certain forms of interstate sex a crime. So, 18 USC 2422 (a)Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both"; (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. This expands the federal limits on prostitution in a standard way. | Under an AST agreement the landlord is not permitted to evict you on a whim - if you refuse to leave, in order to 'take possession' the landlord must persuade a court to give him a court order. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/applying_for_possession_assured_tenancies In the fixed term the landlord must first serve the tenant a 'section 8 notice' with a 'ground for possession' (there are 20). https://www.legislation.gov.uk/ukpga/1988/50/schedule/2 http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies Were you to refuse or fight it a court would determine whether the landlord may take possession on the ground in the section 8 notice. That particular clause you are concerned about is common to the AST agreements I've seen. See for example the government's model agreement: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695944/Model_Agreement_for_an_Assured_Shorthold_Tenancy_and_Accompanying_Guidance.docx The guidance isn't specific about "illegal, immoral, disorderly or anti-social purposes" but examples elsewhere include prostitution in the property (doing it yourself or allowing it to be done) or it being used to store stolen goods. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#7 I'm just curious to know if there are any laws protecting me as a tenant from the landlord abusing that i.e immoral is certainly subjective and realistically he could find anything he doesn't like immoral? It is unrealistic to assume the landlord can take possession based on saying anything he doesn't like is immoral. Do any laws exist to ensure there is a limit on what can be considered reasonable? Statute isn't specific about what's "reasonable". Ultimately what's reasonable is what the court says is reasonable. You can look at case law. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#1 If not, am I within my rights to ask the landlord to expand on that clause to ensure there is no doubt between the two parties? You are free to ask the landlord what that clause means and to define it specifically - the landlord is free to do so or walk away from the deal. Consider that landlords tend to want tenants who will pay on time, keep the property clean and warn them about maintenance problems - I doubt the majority have any interest in their tenants' private lives that the landlord comes to know about unless the landlord anticipates an economic impact. | You cannot call yourself anything that is deceptive or misleading. Given that "Spiritual Councillor Practitioner" doesn't mean anything you should be OK. However, be aware that if you give advice in a professional capacity and people act on that advice to their detriment then they can sue you. That said, taking money from people for the provision of a service for which you do not have any particular qualifications may be unethical and could get you in some kind of hot water. | england-and-wales There isn't a law that defines 'gaslighting' as an offence. Generally it isn't unlawful to mislead, deceive or lie - of course, there are exceptions such as fraud, misleading advertising, perjury and so on. So the answer to your question must depend on what is meant by 'gaslighting' and the circumstances in which it has been said to have occurred. It seems to me that people understand and use the word differently - for me it pertains to intimate or family relationships (as in its alleged origin, the film Gaslight), some people seem to use it for different serious behaviour and other people use it for relatively trivial behaviour. In the intimate or family relationship context, gaslighting might be part or all of the behaviour alleged to be the controlling or coercive behaviour contrary to s76 Serious Crime Act 2015: 76 Controlling or coercive behaviour in an intimate or family relationship (1)A person (A) commits an offence if— (a)A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive, (b)at the time of the behaviour, A and B are personally connected, (c)the behaviour has a serious effect on B, and (d)A knows or ought to know that the behaviour will have a serious effect on B. Here is the Crown Prosecution Service guidance for prosecuting s76 Serious Crime Act 2015. Simply lying about one's job or income to have a one-night stand would not constitute the s76 offence. Behaviour that causes psychological injury that amounts to recognisable psychiatric illness could be assault occasioning Actual Bodily Harm (ABH) contrary to s47 Offences Against the Person Act 1861 (see CPS Guidance for ABH). | It could be the passenger's problem or the taxi's problem When these sorts of breakdowns in communications happen in specifying contract terms then either or both parties can be at fault. If the passenger specified the wrong address then it is clearly the passenger at fault. Similarly, if the driver drove to a different address from what the passenger said, it would clearly be the driver at fault. However, if the passenger was imprecise and the driver made an assumption then who bears responsibility depends on whether that assumption is reasonable or not. For example, the main street in the Sydney, Australia CBD is George Street. Even though George Street is an extremely common name with literally dozens in the Greater Sydney area, a taxi driver would reasonably assume that a passenger at the airport asking for "George Street" means the one in the city, not any of the others. In such a circumstance, the onus is on the passenger to specify exactly where they want to go. Whether the driver is an employee or a contractor is irrelevant - they are the representative of the organisation with whom the passenger has a contract. | Yes, maybe australia In Australia, child abuse material is classified as the sexualised depiction of persons under 16 (or in some cases 18). This applies under both State and Commonwealth laws. Common charges in NSW will be possessing, disseminating or producing child abuse material under s 91(H) of the Crimes Act 1900 (NSW). Further Commonwealth offences can be found in circumstances where a communications carrier has been used for the purposes of delivering child abuse material. Within this field, there are subtle variations in circumstances. The court would need to decide if the pictures were a “sexualised depiction”. Context matters. I don’t know of any cases on point but convictions have been secured for sexualised cartoons of children and pictures of fully-clothed children in sexual poses. |
Did Trump just confess to a crime? This article quotes trump as saying I also fixed his campaign, which had completely fallen apart. I was all in for Ron, and he beat Gillum, but after the Race, when votes were being stolen by the corrupt Election process in Broward County, and Ron was going down ten thousand votes a day, along with now-Senator Rick Scott, I sent in the FBI and the U.S. Attorneys, and the ballot theft immediately ended, just prior to them running out of the votes necessary to win. I stopped his Election from being stolen. The article says To be clear, that was Trump apparently suggesting that he “sent in the FBI” to ensure that DeSantis won, which many have noted warrants an investigation by the people who investigate federal crimes: Did Trump admit to committing a crime? | If what that quote says is actually true, no that is obviously not a crime. Sending law enforcement to stop a crime is not a crime, no matter who benefits. In fact turning a blind eye and letting someone benefit would have been the crime. But this is not a legal matter. People are upset because the person saying this has a track record of saying things that are actually not true and that is why many people suspect a crime. Because if any part of this sentence turns out to be not true (and based on this persons history, that chance is very high), then yes, a crime may have been committed. If any predecessor had said "I sent the FBI to stop child kidnapping and it stopped immediately", nobody would question that that is obviously not a crime. They would applaud him for it. Because with any predecessor, people would have believed their words to be true, at least in the very broad sense. | 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. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | The President wouldn't be in breach of Insider Trading Laws (Section 10b of the Securities Exchange Act) since he has no information resulting from a position of trust within Twitter (or as a trusted provider of services) and no ability to depress their stocks through intentionally fraudulent practices. [O]ne who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so. And the duty to disclose arises when one party has information “that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” The key word here is "insider". The President is not an insider, he's merely the user of a service. He certainly has material information, but not gleaned from a position of confidence or trust. anyone in possession of material inside information must either disclose it to the investing public, or, if he is disabled from disclosing it in order to protect a corporate confidence, or he chooses not to do so, must abstain from trading in or recommending the securities concerned while such inside information remains undisclosed. That being said, it's arguable (and I'm reasonably sure his political opponents would argue it until the cows come home) that his shorting their shares would be a material violation of the STOCK Act, specifically section 6 which requires the President to have disclosed his holdings of shorted stock to the public. It's also pretty arguable that his popularity on Twitter is a direct result of his office as President, and hence making money by publicly and messily leaving their service will result in a breach of accepted ethical standards and potential impeachment even if no specific law has been broken. | We may soon have a more definitive answer. A Grand Junction, Colorado newspaper is suing a politician for calling it "fake news", and the resolution of that case and the hypothetical that you propose would turn on the same legal principle. It is highly unlikely that such a lawsuit would prevail, because "fake news" probably doesn't constitute libel per se, because the comment could be construed as hyperbole or as a statement of opinion (neither of which are actionable), and even potentially, because a "speech and debate clause" defense under the state constitution might apply (depending upon the context in which the statement was made by the politician). The context of the particular tweet cited generally defines specified organizations as "the FAKE NEWS media" rather than accusing them of any particular instance of making a false statement, so it is probably an opinion or hyperbole. But, if the statement were made knowing it was false or with reckless disregard as to truth or falsity, and if the term "fake news" in the context in which it was used could be legitimately construed the imply a statement of fact which is not true, it wouldn't be impossible for the lawsuit to succeed, and depending upon the context of the statement, it could have such an implication. A suit against Trump could also implicate Presidential immunity doctrines which are more robust than immunity doctrines for other public officials, particularly if the "fake news" comment could be construed as part of the official duties of the President (for which there is absolute immunity) as opposed to his unofficial duties. The immunity question is a closer one than the question on the merits of defamation law about which there is much more case law to flesh out what is and isn't covered. | This is a good question, although it discusses crimes. This answer generalizes the question by giving a response for civil violations. In the united-states, where federal civil-procedure is followed and provided the tape isn't solely for impeachment purposes (i.e. it also documents other elements), there are certain disclosures required at the beginning of discovery governed by Rule 26(a)(1)(A)(ii). If a party withholds one of these disclosures, under Rule 37(c)(1), the court is able to take a number of actions, including throwing the evidence out. This could, of course, result in the withholder's conviction. Yet, if the court does not go to that extreme, it may impose the sanctions in Rule 37(b). So the withholder's attorney might try to make a case that the evidence is, indeed, solely for impeachment purposes. | 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. |
Must a driving instructor accompany a learner on a motorcycle in India? I am an Indian citizen who recently entered adulthood. I have thus been learning how to drive vehicles. To be able to drive a vehicle in order to gain experience, you need a Learner's license, as is the case in many countries. If you are learning to drive a car, you must be accompanied by a person who holds a valid driver's license, who can take control of the vehicle if the situation arises. I read in some official document that a person learning to drive a vehicle must be accompanied by a person holding a valid learner's license, who is in a position to commandeer the vehicle if the situation arises. Now this makes sense for 4-wheelers, but what about 2-wheelers? Do they want an instructor to ride pillion? A pillion obviously is not in a position to commandeer the motorcycle, also it adds weight to the bike, making it more difficult to control. Asking since I have been driving a motorcycle on a Learner's license with no pillion instructor, and a legal situation may arise where this is questioned in the court of Law. | If we go by Indian case law (as we should), you have to find a way. The relevant case is K.P. Adbul Gafoor v. New India Assurance Ltd, where appellant drove on a motor cycle on a learner's permit without a licensed driver positioned correctly, in violation of Rule 3 of the Rules, and smacked someone. The bulk of the case is about the insurance and liability consequences of violating the rule: the main point here is that the court deemed this to violate the rules. | If you have a license and drive but forget your license and get pulled over what happens? You could receive a summons or citation (a.k.a. "ticket") for failing to carry a driver's license. Section § 46.2-104 of the Virginia Code states that it is a traffic infraction with a $10 fine to not have your license while driving. The operator of any motor vehicle, trailer, or semitrailer being operated on the highways in the Commonwealth, shall have in his possession: (i) the registration card issued by the Department or the registration card issued by the state or country in which the motor vehicle, trailer, or semitrailer is registered, and (ii) his driver's license, learner's permit, or temporary driver's permit. Every person licensed by the Department as a driver . . . who fails to carry his license. . . for the vehicle which he operates, shall be guilty of a traffic infraction and upon conviction punished by a fine of ten dollars. (Emphasis added.) Do you get a penalty for forgetting it at your house? Yes, if you have a valid license that you left at home, you can get the case dismissed by showing the license to the the court (presumably a clerk), but you will still have to pay "court costs." However, if any person summoned to appear before a court for failure to display his license . . . presents, before the return date of the summons, to the court a license or permit issued to him prior to the time the summons was issued . . . or appears pursuant to the summons and produces before the court a license or permit issued to him prior to the time the summons was issued . . . , he shall, upon payment of all applicable court costs, have complied with the provisions of this section. Va. Code Ann. § 46.2-104 (2016). | You did not state a jurisdiction, but this sign is of the style specified by the Manual on Uniform Traffic Control Devices (MUTCD) which is used throughout the United States, so I will assume a jurisdiction which follows the MUTCD. The "Share the Road" sign is numbered W16-1P. (The MUTCD version just has the words and not the car/bike symbols; the latter might be a recent update or a local variation.) Its description reads: In situations where there is a need to warn drivers to watch for other slower forms of transportation traveling along the highway, such as bicycles, golf carts, horse-drawn vehicles, or farm machinery, a SHARE THE ROAD (W16-1P) plaque (see Figure 2C-12) may be used. So, as is generally the case for yellow warning signs, it does not have any effect on the laws which apply. (It is generally only white regulatory signs that do that.) Whether or not it is a "good idea" to share a lane, it is legal. Both cars and bikes are entitled to use the road, and if it's a road with only one lane in this direction of travel, then necessarily they must share it. Of course, they wouldn't typically travel side by side indefinitely, but they will be abreast briefly when a car passes a bike. California law, as an example, requires only that the car stay at least three feet away from the bicycle as it passes, when possible. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | Not necessarily. Your own statements and the statements of the officer would be legally sufficient to convict you. Also, your statement that you don't believe you are at fault is strongly at odds with a widely held interpretation of the traffic laws (not stated in the formal language of these statutes). The prevailing interpretation of the traffic laws is that you are always at fault if you rear end someone because you failed to maintain a safe distance, pretty much as a matter of strict liability and regardless of the circumstances, because a safe distance is almost by definition a distance that it is possible for you to come to a full stop from if the care in front of you suddenly comes to a stop for any reason. The only situation I can imagine where there wouldn't be liability for rear ending someone would be if you were at rest behind them at a stop light and they actively backed up into you. In practice, almost any judge and almost any jury, would convict you of failure to maintain a safe distance if you rear ended someone absent the most extraordinary of circumstances. I honestly don't know any lawyer or likely potential juror who wouldn't convict you under these circumstances with only the testimony of the police officer and your own testimony (which you would have to offer to have any shot at avoiding a conviction) to establish that you did indeed rear end someone. Police are allowed to lie to suspects of crimes, and often simply do not have an accurate understanding of how the legal system works. So, you are not entitled to rely on a statement made by a police officer. Of course, it is also certainly possible that his statement is consistent with local practice in your neighborhood traffic court. So, showing up to contest the charge might still make sense, and it wouldn't be uncommon to receive a plea bargain with fewer points against your license, just for showing up to court. | Your question seems to be based on some false assumptions. As far as I can tell: There is no federal requirement for an Uber driver to have a class A, B or C license. Just because they are commonly called "commercial" licenses, it does not follow that every kind of commercial driving necessarily requires you to have one. The US Department of Transportation has a website describing what kinds of driving require these license types. Class A: Any combination of vehicles which has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more) whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds) whichever is greater. Class B: Any single vehicle which has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), or any such vehicle towing a vehicle with a gross vehicle weight rating or gross vehicle weight that does not exceed 4,536 kilograms (10,000 pounds). Class C: Any single vehicle, or combination of vehicles, that does not meet the definition of Class A or Class B, but is either designed to transport 16 or more passengers, including the driver, or is transporting material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR Part 172 or is transporting any quantity of a material listed as a select agent or toxin in 42 CFR Part 73. A typical Uber driver operating a typical passenger car (say, 5 passengers and 4000 pounds) would not fall into any of these categories. Some states do require an Uber driver to have a special kind of license; others do not. For example, New York has a Class E license, which for-hire drivers are required to have. (Ordinary people typically get a Class D license instead.) On the other hand, consider Colorado. You can read about Colorado license classes here (PDF). Most ordinary people get a Class R license, and there is no indication that driving a passenger car for hire requires anything other than this. In states where such requirements do exist, it appears that Uber verifies that its drivers do indeed have the appropriate license. For instance, here is Uber's page for prospective New York City drivers. It explains that you have to get a Taxi & Limousine Commission (TLC) license, as well as a Class E driver's license. | I took my car to the mechanic to have a squeaky brake looked at. I was told it would cost $30. The mechanic fixed whatever the problem was. When I was checking out, they could not find a $30 brake-work item in their computer so they billed it as Tire Balancing $30. Or some such thing. Meh, accounting. This is not how the law works. The prosecution needs to prove every element of the crime you are charged with. They need to prove you did not signal. The way this usually works is the cop takes the stand and testifies, and you can cross examine him. Then you can testify if you want to, and can be cross-examined. There might be other evidence against you also, like a dash cam. Assuming there is no other evidence, and that the officer did not prove every element of failing to signal, you do not need to testify. You can tell the judge that the prosecution failed to make the case and ask to have the charge dismissed. Of course, if the judge thinks they did make their case, then you lose. On the other hand, you could take the stand and testify, and subject yourself to cross examination. Just a word of warning, if it's your word against a cop's word, you will lose. Your best bet is to get discovery, get the dash cam, and show that you did signal. Be aware, if you get too saucy, the prosecution can add charges. So they could add the speeding charge, but of course, (see above), they then need to prove it. | You are required by state law to register and license a personal (or commercial) vehicle because state laws govern vehicle licensing, not the federal government as you cite. See Motor vehicle registration - Wikipedia. States have the right, well established in case law, to require registration, taxation and insurance for all vehicles on all public roads. The various websites and "sovereign citizen" arguments on the web that say you don't need to register or license a vehicle are wrong. In some special cases, states issue waivers for what are known as farm or ranch vehicles driven solely on private property, and those cases may or may not pay taxes or require insurance. |
Can a joint tenancy's right of survivorship be invalidated by providing evidence that one of the four unities has not been met? In a scenario where two non-married, but related people, establish a joint tenancy with regard to ownership of real property without legal representation, can heirs challenge the validity of said joint tenancy, and thus the right of survivorship, by providing evidence that the decedent acquired >99% of the real property's interest with an intent to hold it as sole and separate property (potentially relevant for the four unities)? From an evidentiary standpoint, the case would not be based on a written last will and testament, i.e. intestacy, but on non-will ledgers, third party banking transactions, and letters of evidence that show the decedent undertook full responsibility for expenses related to the acquisition and maintenance of the property. The joint tenant was involved in the deed and mortgage issuance by the decedent for the sole purpose of mortgage qualification (i.e. credit requirements). In California, the relevant case law seems to be Kershman v Kershman, Milian v DeLeon, and Cosler v Norwood, but this is such a peculiar situation that it's difficult to find case law precedent. | Normally, a recorded deed is taken at face value. If Bob acquires a house and conveys the house to Bob and Clark, his cousin, a joint tenants with right of survivorship, or pays for 99% of the price of a house and directs that it will be deeded to Bob and Clark as joint tenants with right of survivorship, the normal interpretation of that transaction is that Bob made a gift of an undivided one half interest in the property with right of survivorship to Clark. It sounds like the fact pattern is that Bob dies before Clark, giving Clark 100% title of record to the house subject to the mortgage, and Bob's heirs are not cool about that fact and would like to escape that consequence. This is a tall order for Bob's heirs. Normally, at least two important rules of evidence will preclude admission of testimony to the contrary. One is the parole evidence rule. This excludes as a matter of law evidence of discussions entered into prior to execution of an unambiguous written instrument that is not on its face incomplete, even if other evidence, called "extrinsic evidence" is available. The other is the dead man's statute, which is quite tricky in its technical application, but is basically designed to prevent an interested party from offering self-serving testimony that economically benefits them about what a deceased person said. The classic examples would be "I'll sell you these gold bars for $10", or "I'm giving you this painting", or "I agree to let you live in my house after I die rent free for 11 months." A statement regarding an intended ownership interest in joint tenancy with right of survivorship real estate asserting that it is not 50-50 when nothing on the face of the deed suggests that this is case might be barred by the dead man's statute since these are statements of a dead man that favor the person offering the evidence. But, as I say, the application of the rule is quite technical. Also, to the extent that any third-party like a lender or a judgment creditor of the surviving joint tenant gets a lien or other property right in the property that is recorded, and that person had no knowledge of the claims of ownership outside real property records of the relative rights of the joint tenants, that evidence couldn't be used to impair or reduce the third-party's rights in the property by virtue of the recording statutes. If a dispute arose while the co-owners were alive at a time when there were no disputed claims of third-parties to the property, the joint tenancy would be easy to severed into a tenancy-in-common, and the actual relative contributions and right of the parties could be litigated in court with the testimony of those parties. But, usually, the four unities are in practice, a consequence of a joint tenancy with right of survivorship deed being prepared and recorded, rather than primarily being a condition precedent to it. If a single deed is executed that says that grantee are two or more people who are described as joint tenants with right of survivorship, then the legal consequence of that deed is that the co-owners become equal owners with a right of survivorship and unlimited right to possession of the whole. Also, even though it isn't standard, it isn't impossible for property to be in a tenancy-in-common which a side agreement to make a transfer upon death to the remaining tenant-in-common, even if it isn't a true joint tenancy with right of survivorship. So, if one proved by some competent and admissible evidence that a 50-50 ownership was not intended and that it wasn't a true canonical joint tenancy, this wouldn't necessarily invalidate the survivorship provisions on the face of the deed. A judge would be more likely to treat the deed as a non-standard non-probate transfer at death than to treat it as a tenancy-in-common without a right of survivorship, despite language of survivorship on the face of the recorded deed. Now, something other than equal co-ownership might be admissible for some purposes, like tax consequences, but that wouldn't go to who gets the property when a co-owner of the property dies. From an evidentiary standpoint, the case would [be based upon] . . . non-will ledgers, third party banking transactions, and letters of evidence that show the decedent undertook full responsibility for expenses related to the acquisition and maintenance of the property. The joint tenant was involved in the deed and mortgage issuance by the decedent for the sole purpose of mortgage qualification (i.e. credit requirements) This doesn't sound very convincing. First, there is nothing inconsistent with a joint tenancy with right of survivorship with one co-owner being the person who provides the funds for purchasing the home and handling all of the maintenance and expenses. This is more common than not in the case of a married couple or pair of unmarried domestic partners that own the real property as joint tenants with right of survivorship and it used to be even more common. Second, a lender would almost always require that all people obligated on the mortgage be owners of the property, and that all owners of the property be obligated on the mortgage. (Strictly speaking, in California, it would probably be a deed of trust rather than a mortgage, but that is functionally equivalent.) But, it wouldn't be very common as a commercial requirement to insist on joint tenancy with right of survivorship as opposed to tenancy-in-common ownership. Also since providing credit to a transaction is something of value, getting an ownership interest in the property in exchange isn't beyond the realm on possibility and plausibility in a deal that isn't entirely arms length but isn't entire a gift either. Providing credit is probably sufficient consideration to support the deal as a binding contractual agreement. Now, the best strategy might be a letter or exchange of letters that amount to an agreement. This wouldn't bind the mortgage company, but might have some relevant. Still, if the letters predate the execution of the joint tenancy deed, the parole evidence rule might keep the letters out of evidence. Some sort of express trust theory, treating the letters as a trust agreement, might if the language was right, be a stronger legal argument. I'm trying to wrap my head around how a court would interpret documentation vs. intent with regard to the joint tenancy ownership of real property. The key point being that the decedent didn't 'generally' pay for the property, but always paid for it. This is almost completely irrelevant. It is consistent with the alternative characterization of the transaction, but it is also consistent with the deed terms. In particular, if the decedent described the remaining joint tenant as a 'renter' during an interval of co-habitation, and no financial transactions between the two took place subsequent to that. I could imagine bringing a legal action to reform the deed, but the threshold of proof to win that action is pretty high. Absent some sort on undue influence or abuse of a confidential relationship, I have a hard time seeing a deed like this being reformed by a court to reflect a different kind of transaction, even if that was the original intent of the parties, but it isn't impossible if the right facts and evidence were available (which the dead man's statute, again, heavily constrains). If Bob was defrauded by Clark, I could also imagine some sort of legal remedy being available. But it is hard to think that Bob who was the primary mover in the deal would have been defrauded by Clark in this fact pattern. In California, the relevant case law seems to be Kershman v Kershman, Milian v DeLeon, and Cosler v Norwood Kershman v. Kershman is not on point. It is a divorce case dealing with the issues of marital v. separate property under California's community property regime which is an entirely different body of law that doesn't apply to unmarried co-owners of property. Milian v. De Leon is more on point, involving unmarried people with unequal contributions to the property who take title by a deed that says joint tenancy. it found that, “once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195. (Source) This holding is the standard common law rule. It isn't isn't really relevant here, however, because that case applies in the context of a partition action while the co-owners are alive, and not after death when the survivorship feature causes the surviving co-owner to be sole owner by operation of law. Cosler v. Norwood is a much older case, from 1950, and seems to stand for the proposition that the language of the deed regarding equal ownership that flows from calling the co-owners joint tenants can be overcome by extrinsic evidence in the context of a partition action, although it is arguably implicitly repealed by Milian v. De Leon. But it isn't on point for the same reason that Milian v. DeLeon in not on point - it considers the rights of two living parties in a partition action dispute (i.e. a lawsuit to untangle co-ownership of property), not concerning the validity of a survivorship provision in the deed in the presence of unequal contributions to the acquisition price. Changes to the survivorship rights do not obviously at all flow from the existence of unequal contributions. | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. | The contract is enforceable No one is in any doubt that the parties to the contract are you and Smith Homes and everyone knows that Smith Homes means Smith Homes LLC. The written document is only evidence of the contract, the contract is the entire commercial relationship. Contracts are not invalid because they have typos or minor irregularities- otherwise virtually no written one would be. The law can be very pragmatic sometimes. | Is it acceptable for person A (representing themselves) to refer to person B as "their neighbor" instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings & proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints. | (I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.) | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | In Robinson v. Mandell, the authenticity of a mutual will was in question. Hetty Green (Robinson) claimed that her aunt (Howland) intended to disinherit the father of Robinson and requested that they were both to make a will, so that in case Howland predeceased Robinson but Robinson predeceased her father, the latter would not obtain anything derived from Howland's estate via Robinson. At the centre of the case is the allegation that it was at the same time mutually agreed between the parties that the respective wills, so to be made, were to be exchanged, and that each was to have possession of the will of the other, and that neither was to make any other will without notifying the other, and returning the other's will so to be held in exchange. This is essentially a contract between (at the time) two living persons, and at least at the time, generally enforceable unless there exist motives to nullify the contract. Of course, the parties can also revoke the contracts according to the rules in the contract or provided by statutes. The court made the following observation (among others): Where two persons agree each with the other to make mutual wills, and both execute the agreement, it is held that neither can properly revoke his will without giving notice to the other of such revocation. The death of one of the parties in such a case carries his part of the contract into execution, and the better opinion perhaps is, that the other party, after that event, if the agreement was definite and satisfactory, cannot rescind the contract. The particular contract here would be irrevocably executed by one party due to her death and the contract is definitive and cannot be changed. However, in this case, it was decided against Robinson because the existence of the mutual will was not proved. By contrast, a traditional will is a unilateral declaration made by the testator, who in general cannot bind their future self from making another legally valid decision overriding the previous will, unless another party's interests are adversely impacted under certain conditions (e.g. under proprietary estoppel) or the law provides otherwise in that jurisdiction. Nowadays in Massachusetts, the statutes provide for methods to revoke a will as well as contracts regarding the making or non-making of a will that could make certain wills irrevocable. Section 2–507. [Revocation by Writing or by Act.] (a) A will or any part thereof is revoked: (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, ''revocatory act on the will'' includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. (b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. (c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the previous will is revoked; only the subsequent will is operative on the testator's death. (d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Section 2–514. [Contracts Concerning Succession.] A contract to make or not to make a will or devise, or to revoke or not to revoke a will or devise, or to die intestate, if executed after the effective date of this article, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills shall not create a presumption of a contract not to revoke the will or wills. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. |
Could I "free" a proprietary font by printing all glyphs, tracing them with a pen, and scanning my copy? If I understand correctly, typefaces are not copyrightable in the US, only the digital colt files. If I want to make a libre version of a proprietary font, can I print out a document that says something like ABCDEFGHIJKLMNOPQRSTUVWXYZabcdefghijklmnopqrstuvwxyz0123456789@#$_&-+()/*"':;!?~`|^={}%[] then trace the glyphs with a pen, scan my traced copy, and create a new digital font file from the scan? (Ignore the fact that this will significantly degrade the quality.) | Yes, if you do not use the trademarked name. In the U.S. the graphical shape of fonts are not protected by copyright. See 37 CRF section 202.1 Typefaces are specifically excluded. Excluded are under (a) "mere variations of typographic ornamentation," and (e) "Typeface as typeface." The computer code that a font/typeface program uses to produce the shapes can be copyright. Importantly, fonts are protected by their trademarked names. | 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. | 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. | united-states Under US copyright law blank forms generally do not have copyright protection, because they do not have sufficient originality to quslify for copyright under the doctrine of Feist vs Rural. According to the US Copyright Office Circular 33: "Works Not Protected by Copyright" (pages 3-4): Blank forms typically contain empty fields or lined spaces as well as words or short phrases that identify the content that should be recorded in each field or space. Blank forms that are designed for recording information and do not themselves convey information are uncopyrightable. Similarly, the ideas or principles behind a blank form, the systems or methods implemented by a form, or the form’s functional layout are not protected by copyright. A blank form may incorporate images or text that is sufficiently creative to be protected by copyright. For example, bank checks may be registered if they contain pictorial decoration that is sufficiently creative. Contracts, insurance policies, and other documents with “fill-in” spaces may also be registered if there is sufficient literary authorship that is not standard or functional. In all cases, the registration covers only the original textual or pictorial expression that the author contributed to the work, but does not cover the blank form or other uncopyrightable elements that the form may contain. A trademarekd name or logo could be used nominally to show compatibility with the trademarked product, such as: This character sheet is compatible with the game "GreatRPG"(tm) and is suitable for recording characters to be used in that game. However these sheets are not made, approved, authorized, or sponsored by Heartland Mages, who own the trademark "GreatRPG". They are a product of "MySheets" which is in no way affiliated with Heartland Mages. Used with that sort of disclaimer, there will be no trademark infringement. And of course if the name and/or logo of the RPG is not used at all, there wiull also be no infringement. However, if the name of the game is used in advertising the sheets, or on the packaging of the sheets, it should be made clear to any consumer that the sheets are not authorized by the maker of the game. A disclaimer similar to the above serves this purpose. If reasonable people could be confused into thinking that the sheets came from the makers of the game, or were approved by the makers, there might be a valid action for trademark infringement. | pure functionality is not copyrightable Copyright does not protect purely functional things, it only can protect the execution as Brown Bag Software v Symantec Corp established back in 1992. In fact, even before that, Data East v Epyx established in 1988 that it takes the availability of the software to be copied to even get a case, but that was refined in Capcom v Data East in 1994: There are unprotectable elements, aka Scenes a Faire, things that are just standard and have to be done. A lever that pulls on a rope is strictly functional, that the lever is pink with orange stripes is not. A button with the label "save" on it has no artistic choice but a purely functional one and its presence, in general, can't be copyrighted as that is standard. Even standard placements like "top left corner" or "bottom right corner" for the button are just standard enough and make that part of the UI uncopyrightable. Indeed, even the idea of a Graphic User Interface is unprotectable as Apple v Microsoft (1994) held. But if you put that save button upside down on the left edge of the screen and only visible if you mouse over it, then you have shown artistic choice beyond the mere functionality - but also very bad UI/UX design. Code can be copyrighted. Computer code can be copyright protected, but you protect only those elements that are protectable in the first place. This means only elements that are not for example mandated by the sheer functionality of the underlying programming language. If the programming language mandates that all programs start with Program launch {variable variable variables} then that part is not copyrighted by you, but your choice of variable names can be. Code can be made from functionality requirements There was a famous SCOTUS case that had pretty much this question: Can a company dissect a software and then take the determined functionality of the whole software to their own programming team? Bowers v Baystate court held an Ethical Wall will not constitute infringement, if properly executed and the EULA doesn't prohibit it. Work for hire/Employees Now employers always get pretty much all the rights to a program's code anyway. If you are contracted from the outside, it might be work-for-hire and the contract might include such a transfer. In either case, there are no rights left for the hired person to sue over. Only if the contracted outside coder does not have a work-for-hire type work and there is no transfer clause, they do have rights in the work that they can sue over at all. But Work For Hire is a very complex topic on its own - and requires you to review your contracts and get a lawyer. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | Yes, if the book was published in 1913, the copyright has expired. You can freely scan it in and publish it. But note you have NO copyright to the material. You didn't write it. Copyright law gives rights to the AUTHOR of a work. It doesn't matter how much effort you went to scanning it in and formatting it. Nothing in copyright law says that that gives you any rights. If you add anything creative of your own, you would own the copyright to the new material. Like if you drew new illustrations and added them to the book. Or if you included your own commentary. Or you added explanatory footnotes. That still wouldn't give you rights to the original text, but you would own the new material. But in the same vein, if the book was originally published in 1913, but the copy you have includes material added by a later editor, that later material might still be protected by copyright. Just a side thought, it occurs to me that if I was going to republish a public domain book, a good idea would be to add footnotes. If my footnotes appear on almost every page, then no one else could just take my electronic files and sell them himself. He'd have to go through page by page and purge out all the footnotes. Make it hard for someone to "borrow" your work and you might scare them off. | Arguably, no one owns the copyright in the general case. This is a similar case to a previous question I've answered. In short, the US has a statutory provision which bars infringing derivatives from gaining copyright. In this particular case, it's helpful to take a look at what the Court of Appeals for the Second Circuit had to say. While evaluating transformativeness, they did not declare Warhol's works to be derivatives, but left that possibility open and stated it was closer to being a derivative than transformative fair use: Nonetheless, although we do not conclude that the Prince Series works are necessarily derivative works as a matter of law, they are much closer to presenting the same work in a different form, that form being a high-contrast screenprint, than they are to being works that make a transformative use of the original. That Warhol's prints might have no copyright attached to them does not mean that anyone can use them though – they are still very much based on Goldsmith's photo and the underlying copyright to the original still belongs to Goldsmith. This could well mean that Goldsmith would be able to use the Warhol prints as if she owned its copyrights. Update: The Supreme Court has now affirmed, albeit on a narrow appeal from the Second Circuit Court of Appeal which dropped the issue that this question is about. Only the first fair use factor of transformativeness was challenged by the Andy Warhol Foundation (AWF). Additionally, and more important for this question is that only a single use was ruled on: the licensing of one of the prints by AWF for a 2016 magazine article reprint following Prince's death. This is because Goldsmith dropped the wider infringement claims. Here's where I realize I missed a key distinguishing fact in the case: There was indeed a narrow license for use of the photo for "artist reference" in relation to an article to be published in a 1984 Vanity Fair issue. In effect, due to the license, the (probable) derivative could be considered non-infringing1. Nevertheless, the court ruled that the use in the 2016 issue was not fair (given there was no license for use beyond the 1984 article, AWF had to rely on a fair use defense). In other words, the Warhol prints as a whole are not necessarily infringing derivatives2, rather, the specific use in the 2016 article was affirmed to be infringing. In particular, I'd like to highlight the following from court: The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. The full license text is not in any of the court decisions, so it's impossible for us to know for sure, but the portions that are quoted lead me to believe the license is vaguely worded. In particular, its in the realm of possibility that only the single derivative used on the 1984 article was licensed, but I would argue its reasonable to expect an artist to try multiple derivatives given a license for "artist reference." This could potentially have been of some consequence as the print used in the 2016 article is not the same as the one used in the 1984 article. But since this case was initiated in district court by the AWF seeking declaratory judgment of non-infringement, my understanding of the matter is that once the case is passed back to the district court, it will enter in that declaration given Goldsmith dropped the wider infringement claims. Take this with a grain of salt, I'm not very well-versed in trial procedure. |
How can tourists compare Consumer Protection laws, across the glut of USA jurisdictions? 1. What up-to-date resources compare the profusion of consumer protection legislations in the USA? 2. How can tourists pick the American jurisdictions with the most consumer-friendly laws? Many travelers do not know, or are stunned to find out when something goes awry, the fact that "[i]n the United States, contracts are governed by state law: with rare exceptions (such as certain contracts to which the federal government is a party), there is no such thing as U.S. contract law. [emphasis mine] However, the laws of the 50 U.S. states — as well as those of the handful of U.S. territories — are generally consistent in applying a "freedom of contract" approach to commercial agreements between sophisticated (or presumed to be sophisticated) parties. Accordingly, choice of law and choice of forum provisions in commercial agreements are generally enforced in accordance with the contract language." Even lawyers probably cannot know about, keep abreast of, or compare, the consumer laws for each US jurisdiction that change constantly — California's Consumers Legal Remedies Act vs. New York's General Business Law vs. Washington state's "Consumer Protection Act (RCW 19.86)" vs. Consumer Protection Procedures Act DC Official Code §§ 28-3901 to 28-3913. | What up-to-date resources compare the profusion of consumer protection legislations in the USA? Each state publishes their laws. Google search is usually the first stop. How can tourists pick the American jurisdictions with the most consumer-friendly laws? Tourists don’t usually pick their destination based on local consumer protection law; they base it on what they want to experience. If they want to see the Statue of Liberty their plans have to include New York although long distance views are available from New Jersey. Yosemite necessarily involves California, New Orleans - Louisiana, Memphis - Tennessee etc. | Why would the EU expect that any of its laws would apply to my business? It doesn't. Unless you choose to do business in the EU (which is possible, thanks to the wonders of the World Wide Web). Then, and only then, do you have to comply with EU law, including the GDPR. From a comment by @BenCollins: I'm talking about non-EU online retail that does allow Europeans (particularly those not actually in the EU at the time of the transaction) to place orders. Basically, GDPR Article 3 says that the GDPR applies to the processing of personal data of data subjects who are in the Union The phrase "in the union" is clearly open to interpretation, but according to the website Security Now, Dr. Michèle Finck says this: Most people seem to agree that the relevant criterion is whether you're based in the EU at the moment data is collected - citizen or not (my emphasis). While Michèle Finck is a well-respected legal scholar, she is not an authoritative legal source, so we need to wait for to case-law to nail this. For what it is worth, (not much I am afraid) I think it would be against common sense to define the territorial scope so broad that brick and mortar stores in the USA risks to be prosecuted in Europe if they sold goods or services to European tourists. However, what most US based businesses that chooses to be open to business for orders that are placed by natural persons who are in the [European] Union need to know that there is this: According to European law, the GDRP does apply to them when they conduct such business. From a comment by @BenCollins: I question the notions that (a) there is a basis by which the law would apply The legal basis is European law, in particular GDPR Article 3. and (b) that it has any enforcement mechanisms outside the EU. As for enforcement, I think a good answer has already been provided by Dale M. but for completeness: The USA has treaties with EU that mean that after a legal case has been decided in a court of law in the EU, it can request that the USA enforce the judgement (typically by collecting the fine the USA-based business incurred when conducting business in Europe). To make this answer more general, here are a breakdown of the the regulation of territorial scope of the GDPR for businesses that are not located in the EU: The scope is clearly spelled out in Article 3, and if you're not "a controller or a processor in the Union", you are only subject to the GDPR if your processing activities are related to: a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or b) the monitoring of their behaviour as far as their behaviour takes place within the Union. US based companies that engage in business practices that are illegal in Europe know about this, and has already taking steps to protect themselves from the being prosecuted in Europe under the GDPR by using firewalls to block access to their services from the EU. The bottom line is that if you: have no presence in Europe, and don't offer goods or services to people who are in the Union, and you don't collect personal data about European natural persons, then the GDPR does not apply to you. If at least one of the above applies then you need to follow the GDPR if you do not want to be prosecuted in the EU. | It depends. On what? On how a judge feels on a given day. That is to say, we are not sure. Conventional wisdom says that we should be cautious and assume that the law of the stricter state will apply. But some commentators argue that the law of the state where the recording device is located should apply. I found this discussion to be the most complete one-stop place for a nice summary. http://www.rcfp.org/reporters-recording-guide/interstate-phone-calls. I'm going to paste it here because I can and because SE likes that. Interstate phone calls Date: August 1, 2012 In light of the differing state laws governing electronic recording of conversations between private parties, journalists are advised to err on the side of caution when recording or disclosing an interstate telephone call. The safest strategy is to assume that the stricter state law will apply. For example, a reporter located in the District of Columbia who records a telephone conversation without the consent of a party located in Maryland would not violate District of Columbia law, but could be liable under Maryland law. A court located in the District of Columbia may apply Maryland law, depending on its “conflict of laws” rules. Therefore, an aggrieved party may choose to file suit in either jurisdiction, depending on which law is more favorable to the party’s claim. In one case, a New York trial court was asked to apply the Pennsylvania wiretap law — which requires consent of all parties — to a call placed by a prostitute in Pennsylvania to a man in New York. Unlike the Pennsylvania wiretap statute, the New York and federal statutes require the consent of only one party. The call was recorded with the woman’s consent by reporters for The Globe, a national tabloid newspaper. The court ruled that the law of the state where the injury occurred, New York, should apply. (Krauss v. Globe International) The Supreme Court of California in Kearney v. Salomon Smith Barney applied California wiretap law to a company located in Georgia that routinely recorded business phone calls with its clients in California. California law requires all party consent to record any telephone calls, while Georgia law requires only one party consent. The state’s high court, applying choice of law principles, reasoned that the failure to apply California law would “impair California’s interest in protecting the degree of privacy afforded to California residents by California law more severely than the application of California law would impair any interests of the State of Georgia.” In another case involving Pennsylvania law, four employees of The Times Leader, a newspaper in Wilkes-Barre, were arrested after they printed a transcript of a telephone conversation between a columnist in Pennsylvania and a murder suspect living in Virginia that was recorded without the suspect’s permission. The Virginia and federal statutes allow one party to record a conversation, while Pennsylvania, as discussed above, requires the consent of all parties. The man asked prosecutors to charge the journalists under the Pennsylvania law. The court eventually dismissed the charges against the newspaper staff — but on the unrelated ground that the suspect had no expectation of privacy during his telephone interview with the columnist. (Pennsylvania v. Duncan) Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law “pre-empts” state law. In Duncan, the newspaper argued that the federal law should pre-empt the state statutes, because the telephone call crossed state lines, placing it under federal jurisdiction. However, in that case, the court did not address the pre-emption issue. Moreover, as noted above, either state may choose to enforce its own laws. | Countries, and supranational governments like the EU, have jurisdiction over companies that do business in their jurisdictions. Oracle is technically not a U.S. corporation; it's a closely related group of California and Delaware corporations. Very few companies incorporate under U.S. federal law (I believe some banking corporations are required to, but don't quote me on that). Almost all companies are incorporated under state law. However, if Oracle does business in Texas, it still has to obey Texas law. And if it does business in the EU, it still has to obey EU law. Some laws make distinctions in some corporate matters between domestic corporations (incorporated under that state's laws) and foreign corporations (incorporated under another state's laws). But if you do business in a state, including an EU member state, you still need to obey that state's general laws, including antitrust law. Short version: if you visit another country, you can't go around shooting people, then say, "your laws don't apply to me, I'm an American." Neither can a company, no matter where it's incorporated. As for stopping the merger...any country where the merging companies do business can stop the merged company from doing business there if the merger violates local law. If this is a major, commercially important region like the EU, then failure to get EU approval will stop the merger. If it's a minor territory, the company will sometimes enter into an agreement to divest itself of local assets or entities. For example, if merging Oracle and Sun would create an antitrust problem in the minicomputer repair market in Laos, the merged entities would sell off either Oracle's or Sun's Laotian minicomputer repair division. | Under the commerce clause, a state cannot (without authorization from Congress), forbid its residents to travel to another state, nor tax such travel. It cannot prohibit imports from, or exports to, another state. It cannot tax products from other states in general, or from specific states, at a different rate or in different ways from products made within the taxing state. However, a state government may decide where its own employees will go on official business. It may decide where its own funds will be spent, and what products or services it will purchase for its own use. It may decline to purchase products from states with policies it disapproves of. It may forbid official travel that it would be responsible to pay for to such states, if it so chooses. It can probably also encourage its citizens and residents not to travel to or buy from such states, as long as it sticks to persuasion, and does not impose any penalty or tax on those who do so trade or travel, and also does not refuse to deal with people who do deal with the state it dislikes. | A plaintiff chooses where to sue, provided that the chosen court has jurisdiction. The laws of the court's jurisdiction will generally apply, although in some cases it will also look at the laws of another relvant jurisdiction. Therefore, the laws of the developer's location, the hosting location, or of any user's location might apply. Often a user agreement of a license will specify that disputes are to be determined under the laws of a particular jurisdiction. Such agreements are often given effect, but some courts disregard them in some circumstances. Crafting an agreement to limit exposure to other laws as much as possible is the kind of thing for which good legal advice is generally needed. | Probably not. There is an unenumerated constitutional "right to travel" (which has been recognized in case law, and has not yet been judicially overruled) and there is also a concept called the "dormant commerce clause" which prohibits legislation by a state that interferes with the ability of people to engage in interstate commerce even if Congress has passed no relevant legislation. There could also be a privileges and immunities clause argument arising under the original 1789 constitution and not the 14th Amendment to that document privileges and immunities clause, which affords people from outside a state the same rights as people in a state. Also, citizens of a state are defined as its residents, so a state only has jurisdiction over someone as a citizen for so long as they reside there. I was born in Georgia, for example, but haven't lived there since I was six years old, so I am not a citizen of Georgia. The proposed Texas law bears some similarity to the Mann Act of 1910 which prohibits transporting people across state lines for the purposes of prostitution (to slightly oversimplify). But the Mann Act is a federal law, not a state law. The proposed Texas law also bears some similarity to the infamous Fugitive Slave Act of 1850 which required free states to respect the slave status of people treated as slaves in a slave state under the slave state's law by returning fugitive slaves to their out of state masters, when the slave escaped across state lines. But, this was also a federal law and reflect the greater extraterritorial force of contracts and property rights created under state law compared to the extraterritorial force of the police powers of a state government. There are constitutional provisions requiring states to honor each other's rulings as well, most notably the requirement to extradite felons, and the full faith and credit clause that requires states to honor the court judgments and government determinations of status (e.g. marriage certificates) of other states in most circumstances. But, I don't think that you get there in a case regulating the conduct of a state resident outside the state, or in a case where you want to criminalize assisting someone in the state to leave the state for a particular purpose. Neither of these examples, however, involve state laws. Generally, penalties for doing something across state lines need to be established by federal, rather than state, laws. This said, the issue has not been litigated in this particular context yet, and the legal theories implicated and structure of those lines in fine particulars could matter. States have only rarely tried to regulate the conduct of their residents outside their own states and have even less frequently been successful in doing so. | You are confusing a few concepts. One is the distinction between what are known as "common law" jurisdictions derived from the English legal system, and "civil law" jurisdictions derived from one of the continental European legal systems that is ultimately derived from Roman law. Another is the distinction between determining the meaning of ambiguous legislation, which all courts do by definition, and the power of judicial review, which overturns legislation which is invalid for some reason rather than merely trying to interpret an ambiguous provision. Ambiguous means "unclear" or "capable of being interpreted in more than one way" and every time every court encounters unclear legislation it must decide what it means, even if it is not invalidated. In contrast, some judiciaries that have the power of judicial review and those that do not. Judiciaries that can declare a law to be invalid have the power of judicial review. Judiciaries that cannot declare a law to be invalid do not have the power of judicial review. Every state and federal U.S. Court at every level (not just the U.S. Supreme Court) has the power and obligation to declare that a law violated the U.S. Constitution. In many countries, no court, or only a "constitutional court" has the power to make declare legislation to be invalid by exercising judicial review. Every time that a legislature passes a statute on a subject covered by common law (i.e. judge-made law derived from case decisions that serve as precedents), it shrinks the scope of common law relative to statutes. And, in principle, almost all of the common law could be replaced by statutes without all that much difficulty. But, in civil law countries, statutes are frequently comprehensive and are the sole source of legal authority about their subject matter superseding all case law, while in common law countries, statutes are often piecemeal tweaks to a common law background that is assumed by the statute. For example, every civil law country would have a comprehensive statute setting forth the principles of contract law, while a typical common law jurisdiction might have a statute that declares that certain contracts must be in writing but does not comprehensively set forth the law of contracts in all circumstances. There are some features of civil law countries, such as the absence of jury trials, which cannot be constitutionally changed to the civil law system, even in jurisdictions such a Puerto Rico and Louisiana in the United States which have civil law roots prior to joining the U.S. (at least in criminal cases and in the federal courts). The power of judicial review (i.e. the power of courts to declare a statute unconstitutional and void) is also inherent in the U.S. Constitutional system of government and could not be removed without a constitutional amendment. There are common law countries, e.g., England, which did not historically have the power of judicial review, which was an innovation for a common law countries such as the United States when it was first invoked. (For what it is worth, India goes one step further; its Supreme Court asserts and exercises the right to declare portions of its own constitution to be unconstitutional.) There are other aspects of civil law legal systems which would probably also be declared unconstitutional in the United States as well, such as the lack of a prohibition on the introduction of hearsay evidence in criminal trials which violates a provision of the U.S. Constitution's Bill of Rights known as the "confrontation clause." It is unclear to me whether the principle that case law precedents have binding legal effect in future cases, which is part of the common law system that is absent in the civil law system, has a constitutional dimension or could be displaced by law. But, most aspects of a civil law legal system could be adopted in the United States if the relevant legislatures so desired. Indeed, many aspects of the U.S. legal system have moved in that direction. For example, only a handful of U.S. states now recognize the concept of a "common law crime". Almost all states now only allow criminal sanctions for crimes codified by statute, which was not the case at the time of the American Revolution, when few crimes were codified. Obviously, with a constitutional amendment, almost any change to the U.S. legal system is possible. |
How can a company buy an internet domain? How can a just formed legal entity (a company XYZ) buy an internet domain (e.g. www.xyz.com)? It has to be a human doing that. When I have checked the forms to fill in, they always ask for first name and last name of the owner of the internet domain. Is the solution that a human buys it on themselves, sells it to the company and the XYZ company announces the change to the internet domain provider? Thank you. | ICANN (the authority that regulates domain name registration) maintains the WHOIS standard, and all domain registrars (where you buy a domain) have to follow it. The WHOIS Standard has for a field for both Name and Organization : Registrant Name: EXAMPLE REGISTRANT Registrant Organization: EXAMPLE ORGANIZATION Foot-note n°4 has this to say about those fields. For the Registrant, Admin and Tech contact fields requiring a "Name" or "Organization", the output must include either the name or organization (or both, if available). For registration purposes (this is different from the commercial purposes where the answer from Trish would apply) they can do both (using an agent name) or either | First of all, this assumes that the debt consolidation firm would be willing to buy, and the CC company willing to sell. With a trial already scheduled, this might well not be the case. Secondly, when (if) the debt consolidation firm buys the debt, they buy the rights of the seller. In many states the trial could go forward, with the debt consolidation firm substituted as plaintiff. It is not automatic that a sale of the debt would postpone the legal case. Certainly if this happened once, it seems very unlikely that a second debt consolidation firm would buy the debt from the first. And as the comments by Moo and ohwilleke suggest, such a scheme would be fraudulent and criminal, if discovered. It might also constitute contempt of court for intentionally abusing the process of the court. Not a good or safe idea. | 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. | You've really got two questions here: 1) "Is it an invasion of privacy to know that I'm using an ad blocker?", and 2) "Is it discrimination to refuse service based on what software I'm running?". Taking them in order: Because of how HTTP/HTML works, there are essentially two ways for a server operator to know what software you are running. Your browser announces that it's running something. This usually takes the form of a modified User-Agent header. I'm not aware of any privacy laws that consider "Person A told me something" to be an invasion of Person A's privacy. They guess it based on the actions your browser takes. For example, if the website gets a request for a page, and the site's ad network does not get a matching request for an ad, the server deduces that the user is running an ad blocker. Since this is based on things that the server operator could reasonably be expected to be informed of, it isn't an invasion of privacy under any law I'm aware of. Is it discrimination? Yes. But not all discrimination is illegal. In general, only discrimination based on protected categories (race, sex, etc.) is prohibited, and I can't imagine a jurisdiction making "choice of browser add-ons" to be one of those categories, not least because it's something the person being discriminated against can easily change. | The CEO wants to "fool" users You are essentially admitting that the company you are working for is about to deceit its customers and asking whether that is legal. The relevant set of laws is rather sparse and does not give direct answers in regards to oAuth tokens or other details of that level (which is probably making your CEO think he can "handle" the arising questions). Probably the most relevant bit of legislation that applies here is The Federal Trade Commission Act (15 U.S.C. §§41-58) which prohibits unfair or deceptive practices and has been applied to online privacy and data security policies. I am pretty sure that, in practice, if the users take your company to court, it will be held liable because: users are allowing us to read their CRM data and once we get the data, the data become ours, and we can do whatever we want with it. Is this true? While the users are still allowing you to read their data it is completely up to the Terms/EULA what you can do with it. However, once you have made the users think that they have withdrawn your access (e.g. they "deleted" oAuth tokens), you are no longer authorized to read the current data (although the Terms may still allow you to use the old data you obtained when you had access). Silently continuing to access their data without their knowledge/approval is definitely a deceit. The CEO wants us to download all of their emails and store them in our database There would be nothing wrong with that if it was in the Terms. But if it is not, that would be a blatant (and easily punishable) breach of privacy. Note that you may also be held personally liable for this wrongdoing (if/when proved so). "Just doing your job" claim will not work. | Other Entities means Legal Person The reason for the term "legal person" is that some legal persons are not people: companies and corporations are "persons" legally speaking (they can legally do most of the things an ordinary person can do), but they are not people in a literal sense (human beings) This is very similar to Corporate Personhood. Among the recognized items for legal personhood are usually groups of people, such as a corporation, states or countries, but also churches and temples. In rare cases, Temple buildings and at least two rivers are legal persons. All non-natural legal persons have in common, that they are represented by natural persons - aka humans. A computer program is not represented by a natural person. A natural person (possibly representing a legal person) can use a program to agree to a contract, but a program agreeing on its own is not following the basic principle of a contract, which requires a meeting of the minds on the offer. The computer program becomes the tool that facilitates the contract, for example by offering a prewritten contract to people that want to use the service. Since the contract is usually offered by the service providers as is with no renegotiation allowed, those contracts can only be accepted or not - their side of the bargain is offered and then facilitated by the computer of the service provider - we have an invitation to treat. If a natural or legal person is able to agree (through its representative), the contract becomes binding. If you are not a legal person - so neither a human nor one of the recognized categories - you can not agree to the TOS, the contract is void. | As was mentioned in a comment, in the United States, businesses are generally registered at the state level. The information collected, and the extent to which or manner in which the public has access to it, varies from state to state. There may still be states where that's a paper-only process, but I'd guess in most of them it's accessible online, at least for basic information. For example, in Michigan the Department of Licensing and Regulatory Affairs has a Business Entity Search tool. If a business deals directly with consumers, it may be a member of the Better Business Bureau. Even if it isn't, but consumers have complained about it, the BBB will make public the information it has about the purported business. If a company is publicly traded (that is, it's corporation that issues stock, and the stock is traded on a stock exchange), it is required by law to be registered with the Securities and Exchange Commission. The SEC's EDGAR tool will display the company's filings, which should include annual and quarterly reports. If the company is or wants to be a government contractor, it generally needs to register with the General Services Administration, and certain information about successfully registered entities is publicly viewable in that system. (Conversely, the same system also lists "Excluded Parties" who are prohibited or partially restricted from doing business with the government.) Depending on what the business does, it may also be subject to registration with and regulation by additional state or federal agencies. For a full picture, however, unless you're dealing with the obvious agent of a Fortune 500 company, you'll probably want to get information from a private credit-check service as well; for example, as also mentioned in a comment, Dun & Bradstreet for the business itself, or for a really small business a personal credit report on each of the owners and officers. | No, you're not required to sign any contracts. But since you're offering a service, you do have to manage some compliance tasks. You are a data controller under the UK GDPR, regardless of whether you have a company. This brings with it various compliance requirements. For example, you MUST post a privacy notice in accordance with Art 13 GDPR that explains how you process user's information. You must sign data processing agreements with your data processors, such as your server providers. And you should reconsider transfers of data to the US, since such transfers are illegal or at least quite questionable in the wake of the 2020 Schrems II ruling. You now have prospective users that are asking you for an Art 28 data processing agreement (DPA). These are likely other organizations that are data controllers of their own. For them to use your browser extension, they either need to find a legal basis that allows them to share their user's/employee's data with you (controller to controller transfer), or they need you to act as their data processor (controller to processor transfer). The third alternative is not to use your plugin at all. Of these, a C2P arrangement is most convenient for these other orgs, but involves a bit of paperwork to set up first. If you want to act as their processor, this doesn't mean you'd have to create a company (though a corporation might be very desirable as a liability shield). Being a processor means that you're contractually bound to only use the personal data as instructed by the controller, and not for your own purposes. This restricts what you can do, and has some special compliance requirements. For example, you cannot engage new subprocessors without your controller's approval. However, processor status can also be convenient for you because you're not responsible for interacting with the controller's data subjects, e.g. you're not responsible for handling their data subject access requests. Note that it's possible to simultaneously be a controller for some users, and a processor for others. E.g. Google Docs is offered directly to users as a B2C product so that Google is a controller, but also as a B2B product as Google Workspace, where Google acts as a data processor. Personally, I'd rather not sign any contracts unless I'm doing it as a business, and adequately compensated for providing this service. GDPR is only one compliance aspect out of many, making it unwise to offer a SaaS product as a hobby. For example, copying other people's web content has copyright implications… A potential alternative for some of the organizations asking you might be to make it possible for them to self-host your backend, so that they are not required to rely on you as a data processor. If you have no plans to commercialize your software, making it Open Source could be a solution. But you're in no way required to do that if you don't want to. |
What if a citizen does not accept all laws? What if a citizen does not accept all laws? Are there exceptions, when it's not reasonable? Or are laws so "well-developed" so that one should believe in their rationality without questioning? Enforcement is of course quite hard quality, but this doesn't take in account, whether it's "individually rational". Intuitively any law can be enforced, but it doesn't necessarily appeal justified for all. A particular example of such domain would be ideas about restricting speech. If our beliefs and biases do not align, and they do not need to, why would someone else's bias about valid speech be more correct than someone else's? | I am not sure what you mean by "accept". A citizen need not agree that any particular law is desirable, or good policy, or even rational. What a citizen must do is comply with all laws, or risk proceedings to enforce them, criminal or civil depending on the law in question and the specific circumstances. More exactly all valid laws must be complied with. In the US and many other places there are mechanisms for challenge laws as invalid. It is not generally a defense against an accusation of breaking a law that the law is not rational. | 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. | In US Law, banning speech based on its content is called "Content-based" speech regulation (shocking, I know), as opposed to "Content-neutral" speech regulation like requiring all protests to end before a specific time. Content-based speech regulation can be constitutional if it passes strict scrutiny, but in the case of banning swastikas, it would fall under an even narrower subset of content-based speech regulation called "viewpoint regulation." I haven't found a case where the swastika or Nazi flag was banned in particular, but we can find reasoning that appears to safely protect the peaceful display of the Nazi flag and ideology from government restriction in Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972), a case in which Chicago banned picketing within 150 feet of a school except in the case of labor disputes related to the school. The Supreme Court found that this amounted to viewpoint-based discrimination, writing in the majority opinion: But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. As with all rights restrictions, a particular restriction may be Constitutional if it passes "strict scrutiny," namely, it: is necessary to a "compelling state interest"; is "narrowly tailored" to achieving this compelling purpose; and uses the "least restrictive means" to achieve the purpose. In general, a ban on the peaceful display of Nazi imagery or promotion of Nazi ideas would fail the first test, as the government does not have a compelling interest to suppress ideas which might be distasteful to some or even the majority of people. I have seen an argument that because the Nazi regime's stated goal included genocide, that promoting that ideology amounts to advocating violence. Speech which advocates violence or criminality may be criminalized, but only under a specific "imminent lawless action" test expressed in Brandenburg v. Ohio: Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. This case was brought against a KKK member who advocated various violent acts at a rally. The main distinction is that his speech did not call for specific violence, but merely advocated for it in general. This almost exactly mirrors the rationale for banning the Nazi ideology based on its advocacy of violence, and shows that a ban on such grounds would be unconstitutional. "Imminent" was clarified in Hess v. Indiana to mean that the action must be intended to produce actual lawless action at a specific point in the future, not simply advocate for it in general. Hess was a protester who was being forced off a street by police, said "We'll take the fucking street later" and was convicted of disorderly conduct for it, which the court reversed as his statement "amounted to nothing more than advocacy of illegal action at some indefinite future time" and was therefore protected by the First Amendment. | 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. | This particular statement ("Person A lacks professionalism and integrity") may be protected because it isn't sufficiently factual to be susceptible of being proved true or false. Milkovich v. Lorain Journal Co. established that the test is whether "a reasonable factfinder could conclude that the statements [...] imply [a defamatory assertion]". The court mentioned that "loose, figurative, or hyperbolic language" would negate the impression that "[the speaker] was seriously maintaining [the defamatory claim]. The court also considered "the article's general tenor". It also emphasized that the statement was "sufficiently factual that it is susceptible of being proved true or false". Said in other ways: Is the statement "sufficiently factual to be susceptible of being proved true or false"? Can the statement "reasonably be interpreted as stating actual facts about an individual"? | In the United States, the answer depends on who is unlawfully in power. In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker. But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified. A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels. | Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged. | The general answer is "yes." Who ever said that only one set of laws applied? Jurisdiction isn't a matter of "one country's laws matter here, let's find out which one it is." All jurisdiction means is that your laws apply to the conduct, not that no one else's can as well. Broadly, there are a few sources of jurisdiction that are generally considered legitimate (to at least some degree) in international law: Territoriality: You have jurisdiction over actions performed in your territory. You also have jurisdiction over crimes where just one part of the crime happens in your jurisdiction (e.g. standing in country A and shooting someone in country B), or even if it just has a significant effect in your territory. Nationality: You have jurisdiction over crimes committed by your citizens anywhere in the world, regardless of whether or not they were breaking the law of wherever they were. Passive personality: You have jurisdiction over crimes committed against your citizens anywhere in the world. Protective: You have jurisdiction over crimes directly harming core state interests, like counterfeiting your passports or sabotaging your warship. Universal: A handful of crimes (like piracy or genocide) are so serious that every country in the world can exercise jurisdiction. If you catch a pirate, you can punish them. These are accepted to different degrees. Passive personality and protective jurisdiction tend to be iffier; territorial jurisdiction is unquestioned (although if it's just based on effects in your territory, it becomes a bit iffier as well). But any of them can be a basis for jurisdiction. If multiple countries have jurisdiction, whoever actually has the offender decides who will try them (jurisdiction to make an arrest is limited to the country in which the arrest is made). So: If you're located in a country, you have to comply with their laws, and they can regulate just about whatever they want, including what you're doing to foreign computers. The foreign country can also generally regulate what you're doing, because part of what you're doing is happening on their territory. Even if both you and the computer are in a foreign country, you may have to answer to the courts of your country of citizenship. Depending on what exactly you're doing, the protective principle may come into play. For instance, if you hack into a computer on a foreign military base, the foreign country could prosecute you for endangering their security. If you're coordinating a genocide, universality applies and anyone can prosecute you. If you hack the computer of a foreigner, passive personality may apply, although this tends to be controversial. |
How can one become comprehensively aware of all applicable statutes/remedies to a given situation when they are scattered between different acts? For example if one is illegally evicted there seem to be remedies provided by the protection from eviction 1977, housing, deregulation, and housing and planning Acts, off the top of my head, but I feel like also others. In researching the topic online one will see numerous articles and resources that are clearly written as lay people's explanations of this statutes provisions or that statutes provisions and through reading perhaps 15 of them, one might become aware of perhaps 3-4 of the different relevant statutes while the different resources provide different levels of detail as well as much redundant information. How does one know to stop searching? If one had stopped after 3 articles that were all largely redundant and at least dealt with only one of the statute-remedies, then one would have missed 2-3 of the existing remedies. What is a sensible legal research flow for this problem? | Hire a lawyer Just like you shouldn’t search the internet for medical advice, you shouldn’t do it for legal advice either. It takes a university degree and several years of on-the-job training to become “comprehensively aware”. | Depends on where you are, and what law would be broken and why. In germany, there is the concept of rechtfertigender Notstand (justifying emergency). If there is a present danger to a Rechtsgut (legally protected interest), one can take necessary and proportional steps against another legally protected interest. Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue). The details are, as usual for Law SE, complicated. | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may rule "from the bench," announcing a decision and entering an order for the parties to comply, and then follow up with a written order later. The research process is fairly open-ended, but legal research databases are pretty advanced, and a good researcher can generally get his hands on the vast majority of what he'll need in very short order. But practically speaking, there are few limits on how long that process takes. A litigant who was growing impatient could seek a writ of procedendo to force a court to move faster, but my experience indicates that most attorneys wouldn't attempt that move unless a decision had been pending for at least a year with no action, which would be unusual. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | The Theft Act 1968 replaces the Larceny Act 1916, which replaces in part the Larceny Act 1901, ad nauseum. In the current act, the exception is accomplished in the definitions section. Redefinition is a device commonly used by legislatures to clarify intent, where traditional wording does/did not express the desired prohibition. In addition, a special definition excluding a case makes it easier to define the general rule. To be certain, one would need a historical record of legislative discussion (and I suspect that there is no record), but it is reasonably likely that it was not previously against the (common) law to pick a wild blackberry for a snack. A reading of various prior versions of the larceny statutes suggests that it was never a crime to pick a wild blackberry, instead the crime was taking cultivated goods (which a person put some effort or resources into creating), and destroying resources on a person's land. Those are the kinds of actions explicitly identified in the prior statutes. §4(3) does state a traditional view of "property" (which is why it's in the "property" section), and would have the (presumptively desired) effect without complicating other parts of the statute. Moreover, s1(3)(a-b) of the 1916 act conveys similar "exceptionality". Norwegian theft law has a similar provision Tilegnelse av naturprodukter, herunder stein, kvister, vekster mv., av liten eller ingen økonomisk verdi under utøvelse av lovlig allemannsrett, straffes likevel ikke Appropriation of natural products, including stones, twigs, vegetation etc. with little or no economic value (taken) under the exercise of the legal right to roam is not punished | The general rule is that you must comply with all laws. The first thing that means is that you are required to know what the law is, thus ignorance of the law is not a defense for not complying. There are some special circumstances regarding notice, so a law must have been published. Second, whatever the law requires you to do, you have to do it, regardless of any difficulty you might encounter (e.g. you have to pay your taxes even if you don't have enough money). Suppose that a law is so onerous that it is literally impossible to obey it: you still have to obey the law. You have to file a lawsuit against the government challenging the constitutionality of the law, to get the law overturned. Frequently, more requirements are imposed on businesses than on individuals, but there is no legal difference between impositions on individuals and impositions on businesses in terms of laws being difficult to comply with. |
Is it possible to combine public domain with other licenses I am a programmer and I am writing an application that depends on libraries with different licenses (for example, MIT, Apache or GPL), can I publish my application as a Public Domain? | If you aren't including those libraries, then yes because it's entirely your own work. If you are publishing those libraries, then no because their licenses will limit how you can do that. GPL's and MIT's main features are restricting how you can distribute software that includes the licensed code, and they don't allow the "do whatever you want" of public domain. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | 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. | To use an API over a network connection (as opposed to, e.g., the Windows API), a user communicates a request to the API host, or server, and awaits a response. The host of the remote API can refuse to serve requests from users for probably any reason. Such services often require users to accept a license as a condition of using the service, and they may charge a fee as a condition of the license. A license to use a service is obviously not necessarily bound to a license for the use of its source code, just as the ability to reach the service is not dependent on the ability to see (let alone use) the code in any format, whether it be the source code or some compiled form of the code. In essence, source licenses and service licenses have different primary goals, at least inasmuch as the source license seeks to restrict someone who has actual physical access to compiled code, and possibly source code. Service licenses do not have that concern, though I have seen service licenses that also prohibit decompiling. This is probably the result of a CYA attitude among lawyers: the language is already in the standard software license text, and it doesn't hurt anything to leave it in, and it could help if a service user somehow managed to download the program code. | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). | 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. | Yes, commercial use is allowed for the AGPLv3 license. You can charge for your use of the software so long as you provide a way for the public to download the source code in its entirety. | As far as I can tell, whenever GitHub redistributes code, it adheres to all of the requirements of the GPL/BSD etc. For example, it never gives away code without including the license text, and it doesn't claim to add unpermitted restrictions to the code. The section you're concerned about is this: That means you're giving us the right to do things like reproduce your content (so we can do things like copy it to our database and make backups); display it (so we can do things like show it to you and other users); modify it (so our server can do things like parse it into a search index); distribute it (so we can do things like share it with other users); and perform it (in case your content is something like music or video). That section isn't worded very precisely, but I understand this to mean they want to reproduce your content in full, not just the code without the license text attached. They want to display your content in full, as you provided it. They want to modify it internally (i.e. they are not redistributing this modified form) in order to allow searching. To the extent that they display code-snippets as search results, that is likely defensible as fair use (search engines are frequently cited as examples of successful fair use defenses). GitHub appears to be acting consistently with the GPL when it reproduces, displays, modifies, and distributes code that you upload. If I'm correct about these facts then nothing that GitHub does with the code goes beyond what the many contributors to a GPL project have explicitly permitted, or what is otherwise permitted by fair use law. If you had some code with a more restrictive license, you might not be able to simultaneously comply with that restrictive license and GitHub's License Grant. Consider the scenario where you have some code that is licensed exclusively to you, and you are not given permission to reproduce or distribute it. In that scenario, the code's license prevents you from agreeing to GitHub's request for a license grant. |
It is a IP infringement to use a proprietary graphics API from a company? Let's say the author of a operating system or graphics driver wants to implement Apple's Metal graphics API (application procedure interface) instead of the open Vulkan graphics API from the Khronos group. Will a license be required in this case? | In Google LLC v. Oracle America, Inc., 593 U.S. ___ (2021), the US Supreme Court addressed the reproduction of a subset of the Java API. The majority assumed for the sake of argument that the Java API was protected by copyright, but went on to hold that the reproduction was a fair use. We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copyrighted. We shall ask instead whether Google’s use of part of that API was a “fair use.” Unlike the Federal Circuit, we conclude that it was. So, it is an open question whether an API is protected by copyright, but the precedent from the Federal Circuit will be persuasive authority. The Federal Circuit held that the API is protected by copyright and the Supreme Court did not upset that conclusion. Second, the factors that led the court to conclude the reproduction of part of the Java API was fair use could turn out another way in another fact scenario. Some of the reasoning seems to generalize, but some seems specific to the Java development ecosystem. Briefly, the court recognized: API authorship is a creative process, but is "functional in nature" The reproduction was intended to assist interoperability; it was commercial; there was no evidence of bad faith The amount of code taken was a small amount of the entire Java work, an amount consistent with its goals The market harms to Oracle were dubious My prediction is that there will continue to be significant case-by-case uncertainty as to the applicability of the fair-use defence in this context. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | 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). | The MIT License (as distributed by OSI) does not include an attribution requirement beyond the requirement to include the copyright notice in any re-distributed copy including derivative works. The same is true of the description of the license as described in the Wikipedia article. If you sent back to the maintainer a modified version including your own contributions with an MIT license notice and your name in the copyright statement, that is a new work released under that license. The maintainer (or anyone else) may not lawfully use your work or incorporate it into a new derived work without complying with the license terms, which require retaining the copyright notice. By distributing the combined work using a copyright notice not including your name, it would seem that your license is being violated. You could contact the maintainer with a request that your name be included in the notice or your contributions be removed. If that is not accepted, you could use a take-down notice, or file suit. That last would involve significant costs, of course. | 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. | The GPL doesn’t require you to distribute the software to anyone. The only requirement to distribute something is that if you do distribute the software to someone as a binary, you must also distribute the source code to them at no additional charge. The focus of the GPL is ensuring freedom for people who have copies of the software, not ensuring that the software is available to the world at large. Because your final deliverable is source code, you’ve already complied with the requirement to distribute source alongside object code. You have to comply with the requirements in section 5: a) The work must carry prominent notices stating that you modified it, and giving a relevant date. b) The work must carry prominent notices stating that it is released under this License and any conditions added under section 7. This requirement modifies the requirement in section 4 to “keep intact all notices”. c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it. d) If the work has interactive user interfaces, each must display Appropriate Legal Notices; however, if the Program has interactive interfaces that do not display Appropriate Legal Notices, your work need not make them do so. You have to license the software to the company that hired you under the GPL v3 (since parts of it were licensed to you under GPL v3), so you can’t stop them from distributing it to the world. But nothing requires you to distribute it to the world. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | The creator of the software doesn't provide any warranty. If you feel confident in the quality of the software, nothing stops you from providing a warranty. If the software doesn't meet your guarantees, you will have to pay out because you provided the warranty, depending on the terms. Not the creator of the software because they explicitly didn't provide any warranty. If that's what you want to do, go ahead. I wouldn't. You don't have to republish under the BSD license, which you wouldn't. You must attach the license terms, which clarifies the role of the original creators, and that they don't give a warranty. Doing this allows you to copy the software. It doesn't mean you can't provide a warranty. |
Is there any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? From California, US. I fell from the stairs at work last week, even if the fall looked terrible on video I managed to not brake anything but just damaged ligaments and some body, visit ER, claim WC and just got 2 days off even when I'm not totally healed. The point is the video from the security footage was available and got hold of it, I did the terrible mistake of sharing with the person who was with me on the moment of the accident, since none of us can at some point figure out how exactly that happen, he shared the video with a co-worker, who show it around campus and possibly shared too. The VP of my area shared that video too with the heads of departments. Now since that happen everybody had been joking with me, people who I don't even know their names come to me to comment about the video and joke about not falling again. Reported to HR and they just say they will talk with head of departments, I don't think is good enough if is ppl who will not be accounted responsible. | It is any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? No. Your permission is not necessary for distributing or watching that video. The recording was from your workplace, where your entitlement to privacy is quite limited unlike few settings such as (1) your attorney's office in the course of obtaining legal advice for which the disclosure was needed, or (2) your home. Even if such an entitlement existed, your decision to share that recording with the person who was with you generally constitutes a waiver of your right to privacy regarding that incident. The waiver would apply even if California had some legislation akin to the EU's GDPR. Your description nowhere indicates that that person had a statutory or equitable duty of confidentiality. It is also highly doubtful that you would wish to block the distribution of the video if people instead of mocking you expressed something pleasant or encouraging to you. people who I don't even know their names come to me to comment about the video and joke about not falling again. That is not unlawful in and of itself. Since the matter does not involve a protected category such as sex, race, religion, or disability, pursuing a claim of hostile work environment would be quite a stretch. It would also be futile because any relief would not cover outsiders who watch the video and feel like joking about it. The notion of harassment entails a pattern of conduct (meaning that a person engages twice or more in that conduct) that causes a reasonable person to feel annoyed or concerned for his safety. Even if someone engages makes a few jokes that cause you to get annoyed, any petition for restraining orders seems unlikely to succeed. Sooner rather than later, the jokes will get old and people will move on. | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. | No. Absent some collective bargaining agreement to the contrary, you have no recourse because you have not been legally wronged. You have no right to privacy in this regard. You have no right to be free of humiliation based upon truthful statements. If the email is truthful and you were indeed suspended, then the manager is entirely appropriate in sharing that information, and indeed has a need to do so. You would have no recourse in Tennessee, even if your manager gave a national television interview on your suspension and truthfully stated all reasons for the suspension and threw in statements of opinion disparaging you. Humiliation is only actionable if it amounts to "outrageous conduct" beyond mere truthful speech (e.g. throwing your clothes in the toilet or secretly putting some self-disparaging statement on the back of your uniform) and was calculated with a specific intent to cause you extraordinary emotional harm that was not necessary for some legitimate purpose. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | Unfortunately for you, the insurance company is right. Even with the rise of modern consumer protection law, caveat emptor ("Let the buyer beware") still largely applies to real estate transactions. Exceptions are where the building is new (not applicable), the seller gave a specific warranty (unlikely) or the seller deliberately concealed the defect (not applicable). If, as you say, the damage was "completely hidden" it is unlikely that your building inspector was negligent or breached their contract so you cannot recover from them. Sadly, this is at your cost. Your insurer may be liable but that would depend on the terms of your insurance policy. | "Revenge" is not a legal concept. If you injure someone other than in self defence or for another legal reason than you are committing assault. Hence dangerous booby traps for trespassers are illegal, so anything that might cause injury, however minor, is definitely out. That includes itching powder. However I would make an analogy with anti-climb paint. This allows you to use a paint that damages clothing provided you put up warning signs. So if you were to leave a parcel coated with anti-climb paint or containing a bag of paint or glitter rigged to spill it over the person opening it then that would be legal as long as there was a warning that tampering may cause property damage. (Note "spill", not "squirt" or "splash": anything ejecting paint or glitter under pressure might get it in someone's eyes, causing injury). So your friend could put a notice up saying that unauthorised tampering with parcels could cause damage to property and then put out parcels that might do exactly that. Your friend could also put a GPS tracker in a parcel to try to find out where they are going. Update Here is someone who did this. The BBC story does not mention any legal issues for him. A former Nasa [sic] engineer spent six months building a glitter bomb trap to trick thieves after some parcels were stolen from his doorstep. The device, hidden in an Apple Homepod box, used four smartphones, a circuit board and 1lb (453g) of glitter. Mark Rober, who is now a Youtuber, caught the original thieves on his home security camera. [...] The former Nasa engineer said: "If anyone was going to make a revenge bait package and over-engineer the crap out of it, it was going to be me." | It is mandatory for the employer to provide sufficient restrooms (“cabinets d'aisance”), as per article R4228-10. Other provisions regulate evacuation, ventilation, heating, disabled access, etc. There is no provision regarding when employees are permitted to use the restrooms. There can't be a single rule that works for every profession: some jobs don't let you leave your post whenever you like (e.g. machine operator, driver, guard, teacher, etc.). The most common dispute regarding restroom use is whether employees should be paid during that time. Some employers want to count restroom use as unpaid pause time. Strictly speaking, that's legal: an employee who is in a restroom is not at the employer's disposal, therefore this doesn't count as work time. However enforcing this is often logistically difficult and wildly unpopular, so in practice it's only done in places where employees must clock out to reach a restroom. I could only find one case with actual jurisprudence. In 1995, an industrial butchering company (Bigard) decided to limit restroom breaks to three fixed times a day. This was, as you might expect, unpopular; the employees went on strike, and eventually the labor court struck down this measure. That's a precedent, but it doesn't seem to have made its way to the appellate court. Your case is also slightly different in that the restrooms would only be inaccessible for an hour, which is shorter than in the Bigard case. So legally speaking, it isn't clear who will win. You'll have a better chance of success by banking on the unpopularity of the measure. Talk with your colleagues and your representatives and shop stewards. Point out that employees who are trying to hold it in are unlikely to be at the top of their productivity. |
What Are The Obligations Of U.S. Employers As It Relates To Bargaining With Unions? A hypothetical: Company A has 10 employees who work "at-will" making $100k/yr and 1 owner who keeps 100% of all net profits. The employees of Company A decide to Unionize. Exclude other aspects of labor contracts to keep it simple and just focus on the salary piece. What are the lawful requirements of Company A in bargaining? Is there a minimal salary that must be offered (apart from minimum wage laws)? What happens if Company A and the union do not agree to terms? Can company A elect to hire people from outside the union "at-will" while negotiating with the union? Could Company A continue to do so indefinitely, essentially no longer employing the union members and just hiring a new group? I have read: "It is clear that the obligation to bargain in good faith does not compel the making of concessions or reaching final agreement on a contract. It’s the process, not the end result, that the law examines." But this doesn't really seem like a full explanation since it makes it seem like unions are completely impotent. Can't Company A just offer something substantially lower, say minimum wage, to the union and claim that they view the inability to easily hire/fire/promote employees at will as a major business risk? Is this basically saying that the only power unions ultimately have is to quite en masse and make it difficult for the company to hire replacements? | Caveat: This answer applies to private sector union workers in the U.S. The considerations that apply to public sector unions are very different. Also, as I discuss below, there are special labor relations law rules that apply to a few specific private sector industries that are pertinent to these questions. The legal framework largely flows out of the National Labor Relations Act and the cases decided under it by the National Labor Relations Board (which is the first instance trial court in most union-management disputes), the U.S. Courts of Appeal for the various circuits, and the U.S. Supreme Court. But, I have not cited chapter and verse of particular statutory sections and cases supporting this analysis for lack of space and time (it would normally take up about a third of a one semester law school class on labor law to cover the points summarily answered below). What are the lawful requirements of Company A in bargaining? There is an obligation to negotiate in good faith and to make available some information necessary to allow that to be possible. The employer also can't fire an employee for insisting on negotiations in good faith with the union or for union activity. Is there a minimal salary that must be offered (apart from minimum wage laws)? No. Also, in some industries, the employer needs to pay the "prevailing wage" in order to get government contract which are critical to its business and basically amount to the union negotiated wage at comparable firms. What happens if Company A and the union do not agree to terms? There is no collective bargaining agreement and the employer's terms are in force when the existing collective bargaining agreement expires. Usually, if this happens, the workers then go on strike rather than working under the unilaterally employer imposed contract terms, until a new collective bargaining agreement is negotiated (and the vast majority of the time, a new collective bargaining agreement is negotiated after some period of time when the workers are on strike). But, sometimes a prior collective bargaining agreement will establish an arbitration resolution if there is a deadlock. Arbitration is also used to resolve deadlocks, if I recall correctly, in a few key industries with large employers where avoiding a strike is critical to the nation's economy (outside the jurisdiction of the National Labor Relations Act) that are established by statute. Can company A elect to hire people from outside the union "at-will" while negotiating with the union? Yes. These people are often pejoratively called "scabs" and neutrally called "replacement workers". Generally speaking, when a strike is over, the business has to take back all of the striking workers, and fire all of the replacement workers, except to the extent that the business whose workers went on strike had vacancies when the strike started. In part, this is because this is a term of the new collective bargaining agreement and in part as a consequence of the requirement that employers not retaliate against employees for union activities. In states that are not "right to work" states, the union can prevent non-union replacement workers from being hired at all after the strike is over. Could Company A continue to do so indefinitely, essentially no longer employing the union members and just hiring a new group? More or less. I can't easily summarize the case law on the point and prior collective bargaining agreement terms can be relevant. Also, there are a few sectors of the economy (mostly the stage play industry, the movie industry, and the construction industry), in which unionization is structured on the basis of professions for an entire industry, or the entire industry in a geographical region, rather than on an employer by employer basis. This tactic doesn't work in those industries. The common thread is that work in these industries is organized on a project by project basis (i.e. a particular play, a particular movie, or a particular construction project), in which the firm paying for the project is usually a single project only entity. Another important bright line rule is that an employer always has the right to shut down the business covered by the union entirely, rather than deal with the union. But, this is why unions tend to be more effective in industries with large employers who can't replace the employees very easily with non-union workers (like factories and ship yards, and grocery store chains). Is this basically saying that the only power unions ultimately have is to quite en masse and make it difficult for the company to hire replacements? Basically. But, the power to strike is considerable in most unionized employment contexts and many people won't "cross a picket line" in solidarity with striking workers. From a consumer's perspective, not crossing a picket line means not patronizing a business whose workers are on strike. But, not crossing a picket line can also mean that workers (usually at a unionized business that is a vendor to the business whose worker's are on strike, or that deliver things to the business whose worker's are on strike) will refuse to participate in doing business with the business whose worker's are on strike. So, even if enough replacement workers can be found to continue to operate the business, this doesn't necessarily mean that a business won't face very severe consequences for continuing to operate with replacement workers while its regular workers are on strike. Furthermore, unions can take other actions short of strikes, like staying on the job and "working to rule" strictly refusing to show any flexibility beyond the bare requirements of their existing contract or the new one, or pursuing every single minor bump and scratch as a worker's compensation claim, reporting every Occupational Safety and Health Administration violation, or pursuing unfair labor practices litigation against the employer. Private sector unions are declining, in part, due to the ability of employers to hire replacement workers. Still, this is one reason for the long and steady decline of unionization in the private sector U.S. labor market (although the trend has reversed a bit in the last several years). Consider, for example, the following chart (via Wikipedia): As I recapped the economic history of labor action in the American workforce as of December 2010: [There have been] six general strikes in U.S. history, one in 1919 in Seattle, and four in 1934, at the height of the Great Depression, one in Toledo, one in Minneapolis, one in San Francisco and one at West Coast Ports. There was also a general strike in the Commonwealth of Puerto Rico in 1998. The last one in the English Speaking United States was 76 years ago, and very few people living today remember it. The United States has never had a nationwide general strike and just two general strikes in its history, one restricted to a single industry, and the other to a U.S. territory, extended beyond a single city. Union-management relations in the United States used to look a lot like they do in Europe. Strikes were large, frequent and involved a large share of the work force. National guard forces or private security forces were frequently called in to put them down in bloody conflicts. Openly socialist political parties were organized. In 1950, a year that revisionist history remembers as a tranquil period in American history, there were 424 strikes involving 1,000 or more workers, in all involving 1,698,000 workers, which was more than one in nine members of the unionized workforce of 14.3 million workers who made up 31.5% of the total work force. In 2008, there were 15 strikes involving 1,000 or more workers, in all including 72,000 workers which was one in two-hundred and twenty-three members of the unionized workforce of 16.1 million workers who made up 12.4% of the total workforce. The public sector which is 36.8% unionized, is as unionized as the private sector was at its peak. The private sector, which is 7.2% unionized, has the lowest level of unionization in the private sector since the 1920s, if not earlier. The unionized workforce has remained more or less constant for half a century, despite a growing workforce, and that masks the fact that there has been substantial growth in public sector union membership and a substantial decline in private sector union membership over that time period. The United States, there has been only one year since 1983 that more than 3% of unionized workers went on strike (1986), and there has only been one year since 1998 (the year 2000) when more than one in eighty union members went on strike. In the entire United States from 1990 to 2008, there wasn't a single year that there were more than 45 strikes involving 1,000 or more workers in the entire United States, in a period that started with a labor force of 103 million workers and peaked at just short of 130 million workers. In contrast, there wasn't a single year from 1950 to 1987 that had less than 46 strikes, despite that fact that the workforce was significantly smaller. Prior to the 1980s there were a couple hundred major strikes in the United States per year, about ten times current levels of labor action. I updated this account in 2014 and 2015: There were thirteen major strikes that took place at least in part in 2015 according to the Bureau of Labor Statistics monthly tables. This is just two more than in the year 2014, which had fewer major strikes which involved fewer workers than any year from 1947-2013 except 2009, a low point of the financial crisis. Most of the half century before WWII also had more major strikes (at least proportionate to the size of the population) than there are these days. In all of the United States in 2014, there were just 11 strikes involve 1,000 or more workers, which involved a total of 34,000 workers and resulted in 200,000 work-days idle, which was less than 0.01% (i.e. less than 1 day in 10,000) of the total working time of the American labor force. The year 2015 was the next most peaceful year in post-WWII labor history. The year 2010 also had just 11 major strikes, but those strikes involved more workers and produced more days idle. There were just 5 major strikes in 2009 in the United States which involved fewer workers than in 2014 and fewer days idle. This has a lot to do with the decline of private sector unions in the United States. . . . Just under half of union members are in the public sector and public sector unions, as a rule in the United States, have limited or non-existent rights to strike (although teachers unions which are a huge part of total number of public sector union members can frequently strike). In 2014, just 0.001% of the working time of the American labor was idle due to strikes or lockouts. The last year than more than 0.01% of the working time of the American labor force was idle was 2000. The last year that 0.10% or more of the working tie of the American labor force was idle was 1978. Only one year from 1948 to 1959, a time often nostalgically remembered as the "good old days" by conservatives was below the 0.10% threshold. Nationally, in 2014, the private sector 6.6% (7.4%) of employees were members of unions (represented by unions), while in the public sector 35.7% (39.2%) of employees were members of unions (represented by unions), with both percentages generally tending to fall over the previous decade. Within the public sector, nationally, union representation rates are highest with local government employees (45.5%), intermediate with state government employees (32.8%), and lowest with federal employees (31.6%). In the United States in the year 2020 the union membership rate (the percentage of wage and salary workers who were members of unions) was 10.8 percent. . . . the union membership rate in the public sector was 34.8 percent, while the rate in the private sector was 6.3 percent. | As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). | What would the implications be if an employee were to refuse signing an amendment and insist on what was stated in the original signed contract, even if he/she knows it's a mistake? The contract is voidable unless the employer's subsequent conduct reinforces its legitimacy. The employee's attempt to take advantage of something he knew was a mistake contravenes the covenant of good faith and fair dealing on which contracts are premised. South African contract law is not an exception to this: The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing. The employer can resort to records of prior communications between the parties to prove that the stated compensation was intended as yearly, not monthly. Even if those records are not available in a judicial dispute, the employee would have a hard time persuading a court that the salary that was agreed upon is 12 times --or exceeds by a factor of 12-- the market rate for a job position of similar type. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). | Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261. In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance. | 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. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. |
Were this character's actions legal in 'SAS: Rogue Heroes'? In Episode 3 of "SAS: Rogue Heroes", L Detachment attack some Axis airfields in North Africa. The stated intent of the mission is to sabotage planes, trucks, etc., with explosives. During this mission, the (fictionalised) Paddy Mayne and others gun down apparently unarmed (and moderately drunk) German and Italian airmen and engineers in their mess hall. They're enemy combatants in an active war zone, so on one hand it would seem justified. But on the other hand, they're unarmed, and were given no opportunity to surrender. Note: I'm putting aside questions of whether it really happened as depicted. That's a question for Movies & TV Stack Exchange. My question is this: under the laws of warfare in effect at the time (i.e. the North Africa campaign of WW2) were these actions legal, or would they count as a war crime? | That an enemy combatant does not have their weapon on them right now does not render them a non-combatant. If the Axis soldiers had been unconscious, it would have been a different story, but "mildly drunk and gun out of reach" isn't enough. It is forbidden have "no quarter given" as a policy, but that doesn't mean that an enemy has to be given an explicit chance to surrender, that just means that if the enemy does indeed surrender, that surrender can not just be denied. Most casualties in war happen due to artillery anyway, so a requirement to give the opportunity to surrender would be kinda meaningless. Where such a situation gets messy is if some of the Axis soldiers had tried to surrender on the spot. The SAS would then be expected to try and shoot only the non-surrendering soldiers. If everyone surrenders, and the SAS kills them anyway because they don't have the ability to take prisoners, that's a clear warcrime. Sources: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule46 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule47 | 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. | TV shows like COPS will have the arrestees/suspects/bystanders/victims sign a waiver to appear on the show, along with anybody else that they film in the process, otherwise the faces will be blurred, or removed from the show entirely. Additionally you can tell the camera crews that they are not allowed in your home. If they do enter your home without permission, you can sue them for trespassing. It should be noted that those shows are often edited for drama, and as such seem much more dramatic than it is. The film crews may spend weeks or more (400 hours of video) just to get enough "good stuff" for a 22 minute episode, and then make it look like it all happens over the course of an evening. As for the moral/social acceptance of a lack of privacy, that question really isn't on-topic here. This should be the same for any other "COPS-like" TV/youtube show, but there are some shows out there that don't take the rules as seriously as others. Those usually operate under the "who we are filming probably can't afford a lawyer" mentality so they keep going until they get sued. | germany Bob through his actions is harming Alice. Thus Eve may use the minimum necessary force to help Alice as Nothilfe, which is defined as using §32 StGB (Self protection/Notwehr) and §34 StGB (justifying state of emergency/Rechtfertigender Notstand). As a result, it is allowed to harm someone to the degree of self protection for the benefit of someone else that can't protect themselves - such as Alice. However, the amount of force allowed must be proportional to the harm done to Alice - so Eve may use the least needed amount of force to get Bob from stopping Eve from helping Alice. As an example, Eve might shove Bob out of the way, hit him, or use the threat of serious harm (which is usually illegal!) to deter Bob from getting in the way, but unless Alice is actually at risk of dying from Bob keeping her from applying pressure on a lacerated artery this very moment, she can't shoot at Bob - that would overstep the Notwehr, but might not be punished if the overstepping is for the right reasons defined in §33 StGB. Bob also is liable for not rendering aid, §323c StGB unterlassene Hilfeleistung/Behinderung von hilfeleistenden Personen (Failure to provide assistance/hindering persons providing assistance). | General case - legal or not? It is hard to prove a negative - however, as far as I can see: It is not illegal to state your opinion that the existence of the state of Israel is unjustified, or that the state should be dissolved. Such a position would be considered outrageous by most Germans, in particular it is against the stated position of pretty much all political parties, except for the extreme right or left, and of most other organizations. It is not, however, illegal. In general, the dissolution of a state is not in itself illegal according to national or international law, as long as it happens voluntarily. There are some precedents: For example, during the German Reunification of 1989, the German Democratic Republic (East Germany) acceded to the Federal Republic of Germany (West Germany) under the (old) Article 23 of the Grundgesetz. One could argue that the German Democratic Republic effectively dissolved itself by that accession. What would probably be illegal would be to call for a violent end of the state of Israel, or even for a war. The relevant laws: §130 Strafgesetzbuch -- Volksverhetzung (incitement to hatred) §13 Völkerstrafgesetzbuch -- Angriffskrieg (war of aggression) and, only applicable to the state: Art. 26 Grundgesetz -- Angriffskrieg (war of aggression) Special case - civil servants Civil servants are citizens, too, so mostly the same laws apply to them. However, for civil servants specifically there are higher requirements when it comes to respect for the German constitution, specifically for the "freiheitliche demokratische Grundordnung" (literally: "basic free and democratic order"). That means that opinions which are "extremist" but not illegal may not be tolerated. Applicable laws/regulations: §7 Beamtenstatusgesetz §9 Richtergesetz §3 of the Tarifvertrag der Länder (TV-L) As far as I can see, the rules for whether something violates these rules would be similar as above. Note that there are even some Israelis who think that the state of Israel should not exist, at least not in its present form, so such a position is not totally unthinkable. The Wikipedia articles Right to exist and Existenzrecht Israels (German) give a good overview. | The show ignored the existing legal framework. Almost all U.S. police officers are employed by state and local governments and do not report directly to the President, even in an emergency. A small number of law enforcement officers are federal employees with a direct line of command to the President (e.g. the Secret Service and the security guards in the General Services Administration and TSA officers), but a law enforcement officer, unlike a member of the military or a CIA officer, does not simply follow the orders of the civilians to whom his superiors are responsible without the intervention of their law enforcement superiors based solely upon that civilian's whims and directions the way that a soldier would. The Secret Service has some limited authority to direct and even deputize local law enforcement officers in pursuit of their missions, but that would probably not extend to the kind of national security kill order contemplated in this episode. This said, lots of law enforcement officers are ex-military, most law enforcement agencies has a quasi-military organizational structure, and in the extreme circumstances of Designated Survivor, it wouldn't be shocking for law enforcement officers to follow their natural military chain of command intuitions rather than the law that actually applies in these situations. Law enforcement officers are personality types that are very deferential to authority which is a natural counterpart to support for their hierarchical view of the world that endows them with their own authority. There is no one in the loop to play devil's advocate for the suspected terrorist. But, strictly speaking, the proper protocol within the U.S. would be to have a CIA agent make the strike (because the military is prevented by the posse comitatus act from doing so, unless these events counted as an "insurrection" which they very well might in which case the military could be involved), rather than a law enforcement officer. Incidentally, the U.S. Supreme Court has basically held that the citizenship of the suspected terrorist is irrelevant, even though policy makers in all of the Presidential administrations since 9-11 have not been very comfortable with that state of the law and have sought to distinguish U.S. citizens from non-U.S. citizens in their own policies. | Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019. | After the edit of the question: Deceased defendants are not normally put on trial. Before the edit of the question: The ability of the US President to start military operations is a somewhat murky issue. Congress has the power to declare wars, the President is the commander in chief, and the War Powers Resolution complicates things. But this is not really an issue because Congress approved the operation. As far as domestic US law, the war was legal. I'm not aware of any competent legal authority deciding on the invasion being a crime of aggression under international law. The practical problem here is that such trials mostly happen under UN auspices at the end of a world war, putting the defeated side on trial. The UNSC would probably be involved, and the US is a veto power. Note also that Iraq had probably violated the ceasefire agreement from 1991 ... Which leaves the domestic issue of lying to the American public and especially to Congress. While perjury in a congressional hearing may be a crime, proving it would require a legal judgement of the state of knowledge at the time the supposed perjury happened. To a large degree, the US government deceived itself before it gave testimony, and being factually wrong is not perjury if the witness believed what he or she said. |
Incorrectly Filing a Civil Case What happens if a civil case is incorrectly filed? Is there recourse to request that the case be dropped and make the petitioner refile the case? For example, in Indiana, a petition for a protective order must be accompanied with a statement by an affidavit, but it seems that judges often schedule a hearing for these petitions without such a statement. Can the respondent do anything if such a statement is not attached? If there is an affidavit, then isn't it the right that they should know their statement before the hearing? The second example is about if there is obviously contradictory information in the filed case. To use a petition for a protective order example again, suppose that the petitioner checks the box that violence has happened, but then claims latter that violence did not happen and that they are filing the petition for harassment. Does this not fail to properly notify the respondent to what is being claimed against them? (Also, isn't this an obvious case of perjury?) | If the case is filed improperly, the opposing party should file a motion to dismiss. If the opposing party merely disagrees with the allegations, they will likely have to litigate to address those differences. The inconsistency is not an obvious case of perjury, because it could just as easily be a clerical error. | The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime. | This is called a qui tam action. It's a concept that's been around a long time in the English legal system (predating the US), to encourage people to help the government enforce its laws. The more contemporary system is to give private parties the right to sue on their own behalf for some wrong (known as a "private attorney general" system), which is how things like civil rights claims tend to work; the difference with qui tam is that the government is the plaintiff (source) It's possible when the law says that a claim under some section may be filed by a private person on behalf of the government; at the time the article was written, the false marking statute (35 USC 292) stated that "Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States." In a qui tam action, the government is the plaintiff; it's just that instead of a public attorney handling the case, it's handled by a private party. There were three active qui tam statutes in US federal law as of 2009 (source: CRS): the False Claims Act (31 USC 3730), the patent marking claim, and an Indian protection statute (25 USC 201). The patent marking qui tam provision has been repealed, leaving just the two. For the Indian protection statute, I can't find any reference to any special procedure; for the False Claims Act, there is a special procedure included in the law. In the False Claims Act, when an action is submitted, the government is notified and the complaint kept sealed for 60 days while the US government decides what to do. If the government wants to take over the case itself, it can do that; if it wants the private party to run the case, it can do that too; if it wants to dismiss or settle the case it can do that as well. It can also ask for the time to be extended, or for discovery to be delayed to gather evidence or prosecute a separate criminal or civil case. If the government lets the private party run the case, they can still intervene later if they have a good reason. After the case finishes, the private party gets 15-25% of the judgment or settlement (if the government took over the case) or 25-30% (if the private party ran the case), plus attorney fees. If the facts the case was brought under were publicly known when it was filed, the amount shrinks to 0-10% if the person supplied information to the government that wasn't publicly known when it was supplied, and the case is dismissed if the person just learned about it from public sources. For the false marking statute, a district court actually found it unconstitutional in part because of the lack of the extensive procedure found in the False Claims Act. There, the procedure was just to file the case like normal; the clerk had to tell the Patent Office that a claim had been filed within a month, but one issue was that a settlement could have happened in that time and bound the government. It's possible higher courts would have ruled had that section not been repealed later that year. As for other countries, the idea came to the US from England, but the Common Informers Act 1951 eliminated it there. However, private prosecutions (which do exist in England) are similar in that the case is on behalf of the Crown, but handled by a private party; they're different in that the private party doesn't get any part of the judgment. While it's hard to prove a negative, I can't find any evidence of qui tam provisions outside the US. | How can a person with a similar experience with the defendant, help the plaintiff in a lawsuit? You may bring Joe as witness or present some sworn testimony from him. That could be in the form of affidavit, deposition transcript, or by testifying in court. In what way can I use Joe's story? Joe's testimony will be relevant to the extent that it proves the defendant's pattern of conduct or system for doing a thing. Many (if not all) jurisdictions in the U.S. had a provision similar to Michigan Rule of Evidence 404(b)(1): Evidence of other crimes, wrongs, or acts [...] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act [...] when the same is material, whether [they] are contemporaneous, or prior or subsequent to the conduct at issue in the case. Thus, Joe's testimony would not prove your entire claim, but it can discredit important aspects of defendant's foreseeable denials in your matter. In some way the suggestion in the other answer makes sense, but I would discourage you from bringing suit together with Joe. That is because, despite all similarities, your claim are Joe's claim are different instances: Each cause of action stemmed from a separate contract; each contract/cause involves a different plaintiff; the statute of limitations of each wrong started running at different times; and your history with the defendant might differ from Joe's history with him on relevant aspects in a way that could prejudice you. Furthermore, if the defendant requests that the suits be separated, you and Joe would have no persuasive arguments on why your matters should remain consolidated. Lastly, the mere fact that a complaint is filed by two or more plaintiffs will not prompt a judge to act with honesty or with competence. | united-states I am answering this in the case of a criminal jury trial (given the context of the previous question). It is my understanding that the judge must accept (almost?) all evidence admitted into court. So, this leaves me with three questions: What happens if an official shows evidence that the judge hadn't agreed to feature in the trial? . . . What happens if the evidence happens to be inadmissible? A trial in a criminal case takes place in a courtroom at a predetermined date and time, with the prosecutor physically sitting at one table in front of a judge and the defendant and the defendant's lawyer physically sitting at another table in front of the judge, and a jury physically sitting in a seating area to the side of the judge, and a witness (usually) physically sitting in a chair on the other side of the judge (in rare circumstances, for minor witnesses, testimony is provided by telephone with the phone put on speaker in the courtroom for all to hear), and a court reporter or tape recorder keeping track of what happens verbatim. In a trial, essentially all evidence comes in through witnesses sitting on a special the chair in front of the judge designated for witnesses (called the witness stand) at the request of either the prosecuting attorney, or the defense attorney. This is the only way the evidence is introduced (other than by stipulations of both side's lawyers). Prosecutors and defense attorneys don't testify or provide evidence themselves. The judge is usually not told what evidence will be offered at trial in advance, although sometimes a pre-trial hearing is held to consider a particularly important piece of evidence's admissibility prior to trial, in a hearing on what is called a "motion in limine" or a "motion to suppress". If that happens, the judge's decision made in advance will be honored by the judge when anyone tries to introduce the evidence at trial. But those are the exception and not the rule. Usually, any witnesses can be asked any questions at trial and the judge does not consider the admissibility of the answer to the question until it is asked and objected to by the other side's lawyer at trial. A defendant can choose to be, but is not required to be, a witness in his or her own case. In a trial, when it is their turn, the prosecution and defense, respectively, ask witnesses to sit at the witness stand one by one and ask them questions, which the witness answers under oath, absent an evidence objection from the other side's attorney. While a witness is on the stand, exhibits such as documents or physical objects can also be introduced into evidence in connection with the authenticating testimony of the witness (except in cases where both sides stipulate to the admission of the documents or other non-testimonial evidence). As the lawyers try to introduce evidence by asking a question to a witness on the stand, or by asking the judge for permission to introduce non-testimonial evidence, the other side's attorney can say, "I object". If that happens, the witness on the stand is not allowed to answer the question and the non-testimonial evidence (e.g. documents, or a knife allegedly used in a crime) is not made available to the jury until the judge rules on whether it is admissible or not in accordance with the rules of evidence. Usually, the judge rules on the evidence objection immediately in the moment, although in rare cases, the judge will let the jury have a break for a few minutes while hearing arguments from the lawyers for both sides on about the relevant evidence rules and/or researching the legal issue, before ruling on the evidence issue. Once the judge rules on the evidence issue, the trial continues immediately. If the judge "sustains" the objection to the evidence, then the question doesn't get asked and/or the jury doesn't get to see the non-testimonial evidence. The lawyer whose question or offer to introduce evidence was successfully objected to moves on to their next question (if any) for the witness instead. If the judge "overrules" the objection to the evidence, then the witness answer the question and/or the jury gets to see the non-testimonial evidence which is "received" into evidence by the judge. This process continues continuously, for as many business days as it takes, until all witness testimony and all non-testimonial evidence has been presented to the court and both sides have told the court that they have presented all of their evidence. Then each side makes closing arguments to the jury, the judge reads the jury instructions of law on how to resolve the case, and the jury is sent to closed room to discuss the case and decide whether to say "guilty" or "not guilty" with respect to each charge brought by the prosecution in the trial. This decision is called a "verdict" and when the jury has made up its mind on all charges present to it, the jury lets the judge know that it has made up its mind, and the judge calls everyone back to the courtroom, and the jury tells the judge what they decided in open court. If the verdict is "not guilty" on all criminal charges in the case, then the case is over, with no post-trial motions and no appeals. If the verdict is "guilty" the defendant is convicted, subject to post-trial motions to declare a mistrial and appeals by the convicted defendant. If the convicted defendant appeals the case, and the judge abused his discretion in overruling an objection to the evidence that is made by the lawyer for the defendant (or the defendant personally if the defendant is not represented by a lawyer), because no reasonable judge could have found that the evidence was admissible under the circumstances, then the appellate court rules that the judge has made an "error". The appellate court will not find that the judge's ruling is an "error" if the judge made the correct decision for the wrong reason. If it is reasonably possible that "error" possibly in combination with other errors made by the trial court judge could have caused a convicted criminal defendant to have been acquitted by the jury if the errors weren't made by the judge, then the defendant gets a new trial. The new trial usually before the same judge with a new jury. But the new trial is before a different judge and a new jury if the judge is no longer a judge on the court for any reason, or if the judge has been so defiant of the appellate court (typically ignoring its instructions in a retrial after a first appeal) that the appellate court decides it must remove the judge from the case. A criminal defendant is only acquitted by an appellate court if the appellate court finds that it would be impossible under any circumstances for the defendant to be convicted in a new trial, possibly with different evidence presented by the prosecution. What happens if a private citizen does the above? This doesn't make sense. Private citizens don't rule on the admissibility of evidence in a criminal trial, and can't introduce evidence in a criminal trial except at the request of a prosecuting attorney or defendant's attorney by being called as a witness and asking the questions that the lawyers (and sometimes the judge as well) asks the witness. Witnesses are not allowed to volunteer testimony or provide documents to a jury unless asked to do so by a lawyer in the case. What happens if someone provides evidence in court without the knowledge of the judge? As the process described above should make clear, this is basically impossible absent some extremely irregular event on the same level of irregularity as someone bribing a jury or threatening a jury with harm if he votes the wrong way. | Normally, the prosecution case will not rely upon the testimony of the defendant. Instead, the prosecution will call all of its witnesses until its evidentiary case is complete. Then, the defense case opens and it may call witnesses. The defense is not obligated to call all of the witnesses that it stated that it anticipated that it would call prior to trial and the jury doesn't know which witnesses the parties said that they anticipated that they were going to call and didn't call. Until the defense case is closed, the defendant can call himself or herself as a witness if he or she wishes to do so, but is not obligated to do so. Once a defendant starts testifying (generally in his or her own case) he or she has generally waived the Fifth Amendment right not to testify. So, the prosecution may cross-examine the defendant in this situation. But since the prosecution's case is usually already closed at this point, the prosecution's cross-examination is limited to the scope of the defendant's testimony under questions from his or her own lawyer (there are some nuances of how this is done when the defendant is self-represented and has no lawyer). The prosecution cannot expand the scope of questioning of the defendant to new topic areas. I can imagine deviations from this pattern in odd circumstances, but they would be very rare. | Acquittals in criminal jury trials cannot be appealed (at least in a way that affects the outcome, Colorado and a few other states allow criminal appeals by the prosecution solely for the purposes of clarifying the law prospectively). Interlocutory appeals (i.e. appeals before the case is over) by the prosecution are allowed for pre-trial rulings (e.g. suppression of evidence rulings in a pre-trial hearing), in criminal cases, but not for evidentiary rulings made in the midst of a jury trial (which is when jeopardy attaches for the purposes of the double jeopardy rule, which is what prevents acquittals from being retried). An error in a ruling on an admission or rejection of evidence at trial may be appealed by a convicted defendant if the alleged misapplication of the evidence rule was an abuse of discretion by the judge, and was not "harmless error" (i.e. if as part of all errors made in the case there is a reasonable probability that it changed the outcome that the jury reached). | 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. |
Are users' personal notes about other users subjected to the GDPR right of access? Some applications, like Discord or Mastodon, allow a user A to put private notes (only accessible to A) next to the profile of another user B. This data is very probably Personal Identifiable Information (PII) according to GDPR: it is linked to a specific profile of B, but also to the profile of A. If user B wants to access to their data per GDPR, can / must you give user B the content of the notes entered by A about B? It seems a kind of breach of privacy because before a data-access request, the information in the note was information only known to A. To me, it seems that A is responsible for the data entered, but it seems the operator of the service still has PII about B and should probably give the data to B if B asks about it. | The Right to Access is pretty absolute. However, there are some limitations: Is the service even the Data Controller for the data in question? Here, you're talking about notes of one user about another. Is the platform the controller for the notes, or would the note-taker be the controller? Or both, jointly? If the platform weren't a controller but merely a data processor for these notes, it would be illegal for them to disclose the information. Trish also correctly points out that the GDPR does not apply to processing for purely personal or household purposes, e.g. personal social media use. So GDPR would not provide a basis to compel a user to disclose their notes to the data subject, assuming that the note-taker is covered by this exception. Of course, this exception wouldn't apply if the notes are taken for other purposes, e.g. professional networking. Also, this exception doesn't affect the platform. There is an explicit limitation to the right of access in Art 15(4): The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. Disclosing user A's notes about user B to user B would likely violate the privacy rights of A. The notes are both A's and B's personal data. However, the correct balance depends on context. E.g. an employer probably can't refuse to provide access to a performance assessment merely because it was written by an identifiable manager. The UK ICO has provided detailed guidance on this aspect to the right of access. They propose a three-step test: Step one – Does the request require disclosing information that identifies another individual? For example, it might be possible to redact other people's information (but not in your Mastodon notes example). Step two – Has the other individual provided consent? Step three – Is it reasonable to disclose without consent? What is reasonable is highly context-dependent, but UK data protection law gives some concrete criteria to consider. The EU EDPB has draft guidance on the Right to Access. They note that the Art 15(4) can cover a wide range of rights, not just other people's privacy rights. But as in all things, the data controller is required to strike an appropriate balance between user A and B's conflicting rights. In the Mastodon user notes scenario, I think that the note author's rights to privacy should be considered more important than the data subject's right to access those notes, thus making it possible to reject that part of a DSAR under Art 15(4) GDPR. If we assume that the note-taker A is a (joint) controller for these notes, then it would also be necessary to consult them before making a decision about the access request. | See Art. 17(2) GDPR: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. So the controller must tell all other controllers (like google) to delete the data. The privacy policy must include the fact that data is made public. | Either approach can be GDPR-compliant. An issue to consider is that you as a data controller relying on consent “shall be able to demonstrate that the data subject has consented to processing of his or her personal data” (Art 7(1)). This might be simpler if a record of the consent is linked to a user account. On the other hand, the GDPR's data minimization principle would suggest that decentral, offline approaches are preferable. So you do have some flexibility here, as long as you feel comfortable demonstrating that your approach is compliant when investigated by a supervisory authority. In many cases, consent is not an appropriate legal basis to start with. It is one of several options in Art 6(1) GDPR. If a data processing activity is necessary for fulfilling a contract with the data subject, then Art 6(1)(b) is more appropriate. If the processing is necessary for a legitimate interest, then Art 6(1)(f) would work – after conducting a balancing test. Art 6(1)(a) consent is appropriate when the processing activity is not necessary, or when a legitimate interest balancing test doesn't go in your favor, or in some cases when required by law. For example, consent is required when processing special categories of data (such as biometrics), or when accessing or storing information on the end user's device, beyond what is necessary for a service explicitly requested by the user (the “cookie law”, but much more general than cookies). Consent also has heightened compliance requirements compared to other legal bases. The data subject must be able to make a free decision, without any coercion. You must not use dark patterns. You must leave the data subject a real choice. You must not make access to your app conditional on giving unrelated consent (like providing access to a game only when the user gives consent for personalized ads). The data subject must be able to easily withdraw consent later, without suffering detriment for this. The EDPB has issued relevant guidelines that might be helpful here: EDPB guidelines 05/2020 on consent EDPB guidelines 2/2019 on Article 6(1)(b) in the context of online services (also relevant for apps) TL;DR: what is “necessary” for performance of a contract is an objective question, and should generally be considered from the data subject's perspective. It is not possible to circumvent consent requirements by putting unrelated processing purposes like “analytics” into a services' terms of service. The main purpose of this document is to serve as a rebuttal of Facebook's GDPR compliance strategy. But it's perfectly fine to avoid asking for consent for those processing purposes that are actually necessary for the user. I've noticed that you mentioned various Google services like Analytics and Firebase. To the degree that your use of these services implies an international transfer of personal data into the US, it might be impossible to be GDPR-compliant. Be wary of claims that you're only transferring “anonymous” data, as the GDPR has a fairly broad concept of identifiability. | If the data controller has “reasonable doubts concerning the identity of the natural person making the request”, then “the controller may request the provision of additional information necessary to confirm the identity of the data subject” (Art 12(6) GDPR). Until the data subject provides this information, the request is paused. But what are reasonable doubts, and what additional information can the controller request? The GDPR itself provides no clear guidelines, though general principles apply – the additional information must be necessary, adequate, and proportionate for the identity conformation purpose. The controller's obligation to comply with access requests must be balanced with the controller's obligation to ensure the security of data by rejecting invalid requests. Just accepting any request without any verification would also be a breach of the GDPR. For example: If the company identifies data subjects by email address, then demonstrating control over the email address would be an appropriate verification step. But just mentioning the email address would not be enough since it could be someone else's email address. If the company provides a website where data subjects have created user accounts, then being able to log in to the account would be an appropriate verification step. In these examples, asking e.g. for government photo ID would not be appropriate because that doesn't help strengthen the link between the person making the request and the personal data being processed. Such data collection would be disproportionate and unnecessary. In contrast, if you walk into a bank and ask for a copy of your data, it would be entirely appropriate for them to ask for government ID because (a) the higher general risks warrant stronger checks, and (b) such ID will help confirm that the person making the request is indeed the proper account holder. The bank will also have been legally required to request ID when the account was originally opened, so that asking for ID as an identity verification measure during this later request won't involve collection of more data than they already have. (These examples were made up by me and are not official, but read on.) The EDPB has issued draft guidelines on the right of access 01/2022, which also discuss the issue of additional information for identity verification in sections 3.2 and 3.3. In particular, paragraphs 73-78 talk about IDs: 73. It should be emphasised that using a copy of an identity document as a part of the authentication process creates a risk for the security of personal data and may lead to unauthorised or unlawful processing, and as such it should be considered inappropriate, unless it is strictly necessary, suitable, and in line with national law. […] it is also important to note that identification by means of an identity card does not necessarily help in the online context (e.g. with the use of pseudonyms) […]. 75. In any case, information on the ID that is not necessary for confirming the identity of the data subject, […] may be blackened or hidden by the data subject before submitting it to the controller, except where national legislation requires a full unredacted copy of the identity card (see para. 77 below). […] 76. […] Example: The user Ms. Y has created an account in the online store, providing her e-mail and username. Subsequently, the account owner asks the controller for information whether it processes their personal data, and if so, asks for access to them within the scope indicated in Art. 15. The controller requests the ID of the person making request to confirm her identity. The controller's action in this case is disproportionate and leads to unnecessary data collection. […] Example: A bank customer, Mr. Y,, plans to get a consumer credit. For this purpose, Mr. Y goes to a bank branch to obtain information, including his personal data, necessary for the assessment of his creditworthiness. To verify the data subject’s identity, the consultant asks for notarised certification of his identity to be able to provide him with the required information. The controller should not require notarised confirmation of identity, unless it is strictly necessary, suitable and in line with the national law […]. Such practice exposes the requesting persons to additional costs and imposes an excessive burden on the data subjects, hampering the exercise of their right of access. 77. Without prejudice to the above general principles, under certain circumstances, verification on the basis of an ID may be a justified and proportionate measure, for example for entities processing special categories of personal data or undertaking data processing which may pose a risk for data subject (e.g. medical or health information). However, at the same time, it should be borne in mind that certain national provisions provide for restrictions on the processing of data contained in public documents, including documents confirming the identity of a person (also on the basis of Art. 87 GDPR). Restrictions on the processing of data from these documents may relate in particular to the scanning or photocopying of ID cards or processing of official personal identification numbers. To summarize: controllers can request IDs only in comparatively niche scenarios, and must then take additional safeguards to protect the sensitive document (e.g. instructing the data subject to redact parts of the ID, not making copies, and immediately deleting the ID after successful verification). A lot here comes down to national laws, which may explicitly require or forbid use of the ID in this context. The EDPB guidelines are not binding or normative, especially since this guidance is still in the public consultation phase. However, the guidelines present an overall consensus of the national data protection authorities in the EU, and the guidelines are regularly cited by courts. In practice, many controllers do ask for disproportionate amounts of data. Sometimes this seems to be an attempt to discourage data subject requests, which would clearly be non-compliant. In some cases, this is due to a narrow interpretation of “reasonable doubts” in which they try to eliminate any doubt about the identity. If the data subject and data controller cannot agree on a suitable identity verification process, then the data subject can: Art 77: lodge a complaint with a data protection authority, and/or Art 79: sue the data controller in court, both for compliance (fulfilling the request) and for compensation (if damages were suffered). It is worth noting that the data controller is responsible for being able to demonstrate compliance (Art 5(2) accountability principle), such as demonstrating the apparent reasonable doubts to a supervisory authority or to a court. When the controller requests ID, the controller has the burden of proof to show that this is compliant. | 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. | I know that I have to provide detailed information which data I save and how I use it. Yes, you should, if you are getting access to users' Dropbox accounts, which will contain all sorts of private data, copyrighted (and illegally copied copyrighted files), etc. You provide the detailed information to your users through a click-through Privacy Policy - TOS (Terms of Service) in your App, like any other App out there. Click wrap (Wikipedia) user agreements are legally binding in many jurisdictions. Even if you don't access files and information - such as personal information or files - you still need a clear TOS for your App, for both your users' and your own legal protection. But I am a poor student who don't want invest money into a lawyer to write me a privacy policy ... I do not plan to get paid for (this app)... Being a free or paid App doesn't make a difference when it comes to the TOS, if you need one, and if you need to pay for one to be drafted. But not investing money in a lawyer can be a critical mistake if your App will be distributed on the popular App directories like Google Play and iTunes and your TOS does not clearly and legally outline all possible usage and data polices. Lawyers have experience in covering all the bases. Is there any way I can do this privacy policy on my own? Sure, you can: https://www.google.com/search?q=privacy+policy+generator But you run considerable legal liability not having a TOS that correctly and legally addresses all users' privacy concerns and clearly outlines what you do to insure security. That's what lawyers are for. Is it possible to just create some “I save all your data“ policy which would of course be to much but it would include all data I save and so I would not miss anything in my policy? Sure, you can simply say I save all your data. But how can you be sure that you've haven't missed important policy details and scenarios that could result in legal action against you? Like how long do you save data? When will you delete it? How secure is it? Can the user ask for deletion? What happens if you get hacked? What about users in countries other than the US? Users under 18 years old? You must use arbitration for any disputes? And on and on. The considerable legal liability of using a non-professionally drafted TOS means you run the risk of getting sued. You have to decide if it is worth the risk. | “From your perspective you should not worry about asking permission to use reCaptcha as it is not you who is processing the data it is google and any GDPR compliance falls on them.“ This is plain wrong. If a user visits your website you are the controller of data collected on your website. Regardless of what entity collects that data. However in my non-legal opinion reCAPTCHA falls under Article 6 section 1d and 1f. Also Recital 49. 1d: “processing is necessary in order to protect the vital interests of the data subject or of another natural person;” While you could argue in some cases (most probably) reCAPTCHA is used to reduce spam to a business entity thus not a “natural person”. 1f: “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.” Here is where the real ruling applies “Legitimate interests”. You as a business have a legitimate interest in reducing spam into your business. Not only does spam take up your time but it also takes up your resources. As to the extent in which spam takes up is dependent on the usage in question. But nearly everyone can safely assume reducing spam (one of the cornerstones of the GDPR) is a legitimate interest. Recital 49 (excerpt): The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, […] by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. | IANAL, But the information commissioners office (UK) describe personal data as: (bolding mine) The GDPR applies to ‘personal data’ meaning any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. This definition provides for a wide range of personal identifiers to constitute personal data, including name, identification number, location data or online identifier, reflecting changes in technology and the way organisations collect information about people. https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/key-definitions/ So I would say that in your case it is personal information. In principle, regardless of if you can identify an individual, personal data is that which can be used to potentially identify an individual. For an extreme example of why this is important: Lets say your app sells AIDs medication. Can a hacker who got in and stole your database, be able to use that with information they stole elsewhere to identify people with AIDs and blackmail them, in a way that they wouldn't if you had not stored this identifier? Plus, if you want to err on the side of caution, there's no legal penalty for telling the user about non-personal information you store. |
Legality of Aggregating and Publishing Data from Academic Journals I am an academic in a field where we explore the performance of materials for a particular application based on just a few metrics. Right now, there is no central repository of this information. My idea was to fix this by building a website that maintains a plot of each metric (potentially from multiple papers) for each material system. My question is this: a typical article in my field will have a figure with x/y datapoints of the performance metric for the material being studied. I have access to journals through my university and would like to download papers and digitize the datapoints from the figures using a tool such as webplotdigitizer. I would then upload the x/y values (and not the figure or any other content from the paper) into a database. That database would then generate its own figures using a plotting tool and make them available on a website. I would also want to make the data itself available openly for researchers. Looking online briefly it seems like academic publishers have copyright over the figure itself and not the underlying data. See here and here, for instance. I am also familiar with books that do something close to what I want (something like CRC Handbook of Chemistry and Physics). I also know there are existing online projects that are similar to what I want: the protein data bank, for instance. However, I'm not a lawyer and I don't know if there are special legal requirements to make them work. Is this reuse of data legal? Should I seriously consider talking to a lawyer before opening it to the public or is it clear cut enough that I won't need to worry. | It is clear that facts are not subject to copyright but the expression of them can be copyrightable. From your question it sounds like you are on solid ground but specific things you end up doing may or may not be free of copyright issues. Certain ways of organizing information that involves some minimal creativity may qualify to be copyright protected so your compilation might be protectable as a whole. You should look into the European protection for databases. It is not, like most of the rest of copyright law, based on minimal creativity but on the effort it takes to compile and maintain. From your question, this might help you protect your work rather than hurt your creation of your work. | If we subtract the public domain aspect of the situation, CC-BY-NC-ND 4.0 means that you may not "Share" any "Adapted Materials". Share means what you think it means: you can adapt materials for yourself, you cannot share (redistribute) that adaptation. "Adapted materials" is material "translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor". No you may not, if you are talking about material protected by copyright. Material that is simply digitized does not gain copyright protection from being digitized, see Bridgeman v. Corel. So if a work was un-creatively digitized and was in the public domain, then it does not become re-protected by the act of scanning. However, if the work was creatively digitized, even minimally, then that new work is protected by copyright. | The government's position is that material in the patent documents is generally in the public domain See Public Domain Copyright Trademark & Patent Information Schedule: As part of the terms of granting the patent to the inventor, patents are published into the public domain. And slightly more specific, see Terms of Use for USPTO websites: Patents: Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s), the text and drawings of a patent are typically not subject to copyright restrictions. 1.71(d) allows for the patent author to specifically indicate that some of the material is protected by copyright. But that position has not actually been tested in courts However, there is no actual statute explicitly exempting material in the patent documents from copyright nor any case law holding that in the absence of a notice, the material in fact becomes public domain. See Alderucci, "The surprising consequences of exempting patents from copyright protection (2016), at p. 13 and footnote 62. | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | "Educational use" does not get a free pass on the law against circumventing copy-protection. First, "educational use" is extremely broad and could include "to post on Stackexchange", or "so that I can learn something". The cited clause specifically limits this exception to "A nonprofit library, archives, or educational institution" – the library must be nonprofit, and the archive or educational institution may also need to be nonprofit (until the courts fix the ambiguity in the scope of "nonprofit"). Second, the circumvention has to be very limited: the purpose must be only to evaluate the work, to see if you want to legally acquire it. So a nonprofit library can peek into a work to see if they want to buy a copy, but you may not. The only thing the library can do is evaluate the work for legal acquisition, and they have to get rid of the pirated copy once they've made the decision. Additionally (other parts of the subsection say), they can't do this is there is an equivalent legal copy available (e.g. if there's a print book available, they can't hack into the e-book to "determine" whether they want the book), and w.r.t. libraries and archives they must be open to the public. | It depends. Wikipedia is quite strict on its policies, and it only allows uploading images (and other media) that either are in the public domain or with a licence that allows to be reproduced (often, Creative Commons, CC). If you go to the details of the image it claims that the picture is licenced under CC, with attribution to Saffron Blaze. So most probably Saffron Blaze got permision to take the picture, and he distributed it with the CC-Attribution licence. When scrapping a web site for data, Google and other engines usually search for metadata (the robots.txt file) that tells them what to index and what to not. If a user gives them permission to index a picture by not stating restrictions in the robots.txt, they can do index it. Of course, in both cases it might be that someone uploads a picture that he does not have permission to share. In this case the situation will, of course, depend on jurisdiction, but many laws have provisions that ensure that, if the content provider is dilligent in addressing copyright issues caused by the users, they are protected. For example in the USA the Digital Millenium Copyright Act establishes "safe harbor" provisions that protects content providers if they give a way to denounce copyright infringiments and address those in a given timeframe. | Issues considered Based on the papers you cite, it seems like its not even straightforward in U.S. law. They discuss three main legal questions that are obstacles to implementing an open-access policy: Is there a "teacher exception" to work for hire, giving researchers initial copyright over their papers? Does a non-exclusive partial rights transfer survive a subsequent exclusive copyright transfer? Is a university policy a sufficient legal instrument to achieve the non-exclusive rights transfer in question (2)? Turns out, this scenario is specific enough that it really matters which jurisdiction is being considered. I took this question as an opportunity to research the copyright regimes of France, Germany and Japan (translations of their respective copyright acts linked). Japanese copyright law is fairly similar to U.S. copyright law in terms of rights transfer, so I will mainly be analyzing the first two (that and I have no competence in Japanese). I am not in any position to be writing papers over this subject, but in considering questions (2) and (3) with a civil law context, I'll cover some laws on governing rights transfers. I'm not considering question (1) because if the university holds original copyright, then it is trivial for them to implement an open-access policy. I thus assume the faculty members hold original copyright for this answer (which is generally the case in France and Germany anyways). Author's rights basics Author's rights are separated into two branches: moral rights and economic rights. Moral rights are generally non-transferable. Often they cannot be waived and last for eternity. Economic rights are those which can be transferred and exploited, but as you note these may also be subject to restrictions. For the rest of this answer, I will be avoiding the term "copyright" as it is ambiguous: It can mean just the economic rights (like in the translated Japanese), or author's right as a whole (like in the translated German and French). Note: Links from this point on are in French (English resources weren't sufficient). Survival of non-exclusive rights transfers In Germany, this is a straightforward affirmative: Section 33 states: Exclusive and non-exclusive rights of use shall remain effective with respect to rights of use granted later. [...] In France, an answer to this question is elusive. This isn't too surprising as French statute hardly references non-exclusive licences. As an example, it took until 2007 for the GPL to be recognized in court. Given that the courts have been leaning towards giving weight to open licenses, my assumption is that they would follow the common-sense approach taken by German law though I've not found any direct statement to that effect. Implementing an open-access university policy From an author's right perspective, the biggest issue I see in drafting such a policy is that by default the authors give the university a non-exclusive right of distribution for future articles. France has particularly strong protections for future works. L131-1 states: Total transfer of future works shall be null and void. Though it may look as if this can be easily avoided by adding a few simple small clauses, jurisprudence has been to interpret this in favour of the author when possible. For further information, see here. While I'm of the opinion the scope of the policy would be narrow enough to avoid the reach of L131-1, there are additional restrictions on publication contracts. Noting that giving the university non-exclusive distribution rights will likely make the university a "publisher" in the eyes of the law, L132-4 states that: A clause by which the author undertakes to afford a right of preference to a publisher for the publication of his future works of clearly specified kinds shall be lawful. Such right shall be limited, for each kind of work, to five new works as from the day of signature of the publishing contract concluded for the first work or to works produced by the author within a period of five years from that same date. This makes it difficult to have a blanket open-access policy. I'm not certain whether an opt-out clause would be enough to avoid the above restriction. Additionally, France has the moral right of retraction allowing the author to withdraw granted rights of use under strict conditions (L121-4). French moral rights can't be waived so it's futile to account for it in a policy, but it's something to be aware of when implementing an open-access system. In Germany, while there are some protections for future unknown types of use, the scope is fairly well defined here. This puts the situation squarely under Section 40: (1) A contract in which the author undertakes to grant rights of use in future works which are not specified in any way or are only referred to by type shall be made in writing. The contract may be terminated by either party after a period of five years following its conclusion. The term of notice shall be six months, unless a shorter term is agreed. I therefore don't see an issue with this in Germany provided that the policy is specifically agreed to and is renewed with faculty at least every 5 years. Legislated open-access Whether or not the university implements a lawful open-access policy (which is challenging in France...), the author has another available option. Both Germany (Section 38(4)) and France (L533-4 I. of the Research Code) have legislated a limited form of open-access that the author has a right to. While the laws are slightly different, they boil down to the following: After publication in a journal, the author may publish the article in an open-access manner after an embargo period of at most 12 months notwithstanding any exclusive rights transfer to a publisher, provided that the research was at least half funded by public funds. |
What's the point of an inheritance tax on movable property? Can't valuable property be shipped to a country without the tax, and be inherited there? This probably wouldn't happen for property that's low value and bulky, like furniture. But for property like yachts, planes, artwork, jewellery, etc., it seems easy to move it to a country without inheritance taxes since the relocation costs would only be a small percentage of the total value. Am I missing something here? (I know the U.S. has a special law to tax overseas citizen, which almost no other country has. But the inheritance tax system predates that, and international travel was still straightforward back then for those with means.) EDIT: Originally mentioned luxury cars but then realized it isn’t a good example as cars need to be legally imported back into the country, and thus pay import taxes, to be useful. This doesn’t apply to planes or yachts though in countries that allow foreign flagged yachts or foreign registered planes to operate. Personal items such as jewellery would probably also not have any import taxes imposed when the heir brings them back. | In germany inheritance tax (Erbschaftsteuer) taxes someone receiving an inheritance (or a gift - they are treated the same). If the heir is (inheritance tax) resident in Germany, German inheritance tax is due in principle on the whole received property, regardless of where that property is. Paid foreign inheritance tax on particular types of property and in accordance with tax treaties can be deducted. (Details: see §21 ErbStG and §121 BewG) Wrt the scenario in the question: if that foreign country collects low/no inheritance tax, the heir gets accordingly low or no deduction from the due German inheritance tax. Whether the "more mobile" property in the question counts as foreign property or not depends on whether the deceased was German resident in the sense of inheritance tax law or not (e.g. moved their residence to the foreign country > 5a before their death), but again, that wouldn't lower the total amount of taxes due, it only shifts who gets them. In order to actually avoid German inheritance tax on the mobile property of the question, the heir would need to move their tax residency away from Germany. | You are talking about "joint tenancy." I am familiar with bank accounts having multiple owners characterized as "Joint tenants with rights of survivorship" (JTWROS). This keeps the account out of probate: a death certificate simply removes the name of any owner who dies. But a probate court afraid that a deceased may not have enough assets to satisfy debts can still freeze the account for the duration of probate. These really are not tools for estate planning. For example, you can't use them to avoid gift or estate taxes. Also a JTWROS account is fully exposed to the liability/creditors of every owner. So no, a JTWROS does not shield assets from creditors. Finally, encumbrance of or distribution from a JTWROS account requires the consent of every owner. Any unresolved disputes are probably headed to court. | Typically it works like this: Sales Tax: Owed in the state that the sale is made (in your case, New York). This is difficult in the internet age with businesses operated with no physical presence in a state. Technically sales (and local taxes) are due depending on where the item that was sold is delivered, so if you shipped an item made in Texas to New York, New York sales taxes would be due on that item. These taxes would be paid to the state of New York. Same for all 50 states. This is a huge burden on small businesses and is not usually enforced. Most small businesses only collect sales tax on items sold to the state that the business is operating from (in your example, you would only collect Texas state sales tax). Income Tax: This is the corporate tax levied by the state that the business is operating in, in this case it would be Texas. Since Texas does not have a state income tax, there would be no income tax. However Texas does have a Franchise Tax that would be due (this is due from all business organized or operating in Texas) The state that the business is registered in may have its own taxes which would be on the income of the business and would be specific to the state that the business is registered in. These can also be in the form of registration fees, annual fees, franchise fees, etc. | 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. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | It doesn't work, just like transferring the copyright to a young person to make it last longer doesn't work. In places where the length of copyright depends on the death of someone, it always depends on the death of the author. You can transfer copyright, but you can't change who is the author. If I write a book, and some copyright law says the copyright ends 70 years after the death of the author, then it ends 70 years after my death. It doesn't matter who owns the copyright. PS. That dead person has heirs. If there are no relatives alive, then the government of their country will inherit everything (in most countries, there might be exceptions). Your plan fails for that reason as well. PS. See "Just a guy's" answer for another, completely different, reason why this scheme doesn't work. | The will further states property shall be sold and offspring are to split the proceeds. However, the will does not specifically designate who inherits the property/deed. This is an instruction regarding who inherits the property. It means that the executor of the probate estate (in an official capacity), who takes title by operation of law upon appointment, is directed to sell the property rather than to distributed it in kind. Will there be legal or financial problems with a foreign executor? Not necessarily. Generally, the main issue is that a foreign executor must sign a document expressly submitting to the jurisdiction of the probate court when appointed in addition to other documents that are signed by all executors. Pre-death, in the will, would it be better to designate the American resident offspring as executor? Not necessarily. Hands on administration of the estate and dealing face to face with a local probate lawyer is easier for a resident of the state where the assets are located and the decedent resides, but in these days of telecommunications this isn't a decisive factor. The relative competencies of the prospective executors is more important. If both offspring agreed, can the overseas offspring easily transfer executorship to the American offspring, or will there be legal or financial consequences? Assuming that they are the only interested parties in the estate, they can do so. You can't be compelled to serve as an executor just because you are nominated by a will to do so. If one person declines to serve, the person with next highest priority which would likely be the other sibling, may apply to the probate court to be appointed. The main financial consequence is that typically, whoever does the job is entitled to reasonable compensation from the estate for their services. Would there be legal or financial deed ownership issues, since neither offspring specifically inherited the property? No. Could a court order the property to be auctioned out from under the offspring? If all interested parties agree, they can defy the will. The normal process, however, is for the executor to follow the will and to sell the property in a commercially reasonable manner, typically by engaging a real estate agent to handle the sale. If the executor fails to take action, and an interested party objects, it would be more common for a probate court to remove the executor and appoint another one, than to order a sale at auction, which would typically be a course of last resort. This said, under appropriate circumstances, the court of probate jurisdiction would have authority to order an auction of the house. Most commonly, a court order to sell a decedent's house at auction would arise when the decedent (i.e. the dead guy) only owned an undivided partial interest in the house (called a tenancy in common interest) and the non-deceased third party co-owner of the house (perhaps a brother or ex-wife of the decedent) declined to cooperate in selling it. If a court determines the overseas executor offspring receives the property deed, the overseas executor wants to remain executor but give deed to American offspring for easier selling of the property, would the property have to go through titling and closing costs for the transfer, and then again for property sale to a third party? This question reflects a fundamental misunderstanding about how probate works. Title to the property vests in the estate by operation of law upon the death of the decedent. The executor has authority, once appointed, to take actions such as signing a deed to a third-party buyer, on behalf of the estate. There is no intermediate closing and transfer of title to vest title to the property of the decedent in the name of the estate before it goes from the estate to the third party. The net proceeds of the sale to the third party (after costs of sale and prorations of things like property taxes and prepaid insurance) are then placed in a bank account for the estate and paid to the heirs after expenses of administration are paid. There is nothing that makes it significantly harder for an overseas executor to close than a domestic one. The title company handling the sale emails the deed (and any other paperwork that needs to be signed) to the executor. The executor prints the documents to be signed, signs the non-notarized documents, and signs the deed in the presence of his friendly neighborhood notary in the foreign country where the executor lives, who notarizes the deed. The executed deed, together with a document called an apostille proving that the notary is really a notary, is sent back to the title company (probably with a scanned copy by email and a hard paper copy following by express delivery). Coordinating time zones may be a pain depending on the location of the particular foreign country in question (but the closing does not have to happen for all parties at exact the same time), and if the overseas executor is someplace primitive and remote with no internet access or computers or printers or faxes and no notaries, that could be a problem. But there are increasingly few places like that in the world. | Direct taxes were understood at that time as taxes directly on individuals such as a flat-per-person head tax (poll tax,aka a capitation) or an ad valorem (by value) property tax. Taxes on imports and exports, and excise or "use" taxes, such as a tax on the manufacture and sale of whiskey, were not considered to be direct taxes. In 2007 a US Court of Appeals said, in Murphy v. Internal Revenue Service and United States, (case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit) that: "Only three taxes are definitely known to be direct: (1) a capitation [ . . . ], (2) a tax upon real property, and (3) a tax upon personal property." In section 17 of Pollock v. Farmers’ Loan and Trust Company (link below) the Supreme Court wrote: Ordinarily, all taxes paid primarily by persons who can shift the burden upon some one else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estates, and the payment of which cannot be avoided, are direct taxes. This opinion goes into great detail on the history of the apportionment clause, and of direct and indirect taxes. See also The Wikipedia article on Direct Tax. After a na6tional income tax was imposed in 1894, it was held (in 1895) to be unconstitutional under this provision. This was in Pollock v. Farmers’ Loan and Trust Company, 157 US 429 (1895). An earlier income tax was passed in 1861, and repealed about 10 years later without challenge. The 16th amendment was passed (ratified in 1913) to declare income taxes not to be subject to this provision. See History of the US Income Tax and the LII page on Income Tax. To the best of my understanding, no current federal tax is considered a direct tax subject to apportionment under this provision. Indeed the apportionment requirement, which was copied from the previous articles of Confederation, was so awkward that taxes which would be subject to it were never or almost never imposed, but ways were found to make any desired taxes not "direct". This provision is, accordingly, obsolete as far as taxes go. |
Can a restaurant in Germany refuse service without a tip? So I live in Germany, and there is a restaurant about 10 minutes away from my house. I often order from there but now much less. Delivery times can vary from 1 hour to several hours… I just noticed on their website that they will cancel all orders that do not leave a tip at the time of placing the order… so you’re tipping for consistent late deliveries… on top of that you’re paying a delivery fee anyways. I don’t know but this seems very scammy to me. I usually leave a tip, but when I keep getting cold food at 22:15 when I placed the order at 18:30 I really don’t feel like I should be obligated to tip. Is this even allowed or acceptable in the German economy. (Bavaria) | tl;dr: If you are not satisfied with the service provided by the restaurant, you should take your business elsewhere and write negative, but honest reviews of the establishment. That will over time solve the problem as well without legal intervention. To answer your question if the restaurant can refuse service if you don't tip is actually a much more difficult question than it might sound. I can't find any case law on this subject, such practice is however perhaps more widespread than commonly expected and my interpretation of the law is that they in most cases actually can, at least if they demand payment up front as take-away services often do. It is for example a 'well known fact' that if you don't tip the waiters at the Oktoberfest, they will usually ignore you and don't take any further orders. It is a dirty and unfair way to conduct business, but not necessarily a violation of law. Even if a tip indeed is legally defined as a voluntary donation by the customer, there is in German law also the concept of 'freedom of contract'. Contrary to popular belief, restaurants and other businesses in Germany are not obligated to serve or accept a customer as long as they don't violate other laws, e.g. anti-discrimantory laws and they don't even need any particular reason for doing so. If you want to enter a club or fancy establishment and the bouncer doesn't like your face, he will make use of this right, refuse you entry and be fully within his legal rights to do so. When you order food for take-away, your order must first be interpreted as a contract offer and the restaurant can, albeit with some restrictions, in most cases freely decide to accept your offer and enter a contract which binds them to deliver food, or they can simply refuse your offer and return any payment you may have done in advance. | Is there any way I can persuade the new landlord to start renting apartment as close as possible to the end of 30-day period? If you already signed a contract with the "immediate move-in" clause, it is going to be difficult to persuade the new landlord. That is because the landlord would have no incentive to postpone his source of income and there is no statute or legal provision available to you on that. If you have not signed the contract, then you two can still negotiate until either party leaves or you reach an agreement. Under contract law, the latter is referred to as knowingly and willfully entering a contract. | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | You should file a complaint with the police. If you complain to the police then they might do something. If you don't complain then they certainly won't. Are food trucks licensed? You might try complaining to the license authority. However go to the police first because the licence authority are unlikely to do anything without a police complaint. Even being just another statistic helps increase the pressure for action on the wider issue of racism in society. If all else fails you can just post the incident on YouTube and see what happens. Its an unreliable method of enforcement and can backfire, but it has been known for international embarrassment to kick reluctant authorities into action. | In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires. | It is legal, at least in the US, for a store (or other entity) to refuse to sell any item to any individual for any non-prohibited reason (prohibited reasons are typically things like race or religion). More over, in various US jurisdictions, it is prohibited to "furnish" alcohol to a "minor" (for example, under California's ABC law), which can be interpreted as prohibiting to an adult if they reasonably suspect that adult will pass the alcohol onto the "minor". This is to prevent "straw" sales. Additionally, larger chains generally prefer to have harmonized policies across branches, and where practical, across state lines, so will have policies that can accomodate multiple alcohol control regimes. | Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the the right to an independent judge, as established in Golder v UK, ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves. (The Dutch case confirms that sector-wide arbitration is in fact legal, with regard to a standard arbitration clause commonly used in the Dutch building sector. The arbiter was found to be independent in that case precisely because they weren't picked by the builder involved.) The GDPR is only indirectly relevant, but the fact that it's mentioned does mean that there is an indisputable intent to provide services to EU consumers. (See section 23 of the GDPR, or its national equivalents). As such, you can't hide behind a US business address. If you intend to do business in the EU, it's under EU laws - all of them. You can't say that only the GDPR applies, and not other rules. I'm having a bit of a problem finding a source, but I'm fairly confident that consumers have the right to sue at their own, local court, overruling the default of suing in the court where the counterparty is located. Finally, I have the right under national law (Dutch: BW 6:236 start and sub-n) to strike the arbitration clause up to 30 days after the conflict arises, and demand a court decision. That's not 30 days after I accept the "Public Network Terms", that's 30 days after the arbitration is invoked. Dutch law explicitly allows arbitration abroad, and arbiters may apply foreign law, but as written the arbitration clause has no legal basis in the Netherlands, and any arbitration resolution would therefore not be considered valid. You may wonder if it matters to Stack Exchange that the arbitration decision would not hold in the EU. Well, consider a clause like Indemnification, which demands the user indemnifies Stack Exchange. That's a pretty empty demand if it's not enforceable. | My story: UK passport holder, resident in Switzerland, driving from Houston to San Antonio and stopped doing 105mph in a 60mph section of highway. I was given the citation and instructions, etc., but told the officer I was leaving in 2 days and may not be able to tend to it in time. On my return to Switzerland, I called the court and asked how I could pay. I was told I could get a money order from the post office, to which I replied, "Really, the Swiss Post office will issue U.S. money orders?" After a further 15 minutes of conversation about how I was willing but unable to pay, the officer said, "Well, I guess that we ain't commin' to Switzerland to get you so just ignore it!" I asked if I could have that in writing and he asked me to write to the court and explain my situation. 3 weeks later and I received a reply saying all was forgiven and I should have no problem re-entering the U.S. or the State of Texas. So my advice would be to call them, and act willing to pay. Things may have changed and you may be able to pay with a credit card, but if you act willing and they are unable to accept your payment, then as long as you have a paper trail, you should be fine. I have entered the U.S. dozens of times since and have even sponsored visas for others. |
What does Oregon ballot measure 112 actually do? Section 31, Article 4 of the Oregon constitution says: There shall be neither slavery nor involuntary servitude in the State, otherwise than as a punishment for crime, whereof the party shall have been duly convicted. Measure 112 removes the italicized clause, but it adds: Upon conviction of a crime, an Oregon court or a probation or parole agency may order the convicted person to engage in education, counseling, treatment, community service or other alternatives to incarceration, as part of sentencing for the crime, in accordance with programs that have been in place historically or that may be developed in the future, to provide accountability, reformation, protection of society or rehabilitation. (emphasis added) Doesn't this basically mean that convicted criminals can't be required to work, but they can be required to work? | The previous constitutional provision, which copies the wording of the 13th Amendment to the US Federal Constitution, would in theory have allowed a converted criminal to be sentenced to lifetime slavery, or to a long period of indentured servitude, although this has not commonly been done. This language has allowed convicted criminals to be sentenced to many years of hard labor in a prion setting, including under circumstances where the convicts are rented out to private employers. I take it that such practices would be forbidden by the new language, and that only a limited period of "community service" would be allowed, not under prison conditions, and not designed to benefit private employers. It is not clear to me just what the limits of "community service" are, in intensity or duration. But the suggestioinb seems to be that they would be much less intense, in both aspects, than traditional "chain gang" sentences. | The actual method of amending the Constition is spelled out in Article V – originalism would reject the position that there are other ways to amend it. We can see the result in the ratified amendments. Originalism is a theory of interpretation, not a theory of drafting, and it hold that the words of the law, be it the Constitution or a particular statute, are to be understood as would be understood by people originally. (There are numerous versions of originalism, so one can't be more precise than than until you decide whether you mean original understanding or original intent, the latter now being a minority viewpoint). It does not hold that new laws should be drafted in the language as it existed in the 18th century, as indeed they are not. Thus the 26th Amendment is written in contemporary style befitting the fact that it was drafted recently, and the 27th Amendment is written in older style befitting the fact that it was drafted in 1789. As for "changing values", each ratified amendment represents some change of values, whereby originally a right was not recognized (or was), and by the amendment, that value changes. The 18th Amendment represents on change in values, and the 21st reflects a change in that value, though not back to the status quo. | 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. | At half a million I would expect it is qualifies as "felony or other crime" - the U.S. Constitution (Article IV Section 2) requires that: A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. | Twenty States Allow Pre-Conviction Pardons The default rule is that states follows the federal rule that a crime can be pardoned any time after it is committed, but cannot be pardoned before it is committed. It appears that this is the rule in 20 U.S. states (a compilation of state clemency laws and procedures can be found at this website and a compact chart for all 50 states is here). Admittedly, this evaluation relies on a third party summary that may not capture every fine nuance of the process or exception to the general rule. Four States Where Pre-Conviction Pardons Are Allowed Don't Actually Grant Them Under A Policy Which Is Actually Followed This list of 20 states include states where the Governor or Board or both working together, have the power to grant clemency in a very broad array of circumstances, but have adopted policies for how the current Governor or Board will handle applications that are more restrictive than the legal authority that the person issuing pardons has to grant them. In Indiana, Massachusetts, Minnesota and Nebraska, the pardon power is legally very broad but recent Governors, as a matter of personal pardon power policy, have refused to consider applications for pardons by people who have not completed their sentences many years earlier (5 years in IN; 7 years in MN; 10-15 years depending upon the offense in MA; 3-10 years depending upon the offense in NE). In addition to these four states, North Carolina's Governor has an informal five year from completion of sentence waiting period. But, North Carolina is not included because in practice, the Governors of North Carolina have granted almost all pardons awarded in cases where the Governor is commuting sentences due to a likelihood of actual innocence of a crime, notwithstanding this policy. Commutation Of Sentences And Pre-Conviction Pardons Are Very Rare In practice, however, commutation of a sentence for crimes, or pardons of people who have not completed sentences for their crimes of conviction are very rare in every state, although the frequency with which pardons are granted varies wildly from state to state. For example, in Alaska, the pardon power is legally very broad, but has been exercised only three times since 1995, while in Pennsylvania the hybrid Governor-Board pardon power is theoretically more narrow but about 150 pardons are granted per year (a rate about 1000 times greater before adjusting for population, and more than 30 times greater after adjusting for population). The vast majority of pardons are issued to people who have been convicted of a crime and served their sentences and shown good behavior after their release in order to relieve the applicants of the collateral consequences of having a criminal record, such as ineligibility for occupational licenses and loss of gun ownership rights. Pardons for people who have not been convicted of a crime and commutations of the sentences of people who have been convicted of crimes and are still serving their sentences are extremely rare in every state, and pardons for people who have not been convicted of a crime at the state level are less common than commutations of people who are currently serving sentences for crimes they have been convicted of by courts. There are probably fewer than twenty such pardons or commutations per year in the United States on average (excluding several cases in which a Governor has commuted the sentence of everyone sentenced to death to life in prison). The number of pardons of people who have not been convicted of a crime at the state level is probably less than five per year on average in the entire United States - although there are occasional spikes (e.g. in the case of pending prosecutions where serious doubt has been cast on a common source of evidence like a state informant or a crime lab). Most of the notable instances of pardons of people who have not been convicted of crimes (e.g. President Carter's pardon of Vietnam era draft dodgers) involve categorial pardons of a class of people rather than case by case evaluations of individuals, and resemble a legislative amnesty process to serve a political goal, rather than an individualized quasi-judicial consideration of a particular individual's case in the interests of justice tempered by mercy. Immunity From Prosecution On the other hand, even when a state limits the pardon power to persons who have been convicted of a crime in a court of law (which many appear to), there is something almost equivalent to the pardon power for people who have not been convicted of crimes that is routinely used by executive branch DAs (i.e. a grant of immunity from prosecution for a crime, for example, in exchange for testimony or cooperation with an investigation). This practice is quite common, although so far as I know, there are no comprehensive statistics available regarding immunity from prosecution grants, although there may be some estimates of how many are made in the academic literature. Governors v. Pardon Boards v. Hybrid Systems While it doesn't go to the thrust of your question, it is true, however, that while every state has a pardon power, not every state vests that power in the Governor of the state on the federal model. Many states (e.g. Georgia, Texas and Oklahoma) require the involvement of a Board of Pardons and Paroles (or an equivalent body) to be involved any time that a pardon is sought, sometimes independently of the Governor, and sometimes in coordination with the Governor. Wikipedia states that nine states have Boards of Pardon and Parole or the equivalent with exclusive power over pardons. In the other forty-one U.S. states the pardon power is vested either in both the Governor and a Board, or is vested entirely in a Governor. The pardon power of the President extends only to offenses recognizable under federal law. However, the governors of most of the 50 states have the power to grant pardons or reprieves for offenses under state criminal law. In other states, that power is committed to an appointed agency or board, or to a board and the governor in some hybrid arrangement (in some states the agency is merged with that of the parole board, as in the Oklahoma Pardon and Parole Board). Nine states in the United States have Boards of Pardons and Paroles that exclusively grant all state pardons. These states are: Alabama (Board of Pardons and Paroles), Connecticut (Board of Pardons and Paroles), Georgia (Board of Pardons and Paroles), Idaho (Commission of Pardons and Paroles), Minnesota (Board of Pardons), Nebraska (Board of Pardons), Nevada (Board of Pardon Commissioners), South Carolina (Board of Probation, Parole and Pardon), and Utah (Board of Pardons and Parole). In states that vest the pardon power in part or in full to a Board of Pardons and Paroles, as opposed making it a plenary power of the Governor personally which is not subject to review or limitation as in the federal model, as a practical matter, it is much harder to fit into the Board's bureaucratic process for processing pardon applications when there is not a conviction that has been entered, than it is in the less bureaucratic case when that power is vested solely and personally in the Governor on a plenary basis. The pardon board process in many states, at least as a practical matter, makes it impossible to obtain a pardon until there has been a conviction and in most cases, also a sentence imposed and sometimes a waiting period after a sentence has been fully served. For example, many states prohibit applications to the pardon board from being made until a sentence has been completed or until a certain number of years after a sentence has been completed (effectively limiting the power to restoration of civil rights rather than commutation of a sentence, or relief for someone who has not been convicted). | Prior to Shelley v. Kramer, racial covenants were considered to be outside the scope of the 14th Amendment, because as stated in Corrigan v. Buckley, "the prohibitions of the Fourteenth Amendment 'have reference to state action exclusively, and not to any action of private individuals'". Therefore, a private agreement to exclude blacks does not run afoul of the 14th Amendment. The Shelley court also noted: But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. This leads to the primary holding of this case: We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. That is, the racially-restrictive agreements are not themselves forbidden by the 14th Amendment, but enforcement of such agreements is forbidden. An obvious question is, why had nobody advanced that argument before, but legal arguments often suffer from the forest / trees disability. As far as I have been able to determine, that part of the Oregon Constitution excluding blacks became a legal nullity when the 14th Amendment was ratified, though it remained in the Constitution until 1926. The various anti-Chinese laws which were enforced were not enforced against Chinese who were citizens, see US v. Wong Kim Ark. | No The Texas suit alleges that significant changes were made to the election rules in the various defendant states, and that these were not approved by the legislatures of those states, but were made by administrative or court decisions. It also claims that differences in local practice and polices made absentee or mail-in voting easier, or invalid votes less likely to be detected, in some counties than in others, meaning that voters in some parts of those states were treated differently than voters in other parts. Note that this theory has not yet been accepted, or in any way passed on, by SCOTUS. But even assuming that the theory were to be accepted, it would require, at most, strict adherence to the election statutes of each state, and that changes or variances be approved by the state legislature. It would have nothing to say about the actual content of the various state laws, unless those laws treated different parts of a state differently, in which case there would be an equal protection violation. The Electors clause, cited in this suit, gives to the legislature of each state the power to "direct" how electors are to be appointed. This is done through laws, statutes. The suit cites this clause as a source of authority, and nothing in it could be taken as suggesting a requirement of national uniformity in election law. I have not yet seen the response to this suit, if indeed one has been filed. It may be that a response would argue that the changes were, in fact, authorized by provisions of the various state laws granting authority to officials. No one knows how the Court will respond to this suit. But even if it were to rule for the plaintiff Texas, that would not impose a national standard, nor permit one state to challenge the provisions of the law of another. It might permit one state to challenge how well another state had applied its own law. | What a statute means can be difficult to determine. There are several approaches to statutory interpretation that could be helpful: Textual: The plain meaning doesn't confine "use" to a few particular types of uses. The plain text provides an expansive prohibition on any use of an electronic communication device. Legislative history/legislative intent: The previous version of the subsection did limit prohibited uses to only composing, sending, or reading electronic messages. Given the amendment, it seems that the legislature no longer desired that limitation. When the bill was introduced, Rep. D'Amico stated the purpose of the bill was to "[expand] the prohibition on driving while using an electronic communication device to include uses beyond composing, sending, or reading an electronic message." During debate, when asked what a person should do that doesn't have Bluetooth, Rep. D'Amico suggested "You put it on speaker phone". When asked, "Where would you place the phone?", Rep D'Amico replied, "Wherever you feel like; just not next to your ear." During the same debate, D'Amico described the bill: "What House Bill 1247 does is ban handheld cell phones while driving a vehicle." In my opinion, the declaration of the bill's sponsor, and the debate surrounding the bill treated it as expanding the prohibition from including only texting and email to also include voice conversations. As far as I can tell, the full scope of "using" under this statute hasn't been tested in court, but I could see this going either way. The plain text provides an expansive prohibition on any use of an electronic communication device. However, a court might also be convinced by the legislative intent that only aims to add handheld voice communications to the previous list of prohibited activities (or it least it could be argued that this is the case). Further, under a purposive construction, a court could even look beyond the explicit legislative intent and find that the core purpose was to prevent distraction, in which case "using" could include any activity on your electronic device that distracts you as if you were texting, or making a phone call (eg. selecting the next song to play in your music app). |
Why do employment contracts need a clause to cover "work for hire"? Under normal employment law in the UK, work done for a company on company time is considered "work for hire" and the relevant IP belongs to that company. That being the case why do employment contracts contain a clause repeating this? For example: "To the extent permitted by law, all rights in patents, copyright, registered design right, design right, trademarks or know how which may be created by you during the course of your employment ("Intellectual Property") will belong to XXXX absolutely. Any internet domain names registered by you in the course of your employment shall be registered in the name of XXXX. " Is this strictly necessary? and if so why? | Certainty is better than uncertainty You know the law and I know the law and this company knows the law but there may be people taking this job who do not know the law. By putting it explicitly in the contract they are now aware that they don’t own the IP and this may avoid a dispute later on. A dispute avoided is way better than a dispute resolved. | (IANAL, of course) My employer tells me that EVERY professional activity belongs to the company and for EVERY activity I mentioned before I need to get written permission, That's true for software (and inventions) that may be relevant for them, but not for other professional activities. which could be withdrawn at any moment. No, not in that very general sense. they can give the permission to publish possibly relevant pieces of code on SX, and they can withdraw that permission for the future. But they cannot take it back for the past. Once they tell you they don't want your invention, there's no way back from that decision (and there are legal deadlines for claiming relevance). Even if they require written permission for you to take a side job, they must give it unless they can show a valid reason against you taking the side job in question. And that would be a per-side-job decision. And it doesn't matter if I do it on my free time on my computer at home or not. That is indeed the case for copyright of software and for inventions. clause is to protect your employer from you helping anyone who is their competitor/you being their competitor while the employment lasts. This is pretty standard and, I believe, not only legal but would be the case also if they had not spelled out this to you. The lines between what is and what is not competition are sometimes a bit complicated* So, if your employer specializes in subway station surveillance systems and you work on face recognition and then help out your local pigeon breeder's association by implementing automatic door opening by camera + automated face recognition of the [unwinged] members that's close enough to touching the interests of your employer that I'd consider it off-limits unless you had talked to your employer and they are happy with this project (after all, they could be preparing similar products unknown to you). OTOH, overhauling the crappy Excel macros for the regional annual breeder's competition would be fine. And in general, the lower your position there and the further from the actual focus of the company, the more normal it is to have another job (think janitors, canteen staff of a software company as opposed to a janitor in a hire-a-janitor-service company) The general duty not be in competition with your employer also in general prevents you from being involved in a competitor business to the extent that you have noticable influence over that competitor. So the second part of clause 1 shouldn't be too surprising, neither. (update) OTOH, what may make this particular clause invalid is the requirement also for publicly traded shares that they cannot come with voting rights. I somehow suspect that thus prohibiting you from "normal person small scale ownership" of publicly traded stocks (not all of them even have non-voting shares) is undue and invalid (too broad a restriction). However, if that clause is invalid the legal default of "no competition to employer" still applies. Here's a (German language) web site of a lawyer that discusses these questions See also here https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Wettbewerbsverbot.html Unlike the 1st clause, this is AFAIK not a spelled out default of German employment law, but it may be a spelled out version of a Tarifvertrag (unionized group contract). In any case it is probably legal to have this clause in the contract. The point is that the employer can only forbid the side job if it is against their reasonable interests, a general "no side jobs whatsoever" would be invalid. Side note: they may even be of the opinion that employment law forces them to have some such clause: the employer has a legal responsibility to ensure that you are not working more than the number of hours allowed by law. I've had such a permission that stated the constraint that the permission is valid only as long as I ensure that I stay within those legal limits and my working ability for employer is not compromised. https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Nebentaetigkeit.html https://www.fachanwalt.de/ratgeber/nebentaetigkeit-als-arbeitnehmer-anmelden-zustimmung-und-muster-antrag https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbeschaeftigung/nebentaetigkeit-und-arbeitsrecht-was-erlaubt-ist_76_418602.html Copyright law for employees in Germany is somewhat difficult. the one exception is copyright of software where §69b UrhG transfers the transferrable rights automatically to the employer. Whether the software is written out of office and outside working hours is irrelevant, as long as it is done in "fulfillment of the employee's role or the employer's orders" (famous court case) so again, if at work you code facial recognition systems and in the evening the pigeon breeders accounting system, the latter is not related to your work. Your open source game is also OK unless you are employed as game developer. Also that not all code is subject to copyright. An obvious explanation on SX explaining a typical pattern would not be a creative work (though the full answer may very well be) in the first place. But for creative works other than software such as plans how to implement features, technical drawings, etc. working hours or not seems to be more important for assigning the rights and the rules seem to be more similar to employee invention law ArbnErfG): if it is outside working hours and possibly relevant for the employer, the employee has to offer it to the employer before trying to sell to someone else. The clause that employer must give permission to publication of content that is possibly relevant for them seems to me to be in line with these general rules. https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht https://eventfaq.de/25510-urheberrechte-im-arbeitsverhaeltnis/ http://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html * I've been advised in a situation where I still believe I was not competing, and even had a written permission, that this is the stuff that makes lawyers rich, and both employee and employer poor.... Take home message: even if you believe to legally have the right to publish on SX/contribute to an open source project, think again whether you'd want this to be the source of a conflict with your employer - or whether there isn't a win-win possibility that makes everyone happy instead. What is the most legal way to participate in public activities in such situation? I'd advise to be open about what public activities you'd like follow. Whatever the contract says, your employer can always give your more permissions. In the past, I've found the majority of employers being happy to see me contributing (some had similar clauses to yours and just wanted to know, some was happy about an open source project I brought, some like to be able to say where their employees volounteer, etc.). Although there was one who wasn't (and that did contribute to my decision to leave there). From that experience, I'd personally discuss this early on now: in case the employer turns out to be too intrusive (speak to Betriebsrat or lawyer or your union if you have one to make sure they really overstep their rights) for my liking, for me that would be a reason to cancel the contract which is easier & faster during probation period. | Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache. | This depends on your employment agreement, if any, with the organization, and on the company's contract with the organization. You can quit your job with the organization, giving whatever notice your contract provides. The company can end its contract on whatever terms that contract permits. Most service contracts specify a fixed term, with renewal possible or in some cases automatic if notice to end the contract is not given by some specified date before the renewal date. But many other arrangements are possible. If no term is specified in the contract, and there is no provision for how much notice is required, then the company should give "reasonable" notice, which will probably be in line with the norms and customs of the industry involved in the relevant country. The specific law of that country may or may not provide a required minimum notice period. The contract between the company and the organization might provide that they would not hire any employees or recent ex-employees of the organization without consent for some period, perhaps a year. If there is such a provision it must be complied with unless it is not enforceable under the law of the jurisdiction. Different jurisdictions have very different attitudes toward such contract provisions. If such a provision were violated, and it was enforceable in the jurisdiction, the company would be liable for damages if the organization choose to enforce its contract. The contract between you and the organization might include a provision that you not leave to become employed (within some time limit) by one of the organization's customers, or perhaps by one you had worked with. If there is such a provision, it might or might not be enforceable in your jurisdiction. If it is enforceable, you must comply or be liable for damages. Even if there are no contract provisions preventing such employment of you by the company, you must not without permission take with you and use for the company's benefit any confidential information that is the property of the organization and is not already known to the company through legitimate means. If you do, both you and the company might be liable for damages under trade secret law. In the absence of any enforceable contractual provisions, and if no confidential information is taken by you, there should be no legal problems. The moral issues I am in no position to offer an opinion on, and are off-topic here anyway. If you were to quit, and the company were to then seek to break its contract because, in your absence the organization could not provide proper service, and you were then to accept employment with they company, and if further the company had known of your plans, both you and the company might be liable for damages to the organization, depending non the details of the law in your jurisdiction. This could be a tort of "interference with a contractual relation" or something of the sort. You should be very careful in agreeing to any such procedure. If there is a question as to whether a provision of a contract between the organization and either you or the company in enforceable, or whether a provision prohibits you leaving the organization to be employed by the company, that would need to be addressed by a lawyer who knows this area of the law in your jurisdiction, and the specifics of the contract, or eventually by a court. It is out of scope for this forum. Nothing in this situation will be a problem if the organization agrees to whatever is done. All possible problems occur only if it does not agree, and claims to have a legal right to prevent it or seek damages. | An employer owns the data on a cell phone provided to its employee if the employer has made that a condition of employment. The employer might own the data independently (e.g. the employer created it). Or, the employer might own it if the employee created it in the course of their employment. It's not where the data is that determines ownership, it's who created it. It is also possible that an employee could create data on a phone which is not in the course of their employment, but was also contrary to company policy (don't put your data on our phone). If you violate company policy on use of equipment, the simplest course of action that will follow is getting fired, or losing some company benefit. Conceivably you might get sued, but that would require more than simply getting an unauthorized text message. If we assume that the phone contains company intellectual property, copying that content would be a violation of copyright or patent law, so the employee can be sued for that. If there is a specific employment-related agreement (a non-disclosure agreement), the employee could suffer other consequences including being sued for something. | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. | That is, you don't even have to give them a copy of the contract. In the same way you might reference some legal code without actually copying the legal code directly into the contract. If you do not communicate material terms of the contract to your contractor, the contract will be unenforceable due to lack of meeting of minds. Referencing "some legal code", provided that that code is publicly available is fine: your contractor can look it up and decide if they are happy with it. But doing the same with "Independent Contractor Agreement #123" will only work if you provide a copy of it to your contractor. For example, it can be attached to the paper being signed as a Schedule. So, in a nut shell, abstracting prose out is fine as long as it is communicated/attached. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. |
Does the Satanic Temples new abortion 'ritual' allow abortions under religious freedom? The Satanic Temple has recently announced an abortion ritual. It's clearly a parody ritual added only after abortion was made illegal, but then again the USA tends to be very generous with their definition of religion, to the point that it's hard to claim that it's not part of their religion. It's been claimed that this would thus allow abortions under the Religious Freedom Restoration Act. I'd ask if it's true but even their announcement of the ritual itself pretty strongly warns it's not a get out of litigation free charge. Still, I'm wondering what would happen if a pregnant person or medical practitioner who already had claimed to be part of the Satanic Temple actually tried to use this as a defense brought to trial for an abortion. Or more generally, what is the limits to what could, or couldn't, be claimed as protected by the RFRA if a parody religion claims it's part of their religion? | Like the other rights in the First Amendment, religious freedom is not absolute. For example, you can't use religious freedom to get away with assault or murder (e.g. fulfilling the fatwa to kill Salman Rushdie). The basis of many anti-abortion laws is that the fetus is a person, and thus abortion is murder. So by the same logic that you can't kill a person out of the womb for religious reasons, you wouldn't be allowed to kill an unborn person. So whether the Satanic Temple is a real religion or a parody is moot, because religion cannot be used to justify murder. The RFRA doesn't get around this. It has the following exception: the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. What falls under "compelling government interest" is up to the courts to decide. But in the past they've determined that paying taxes is a compelling government interest (Adams v. Commissioner), and even that getting a social security number is not a significant burden (Miller v. Commissioner). So it seems likely to me that actions that directly harm another person would not be allowed. The basis of most anti-abortion laws is that the fetus is a person, deserving of human rights, and abortion deprives them of the right to life. It's hard for me to imagine that preventing this would not be considered a compelling government interest in states that prohibit abortion. We can't be certain about this, since Roe v. Wade was only overturned very recently, and there's little precedent in how the anti-abortion laws that are now allowed will be interpreted in corner cases like this. But in the current political climate, I think it's almost certain that a question like this would be decided in the pro-life direction. While pro-life conservatives also tend to be pro-religion, they generally restrict this to Christian religious traditions (these same groups were in favor of Trump's Muslim travel bans). A fringe religion like TST would likely not receive favorable treatment. Because of this, perhaps the right place for a question like this would be Politics | What that church is doing is legal. There is a statutory exception in the Fair Housing Act for religious and non-profit organizations. 42 U.S. Code § 3607 - Religious organization or private club exemption Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. Nor shall anything in this subchapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members. | Yes The case you want to know about is Cohen v. California: A young man was arrested for wearing a jacket with the words "Fuck the Draft" and SCOTUS decided, that that was First Amendment-protected speech and the arrest illegal. The phrase מנא מנא תקל ופרסין is in Akkadian or Aramaic language but Hebrew script (as opposed to the Akkadian Cuneiform) and can be transcribed as Mene Mene Tekel Upharsin. It is also known in German as "Menetekel" or in English as the "Writing on the wall". It stems from the biblical episode of Belshazzar's feast. Literally, the text would be read as "counted, counted, weighed, distributed". Its meaning elaborated in Daniel 5 is generally understood as "Your days are numbered; Your days are numbered; You have been measured and found wanting; Your kingdom will fall and be divided". While stemming from religious texts, in the depicted situation it is more likely meant as political speech, and in that fashion indistinguishable from a flag. It also does not call for imminent lawless action - the so-called Brandenburg Test after Brandenburg v Ohio - and thus remains in the protected speech area. Remember, that even preaching genocide can be First amendment protected, as long as that line of imminent lawless action is not overstepped. As this phrase does neither, it is protected speech. | The First Amendment essentially prohibits the establishment of a list of approved vs. not-approved religions. There is a large body of First Amendment case law that relates to claimed religious beliefs, and the restriction that the government cannot prohibit a person from exercising their religious beliefs. The courts therefore avoid bright-line answers to the question. You can look at Friedman v. Southern Cal. Permanente for an example where a court found that a belief is not a religious belief, finding that veganism is not a "religious creed" within the meaning of the California Fair Employment and Housing Act. Plaintiff was told to get a mumps vaccination (which involves chicken embryo) as a condition of employment, refused, and the offer of employment was refused. The law, §12940a makes it unlawful "because of the religious creed of any person, to refuse to hire or employ the person...". Subdivision (l) says that Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. §12296(q) further contributes a definition of religious terms: “Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. “Religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed. The Fair Employment and Housing Commission then created a regulation California Code of Regulations, title 2, section 7293.1 that defines "religious creed" ‘Religious creed’ includes any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. The court notes that religious creed extends beyond traditionally recognized religions to encompass beliefs, observations, or practices occupying a parallel place of importance “to that of traditionally recognized religions” in an individual's life. The court then points to the leading cases from the Supreme Court related to deciding what a religion is: US v. Seeger, 380 U.S. 163 and Welsh v. US, 398 U.S. 333. And the court points out that government agencies are granted wide latitude in interpreting enabling legislation (under which the government might allow or disallow an action). It us noted that as of 2002, there were no California cases deciding what constitutes a religious creed w.r.t. FEHA and that regulation. The court then recited various statements from other California cases regarding the characterization of a religion – the main relevant point is that a religion does not have to be theistic to be a "religion". The court also reviews federal employment discrimination laws, and again considers the difference between traditional and non-traditional religions. There are many snippets in the review of the law section saying things such as that the court should find beliefs to be a religion if they ‘occupy the same place in the life of the [individual] as an orthodox belief in God holds in the life of one clearly qualified.’ We can now move to the question in §6, Is Veganism a Religious Creed For Purposes of the FEHA. This court states that The test we apply is that set forth in Judge Adams's concurring opinion in Malnak which has been adopted by the Third, Eighth, Ninth, and Tenth Circuits which they say presents the best objective method for answering the question whether a belief plays the role of a religion and functions as such in an individual's life At this point, we can't reasonably guess how some individual would object on religious grounds to the vaccination mandate, but we do at least know what aspects of the law would be relevant and where the "rules" are laid down. Until someone actually alleges that they have a religious belief that prohibits vaccination, we can't analyze those arguments. The gist of the "veganism is not a religion" is it is too narrow a belief to constitute a religious belief. The court found that did not find that it is a "belief system (which) addresses fundamental or ultimate questions", and that it does not a address fundamental questions such as "the meaning of human existence; the purpose of life; theories of humankind's nature or its place in the universe; matters of human life and death; or the exercise of faith". | The Free Exercise Clause of the First Amendment requires government restrictions on churches to satisfy a compelling government interest, such as preventing massive deaths from disease. The Establishment Clause of the First Amendment prohibits the government from granting special privileges to a specific religion or to all religions (Everson v. Board of Education, 330 U.S. 1 – government may not "pass laws which aid one religion, aid all religions or prefer one religion over another"). Exempting only religious gatherings (however defined) would be unconstitutional. Restricting all gatherings (including religious gatherings) would be constitutional (subject to the general restrictions being itself constitutional). | It's a bit of an oversimplification. You're correct that there is a federal law against murder, 18 USC 1111. However it applies only to a murder committed in the special maritime and territorial jurisdiction of the United States. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to "ordinary" crimes committed at most locations within the US. 18 USC Chapter 51 covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth. The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason. So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances. | Not much. Consider the following: The father can not force the mother to abort the pregnancy. Ex post facto agreements of non-payment are, in all likelihood, unenforceable. The father will be obligated to pay child support under the laws of the state with jurisdiction over the paternity. The abortion angle won’t work. Setting aside commentary regarding the politics or ethics of abortion. I think we can agree it is a highly charged and emotional topic for some people. I point to the fact it always seems to be an issue during Supreme Court nominations and presidential elections. Given the explosive nature of the issue of whether abortions should be legal or not (in the case where the mother does not want to carry full term) could you imagine how much more dynamite it would add to the debate if the question were whether or not to allow the father to force the mother to terminate the pregnancy against the mother's wishes! One can only imagine how much more bombastic the abortion debate might then become. You can’t escape child support (most likely). To give you a sense of how difficult it is to escape the obligations of child support. Consider the following... A Kansas man was ordered to pay child support when he thought he was being a sperm donor only and signed numerous agreements with the lesbian couple he thought he was helping. In that case, the court justified its ruling on the grounds that a doctor was not involved in the insemination process. But nothing prevents future courts from making the same ruling in cases where a doctor is involved in the insemination process. Especially if that state either withdraws from the The Uniform Parentage Act, amends it, repeals it, or never adopts it in the first place. Sperm Donors and Child Support: Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. Read more here. Ex post facto agreements are problematic. Now that you've edited the question, the above link is even more useful for providing a possible avenue to try (albeit unlikely to work): a non-payment agreement. The discussion in that link describes that even if you could somehow convince the mother to go along with it, it is unlikely (though not impossible) to be enforced by the courts. It depends on the facts (e.g., intercourse vs. in vitro), circumstances (e.g., relationship vs. no relationship between the parties), timing (e.g., before vs. after the agreement), etc. of the impregnation itself. Notwithstanding all the above, if you still have questions, you might consider floating an idea of an approach you think you might try (in a separate question) and get reactions to that specific proposal. | In Guinn v. Church of Christ, plaintiff withdrew from the church after an internal investigation of her conduct. The church apparently held as a matter of religious doctrine that she must repent of her sins, also that withdrawing from the church is doctrinally impossible. The transgressions were widely publicized within the church; a lawsuit over outrage and invasion of privacy ensued. The upshot of the appeal is that the church can be held liable for post-withdrawal actions, but before that, the church has a privilege to communicate such transgressions (the church is not subject to secular judicature of its actions w.r.t. its members). Contract law is not relevant here, what matters is that a person can knowingly and intelligently waive their right to litigate against a party, and while one is a member of the church which has such a waiver as part of their disciplinary doctrine, one cannot sue the church for its doctrinary actions as long as the actions do not constitute a threat to public safety which would justify state interference. Although the church argued that church membership is irrevocable, the court found that "Just as freedom to worship is protected by the First Amendment, so also is the liberty to recede from one's religious allegiance". Given that plaintiff had withdrawn consent yet the church subsequently announced the transgressions without her consent, the church was thus found to be liable. In Stepek v. Doe, the court similarly affirmed that a church enjoys a privilege against charges of defamation, when the plaintiff continues to operate within the church, not having left the church. So it can "work", to some extent. The person can always withdraw consent; the person has no legal recourse in case consent has not been withdrawn. The article is correct as far as it goes, which is not far enough: it errs in not stating what the legal consequences of of the transgressor leaving the church are. |
What is the difference between "used by permission" and "used with permission"? Here's a screenshot of credits after a TV broadcast of a Japanese version of a Broadway musical called "A Night with Janis Joplin". The whole credits were divided into two distinct sections: one in Japanese related to the TV broadcast by WOWOW, the second in English, clearly relating to the live staging by the Broadway Asia, so I strongly believe the problem in my question pertains to the U.S./international law rather than being Japanese-specific (or a simple translation issue). The English subsection MUSIC CREDITS lists all the songs used in the musical with their due credits. After each song, there is a phrase "used by permission" or "used with permission" and sometimes the two are combined (!). Here's a sample screenshot for four songs (one staged as a medley): What is the legal difference between the phrases "used by permission" and "used with permission"? | To the best of my understanding: US copyright law does not have anything in particular to say about credits of this nature, for the most part. The law doesn't even say that you have to credit people at all. It just says you have to get a license (i.e. "permission") to use the item in question. Even that is only required when the work is not a "work made for hire" (i.e. any work by an employee of the production company, within the scope of their job). There are some weird situations where the law does require a credit (e.g. a compulsory license acquired under 17 USC 115 requires the licensee to preserve metadata identifying the original song and artist), but this is the exception rather than the rule. The exact wording and ordering of film credits (and TV/other credits) is typically the product of extensive negotiations between all of the people credited, the production company, and (in most cases) their respective unions. It is thus subject to contract law rather than copyright law. Copyright licenses usually mandate some sort of credit be given, except for certain specialized types of work such as ghostwriting (where the whole point is that you don't get credited). Some licenses are more flexible on this point than others. For example, Creative Commons licenses set out a specific list of things that must be included, and mandate that it must appear alongside other credits if there are any, but other than that, you can basically word and display the credit in any way that is "reasonable." However, one-off private licenses will likely be much more specific and restrictive about how the credit is displayed. Speculating: It may be the case that different attorneys drafted different licensing agreements with different credit phrasings wholly by accident, or for no particular reason, simply due to a lack of direct coordination. In other words, nobody was actively trying to make sure all the credits matched, so they didn't. | There is no legal difference, really. There may well be a practical difference. It is much easier to steal a wheelbarrow than it is a 20-foot section of 2-foot wide iron conduit. But doing either is theft, and the legalities are pretty much the same. It is indeed easier to copy a song lyric, or a poem, then the text of a novel, say. But if done without permission, either would be copyright infringement, unless of course an exception to copyright, such as fair use (in the US) or fair dealing (in the UK and some other countries) applies. (Or unless the text is out of copyright. One may lawfully copy Shakespeare, for example. Or Mark Twain.) | In united-states copyright law, anything that is of one of the broad general categories that can be protected by copyright is said to be a "work" whether or not it has been "fixed in a tangible form". If a person sings a song, never having written it down or recorded it, the song is a "work" but has not been fixed, and is therefore not protected by copyright. The same would apply to a speech or a poem that has been recited but never written down or recorded, or a dance performed but never notated or recorded. They are all works, but none have (yet) been fixed, and so there is no copyright protection. All this will also be true in any country that adheres to the Berne Copyright convention, although the word "work" might be translated into another language. If someone later writes the work down, or records it, then it will have been "fixed", and copyright protection will be available provided the other conditions are met. Whether a work is original is a separate issue from whether a work has been fixed. If person A makes up a song and sings it without recording it, it is original but not fixed. If person B hears it and writes it down, it is now fixed, but not original to B. A will then have the copyright. In copyright law "originality" usually means that a work is the separate creation of a person, not copied from the work of some other person. Note that a work may quote or imitate previous works, or use portions of them in some way, and still be sufficiently original for copyright protection. However the term "original" is sometimes used to mean "creative". A mere list of numbers in numerical order is not creative, and will not be protected by copyright (in the US and countries with similar laws). A list of all the names of people in a given town or area, in alphabetical order, is not creative enough to be protected by copyright (see Feist vs Rural). Courts and other writers on copyright sometimes express this by saying the work is not "original". Similarly, a simple geometric design, such as a white square on a black background, is not creative enough for protection, and again this is sometimes expressed by saying that it is not original. A work must be both original and creative to be protected by copyright, although it need not be very creative nor totally original. The rules on originality and creativity vary by country. I am here following US law, but the law of quite a few other countries is similar on these points. The term to look for what is counted as original and protectable is often referred to as threshold of originality. This is what I have referred to as "creativity" above. This is related to the question and answer at Is a work copyrighted on fixation or publication? What's the difference? How is it proved? recently posted. | Software qua property is protected by copyright *perhaps patent, in some jurisdiction). The general rule is that whoever creates the thing (book, song, software) has the exclusive right to the thing. If an employee of Company 1 writes software for Company 2, that employee might (rarely) hold the copyright, but typically that scenario would involve a "work for hire", where the employee is hired by Company 1 to do such tasks as part of his duties with Company 1 (which might then be given to Company 2). This would then be a work for hire, and the copyright is held by Company 1. If the actual author was an independent contractor, he would hold the copyright – see Community for Creative Non-Violence v. Reed for analysis of the subtle nuances in making that determination. The concept "work for hire" which crucially involves the "employee" relationship would not be applicable to Company 2 paying Company 1 for a product, and as long as the actual author is an employee of C1, C1 has not created a "work for hire" in the legal sense. Without some explicit disposition of copyright, Company 2 is in a sketchy position. Since C1 holds copyright, they must grant a license to C2 so that C2 can legally use it; or, C1 must transfer copyright to C2. This does not happen automatically, and (if C1 does not want to remedy the situation after the fact) C2 would need to take C1 to court to force a resolution to the situation. At that point, the issue would be what C1 implicitly promised, even though they didn't put it in writing. It is likely that the initial exchange was along the lines "Can you make us a program that will do X?", and the answer was "Sure, that will cost Y", and then "Okay, go ahead, looking forward to the product". The courts would not simply say "Well, you didn't explicitly require a license, so you don't get to actually use the software that you paid for". However, it's a somewhat open question whether the court would order a license (of what nature?) or a transfer of copyright. The disposition would depend heavily on the facts of the case (what was said, what C1 actually did, what kind of business they are, what did creating the work involve...). | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. | 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. | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. | Most countries have compulsory or statutory licences for exactly these situations. You enter a licence agreement with a collecting society, pay them licencing fees, and give them a record of the music you perform. They in turn then distribute royalties to the rights holders. The exact details of which licence you'll need depends on your country, the types of events you will perform at, the frequency of the events, the size of the audience etc. It may be the venue's responsibility to obtain the licence instead of the performer, or both the venue and the performer may need to. I don't have any experience of this, and if I did my experience would be useless to yours in the UK ;). But luckily the UK has an easy to find website which tells you just where you need to go. You will need to get a licence from an organisation called PRS for Music. |
Is a potential juror protected for what they say during jury selection? Walter and Bob are potential jurors for the same trial for a white supremacist. Walter happens to believe in white supremacy. Bob happens to be Walter's boss (or even just a potential employer). During jury selection, they ask Walter about anything that should disqualify him from acting as a juror. So Walter says "I'm a white supremacist, and cannot act unbaised for this case", which is the honest truth. Is Bob the boss, after hearing this information, allowed to fire/discriminate against Walter? Or air out to the public that Walter is a white supremacist? Assuming everyone acts honestly/truthfully according to the law, what's "supposed" to happen in this case? Walter is obliged to say he'd be a biased juror, and Bob is probably obliged to let his job and close ones know that Walter holds unsavory beliefs. I'm not sure how this is supposed to play out... Edit: if, on some technicality, White supremacy doesn't fit the bill, then feel free to substitute any other relevant thing: e.g. Walter is a previous serial rapist, or part of the KKK, or likes pineapple pizza, whatever have you. Basically, try to give an answer to the "intent" of my question, not the "word" of my question >.<. The important thing isn't Walter's beliefs, or Bob's relationship to Walter. I'm asking how any juror is protected about what they say during Jury selection. When the Judge asks about their family situation in the courtroom, should they feel free and comfortable talking about it? | united-states The jury selection process (voir dire) is normally done in open court. Walter's statements would be heard by anyone present. Reporters can be present, and may choose to publish accounts, including quotes of such statements. In short, Walter's statements are likely to become widely known. Given the "at will" nature of most US employment, an employer may fire, or refuse to hire, Walter for any expressed belief of Walter's of which the employer does not approve, with the narrow exceptions covered by anti-discrimination law. There is no special protection for statements made during court proceedings, except that such statements generally can not be grounds for defamation suits. Thus the law grants Walter no specific protection in such a case. What Walter could do is say something such as: I have a personal belief which would make it impossible for me to be an unbiased juror inn this case. I would prefer not to discuss the details in public. The judge might simply dismiss Walter, or might question Walter in chambers with the lawyers present but off the record. Of course Walter could lie, and claim to be unbiased. If Walter's views are not known to others, or not to many others, such a lie might be unlikely to be exposed. Of course, if exposed, Walter might be punished for contempt of court, or in theory for perjury, although that last is quite unlikely. But the answer to the question asked here is that Walter has no special protection because his statement was made as part of a court proceeding. A state legislature (or congress, for federal proceedings) could perhaps provide such protections, but to the best of my knowledge, none has to date. | 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. | 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. | canada There are some degrees of anonymity available: The court can refer to jurors simply by their number ("Juror 5") when calling them to be seated at the outset of trial The court can order that no information that could identify a juror be published While the jury-selection cards are part of the court file, the court can order that they be sealed During the course of trial, jurors are to be referred to by their number In Canada there is no procedure available to have the jury be screened off from public view. The rationales for not having juries be completely unknown to the parties are: the open court principle it's a right of the defendant in a criminal case to be able to potentially challenge their conviction based on exceptional problems with the jury or its selection; a screened-off jury would prevent this practically, the defence and prosecution will have become aware of the jury through jury selection, including the ability to challenge their selection for cause there is a presumption that the ability to see directly and unmediated the demeanor of the witnesses is an important aspect of judging credibility; not everything would be seen via video There is likely much flexibility available for a court to allow a screened-off jury in a civil matter, but civil jury trials in Canada are not a right, and no court has seen it worth to experiment with such a thing. | No If she has probable cause, yes. The question is whether "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts [Bob is a thief] are probably true"? Its likely that the answer to this question is yes. None No Charlotte listens to Alice, Charlotte asks Bob questions which Bob may or may not answer. Charlotte can ask Bob to produce the receipt, Bob doesn't have to. Charlotte can ask to search Bob, Bob doesn't have to consent. If Bob tries to leave, if Charlotte has reasonable suspicion the Bob has committed a crime (which she could certainly justify) she may detain him temporarily without arrest. If Charlotte has probable cause to believe that Bob has committed a crime (which she could probably justify) then she can arrest him. | This is entirely possible in a number of different motions that could have been made. At this point, Vinny had destroyed the Prosecutor's eyewitnesses by showing they had issues that called their testimony into question (The first has a timeline that doesn't line up with events, the second has poor vision and her prescription glasses were not doing their job, and the third had many obstructions blocking his view of the scene). His first witness tears apart the "expert" witness, who was only there to testify that the tires were the same brand (albeit, a popular brand at the time... loads of cars had the same tires). While it might go by a different name in different jurisdictions, the Prosecutor is allowed to make a motion to dismiss at any point prior to the jury goes to deliberation (as is the Defense; Also they might be able to make motions while the jury is in deliberations). If properly titled, the Prosecutor should have made a "motion for nolle prosequi" (not prosecuting). This can mean any number of things including the prosecutor no longer believes the evidence can prove the charges OR even that the prosecutor is no longer convinced that those charged committed the crime. In the "My Cousin Vinny" case, as the jury was seated the case cannot be retried by the State of Alabama at this point. This is possible because the Prosecutor's duty is to uncover the truth behind a crime, no matter what that truth becomes. In this case, despite his previous beliefs, the prosecutor in My Cousin Vinny, upon realizing he was wrong, admitted it and dropped the charges. Given his backstory of having worked as a defense attorney and making the switch after getting a client off some serious charges (and knowing the client was guilty) shows that he was inherently an honest man and dedicated to finding the truth of the matter (as a government employee, he undoubtedly took a pay cut when he switched to prosecution. Private industry almost always pays way more than a government equivalent). With that in mind, it is expected of prosecutors to be perfectly honest with what evidence they have and make the choices in the case based on that evidence. This comes up in another scene when Mona Lisa Vito explains to Vinny that the prosecutor was required to give Vinny all the files he had on the case... because Vinny, by representing the Defendant, is allowed to examine all evidence against his clients. The only dirty trick he pulled was the stunt where his expert witness was not disclosed and while bad, really it's the judge allowing the witness to testify that would have caused a problem with the trial (his response to Vinny's objection could have created a mistrial on appeal). To give a real world example, I was charged with driving on a suspended license which I had no idea I was doing at the time. As it turned out, the license was suspended for an unpaid traffic ticket that I had paid in the last minute... essentially the DMV forgot to unsuspend. A quick call fixed that issue but I still had to go to court over the charge. The day of the trial, I show up in the court room and the prosecutor walks over and tells me that they were going to enter a motion of "nolle prosequi" for the charge... essentially dropping it... because the matter was a clerical error on the state's part and not anything I did wrong. Edit: Additionally had the prosecutor not motioned to dismiss, Vinny certainly could have. In fact there are two points during the trial where Defense attorneys are expected to make these motions. The first is when the Prosecution rests their case. The second is before the jury is given the case to deliberate. As for why it was called a motion to dismiss in the film, it's likely to due with the fact that the audience would not know what a "motion for nolle prosecui" and it is a type of motion to dismiss. | "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. | While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly. |
Why is a Letters Patent Appeal called so? In High Courts in India, one can file an appeal called Letters Patent Appeal (LPA in short). LPAs are filed against a judgment of a single judge of the High Court and are decided by a bench of two/more judges of the same High Court. My question is: Why is Letters Patent Appeal called so? Where does it get the name? | Letters patent are instruments issued by the monarch to publicly grant some specific rights to some person(s) with the backing of the royal power. It is also where the word patent (in its intellectual property sense) comes from, since the monopoly of invention was only granted by the authority of the monarch via a letter patent. Another use of the letters patent is to constituting certain offices, particular those exercising the royal power, for example, the Governor General of Canada. Under the British system, the courts are thought to be the monarch exercising their power over the bench. Many High Courts of India were constituted by the British monarch during the colonial rul. The British Parliament allows the monarch to issue letters patent for such purposes in the 1861 High Courts Act. Their jurisdictions were specified by letters patent. One of such jurisdiction is the power for a High Court to hear appeals from the decisions of one of its justices. For example, in the letters patent establishing the High Court in Calcutta: Appeal from the Court a of original jurisdiction to the High Court in its appellate jurisdiction.- And We do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment, in all cases of original Civil jurisdiction, of one or more Judges of the said High Court, or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High Court, but that the right of appeal in such case shall be to Us, Our heirs or successors, in Our or their Privy Council, in manner hereinafter provided. This clause grants appellate jurisdiction to the High Court over the High Court itself when the court makes a decision in its original jurisdiction (unless the decision was already made by the majority of the court's judges). Of course, India can establish its own courts now and the power comes from the Constitution (in particular arts. 226 and 227) instead of the monarch personally, although some letters patent remain legally in force. The Indian Parliament now regulates the High Courts according to the Constitution. But the term letters patent appeal remained, because the appellate jurisdiction came from the letters patent. | united-kingdom Yes. The landmark case in the UK is Pepper (Inspector of Taxes) v Hart, where the House of Lords*: established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege *Strictly speaking, the Appellate Committee of the House of Lords, which functioned as the UK's highest court before the creation of the Supreme Court. | A judge can ask any question of anyone in their courtroom. A judge can make any comments they like in their courtroom. They're a judge! What they can't do is exhibit bias or the apprehension of bias or take irrelevant matters into account in making judicial decisions. The judge may have a wide and deep knowledge of driving conditions in India, however, that is irrelevant to an alleged speeding offence in the United States. If it appears that the judge took this into account in their decision then there are grounds for an appeal. Similarly, if it appears that the fact that you are Indian and the judge displays bias against (or towards) Indians then that is also grounds for an appeal. An appeal court will look at the entire circumstances of the case to determine if the decision should be overturned including what was said, what the judge decided and the reasons for the decision in the written judgement (if any). | Indian Constitution provides for a Federal government in which power of states and centres are clearly enunciated. If there is a dispute over any issue Supreme Court can decide whether State government is correct, or whether Central government is correct. Any law of Parliament affects the entire population of India, and so all states are affected by that law. If any state government considers that the law is not as per constitutional norms, it can easily go to the Supreme Court for decision. So, the observation of the Supreme Court that a state is bound by the law of Parliament, is incorrect. If an individual can file such a case, a state is also entitled to file it. The Supreme Court should decide it on the basis of merit. So I think the observation of Supreme Court in this case is not correct. | If you win a family court appeal in MS can you request another judge? You can always file a motion to recuse, perhaps with a rehearing with the chief judge afterwards. Without knowing the details of the reversal on appeal, though, it is impossible to identify whether the appellate opinion or the record of the case endorses/supports a finding of bias or other grounds for disqualification. These motions are hardly ever granted. See Pearl River Co. Board v. Mississippi, 289 So.3d 301, 308-309 (2020): In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself. [...] The burden [...] is a heavy one The bar for granting these motions is overly high not just on paper, but in reality there is also an element of judicial arrogance insofar as these motions are a form of firing a judge. Recusal can be meritorious in your case, yet be denied even by the chief judge and the appellate panel. | Usually a Supreme Court opnion has a single author, although often multiple Justices "sign" or "join" the opinion, meaning that those Justices agree with both the reasoning and the result. It is very common for ma Justice who is not the author to suggest specific wording for an opnion, anywhere from a single word to several paragrahs or even pages of writing. Such suggestions are not usually formally credited. However, in some cases an opinion is drafted by a committee of justices, with each taking one or more sections of the opinion. This may be done to speed up the drafting, or to make sure that the opinion will be acceptable to a wider ranger of the Justices, or for other reasons. The book The Brethren by Woodward and Armstrong describes several occasions when the Burger court used committee opinions, usually drafted by three Justices. | Is a response to a N5B section 21 accelerated claim required to be given on the dedicated form N11B? YES. Assuming this refers to an accelerated possession claim on property let on an assured shorthold tenancy in England then Rule 55.14 Civil Procedure Rules applies: A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Practice Direction 55A, at Rule 1.5, states: [...) The defence must be in form N11, N11B, N11M or N11R, as appropriate. The use of must is well established in British law as meaning a non-optional obligation (unlike should). It is not, as far as I can see, defined by statute so the courts' convention is to use the normal meaning of the word by reference to the Oxford English Dictionary. The recently revised free online version has limited availability but the previous version merged with Dictionary.com which offers these examples: 1 to be obliged or bound to by an imperative requirement 2 to be under the necessity to; need to The use of must in Rule 1.5, by my reading, trumps the use of should in Rule 55.14 but Alice might be able to argue this apparent contradictory terminology as to why her case for her defence is submitted by letter rather than the prescribed form. What happens with this letter when it is received by the court...what happens with the case more generally? Does it get listed for a hearing? Do the contents of her letter reach or get considered by the judge? All that would be a matter for the court to decide and could go either way: a judge has the inherent power to deal with matters in his own court as he sees fit (within the limits of the law etc). | Because HRA1998 says so, but it's not an absolute limit and is subject to discretion by the court: (1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act. (5)Proceedings under subsection (1)(a) must be brought before the end of— (a)the period of one year beginning with the date on which the act complained of took place; or (b)such longer period as the court or tribunal considers equitable having regard to all the circumstances,but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. |
How can I prove that I owned an object before a certain date? I received a widget on January 1. A law is passed criminalizing ownership of widgets. It is an affirmative defense that the widget owner had it before January 10th. How can I prove that I owned the widget before January 10th? (Assume the current date is before January 10th, so I have time to create evidence.) | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. | It's highly unlikely that A would even recognise this as similar. It's really bog standard. A coloured patterned background (in a different colour and with a different pattern). Two buttons. A picture and a testimonial. All things that have been done thousands of times. In the end, it is _copy_right. What exactly is B supposed to have copied? | Yes, patents expire. The term is generally 20 years, but a patent can expire earlier if the owner fails to pay the scheduled maintenance fees. 35 U.S.C. § 154, 35 U.S.C. § 41 The patent owner could grant you permission to make, use, or sell the invention. This isn't the same as getting permission to call it your own, and it is completely separate from copyright. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | is it plausibly the case that ownership of an original photograph would be awarded to the subject (or the subject's heirs) because the subject did not consent to the making of the photograph? No The photograph belongs to the person who owned the photographic plate. Copyright in the image belonged (it has long ago entered the public domain) to the photographer. Subjects (then and now) have no claim on either. Do Massachusetts laws indeed protect personality and publicity rights in photos more than 160 years old, if they were originally taken without consent of the subject, and are now used without consent from the subject's next of kin? No The people in the photograph may bring a suit. These people are long since dead and their estates have long ago been wound up. There is no longer anyone with standing to bring such a suit. Does the US 13th amendment give any private right of action to claim property obtained via ownership of slavery, or that may constitute a "badge of slavery"? No In its entirety, the 13 amendment reads: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. It does not deal with the products of slavery at all. | The Constitution said people have the Rights to Properties. No it doesn't. There is no such provision. The closest I am aware of is the so-called "takings clause" in the Fifth Amendment, which reads: Nor shall private property be taken for public use without just compensation. There has been a good deal of litigation over just when when a "taking" occurs under this provision. The classic and most obvious case is the use of eminent domain to aquire actual title to the property by a government (Federal, State, or local). This is always a takign, and compensation nis required. The more questionable cases have occurred when some law or regulation leaves the owner with title, but significantly restricts the uses to which the property may be put, particularly when the existing use becomes unlawful. Courts have ruled in different ways in such cases, but I think the current standard is that when a regulation removes all, or almost all, economic value from the property there has been a "regulatory taking" and compensation must be paid. But as far as I know, a tax on the property has never been considered to be a taking inn this sense. | I'm not familiar with the case you're citing, but it sounds like this may be an application of the doctrine of "inevitable disclosure" or "inevitable use." A classic case would go something like this. WonderWidgets has discovered that by treating its widget molds with a teaspoon of ground cinnamon, it can create a superpowerful widget that is impervious to normal wear and tear, and will last forever, with very little additional expense. To protect its competitive advantage, WonderWidget takes all sorts of measures to ensure that AAA Widgets never learns about the benefits of the cinnamon additive. WonderWidgets hires Jane, an engineer with a PhD in cinnamonology to make improvements to the additive. She signs a confidentiality agreement promising to protet the company's trade secrets. After a year with WonderWidgets, Jane is recruited by AAA Widgets. WonderWidgets sues them both to prevent them from consummating an employment relationship. Assuming that the information Jane acquired from WonderWidgets is a protected trade secret, the idea here is that everyone knows exactly why AAA is hiring Jane, and that it would basically be impossible for Jane to work for them without applying the knowledge she acquired from WonderWidgets, i.e., there her employment would lead to an inevitable disclosure of WonderWidgets' trade secrets. I think most people would agree that there's at least a reasonable argument to be made in favor of WonderWidgets, there are also efforts to apply this doctrine in much shakier circumstances. For instance, WonderWidgets might try to prevent its janitor from going to work for AAA because it taught him how to mop floors, and it has cleaner floors than AAA, and therefore its cleaning techniques must be superior, and therefore those techniques must be protected. There are some states in which WonderWidgets would win the cinnamon case, and some where Jane would win, because the state doesn't recognize inevitable-disclosure at all. I don't know of any states where WonderWidgets would win the janitor case. Of course, most cases are not as clean-cut as either of these hypotheticals, but I'd say the one you're asking about is closer to the second one than the first. | The other answers don't quite spell it out, so I will. There is no law in the UK requiring landlords or their agents to show a property to all parties interested - refusal to show a property may however in some cases fall under discrimination laws, so that might be something you can pursue if you feel the refusal is due to your gender, race or sexual orientation. While they may have to justify their data collection under the GDPR, that is entirely separate to their refusal to show the property to you. |
Bank of America fee Dilemma I am an Australian citizen. Many years ago, whilst travelling on holiday to the US I signed up for a Bank of America e-banking account. It had no monthly fees and all was well. Every time I went on holiday I would deposit money into the US account and use it freely to pay merchants/businesses in the US. Recently the bank abruptly removed its e-banking account and apparently migrated its e-banking customers to a core checking account with a $12 monthly fees if the account is less than $1500 US. Are banks legally allowed to do this? In particular, no notice was provided on the upcoming monthly maintenance fee. I had not been sent any information via email or mail about the new account fees. It was only when I logged into the account and saw the fee automatically deducted from my account that I found out about it. Secondly can the bank forcibly decide to charge these fees placing the account into the red/negative. | Just to add to the other answers, as of November 2022 the Online Banking Service Agreement of Bank of America explicitly covers this (emphasis mine): D. Changes to Agreement We may add, delete or change the terms of this Agreement at any time. We will inform you of changes when legally required [...]. We may communicate changes by either mail, email or a notice on our website and will make the updated terms available on our website. You agree that by continuing to use the Services after the date that changes are posted to our website, such changes will be effective for transactions made after that date, whether or not you access the website or otherwise receive actual notice of the changes. So, at least according to BoA's Service Agreement, you are supposed to check the website daily to be aware of changes. Whether this is enforceable will depend on details and applicable consumer protection laws - however, if the notice is posted in an easily-accessible location and some time before becoming effective, it probably is. Note that this depends on jurisdiction. For example, in Germany until recently banks also were allowed to change the terms of agreements by simply notifying customers. However, in 2021 the German Federal Court of Justice (BGH) ruled that explicit consent by customers is required for new terms to become effective. So German banks now require customers to click through the new terms online, or sign a paper document indicating they accept the new terms. If customers fail to do this, the bank may terminate their account according to the usual rules, but they may not change the terms unilaterally. | There is no misrepresentation by the bank as you describe it, there is negligence by the account holder to comply with the terms of the account. The bank made no representation at all regarding a balance due. If you want the bank to be at fault, they the customer would have to demand a declaration as to the existence of a balance due (choose your words carefully), and the bank would have to have falsely asserted that there is no present or future obligation. This is not going to happen. All the bank can say is that they have no present record of charges. The customer's question might be something like "Do you guarantee that there will be no charges to this account as of now". Of course, the bank cannot know whether there is a forthcoming paper charge that was made at some mountain resort. If case they did make such a promise, you could disavow the debt, using your reliance on their assertion as the basis for denying the debt. There is no law requiring banks to warn people of their contractual obligations when they close an account. I've never encountered a credit card contract that includes such a clause, but I suppose some bank might include a mandatory-warning clause, in which case they could be in breach of contract. | Yes. The European Enforcement Order is an explicit procedure for uncontested claims like this. That means no German court is involved (unlike Dale M's answer suggests). The Greek Court files an EEO, and this can be enforced directly in Germany without going through German courts again. That means you can face wage garrisons, bank account freezes etcetera. | It is age discrimination, and it is legal. There is a federal prohibition against discriminating in employment provided that you are at least 40 years old. There are innumerable laws that require age discrimination w.r.t. being under 18, such as the lack of a right to vote. Contracts with minors, such as are involved with opening a bank account, are generally invalid with the exception of "necessities", education and insurance in Massachusetts. No law compels a bank to "accept" any person (to open a saving or checking account – even more so with accepting a loan application). A bank account would be a "public accommodation", which is not subject to a "no age discrimination" requirement at the federal or Massachusetts level. | Can a bank sue someone that starts a bank run that destroys the bank? No (assuming, of course, as is the usual case, that the person who starts the bank run is not engaged in perpetrating a defamatory falsehood). Most bank runs are, and certainly the Silicon Valley Bank bank run was, based upon wide disclosure of a true fact. In the case of SVB, the bank run was triggered by the fact that its balance sheets failed to reflect the true value of fixed nominal rate bonds that it held as assets. In the usual case, a lawsuit also isn't a very helpful option to a bank that suffers a bank run. In the case of SVB, the bank had a book value (which is often a fair measure of a bank's value since its assets are so monetized) of $34 billion which was reduced to a pittance by the run on it. Even if someone who started a run on the bank had a moderately high net worth of $3.4 million that could be collected in a money judgment, that would cover a mere 0.01% of the loss to the bank, and there would be serious issues over the causation of any loss (i.e. how much of the losses suffered bound to occur sooner or later anyway due to causes unrelated to someone who triggered a panic). Another fine point of procedure is that when a bank becomes insolvent, it is promptly taken over by the FDIC or similar regulatory agency, which installs a receiver. This makes it effectively impossible for the bank itself to sue anyone. If the bank would otherwise have had a right to sue, the receiver for the bank would have the right to sue rather than the bank itself. But, this subtly while not irrelevant, doesn't capture the core reason for the question. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | No The bank is not pretending in any way that the money received from depositors is guaranteed. If they had done, then that would be deceptive marketing. The bank held itself out to be a bank and to provide the services that a bank provides. They are allowed to assume that their customers know how banking works. It is clear that you do not because both explanations you have provided are wrong. | You should really investigate the legally correct way to deal with the estate and the transfers of the assets; if not, you could have considerable legal and tax liability in the future with the bank (if they flag and investigate the transfers due to the death of the account holder and the size of the transfers) and the IRS (inheritance taxes), as well as other possible heirs who are not yet identified or notified of the death. Probate laws differ greatly according to jurisdiction, so either find a lawyer or Google for free or low cost legal help in your city/county/state in order to learn how to administer the estate in a legally sufficient way to protect everyone involved. Or go to the local county courthouse and inquire. It may not take much effort or cost much in legal fees, and it's a good investment of research and time to prevent legal and tax issues in the future. |
Can a writer write a novel about a fictional Dota player? Can a writer/author write a novel about a fictional Dota (or any other video game) player, mentioning the game's name and possibly names of the fictional characters of the game? Would this be trademark infringement (requiring the game's name to be changed)? | Under US law: It depends, but it is likely legal. Trademark is designed to prevent confusion in consumers, to avoid someone's good work and reputation from being taken advantage of by another, and/or damaged by another's poor work/service. The game's name and character names are (generally) not trademarked, nor are they copyrightable. Even if they were, there is nominative fair use to consider as a defense. There are still some legal issues that might occur (e.g. this does not apply to the novel's name; using the game's logo on cover art might constitute trademark violation if it was so positioned as to be associating a relationship with the game publisher, descriptions of the game's content, especially story content, is a bit hazy), but not with using the game name or character names. | The film you want to base your game on is probably covered by copyright and likely trademarks. For purposes of the question I'll assume it's not in the public domain (if the film was made before 1926 for example). If you used the film to create your game, it would be a derivative work. Derivative works require the consent of the copyright owner. Distributing it without their permission would leave you open to lawsuits for copyright infringement, unjust enrichment, and possibly others. Fair use/fair dealing likely doesn't apply here. This isn't criticism, parody, or a transformative use. You may be able to get away with this by flying under the radar if you don't distribute it for profit or on any large scale. Some studios are more litigious than others and some accept that leaving fan works alone is better than the bad publicity that comes with shutting them down. However, this is entirely reliant on the goodwill of the studio. The legal way to do this is to get in touch with the copyright holder and ask permission. This may be in return for something else- usually money, royalties, and/or some creative control over your work. This may not be feasible though as a large company may simply ignore such requests from random people. Note that a lack of a response in this case is not permission. | It depends on the game and what you copy. Games are an utter nightmare when it comes to IP law as so many parts of them cannot be copyrighted. Game rules for example cannot be copyrighted, nor can the concept itself. Some things can be copyrighted or trademarked. You cannot use the following: Names Written elements- while the rules themselves can't be copyrighted, rulebooks can Artwork and other visual elements Miniatures designed for the game Original characters Try to avoid these and the Hasbro lawyers should leave you alone. | 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. | may require that you obtain license rights from third-party owners or licensors of content that you include in your text inputs (Emphasis mine). Based solely on the excerpt above, yes, you have the copyright on the audio files if you created the source material, as you are the creator, using Amazon Polly as/to generate a "tangible medium". One of the central rights granted by copyright is to control translation into a different medium (in this case, from text into audio), as is the right to control distribution, which is what this excerpt is talking about. "Third party" in this case means neither you nor Amazon. Basically, Amazon is informing you that using their software on someone else's copyrighted material does not grant you copyright on the audio recording. | As is typical with legal matters, "it depends". It is not copyright infringement to mention the name of an artist or work of art. It may be infringement of trademark, or of the right of publicity. For example, Apple Computers has trademarked the name "Apple" in the domain of computers, so you cannot call your computer company "Apple Computers", without their permission. You also cannot advertise in a way that implies that Taylor Swift endorsed your product, without her permission – this is the "right of publicity" (the name may differ, e.g. "passing off" depending on jurisdiction). The situation in the US is highly variable, since it depends on state law. The legal inclinations of the particular artist may be irrelevant, since they often have legal arrangements with publishers, and if you are going to get sued, it might be the publisher that sues you. Hiring an attorney to evaluate the specifics of your idea is the only reasonable approach to the matter. | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." |
What is the legality of two (or more) trade partners trading (i.e. billing) each other in a mutually agreed units of exchange Assuming that company A (based in say, the US), wants to trade with another company (B say), based in say, Germany (or anywhere else in the world). Assuming that these two companies have agreed to trade in buffalo wings (as a ridiculous example), can company A and B invoice each other in Buffalo wings? Although the question might sound frivolous, there is a real world motivation behind it. Assuming a bunch of economic actors across the world decide to conduct business in a basket of commodities (say Gold and silver) - and call each Unit of this basket "FooBar", what are the legalities of these economic actors trading with one another in "FooBar" instead of a recognised currency? | Assuming a bunch of economic actors across the world decide to conduct business in a basket of commodities (say Gold and silver) - and call each Unit of this basket "FooBar", what are the legalities of these economic actors trading with one another in "FooBar" instead of a recognised currency? This is legal, and indeed is done routinely in some sectors of the economy, either by denominating a transaction in a third-party currency (e.g. many Polish mortgages and international petroleum contracts are denominated in U.S. dollars even when no party to the transaction has U.S. ties), or by some indexing amounts to a commodity (e.g. gold or oil). There are consequences to doing this, however. I can't speak to the German tax law implications of doing this, but in U.S. tax law, barter transactions have to be converted to U.S. dollars on both sides of the transaction before U.S. tax laws are applied to the transaction. So, in the course of preparing a U.S. tax return for the parties to this business arrangement, a CPA filling out the tax return has to establish a conversion rate for Buffalo wings or FooBars to U.S. dollars and then has to complete the tax return on this basis. Barter transactions are taxed under U.S. federal tax law as if the seller sold whatever was sold for U.S. dollars equal to the fair market value of what was sold, and as if the buyer sold whatever was sold for U.S. dollars equal to the fair market value of what was purchased. See, e.g., this IRS publication on the subject. There are some narrow exceptions to the taxability of barter transactions, most notably for like-kind exchanges of investment real estate (governed by Internal Revenue Code Section 1031), for transactions between spouses, for transactions between entities disregarded for tax purposes (like single member LLCs) and their owners, and also, for example, for certain financial instruments like exchanges of stock certificates in the same company which are identical except that they have different certificate numbers. But none of those exceptions would apply to the situation described in the question. There are tax regulations and other authoritative U.S. Treasury Department publications that provide detailed guidance on how a CPA is supposed to do this on an operationalized basis. I'm not personally sufficiently familiar with those regulations to describe them in any detail (because in domestic commerce, which is what most of my tax work involves, nobody does business in Buffalo wings), but I would know where to find them if I needed to do so, as would most CPAs and tax lawyers. There are separate U.S. income tax rules for commodities transactions and foreign currency transactions. If you do business in Buffalo wings or FooBars or a cryptocurrency, rather than in a true foreign currency, the commodities transaction rules and barter transaction rules, rather than the foreign currency rules, apply to the transaction. | There is no law against driving a hard bargain If you were describing real estate owners rather than YouTube channel owners we’d have a term for them: a motivated seller. There is no law against using the fact that someone is desperate to sell to negotiate a lower price: that’s just good business. In general, common law legal systems do not involve themselves in whether a price agreed between two parties was fair: if you want to sell your original Picasso for $1 or pay $1m for a used tissue, that’s up to you. If you have ethical issues with that, don’t do it but it’s not illegal. Legal issues can come up where you are the cause in some way of the motivation. A lender foreclosing on a mortgage is ok. A lender offering to buy the property to avoid foreclosure is not. The first is just enforcing the terms of the contract, the second looks like undue influence and unconscionable conduct. Some countries have laws against profiteering and you would need to look at the legal definition to decide if this is or isn’t profiteering. In the US, it isn’t because their laws only deal with profiteering that damages the government. Some US states have laws against price gouging but these are usually to prevent charging too much, not too little. Which clauses of YouTube's Terms of Service would be violated? None. YouTube does not have any terms about selling your digital assets and we know it happens. Which US sanctions would be violated? It’s impossible to say without reading the sanction. If it’s illegal to transfer money to the sanctioned people then the whole plan falls over because you can’t pay for the channel in the first place. | I am not aware of any law making this illegal. You need to avoid any "bait and switch" tactics, though, like initially offering cola for $1 and then not actually letting them buy it for that price. | Is she allowed to short the stocks of some company trading in this other metal, before she publishes her result ? Generally speaking, yes. The main exceptions consist of her being under certain form of fiduciary duty toward the company of which she is shorting stock, or (2) her transactions being motivated by superior knowledge resembling insider trading or fraud. Absent an element of fiduciary duty or insider trading, what you describe is an entirely valid arms-length transaction. Indeed, this happens all the time in financial markets, except that a lawful asymmetry of information may come in forms other than the scientific discovery of new metallic alloys (example: statistical models developed by the entity). Searching for case law containing the terms in italics will show you how these concepts supposedly are applied. For instance, see Procter & Gamble Co. v. Bankers Trust, 925 F.Supp. 1270 (1996): No fiduciary relationship exists ... [where] the two parties were acting and contracting at arm's length. Moreover, courts have rejected the proposition that a fiduciary relationship can arise between parties to a business relationship. (citations omitted) You will notice that the court in Procter & Gamble points to case law in the sense that a party's superior knowledge imposes on him a contractual duty to disclose that information. But the notion of superior knowlege as applied in case law seems typically narrowed down to situations where the seller conceals defects for which he is responsible (Haberman v. Greenspan, 82 Misc.2d 263 (1975)) or when the concealment resembles fraud. Haberman points to a case of fraud where (1) the seller of a boat before the sale took it from where it lay and placed it afloat in a dock to prevent the examination of the bottom which the seller knew to be unsound [...]; and (2) where the seller of a log of mahogany turned it in order to conceal a hole (citations omitted). That is different from the superior knowledge that a party obtains through the design of superseding techniques. It would be extremely inept for a court to rule against a party for trading without first bringing everyone up to speed as to her superseding developments. Not only that would contradict the tenets of trade secrets, perhaps patents, and so forth, but in the context you outline it would create inconsistencies with respect to other financial instruments associated to the same perception of downside risk that is inherent to taking a short position on stocks. | Yes. The Russian owned party to the contract can be sued. The remedies would be those available under the contract, which may or may not be futile to pursue, which almost certainly specify the court to which disputes should be brought. I have no access to the contracts and can't read the relevant languages anyway, however, so I can't tell you what they say about this point. In all likelihood, a Russian court would not rule in favor of Poland or Bulgaria on this score, and would not order Russia to restart supplying natural gas to them (perhaps on the theory that national security and foreign affairs decisions are involved), and no other court would have the practicable ability to cause Russia to reopen its natural gas pipelines. So, if they prevailed, the Court would have to fashion some other remedy (e.g. seizing Russian assets sufficiently associated with the contractually bound party over which they can acquire jurisdiction). If there is a third-party guarantor of the contract, collection could be feasible. If not, it would be much more challenging. | In theory, what Dale says. However, in practice: Nope, and that's why the trader is in Timbuktu. And I apologize profusely to the Malian people, I have every reason to think it is a fine country in which citizens obey international laws and honor claims, unlike certain other countries. In anglo/Five Eyes nations, Timbuktu tends to simply be used as a metaphor for "a country far, far away and different in its ways than us". If Bob is regularly buying things in the USA or Timbuktu, then either Bob works for Aperture Science and is using portals, or more likely Bob is using mail order. And now, we get to the nut of it. Most mail order sales are done by mail-order sellers who deal in volume. Those people choose their jurisdictions and venues carefully. And they have help. Do European or British consumer rights legislations bind the American/Malian trader to protect Bob, as the GDPR would? No! That's WHY they're in Timbuktu! (or, wherever they actually are; generally behind what I'll call the Red Curtain.) The point of being there is to be untouchable by civil action or government penalty due to that government's non-enrollment in international agreements, and outright obstruction of such actions. Yes, they and their legal team have crunched the question of "what happens when a European or Briton sues us? What happens when an Anglo or EU government tries to action us?" Their companies are structured so they slough those off at minimal real loss. Ever notice how many sellers have a company name that looks like they rolled their face across a keyboard? That's a sockpuppet shell company, and they have thousands of them. If their other layers of defense fail, they simply fold that company and create another. Their government lets them do this, because they chose jurisdictions wisely. A huge fraction of mail order sales are done on this basis, typically through web sites which purport to be "only a marketplace connecting buyers to sellers"... even though some of those marketplaces also provide warehousing and shipping services to the third party ("only a warehouse" and "only a drop-ship firm")... and even though they are known for selling their own products, and use the smallest text on the page to mention that this particular item is from a third party. Not mentioning any names. This type of "be fully complicit in selling junk, while the seller of record hides behind the Red Curtain and uses arrays of shell companies to limit exposure" has become systemized in much of the mail order world. Another scheme I've seen is to trick American consumers into being the seller of record; these people end up "holding the liability bag", and are typically not insured and not collectible in any practical way. Of course you have lovely companies like Eaton, Midnight Solar, Harsco Rail, Roshel, ILSCO, etc. who will meet GDPR simply because it's the right thing to do, even if they don't have feet on the ground inside the EU or UK against which those governments might action. But nobody asks if they're subject to GDPR, do they? | I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid & Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious. | Yes This statute means that all United States money as identified above is a valid and legal offer of payment for debts when tendered to a creditor. There is, however, no Federal statute mandating that a private business, a person, or an organization must accept currency or coins as payment for goods or services. Private businesses are free to develop their own policies on whether to accept cash unless there is a state law which says otherwise. |
Concealing One's Identity from the Public When Purchasing a Home I have heard, that in the United States, some individuals are able to conceal their identities from the public when purchasing a home by setting up a LLC and buying the house through the said corporation. Is this true? and can someone explain how this might work? Remark: I ask the question, for it seems to me that it should not be difficult to find out who the owner of any given LLC is. | Is this true? Yes. can someone explain how this might work? You can form an LLC, and then fund it with money that would be used to purchase the home, and buy the home in the name of the LLC. One minor exception is that a handful of rural U.S. states prohibit limited liability entities from owning farm land, so if the home is part of a farm or ranch, this could be prohibited in those states. If there is a mortgage, this is more difficult, but not impossibly so. The primary debtor on the mortgage would be the LLC. Ordinarily the owner of the LLC would be required by the bank to guarantee the mortgage, but loan guarantees do not necessarily have to be made a matter of public record. If the LLC has only one member, it is disregarded for income tax purposes, so that isn't a problem. There may be issues in this case of a house not qualifying for residential property tax treatment in some cases (which is often a lower rate than commercial real estate). There is also sometimes an issue that property owned by an LLC isn't eligible for a "homestead exemption" of equity in the home from creditor's claims. It may also be treated differently in terms of eligibility for means-tested benefits like Medicaid nursing home coverage. But, it is allowed. I ask the question, for it seems to me that it should not be difficult to find out who the owner of any given LLC is. In the U.S., the owners of a manager managed LLC are rarely disclosed in the public record (although about half of U.S. states require one or all of the members of a member managed LLC to be disclosed). But all U.S. states allow LLCs to be manager managed. Also, all U.S. states are required as a matter of constitutional law to all LLCs organized in a state other than the state where the LLC owns real property or operates to do business in that state. States can imposed regulations on out of state LLCs to some extent, however. The main exception to these general rules is California. Although the California Articles of Organization do not list the members of the LLC in the Artiles, California requires the LLC to file a Statement of Information within 90 days of the approval of the LLC. The Statement of Information does require a list of the LLC's members, and it does become public record. Records of LLC ownership are maintained in the private internal records of the LLC. A contact person, called a registered agent and sometimes the managers of the LLC with authority to act on its behalf must be publicly disclosed, but neither of these posts has anything to do with ownership. Many states also require the "organizer" of the LLC to be disclosed, but that doesn't have to be an owner of the LLC either. Often it is a lawyer or accountant for the LLC. It will be necessary to disclose the ownership to federal tax officials, and often also to state tax officials. Also, soon, under a newly enacted federal law that has not yet taken effect because regulations have not been written, to federal money laundering officials. But, both of these pieces of information are confidential and not available to the general public. This information can be obtained by subpoena in pertinent litigation, however, must often be disclosed when filing federal lawsuits, and is often required to be disclosed by counter-parties in business transactions. Footnote The U.S. practice is not the global norm. In most civil law countries, for example, ownership interests in entities need to be reflected in a notarized document kept in the custody of the notary involved. In recent times, interests in transparency and avoiding tax evasion and money laundering for terrorism and crime have promoted additional, less decentralized records of entity ownership. | Likely not, unless A finds a jurisdiction with sufficiently lax accounting and taxation standards. As described in the question, A, B, and C are distinct legal entitites. For each entity, the tax office would want to know what the revenue, expenses, and net income are. By providing a service (use of the house) free of charge between two entites of the shell construct, profits are moved from C to A. This is usually illegal. The required paperwork might not have to look like a normal rental contract between a tenant and a landlord, since many questions are resolved by the ownership, but it would have to specify payments. The tax office should complain if they differ too much from the going market rate. Consider that C might be a LLC, and that C might be a civil judgement against C. Someone would look at the assets owned by C, and that includes the house D. | You can hire someone to locate the defendant with the information that you have, or you can apply to a court for permission to serve them with process via "substituted service" because their physical address can't be determined. But, in general, better business practice is to not enter into contracts with people with whom you have more than a name that might be false, and an email address, unless you have some means of non-judicial enforcement of your agreement (like the practical ability to shut down access to an internet subscription). If you don't even know if someone's name is real and have done nothing to confirm that then you also have no assurances that they have any assets from which you could collect if you won a breach of contract lawsuit. If you deal with large numbers of people in low value contracts, it may be worth treating the fact that some contracts are effectively unenforceable as a cost of doing business. But, if a contract is important, it was foolish from a business perspective to rely on a contract on that basis alone, even if it is legal to do so. | 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. | The location of your residence entrance is irrelevant for the law, what matters most is your "street address", i.e. mailing address. That is the address (therefore city) that you use for voter registration, and basically how you identify "where I live". If you lives 5 miles out in the country in an unincorporated area, you'd still use Needles (e.g.) as you mailing address: but you would not be able to vote for a mayor of Needles, just based on your mailing address. Both municipalities might claim jurisdiction based on the physical location of the property, especially for matters of building code. It should not be possible for both municipalities to tax the full value of your property, but they could split the assessment proportionally. The cities themselves are not collecting the tax, the county is (though property straddling a county line raises an interesting question). | Does Amazon prohibit a family of adults from sharing a single Amazon account? No, or at least it seems unlikely. As outlined in my answer & comments on Law Meta, a domestic or family-oriented character is palpable in the clause. That weakens the notion that Amazon's intent is to preclude scenarios which are of a personal-domestic nature and short of commercial/sublicensed use. The language "You are responsible for [...] restricting access to your account" seems more permissive than something akin to "only you are allowed to access your account". The former language is consistent with the term "non-exclusive", which otherwise seems to have no relevance or purpose in the clause. Users' ability (if any) to enter multiple payment methods with different names (i.e., card holder name) could be an additional indication that the scenario you have in mind is acceptable to Amazon. It is easy for a company to implement a validation for the purpose of identifying significant discrepancies of holder names and/or to have the user confirm that all payment methods refer to one same owner. The latter approach is more conclusive for scenarios where a woman has changed names as a result of getting married or divorced. The fact (?) that Amazon declined to include that simple validation weakens the notion that the company is genuinely interested in sticking to a rule of one-person per account. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | The ultimate question is whether an obviously joke enterprise constitutes a real offering of securities or just performance art (a Ponzi scheme is one of many types of securities fraud). An unregistered offering of securities that does not fall within an exception is per se unlawful under federal law, but a security is generally defined as something offered with at least a prospect of making a potential profit for the investor which is not something that is true of this offering. (And if less than $1,000,000 are sold it might even be within an exemption to securities laws). State securities laws are divided into two categories. Most allow any offering of securities so long as proper disclosures are made and the offer is restricted to the right kind of investors. A minority impose substantive quality standards on offerings and this offering might violate the law in those states (although this still would present the question of whether a known money losing opportunity is really a security since there is no evidence of an intent to potentially make a profit from the investment). I do not believe that California imposes substantive quality of investment standards on public or private offerings of securities. Any deal whether or not it is a security is actionable if it is fraudulent. Normally an element of any claim for fraud is justified reliance upon a representation or upon a failure to disclose information. But, in this case, it is hard to see how anyone could say that they were justified in relying on any representation in making a purchase because they were told that they were being cheated. So, it is hard to see how a fraud claim would be sustained here either. I'm not sure that this cleanly falls into the category of gambling either, even though there is money at stake and the outcome isn't entirely certain. This doesn't really seem like a game of chance to me. Indeed, viewed as performance art, this scheme might even be entitled to First Amendment protection. Ultimately, I would not prioritize a civil or criminal action against this enterprise either from the perspective of a private lawyer representing an investor, or from the perspective of a government enforcement authority. And, while I would be a little nervous about running this enterprise, I wouldn't be quaking in my boots. In a civil lawsuit, any award would probably be minimal, and in a criminal case there would probably be an extremely generous plea offered. |
Legal basis for "discretionary spending" vs. "mandatory spending" in the USA 1. "Discretionary" and "mandatory" dollars My general understanding of the federal budget process in the USA is that: discretionary spending must be "appropriated" by the House of Representatives every year, following ideas from Article I Sections 7 or 9 or something. mandatory spending is not subject to this requirement. 2. This Congress can't bind a future Congress (?) However, my layman's understanding of Congress's power also includes the notion that "this Congress can't bind a future Congress". Googling around has provided many instances of politicians and even law professors invoking this notion, but no authoritative source. Some (perhaps only weak) form of this principle must be true; otherwise this Congress could say "no new laws can be passed after 2030 except by a 4/5s majority in Congress" or whatever, effectively stripping future Congresses of all of their power. 3. So, "mandatory" for whom? Thus I think my question is, for whom is the spending "mandatory"? Future Congresses? Could they just do a simple majority vote (assuming the President signs it) to alter "mandatory" spending? If so, is it really "mandatory"? And how would it then substantively differ from "discretionary" spending? Is "mandatory" really just an escape clause from requiring Appropriations by the House of Representatives? | "Mandatory" spending means spending that takes place without passage of a new appropriation bill, but it may still be modified by Congress. The only truly mandatory spending categories that cannot be modified by future Congresses are interest on the national debt and certain multiple year contractual obligations (e.g. for naval ship building contracts). "Discretionary" spending means spending that has to be appropriated each budget cycle. Without affirmative legislation, each budget cycle, it doesn't happen. The distinction is important because the U.S. federal legislative process is frequently gridlocked with divided control with the President's political party (which has veto power), or with a division of partisan control between the two houses of Congress, each of which have veto power over the legislative process. It takes the approval of both houses of Congress and the President to pass legislation except in the case of a rare veto override or a Senate and President approved treaty, which requires a two-thirds majority, and appropriations bills have to start in the U.S. House. If all three are not controlled by the same party, getting legislation passes as is necessary for discretionary spending, is challenging. So the status quo default of mandatory spending is hard to modify. | From the holdings of May 14, 2018 in NJ. v. NCAA, As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the list of conferred powers is the power to issue direct orders to the governments of the States. The federal law in question forbids legislatures from passing certain laws, but PASPA’s anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event. The anti-authorization provision does not constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, supra, at 177, it must be best read as one that regulates private actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors. The Commerce Clause does not enter into the majority opinion, though in Thomas' concurring opinion, he indicates he is not entirely happy with purely in-state applications of the Commerce Clause. But, at present, interstate gambling does not differ. | You are mostly mistaken. Prior to the enactment of the STOCK Act in 2012 (as amended in 2013), insider trading by members of Congress based upon information obtained in their official duties was legal. This is no longer the case, but there is no private cause of action to enforce the STOCK Act. Instead, the principal means by which violations are enforced is via a federal criminal prosecution which is something that the Justice Department is very reluctant to direct at a member of Congress. There are at least two barriers to such prosecutions, in addition to the political issues involved with having an agency prosecute members of the body that funds it and regulates it: To bring a case here, however, federal authorities must overcome two obstacles: the Speech and Debate Clause, and proving “materiality” in novel circumstances. Indeed, the announcement that the authorities have closed their investigations into three senators may show these obstacles already have proven too steep. As a result, it is hard to bring federal criminal cases against members of Congress (or their aides) to enforce the STOCK Act, so it is much more toothless than it seems on the surface. The further fact that a security is structured as an Exchange Traded Fund (ETF), however, is not itself necessarily all that much of a barrier to insider trading criminal liability for members of Congress, beyond the barriers already noted. This is because many ETFs are focused on something less than the total securities market. If a member of Congress, for example, has inside information on something that will impact the entire manufacturing industry, that member of Congress can engaged in insider trading in an ETF pertinent to that industry. Similarly, if a member of Congress gains advanced insight about an imminent war in Latin America, the member of Congress could engage in insider trading in connection with a Latin American securities ETF. There is no requirement that insider trading be restricted to, or focused upon, a single issuer of securities (i.e. it does not have to be limited to stocks or bonds in a single corporation). | The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress. | No, it is not debt and you are not owed any money beyond what Congress decides to give you. Section 1104 of the act says the benefits are what Congress decides to give out. This was challenged in 1960 and upheld. To quote Wikipedia: Ephram Nestor challenged Section 1104 after he was denied Social Security payments as a deported member of the Communist Party. He argued that a contract existed between himself and the United States government, since he had paid into the system for 19 years. ... The Court ruled that no such contract exists, and that there is no contractual right to receive Social Security payments. Payments due under Social Security are not “property” rights and are not protected by the Takings Clause of the Fifth Amendment. The interest of a beneficiary of Social Security is protected only by the Due Process Clause. | Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause | It is common place for major official actions, not just checks but also, for example, governmental buildings, to note the politicians who implemented law or enacted them at the time. This practice is not forbidden by any law or election-related regulation. There is a strong political norm as a matter of political etiquette that checks from the government be signed by a senior official in the Treasury department or a state and local equivalent, such as the Secretary of Treasury, the Comptroller of the Currency, or the Director of the Internal Revenue Service, rather than the President, Governor, or Mayor. But no one would have legal standing to challenge a violation of this political norm in court, because a person receiving a check naming the President as the signer has not suffered an actual injury. |
Can an adult sue someone who violated them as a child? If a 10 year old was violated by two adults around 18 years old then can the victim sue 23 years later? What is the process? Would it, for example, make any difference if the victim is from, say, Morocco now living in France and one of the alleged offenders is in Italy? | That is happening all the time. Accusations of historic child abuse are often made, often investigated, and often punished. Where the victim is from doesn't make a difference in most countries. Most crimes are prosecuted in the country where they happen. Some crimes, especially sexual abuse of children, will often also be prosecuted in the country that the offender is a citizen of, especially if the country where it happened is hesitant to prosecute. In your example, if the abuse happened in Switzerland, Switzerland will try to get the offender extradited from Italy, and will ask witnesses to come to Switzerland to make statements in court. Italy might prosecute the alleged offender if he is Italian, they might even prosecute an Italian resident, but I don't know their laws. | The statute of limitations 775.15(13) extends the period, tolling from the victims 18th birthday per (a), or, without limitation under (c) If the offense is a violation of s. 794.011 and the victim was under 16 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before July 1, 2010. Subsection 2 states the general limitations, which are severity-related: (a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed. (b) A prosecution for any other felony must be commenced within 3 years after it is committed. (c) A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed. (d) A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed. A death-penalty or life-imprisonment offense has no time limit, and some forms of sexual battery do carry those penalties, but not the situation described. There is also a provision (16(a)) for prosecution at any time after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused which we may assume is not applicable in the instant case. We may assume from the description that the violation took place before 2003, and the longest limit (for a first degree felony) is 4 years i.e. 2006. However, subsection (b) states a different complicating factor: If the offense is a first degree felony violation of s. 794.011 and the victim was under 18 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before October 1, 2003. In other words, if it is a first degree felony, then it can be prosecuted anytime (given the presumption that the violation was not before about 1999, which seems to be what you're describing). The age of the parties at the time matters, so I assume the minor was under 16 but above 12, and the adult was over 24. Florida Code 794.011 subsumes all forms of sexual battery, and different sections assign punishments (including death) and degree of felony. Subsection (5) defines the possibly-applicable second-degree felony sexual battery charges, which either involve a victim 18 and over, or a perpetrator under 18, which we assume is not the case here. Under (5)(a): (a) A person 18 years of age or older who commits sexual battery upon a person 12 years of age or older but younger than 18 years of age, without that person’s consent, and in the process does not use physical force and violence likely to cause serious personal injury commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115. It should be mentioned that a minor is legally deemed incapable of giving consent, thus the "without consent" part is true. There is a further wrinkle in the law: (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who: ... (b) Engages in any act with that person while the person is 12 years of age or older but younger than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. If a teacher is "in a position of custodial authority", then that also applies (and constitutes a life felony). This all said, the opinion of the internet seems to be that the limit is 4 years. Either I'm missing something else, or the specifics of the case matter: first degree violation, took place around 2001 which put it within the SOL on October 1, 2003. | The definitive answer to the question "could I be charged" is always YES. I refer you to the Manassas City teen charged with child pornography. Child pornography laws were put in place to protect children and prevent them from being exploited by having sexual pictures of them taken and distributed. In this case, the picture in question is of the young man’s own genitals, which would make him both the perpetrator and the victim. Apparently the lead detective in the Manassas City teen's case was himself a pedophile and just wanted an excuse to use force to photograph the teen's erect penis. Why would you assume this "girl" is a "17 year old girl" or a "15 year old girl" and not a 39 year old pedophile Manassas police officer? | Whether or not one holds the opinion that the adult morally should be prosecuted, there are only two legal questions – can the adult be prosecuted, and must the adult be prosecuted? The easiest question to answer is the "must" one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government can prosecute, if they conclude that the action was not legally justified under §418 of the Crimes Act 1900, as defense of another against a criminal assault. The government won't prosecute if they conclude that such a defense is likely to succeed. | There is a defense of provocation This doesn’t apply in this instance because the provocation must be such that it would case a reasonable person to lose control. No reasonable person shoots a six year old. | Affirmative defenses generally have a subjective or objective factual test for the jury to consider. In this case, the test may be something along the lines of "Given the totality of the circumstances, did the defendant take objectively reasonable precautions to make sure the victim was not underage, or would the defendant in particular have any additional reason to believe the victim was underage despite their precautions." So to answer the original question more specifically, a person could still be guilty of the rape even if the victim took steps to try to trick them if the jury is unconvinced that the defendant acted objectively or subjectively reasonably (depending on the local statutes). A prosecutor could show the jury the fake ID card, for example, and argue that it is obviously fake, or argue that there are other factors that should have led to the defendant knowing that the person was underage - for example, because the defendant has met the victim before and would have known their approximate age. | Etiquette is not "above" the law in the sense that an etiquette rule excuses a violation of law. However, at least in the US, the police are not required to investigate every alleged violation of law, nor is a prosecutor required to proceed against every lawbreaker, and the decision to proceed may be influenced by a perceived etiquette violation. It should also be mentioned that while a third person has no right to prevent you form talking to anyone who is willing to talk to you (unless the 3rd person is the parent of guardian of an underage person you wish to address), it is not in any way illegal to instruct you not to do so, even if the instructions are incorrect as a matter of law. Assaulting you is, of course, a different matter. | The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent. However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act. 1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy. Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.” |
Do these two Microsoft Excel patents prevent anyone from shipping similar features? Considering these two patents describing two features: User defined spreadsheet functions Customizable spreadsheet table styles If anyone were to build some spreadsheet software, what would these entail in terms of restrictions if they would want to develop the same features? Is there a difference between commercial software and open source/free in that case? | If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well. | Before the AIA in 2012 both companies could apply for a patent and if one of the applicants thought they were both trying to patent the same thing they could initiate an interference proceeding. In that proceeding before the board, they each present their evidence as to date of conception and diligent effort from that point to the date of the first filing. The board decided which application went forward. Now the U.S. is with the rest of the world in first-to-file. It doesn’t matter who conceived first unless one actually stole the idea from the other. There is a new derivation procedure to try to prove that. I don’t think it has ever yet happened. One of the "simultaneous" inventors could publish the invention, putting into the public domain. If published before the other's filing date, it would theoretically prevent the other from getting a patent. In any case a patent owner can stop the other from making their product or charge a royalty. There is a narrow case under the AIA where one company has been using a process that another later patents and can retain a limited right to keep using that process but can’t move or expand operations. This is called Prior User Rights. | Person A has to have created the data to hold copyright; for most kinds of data this has no legal effect because facts are not protected by copyright. A mineable database probably does not have the necessary creative elements for copyright. An algorithm is not protected by copyright (it might be patented). Person C's program is copyrighted. The product created by D is probably copyrighted, depending on what degree of creativity is involved in their transformation. If the transformation is automatic then no, but if creative judgments are applied to the output of the program then maybe. Though the resulting product is another database of facts, and the facts cannot be protected. In terms of "using the model", only C and possibly B have any control. If it is necessary to validate the software using A's data and A has kept the data secret, C might negotiate with A to use the data, in order to complete his program, and that could give A some interest in the program. | Copyright doesn't protect methods, only particular fixed expressions. 17 USC 102 Some methods (but not algorithms) may be protected by patent. Diamond v. Diehr 450 U.S. 175 (1981) More exactly, "an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent". However, in Diamond, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to preempt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. Said another way: the algorithm cannot be protected, but if you are using the algorithm as part of a method or process that as a whole is patented, you would be infringing the patent. The paper does not have to disclose the patent - you could email the authors to see if they have any patent that protects any particular methods using the algorithm in the paper, but that doesn't rule out patents that the paper author is unaware of. | The difference between commercial and non-commercial software use is about as clear as it gets, outlined by the definitions in the license above. One makes money, the other doesn't. There is no gray area. Your intent or expectations for a project may seem to alter the difference between the two and add a gray area in your mind, but they don't. Once you are a commercial user, buy a commercial license and/or upgrade the non-commercial license to commercial. That's the legal angle; and what is illegal and what is unethical are not always the same. If you still feel like your intent does make a difference and you feel unethical about using a non-commercial license - because you are building a community and hoping/planning on making money - buy the commercial license to begin with. | Yes, you can. To be precise, I claim that one can take BSD-licensed code and distribute it under the combined terms of both the BSD and the GPL licences. We know that, if I receive someone else's code under a BSD licence, I may redistribute it to you under those same terms. This is common practice, and not (I hope) in any way contentious. We also know that I may not redistribute it to you without the conditions that the BSD licence imposes; that is, I may not place less onerous conditions on you than BSD requires (that is, requiring the inclusion of the original copyright notice, the disclaimer, this list of conditions, and a prohibition on claiming the original author's endorsement on any modified version). So the question becomes whether I can distribute that code whilst adding more onerous terms than the BSD licence itself imposes. It is clear that I can. As the question notes, Microsoft is known to have taken code which it received under a BSD licence and used it in proprietary products. These come with very onerous conditions on the the use, modification, and redistribution of the derived code (usually, they permit one instance of it to be run, and no modifications nor redistributions of any kind). For clarity: if I were to seek from Microsoft permission to modify and/or redistribute the derived code, and they were to grant it, they would not be able to free me from the BSD requirements as they applied to the derived code; I would still need to comply with those. But they are perfectly capable of applying new, onerous requirements of their own. The GPL imposes conditions on redistribution that are more onerous than BSD's, but less onerous than those of most proprietary licences. I am therefore perfectly entitled to receive code under a BSD licence, and - with or without making modifications of my own - redistribute it, adding in the GPL's requirements, if I choose to. If I haven't modified the code, those added requirements are probably pointless; if you don't wish to be bound by them, you will go and get the code from the original author, who presumably will happily distribute it to you under the BSD licence. But if I have modified the code, and you wish to use those modifications, then you will need to abide by the requirements of both the BSD and the GPL licences, since both will apply to this new, combined work (the original code + my changes). | Whether this is considered a trade secret (at least in the US) depends partly on whether you've taken reasonable action to keep it secret. If an employee thought it was OK to publish the algorithm, that's evidence that you didn't try very hard to keep it from getting out. Even if nobody's noticed it yet, getting the blog post taken down in't going to get it off the internet. You may as well try to do it anyway. If nobody has noticed the algorithm by now, you want to make it harder for them to find. You need an IP lawyer pronto. Depending on where you are, you might be able to get a patent on the algorithm still, but patents are hard to enforce, and it appears to be getting harder in the US to patent algorithms. (There's a Stack Exchange site so people can look at patent applications and see if they can invalidate the application with prior art.) You can't license out the algorithm without having some legal way of stopping other places from just using it. If you have more proprietary algorithms or things that aren't generally known that give you a competitive advantage, it would be a good idea to inform employees that they aren't supposed to reveal them. Check with your IP lawyer to see what you should do. | This is unlikely to be a problem. There are many companies that have already registered software-related trademarks prominently involving an X or the name Xcom. That Twitter has changed to X branding does not substantially change this general situation. With trademarks, the general question is whether similar branding causes confusion. It is unlikely that someone would confuse the X display server / X.Org project / X.Org Foundation with the social media service now being branded as X or x.com. Of course, anyone can sue anyone, the real question is whether that's possible successfully. Here, I have my doubts that x.com could successfully demonstrate confusion in its favour. It is worth noting that the X.Org Foundation does not seem to hold any relevant trademark registrations at all. This is not unusual for Open Source software projects and doesn't mean that X.Org has no rights, but does make a defense a bit more difficult. However, there also doesn't seem to be a relevant registration by the ex-Twitter company or by the X Corp. The x.org domain name is unlikely to be threatened. If the x.org domain name was being used in bad faith it could maybe be seized, but the X.Org Foundation has a pretty strong claim on this name. For historical context, both x.com and x.org were among the six single-letter .org/.net/.com domain names when such registrations were stopped in 1993. But while x.com has been pretty much dormant since that company was renamed to PayPal, x.org has (I think) always been associated with the display server software, and has been used continuously by the X.Org Foundation since its establishment in 2004. |
Does the Civil Rights Act prohibit "unnecessary" college degree requirements? Many jobs require applicants to have a college degree, when the skills developed at college are not necessary to do the job, and the degree is not required to be in any particular field. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that: The [Civil Rights] Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if … an employment practice that operates to exclude [a racial minority] cannot be shown to be related to job performance; it is prohibited, notwithstanding the employer's lack of discriminatory intent … The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless they are demonstrably a reasonable measure of job performance. Requiring a college degree seems to operate invidiously to discriminate on the basis of race because there is a significant racial disparity in U.S. educational attainment: It has been argued that Griggs "may have enormously boosted the number of students in college and may have increased the differential in income between high school and college graduates," and "it is not clear that having a college degree requirement is legal under the Griggs standard": Griggs v. Duke Power: Implications for College Credentialing (2008). Griggs was decided more than 50 years ago. Has anyone argued that college degree requirements are racially discriminatory and challenged them on the basis of Griggs? What, if anything, have the courts said about this argument? | Griggs has never been used to invalidate a requirement of a college degree, on that grounds that this has a disproportionate impact. Moreover, this case is barely even still good law, at least according to one thoroughly reasoned U.S. District Court opinion (even though the opinion does cite an unusually large share of dissenting and plurality, but not majority, opinions, and so should be taken with some grain of salt): The requirement of discriminatory intent is plain not merely from the fact that discrimination is an inherently intentional activity, but also from the text of § 2000e–6, which literally speaks of intent and “resistance.” The Attorney General's “reasonable cause” must underlie a belief “that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment” of Title VII rights, “and that the pattern or practice is of such a nature and is intended to deny the full exercise” of such rights. 42 U.S.C. § 2000e–6(a) (emphasis added). The Court is well-aware of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and its progeny, which hold that employers who apply objective, neutral criteria in hiring and promotion may be found guilty of “unintentional discrimination” if such neutral standards have a “disproportionate” impact upon any identified group. The Griggs rationale is inapplicable to the instant case for two reasons. First, the literal text of § 2000e–6 described above, by which this case is brought, clearly mandates discriminatory intent as a required element of the cause of action. Whatever the influence of Griggs might be upon other Title VII actions, the Attorney General is held to this higher standard. Second, the Supreme Court has overruled Griggs sub silentio. The concept of “unintentional discrimination” is logically impossible. Title VII was never intended to require employers to hire by racial, sexual, or other quota applicants who failed to qualify for a job because they could not meet some objective requirement. Indeed, Griggs conflicts directly with § 2000e–2(j), which prohibits imposition of hiring quotas; § 2000e–2(e), which protects bona fide occupational qualifications; § 2000e–2(h), which protects the use of “ability tests” not intended to discriminate unlawfully; and § 2000e–2(l ), which prohibits the alteration of test results or the application of different testing criteria on the basis of race, color, religion, sex or national origin. Subsection (1) was added as recently as 1991, and reflects Congress' frustration with that sort of judicial inversion of Title VII which led Justice Scalia to lament the law was written “[w]ith a clarity which, had it not proved so unavailing, one might well recommend as a model of statutory draftsmanship.” Johnson v. Transp. Agency, Santa Clara Cty., Cal., 480 U.S. 616, 657, 107 S.Ct. 1442, 1465, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting). The Supreme Court has repeatedly refused to extend Griggs' rationale to Equal Protection analysis, holding that discriminatory intent, not disproportionate impact, is necessary to show a denial of Equal Protection. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979); Hernandez v. New York, 500 U.S. 352, 362, 111 S.Ct. 1859, 1867, 114 L.Ed.2d 395 (1991). The Supreme Court likewise rejected the application of Griggs to the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, finding that the Civil Rights Act and the Equal Protection Clause “were all products of the same milieu and were directed against the same evils.” General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Title VII of the Civil Rights Act of 1964 is obviously likewise born of the same environment, directed against further manifestations of the same evils. And in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court held that deprivation of due process under 42 U.S.C. § 1983 must also be intentional. In the landmark case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806, 93 S.Ct. 1817, 1826, 36 L.Ed.2d 668 (1973), the Supreme Court began its retreat from Griggs, holding that “in the absence of proof of pretext or discriminatory application” of a reason proffered to explain a challenged employment act or practice, Griggs is not applicable. As the Court later realized, "Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences." City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 710 n. 20, 98 S.Ct. 1370, 1376 n. 20, 55 L.Ed.2d 657 (1978). Where the Supreme Court has reaffirmed Griggs, it has lately done so only for other purposes, i.e. to extend the disparate impact analysis' requirement that an actual practice be demonstrated to cases targeting subjective application procedures under disparate treatment theory, Watson v. Fort Worth Bank & Trust, supra. Most importantly, however, the Supreme Court has explicitly eviscerated Griggs: "Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The Court proceeded to explain that in Griggs, the employer had a history of overt intentional discrimination. Thus, the ingredient necessary to transform a neutral practice into the “functional equivalent” of a Title VII violation is prior history of overt discrimination. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 309 n. 44, 98 S.Ct. 2733, 2758 n. 44, 57 L.Ed.2d 750 (1978) (plurality opinion). The intent to discriminate may have been demonstrated at some point in the past, but it is nevertheless a required element of all Title VII complaints, including those based on disparate impact theory. Accord Lorance, 490 U.S. at 904–05, 908–09, 109 S.Ct. at 2265, 2267 (discriminatory intent, not mere impact, required to challenge seniority system under Title VII). It can safely be stated that the rule of Griggs now stands as a distinction without a difference. Although popularly derided as a “quota bill,” section 2000e–2(k), setting forth the burden of proof in disparate impact cases, did not negate the element of discriminatory intent. The subsection clearly announces that it is intended to set forth methods for establishing “an unlawful employment practice.” A primary element of “an unlawful employment practice” as described in 42 U.S.C. §§ 2000e–2(a)(1) & (2) is that the act be taken “because of such individual's race, color, religion, sex, or national origin.” (emphasis added). “The words of Title VII are not obscure ... By any normal understanding, the phrase ‘because of’ conveys the idea that the motive in question made a difference to the outcome.” Price Waterhouse v. Hopkins, 490 U.S. 228, 281, 109 S.Ct. 1775, 1807, 104 L.Ed.2d 268 (1989) (Kennedy, J., dissenting). C Apart from the question of whether discriminatory intent must be present in a disparate impact case, the Supreme Court has confirmed time and again that the alleged pattern or practice in a disparate impact case must be an intentional act deliberately engaged. To make a mere prima facie case, the United States must establish that sex discrimination was North Carolina's “standard operating procedure—the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. "The ‘pattern or practice’ language ... was not intended as a term of art, and the words reflect only their usual meaning ... ‘[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature ... The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice.’" Id., at n. 16, quoting Sen. Humphrey. D Of course, plaintiffs must demonstrate not only the existence of an intentional, identifiable “pattern or practice” of resistance which causes the “impact,” but also the nature of the disparity. A disparity can be claimed only by reference to an identified norm from which the disparity is claimed. Without some root foundation for what would be the natural, non-discriminatory result, it is impossible to claim that any state of affairs reflects the “disparate” after-effects of an unlawful act. E Thus, in order to invoke the Court's jurisdiction over an allegation of discrimination based upon disparate impact, there must be some case or controversy surrounding the government's “reasonable belief” that the defendant has: (1) willfully and intentionally engaged in (2) an identifiable pattern or practice of resistance (3) intended to unlawfully discriminate, and (4) that this activity has actually caused an impact which is (5) visibly disparate from what must otherwise be the non-discriminatory norm. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126, quoting with emphasis Watson, 487 U.S. at 997, 108 S.Ct. at 2790. U.S. v. State of N.C., 914 F. Supp. 1257, 1265–67 (E.D.N.C. 1996). | There are exemptions, and "justifications", in 24 CFR 100. The exemption is 100.10: (c) Nothing in this part, other than the prohibitions against discriminatory advertising, applies to: (1) The sale or rental of any single family house by an owner, provided the following conditions are met: (i) The owner does not own or have any interest in more than three single family houses at any one time. (ii) The house is sold or rented without the use of a real estate broker, agent or salesperson or the facilities of any person in the business of selling or renting dwellings. So such a restriction could be allowed if e.g. you live in the house and rent only a few rooms, or a single family home marketed and managed in the right way. There is also an exemption for religious organizations and private clubs allowing rental to members only. 100.500 lays the groundwork for disparate impact hot water. It says: (a) A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin. So only renting to students in a particular seminary would most likely have a disparate impact. There is, however, the possibility of justifying the policy, following 100.500: (b) (1) A legally sufficient justification exists where the challenged practice: (i) Is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3612, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and (ii) Those interests could not be served by another practice that has a less discriminatory effect. (2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in paragraphs (c)(2) and (c)(3) of this section. So let's say that the offended party has made the case that the practice will have a discriminatory effect, then the accused can set forth the aforementioned justification: (c)(2) Once the charging party or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant. (c3)(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect. The crux of the matter is having a "substantial, legitimate nondiscriminatory interest", i.e. why would you want to rent to only seminary students. | Short Answer Can a university continue with their affirmative action program by rejecting all government funding? Yes. The Status Quo There are twenty-two higher educational institutions in the United States that did this prior to the 2023 ruling (in all but one trivial case, in part, in order to affirmatively escape the requirements of Title VI, so that they could discriminate in furtherance of a religious mission). Most of the schools on the list refuse not only federal but also state and local government aid. Specifically, they are: Aletheia Christian College (Idaho) Bethlehem College & Seminary (Minnesota) Boyce College (Kentucky) Christendom College (Virginia) Faith Bible College (Maine) Grove City College (Pennsylvania) Gutenberg College (Oregon) Hildegard College (California) Hillsdale College (Michigan) Mid-America Baptist Theological Seminary (Tennessee) Monticello College (Utah) Mount Liberty College (Utah) New College Franklin (Tennessee) New Saint Andrews College (Idaho) Patrick Henry College (Virginia) Pensacola Christian College (Florida) Principia College (Illinois) Sattler College (Massachusetts) Southern Baptist Theological Seminary (Kentucky) Southwestern Baptist Theological Seminary (Texas) Weimar University (California) Wyoming Catholic College (Wyoming) There used to be more, but most of the hold outs eventually gave in, or ceased to be. Notably, the vast majority of parochial colleges and universities in the U.S. are subject to Title VI because they accept federal funds and federal financial aid. All of them, except Monticello College in Utah, are non-profit colleges or universities with a religious affiliation or mission. Several are partially, or entirely, seminaries devoted to training future clergy. Monticello College has only four teaching faculty (including its President) and two administrators, has no more than 30 students at any one time, was apparently established in 2010, was "for profit" until at least 2019, and is unconventional to the point of barely being recognizable as a conventional institution of higher education, for example, including a substantial manual labor component and teaching courses in blocks of two days to three weeks. Monticello also voluntarily adheres to a non-discrimination policy comparable to the one that applies to Title VI institutions. Only two of them, Grove City College and Hillsdale College, have 1,200 or more students. By comparison, there are 3,982 colleges and universities in the United States, so this is less than 0.6% of U.S. colleges and universities, and a far smaller percentage of U.S. college students as all of these institutions are all small by college and university standards. About half of private non-profit colleges and universities (about 800 of them) have 1,000 or fewer students, so about 2.5% of small private non-profit colleges do not receive federal funding, but only 0.25% of larger private non-profit colleges and universities do. All "for profit" colleges or universities in the U.S. (almost 700 of them) rely upon federal financial aid and/or federal funding. As a practical matter, almost all of the 99.4% of colleges and universities in the U.S. that rely upon federal financial aid and/or federal funding could not sustainably continue to operate with anything close to their current business models without this federal support. They would either have to close, or would have to radically restructure themselves. Non-Title VI Considerations Also, while not quite as stringent as Title VI, the U.S. tax code also denies tax-exempt status to certain non-profits that discriminate based upon race. See 26 U.S.C. § 501(i) (social clubs). Most higher educational institutions are not subject to this requirement directly, but for example, the Rotarians could not do charitable work for a college that discriminated based upon race as interpreted by the 2023 SCOTUS ruling. Additional Considerations Regarding Impact Few private colleges and universities have much of a reason to withdraw from federal funding to allow them to continue affirmative action programs based upon race because not all that many of them have admissions policies which are strongly affected by affirmative action based upon race. Affirmative action really only has a big impact at colleges and universities that are highly selective, like Harvard and the University of North Carolina, whose admissions policies were litigated in the U.S. Supreme Court. But these universities are highly atypical. As noted in a recent article in the New York Times, while Harvard admits just 4% of applicants, and UNC admits 20%, just 6% of U.S. four year college students attend a college with an admissions rate of 25% or less (just 22 colleges and universities admit 10% or fewer of the prospective undergraduate students who apply). Another 10% of U.S. four year college students attend a college with an admissions rate of more than 25% but less than 50%. Meanwhile 56% of U.S. four year college students attend a college that admits at least 75% of its applicants. While the impact of ending affirmative action at highly selective institutions is likely to be significant, this is the exception rather than the rule. The impact of ending affirmative action based upon race in less selective institutions, while not zero, is barely noticeable. The effects of ending race based affirmative action at these school is also much more easily mitigated with race-neutral programs (like preferences for first generation college students, low income college students, or students with high class ranks in high school) with similar effects in student diversity, in less selective institutions, than it is at highly selective colleges and universities. Also, less selective colleges and universities already have a disproportionate share of students who currently tend to benefit from affirmative action as show in the chart from the same New York Times story below: | If it is "sufficiently obvious" that a law is unconstitutional, evidence obtained relying on that law can probably be suppressed. Two important principles help discern the answer to this question: The Constitution prohibits searches that are "unreasonable." The existence of a warrant authorizing a search is strong evidence that a search is reasonable, but the warrant is neither necessary nor sufficient to make a search reasonable. The Exclusionary Rule is designed to do one and only one thing: discourage law enforcement misconduct. Therefore, evidence obtained in reliance on a defective warrant will only be suppressed if it was "objectively unreasonable" for the officer to rely on that warrant. Courts typically find reliance on a warrant to be objectively unreasonable when the warrant was obtained through deception, when it authorizes a search of a person or place with no connection to a crime, or when it fails reasonably describe the person or place to be searched. It is likely also possible to have evidence suppressed because the warrant authorized a search for evidence of the violation of a plainly unconstitutional law. That was the question in Illinois v. Krull, 480 U.S. 340, (1987), where a defendant was prosecuted based on evidence obtained in reliance on a law that was later ruled unconsitutional. The Illinois Supreme Court held that because the law was unconstitutional, the search relying on it was also unconstitutional, and the evidence obtained thereby must be suppressed. But the Supreme Court reversed, holding that the evidence need not be suppressed because "this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable." This suggests that if a statute's unconstitutionality is sufficiently obvious, that an officer seeking evidence in reliance on it would be objectively unreasonable, and that that evidence would therefore be subject to suppression. I don't know of it ever happening, but it's easy enough to make up ridiculous laws that might satisfy this standard. For instance, if Congress passed a law permitting police to write their own warrants to search any mosque at any time, evidence from that search would likely be suppressed. Or if Congress passed a law prohibiting all black women from criticizing the president, evidence that a defendant had violated that law would likely also be suppressed, even if it had been obtained with an otherwise validly issued warrant. Of course, most laws are not as obviously unconstitutional as those, so a challenge on these grounds will likely revolve around what exactly should have alerted a reasonable officer to the statute's consitutional infirmities. Likewise, an officer executing such a search is exposed to Section 1983 liability for an unreasonable search or seizure if his reliance on the warrant is not objectively reasonable. As always, there will be a question of whether the officer is entitled to qualified immunity, but that question will turn as always on whether his violation of the law was clearly established. If he is searching for evidence of black people voting, qualified immunity is going to be a hard sell. If he's searching for evidence that a defendant violated a law in a gray area, qualified immunity may save him. | I have a really good pizza place near my home but the bastards won't deliver when I go interstate! Now, that's discrimination! Yes, it's discrimination. However, it's not unlawful discrimination. Discrimination is not unlawful unless it is on the basis of a protected class. Geography isn't a protected class of itself. It can be if it's used as a proxy for a protected class, such as excluding certain neighbourhoods which correspond with racial or religious groups, but that's not the case here. | Yes! Some states have laws against it. RCW 9A.60.070, for example, makes it a gross misdemeanor in Washington. (2) A person is guilty of knowingly using a false academic credential if the person ... falsely claims to have a credential issued by an institution of higher education that is accredited by an accrediting association recognized as such by rule of the student achievement council: (a) In a written or oral advertisement or other promotion of a business; or (b) With the intent to: (i) Obtain employment; ... (5) Knowingly using a false academic credential is a gross misdemeanor. If a state does not have a law specific to the issue, it depends on whether the statement is made under penalty of perjury under state law. It is not uncommon to have an employment application that asks for educational information and which you sign under penalty of perjury. In addition, if the employer is a federal agency, for example, or if there is otherwise an argument that the resume is within jurisdiction of a branch of the Federal Government, the crime of making false statements could theoretically be used against a person. In reality, in a state without a law specific to this issue, it is much more likely to be a really bad idea that will tank a person's career than it is to result in a criminal charge. Except perhaps if they do it during an FBI investigation or as part of a security clearance process. | In the U.S, at least for some time in our not too distant history, there were a substantial number of jurisdictions that allowed people to "read in" to a law degree, meaning exactly what @cpast said in his comment - that people who were so inclined and with the intellectual aptitude to understand old english common law and modern stare decisis (essentially, appellate precedent), as well as statuary and regulatory texts, could simply study their way to a law degree. It was assumed (quite rightly) that if one could manage to pass a 2-4 day bar examination that they should be considered eligible to apply for a license to practice through admission to the bar just as legitimately as those people who earned their juris doctorate. This is keeping in mind that passing the exam does/did not guarantee licensure/being sworn in, as in depth background checks and ethical fitness analysis are also conducted which form the final determination for fitness to be admitted. California was, for a long while, known as the most challenging state's bar exam to pass. For a long while, it was a true "read in" state, meaning anyone had the right to take the bar exam. Because of this, the California Penal system actually turned out quite a few amazing street-smart criminal lawyers; men, who spent years in prison reading the law, who came out to take and pass the bar exam. It is also true that in CA, as well as other states, conviction of crime (even felonies) does not necessarily mean exclusion from licensure based on failure to pass the background/fitness inquiry (it can, but it isn't automatic if you can establish rehabilitation). Excluding crimes of moral turpitude, such as perjury, embezzlement, certain thefts where a fiduciary duty existed (those were the only crimes that were considered automatically exclusionary), one could be allowed to make a plea of rehabilitation to the Board of Bar Overseers ("BBO"). Crimes that account for the bulk of prison sentences, like aggravated violence, drug dealing/trafficking, etc. are not crimes of moral turpitude. However, there are no longer any states in the U.S. where you can truly "read in" to the law. @Jason Aller is exactly right, that in the early 80's the ABA, as well as the association of accredited legal institutions (not to be robbed of their mortgage of the mind) lobbied and cajoled the practice right away. There are still the states that allow an education of apprenticeship, whereby rather than being self-taught, you are allowed to be mentored by a senior attorney with a certain level of experience, where they would attest that you worked a certain number of hours (usually each week or month – typically something akin to full time) under their tutelage. Each of the states Jason Aller cites has some form of this. After a certain number of years, those individuals are allowed to sit for the bar. However, that does not mean they can be lawyers ... even if they pass. I recently read a journal article discussing how each year more and more states seem to further delimit who can be lawyers, for the sole purpose of not wanting to create too much competition in the profession. Background analysis now puts a great focus on financial responsibility: meaning if one's credit score isn't up to par they can be shut out of the practice because it's argued that if they cannot be financially prudent with their own finances, they cannot be trusted to manage client funds. About a quarter of all people who take the bar on the first shot fail. Those who don't pass by the 3rd try usually never do, and if they do, they are unlikely to practice as they are unlikely to get jobs (unless they hang out a shingle, so to speak). Most states require having graduated from an accredited law school. Massachusetts has at least one unaccredited law school (it was two, but I believe one just got accredited). A grad of that school can only be licensed in MA, nowhere else, except maybe one or two other states. More and more states are also deciding not to let lawyers from other states practice in their jurisdictions by "waiving in", which is where you can pay to get licensed and transfer your scores (instead of experienced lawyers having to take the bar again) from reciprocal states. It is a club where membership is purposely limited and continues to be more and more exclusive (and not in a good way). You can probably see from all these trends that there is a big push to keep people out, for no other reason than fear of competition. If this trend holds, it seems likely that the apprentice's right to "read in" will sooner, rather than later, become altogether a thing of the past too. Law school education is undoubebly valuable in that it teaches you how to learn in a socratic way. It shows you how to spot issues and understand archaic text, and helps you to understand the rules of procedure in a theoretical and comprehensive way. However, for most, what it does not do is teach you how to practice law. When I was in law school, I was lucky enough to go to a school with the choice of a clinical semester or year (I also broke the rules and worked full time as a law clerk, year round, from year one). Many schools had no clinical programs. Students who weren't able to do these things didn't know what a pleading was or how to draft one, had never seen a motion for summary judgment, had no idea how to take or defend a deposition &ndash all things lawyers must be good at doing and that are not taught in law school. At that time, over a decade ago, the machination of legal scholars had contemplated adding yet another year to law school curriculum, to require a clinical year, so that graduates did have a clue what practicing law was all about. Opponents argued that instead the 3L elective year should just be traded from classroom to clinical (rather than adding another year and another 40-70 thousand tuition dollars). Neither side could agree so neither has become the norm. But what has happened since then is that more and more states have limited the right to take the bar exam by right, from having learned the law thru the practice of "reading in", which had already become the highly regulated practice of "documented apprenticeship". My guess would be that those persons who learned by apprenticeship may not be as adept at picking apart cases or legal research as a law school grad (but may be), but they would almost certainly be more informed in the actual practice of law. Here is a fairly comprehensive article about the U.S. states that allow it, and what their rules are for completing the apprenticeship "degree". It cites that of nearly 90k people taking the bar, 60 took this route. From the perspective of a practicing lawyer with what I like to call "a mortgage of the mind", I find this trend pretty disheartening. One shouldn't need to pay a quarter-million dollars to gain the knowledge and right to sit for the bar. | Depends on your definition of "require". In case of at-will employment — where the employer can fire an employee for any or no reason (other than that being discrimination of a member of the protected groups) — it would be perfectly legal for the employer to fire an employee who does not comply with that request. But that aside, no (unless such testing was a term of the employment agreement, be it written or verbal). No party to a contract can require the other party to perform what the contract terms did not include. |
Under what circumstances can a man avoid paying child support for his "stepchildren?" A woman marries, has two children, and gets divorced. She is awarded child support but the first husband is a "deadbeat," and basically doesn't have enough income to pay reasonable child support. The woman remarries, then she and her second husband get divorced. My understanding is that if the second husband adopts the two children, he will be on the hook for child support. But suppose he doesn't. Is the second husband then liable for child support? Are there steps that he can take (e.g. a pre nuptial agreement) to avoid being tagged for child support? Feel free to answer for any state in the U.S., but my two states of greatest interest are New York and California. | My understanding is that if the second husband adopts the two children, he will be on the hook for child support. But suppose he doesn't. Is the second husband then liable for child support? No. The second husband is only liable for child support if he has adopted the children. (Also, many, but not all, states do not allow for stepparent adoption at all, unless the parental rights of a birth parent have been terminated. The question implies that there has not been a termination of parental rights in this case.) In theory, if he sought and been granted significant legally confirmed parenting time of the children (parenting time can be awarded to non-parents who have significant relationships with a child in many states), he could be awarded child support from his ex-wife and their father, but he wouldn't have to pay child support, even then. It is conceivable that the fact that his ex-wife is caring for minor children limits her earning capacity. Her earning capacity could be one factor among many used to determine if alimony will be awarded, and if so, how much, for how long. But, this impact on an alimony award does not mean that it is child support and does not differ in its relevance to an alimony award for many other factors that could impact her earning capacity (e.g. her education, her work experience, any disabilities she has, her age, etc.). It is also possible that temporary family support during the pendency of the divorce case could take into account the ex-wife's need for funds to support her children, even though they are not his children, but again, this is an alimony type decision, which in the temporary while a divorce case is pending category, is driven by actual need in the short term of each spouse while they are reworking their relative finances (much as it might be influenced by the cost an ex-wife incurs to maintain a horse or dog), rather than by the needs of the children in their own right. She might, for example, own the house but have only a small income, but adjusting the situation so that both spouses have sustainable finances after the divorce is what these court cases are all about. | Child support arrangements can be negotiated by the parties, however, approval of the court is required to make them binding. Courts will reject arrangements that deviate too far from what a court would impose. | "Polyamory" is usually used to refer to having more than one romantic relationship at a time, which is pretty unobjectionable as far as the law is concerned. It might get you into trouble in a divorce proceeding, but the laws that still exist addressing it are largely dead letters. I assume you're asking more about polygamy, or having more than one one spouse at a time. I was surprised to learn that there hasn't been much activity in this area since Obergefell, at least not a lot that has led to development of the arguments you're asking for. The most on-point case I can find is Collier v. Fox, No. CV 15-83-BLG-SPW-TJC, 2018 WL 1247411 (D. Mont. Feb. 22, 2018), where a married couple and another woman sued the state because its criminal and civil laws prohibited the second woman from entering into the marriage. The court tossed the challenge to the criminal prohibition based on the parties' standing, saying that there was not a sufficient threat of criminal prosecution, and it dismissed the challenge to the civil restrictions based on Reynolds v. U.S., 98 U.S. 145 (1878), where the Supreme Court said that each state has the right "to determine whether polygamy or monogamy shall be the law of social life under its dominion." There was no appeal, so the decision was never reviewed. The only other case I've seen directly challenging the laws was Sevier v. Thompson, No. 2:16-CV-659-DN-EJF, 2018 WL 1378803 (D. Utah Jan. 26, 2018), where some anti-gay activists tried to overturn Obergefell by suing to force Utah to let one of them marry a computer and three of them marry each other. If you can't guess how this ends, I'll tell you that it does not end well. The plaintiffs all admitted that they didn't actually want the relief they were asking for, so the court threw the case out on standing. The same dude also tried to intervene in a lawsuit (United States v. North Carolina, No. 1:16CV425, 2016 WL 7335627 (M.D.N.C. Dec. 16, 2016)]) over the North Carolina bathroom bill, saying that a man trying to marry a machine or marry multiple people belonged in the same category as a man trying to marry a man or a man who identifies as a woman. I'm sure you won't be surprised to learn that the court told him to go to hell again. Because these were all tossed at the very early stages, there wasn't much development of the arguments for or against polygamy, though it was clear that everyone was basically talking about an extension of Obergefell's recognition that "the right to marry is a fundamental right inherent in the liberty of the person." There have been several scholarly articles, though, addressing the issue. A few that popped up include: A Yale law professor considering whether plural-marriage bans could survive a challenge based on equal protection rather than due process; A Loyola Marymount professor reviewed several post-Obergefell books considering the future of plural marriage and concludes that (1) Western condemnation of plural marriage is strongly informed by racism and xenophobia, (2) legal reactions against plural marriage may do more to harm the people they are meant to protect, and (3) whatever benefits may accompany plural marriage, banning it does not entail the same kinds of harms as bans on gay marriage; and A William & Mary law student published an article running through the different ways a court might analyze the question and argued that Obergefell should generally permit polygamy, regardless of which test a court applies. | Can you always ask for an independent genetic testing when you are asked by the court to support your wife's or your partners children? No. Only sometimes. (Literally, you can always ask, but sometimes the answer will be clearly "no", as a matter of law.) Some presumptions of paternity are conclusive (either immediately or after a statute of limitations to contest paternity expires) and can't be overcome by contrary genetic evidence. Other presumptions of paternity are rebuttable. The specifics vary in important details from state to state. The theory behind the conclusive presumption is primarily that the presumed parent in those circumstances becomes the psychological parent, and it is not in the best interests of the child to dislodge a psychological parent, even if that parent is not a biological parents. Put another way, a conclusive presumption is really part of the definition of what a father is under the law. Several other answers at Law.SE have addressed this in the context of specific U.S. states. An answer here considers California law and another answers the question under New York law. | 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. | It's not possible to marry the US citizen until the first marriage is terminated, and the F-2 status ends when the marriage is terminated. It's not the F-2 status that prevents the marriage to the US citizen; it's the continued existence of the previous marriage. It might be possible to file for change of status (to B-2 perhaps) in anticipation of the termination of the marriage, but it seems unlikely to be accepted by USCIS. It would certainly be unwise to attempt anything like that without the advice of an immigration lawyer. | New Jersey is not a community property state, but it is an equitable distribution state. This means that in a divorce marital property is divided, not automatically 50-50, but in a way that seems financially fair to the supervising judge, or according to an agreement entered into by both spouses. This also means that the state considers a car bought during the course of the marriage "marital property". There are also special rules for property bought before May 28 1980, which do not seem to apply in the case in the question. However, "marital property" mostly applies when a marriage ends which the question says is not in view here. NJ does allow for a car to be titled to only one, or to both. A title with both names may read "John Doe OR Mary Doe" or "John Doe AND Mary Doe". In the AND case both spouses must sign to sell or borrow against the car, in the OR case either signature will do. If only one name is on the title, that person must sign to sell or borrow. If it comes down to a dispute, the person whose name is on the title can decide where it is to be garaged, and who has permission to drive it. If the "sporty" car is in the name of both parents, either could move it to some other location, and either could move it back. Going back and forth could easily get ugly. If both names are on the 'sporty' car's title with an OR, the husband could sell it without consulting the wife. if there is an AND he would need her to agree. If the older car is in the husband's name alone, he could deny the wife or the son the right to drive it. The wife could, of course, buy a different older (used) car and allow the son to use it. Obviously it would be a good idea if the husband and wife came to a voluntary agreement about all this, but no law requires them to do so. | The legal solution is very simple. Under Philippine law (Title 1, Marriage, Article 2) No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. If you do not consent to the marriage during the ceremony, that is the end of the matter, you are not married. You can also refuse to apply for a license under article 11 (which requires your sworn application – refuse to swear). If your are threatened with violence, you can report this threat to the police, since not even your father is allowed to threaten to assault or kill you. |
When does the manufacturer warranty for a car start? When does the manufacturer warranty for a car start? I was told that it starts when the car was built and the built date is considered to be January 1st of the year of the model, so that it would be January 1st 2020 for a Camry 2020. Is this true? I don't wanna sell cars to customers not knowing if the manufacturer warranty is no longer valid and tell them otherwise. | I was told that it starts when the car was built and the built date is considered to be January 1st of the year of the model, so that it would be January 1st 2020 for a Camry 2020. Is this true? No. When does the manufacturer warranty for a car start? The term of a manufacturer's warranty on a new motor vehicle is defined in the written warranty contract that accompanies the sale, but the definitions used are fairly uniform as a matter of industry custom and practice (and influenced by various regulatory requirements). The language defining the warranty term from a warranty for a 2018 Acura (I picked it at random as an example) is pretty typical. It states in the pertinent part: Time and Mileage Period This warranty begins on the date the vehicle is put into use in one of the following ways: • The vehicle is delivered to the first purchaser by an Acura dealer. • The vehicle is leased. • The vehicle is used as a demonstrator or company vehicle. Your vehicle is covered for 4 years or 50,000 miles, whichever comes first. Some parts may have separate coverage under other warranties described in this book. So, suppose that you buy a car with a 4 year/50,000 mile warranty from a dealer on February 14, 2021 when it has 17 miles on the odometer. This warranty expires on February 14, 2025 or when it has 50,018 miles on the odometer, whichever comes first. | Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the the right to an independent judge, as established in Golder v UK, ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves. (The Dutch case confirms that sector-wide arbitration is in fact legal, with regard to a standard arbitration clause commonly used in the Dutch building sector. The arbiter was found to be independent in that case precisely because they weren't picked by the builder involved.) The GDPR is only indirectly relevant, but the fact that it's mentioned does mean that there is an indisputable intent to provide services to EU consumers. (See section 23 of the GDPR, or its national equivalents). As such, you can't hide behind a US business address. If you intend to do business in the EU, it's under EU laws - all of them. You can't say that only the GDPR applies, and not other rules. I'm having a bit of a problem finding a source, but I'm fairly confident that consumers have the right to sue at their own, local court, overruling the default of suing in the court where the counterparty is located. Finally, I have the right under national law (Dutch: BW 6:236 start and sub-n) to strike the arbitration clause up to 30 days after the conflict arises, and demand a court decision. That's not 30 days after I accept the "Public Network Terms", that's 30 days after the arbitration is invoked. Dutch law explicitly allows arbitration abroad, and arbiters may apply foreign law, but as written the arbitration clause has no legal basis in the Netherlands, and any arbitration resolution would therefore not be considered valid. You may wonder if it matters to Stack Exchange that the arbitration decision would not hold in the EU. Well, consider a clause like Indemnification, which demands the user indemnifies Stack Exchange. That's a pretty empty demand if it's not enforceable. | Since there are cases where it is legal to break into a car, is it legal to publish a guide on how to break into a car online? It is legal to publish this guide. Indeed, it is legal to do so even if there are no cases where it is legal to do so. Does it need to have a disclaimer saying to comply with all applicable laws? No. Could the author be held responsible if someone uses the instructions to illegally break into a car? Generally not. I could imagine that there might be some very specific and exceptional fact pattern where it might, but that would be the rare exception. But see man sentenced to twenty-years in prison after pledging support to ISIS and uploading a bomb making video related to that pledge. | English common law has centuries of experience on this issue, and has developed some settled principles that are applied by the courts. Prior to 1925, references in contracts to months were interpreted as lunar months. There are 13 lunar months in a year. By section 61 of the Law of Property Act 1925, references in contracts to months are to be interpreted as calendar months, unless the context otherwise requires. Calendar months are counted from a specified date. It is not necessary to consider the period from the 1st of a month to, say, 31st (unless the notice period starts on 1st of a month). This contrasts with the usual understanding of calendar year, which tends to be thought of as the period from 1st January to 31st December. The “corresponding date rule” requires that one looks at the same date in the diary the relevant number of months ahead. Thus a period of 3 months from 20th April expires on 20th July. In the case of Dodds v Walker [1980] 1 WLR 1061, in the Court of Appeal, Templeman LJ said: "…if an act is authorised to be performed on any arbitrary day in any month of the year, then one month elapses on the corresponding day of the next month, provided that the day of the act itself is excluded from computation." In the same case, in the House of Lords, Lord Diplock said: "The corresponding date rule is simple. It is easy of application. …all that the calculator has to do is make in his diary the corresponding date in the appropriate subsequent month." In the same case, Templeman LJ clarified that if the period expired on a date that did not exist in a particular month (eg 31st February), then the period would expire on the last day of that month. Source | CNBC's explanation is simply wrong. The law says that a vaccine manufacturer is immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued and there was a declaration under subsection (b). This immunity is not conditioned either way by being approved, indeed the declaration states To be a Covered Countermeasure, qualified pandemic or epidemic products or security countermeasures also must be approved or cleared under the FD&C Act; licensed under the PHS Act; or authorized for emergency use under Sections 564, 564A, or 564B of the FD&C Act The liability immunity is not perpetual, the declaration says: Liability immunity for Covered Countermeasures administered and used in accordance with the public health and medical response of the Authority Having Jurisdiction begins with a Declaration and lasts through (1) the final day the emergency Declaration is in effect, or (2) October 1, 2024, whichever occurs first. That doesn't mean that there can't be another declaration in the future. Immunity of a manufacturer to liability is not related to a patient being "covered". There are other ways in which a patient could be "covered". One of them is the Countermeasures Injury Compensation Program and the other is the National Vaccine Injury Compensation Program, which presently redirects you to CICP. | Yes But not because they are mandated, just because your car has one. Because there is one factory fitted and it is a piece of safety equipment anyone you pay to maintain your car would be negligent if they didn’t make sure it’s working. | Although the local mechanic was suggested by you he was paid by the dealer, and hence was acting as the dealer's agent in the repair. If the dealer did not want to accept this then they could have simply insisted on doing the repair themselves. The dealer is responsible for the actions of their agent, and they cannot run out the clock on the warranty simply by failing to repair the fault. You could write to the dealer saying that you will accept their third repair on the understanding that the fault and two attempts to repair it predate the expiration of the warranty and hence you retain the right to return the car if this third attempt at repair does not remedy the problem. Or you could simply insist on returning the car for a refund. If they won't take it, write a letter stating that either they agree to take it back or you will take action in the county court to recover your money. Most businesses will conceed at this point because spending time in court is expensive even if you win. I say "write" because that means they can't deny agreeing later on. You can of course hand them the letter yourself rather than sending it by post. | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. |
Can the permission to implement a specification be restricted? Let's say I invent a new image file format and release the specification to the public. Is it possible to only allow GPL projects to implement this specification? Or is this not possible in the U.S.? (Because the national laws do not allow something like this. To keep it simple let's assume we are in the U.S.) There is a similar question here but it is not the same because it is about a reverse-engineered file format. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. | Yes, you can fork it - but you can’t use it GitHub explain what’s a public deposit with no licence means here. If you find software that doesn’t have a license, that generally means you have no permission from the creators of the software to use, modify, or share the software. Although a code host such as GitHub may allow you to view and fork the code, this does not imply that you are permitted to use, modify, or share the software for any purpose. Your options: Ask the maintainers nicely to add a license. Unless the software includes strong indications to the contrary, lack of a license is probably an oversight. If the software is hosted on a site like GitHub, open an issue requesting a license and include a link to this site. If you’re bold and it’s fairly obvious what license is most appropriate, open a pull request to add a license – see “suggest this license” in the sidebar of the page for each license on this site (e.g., MIT). Don’t use the software. Find or create an alternative that is under an open source license. Negotiate a private license. Bring your lawyer. | Copyright never protects ideas or processes, it only protects expression: words, images, and sounds, some of which may describe ideas. But when a work is nothing more than a translation of an idea into words, with no independent originality -- when almost anyone would use more or less the same way to describe the idea, then the work will not be protected by copyright at all, as it is not considered an "original work". Computer code that implements an algorithm often falls under this rule. It is my belief that the code shown in the linked SE thread would fall under this rule, and would not be protected by copyright at all. If this is correct, then anyone may share such a program with no copyright concern. | It is not necessary to design anything (program design is outside the scope of Law SE, anyhow). It is legal to pay a person to encrypt your drive with BitLocker. It is legal to instruct them, as part of the contract, to not reveal the key to you, until you complete your contractual obligation (paying the fee that constitutes your consideration under the contract). The contract could immunize the encryptor against liability for the drive-owner wising up moments after enter is pressed. | Yes, a work with no license is All Rights Reserved, reserved meaning the creator of the work. Who is the creator of the work ? Everyone who contributed it, unanimously. Yes. If people contributed any copyrightable part of your work, in theory you cannot add any license or grant any right to use/reproduce/whatever the work without their unanimous agreement. That's very cumbersome, and almost nobody really does that, but it's what the law is. Big serious companies and repos require contributors to waive their rights on the code they contribute, by agreeing to a contributor's agreement. For example, python/cpython requires you to give your contribs a license allowing the python org to do essentially what they want with it, even though you retain copyright over them. If your project is not so serious, I suggest it should be enough to make the license clear, and that by contributing people are agreeing to place their contribution's code under the license. If it's a free license, that's all you need. | Ok here is my go at answering my own question: (see comments above & below for links) Depending on what you want to do, GPL can be a bit complicated, with multiple versions, version numbers, and added exceptions over the years. it can be a headache. However, for this purposes of app development incorporating GPL/LGPL libraries, it is fairly straightforward. Keep in mind to check version numbers on all relevant documents, although they are most likely v3.0. As far as I know linking to a GPL library binds you to also releasing your code under GPL. So that is a no-go for closed source, but that brings me to my 1st question. is it legal for me to remain closed source while incorporating external libs that are both BSD and LGPL? and I think the answer to that is yes provided that I dynamically link to said component (.so .dll .dylib .framework). Permission of this is granted under section 4d of LGPL v3.0. d) Do one of the following: 0) Convey the Minimal Corresponding Source under the terms of this License, and the Corresponding Application Code in a form suitable for, and under terms that permit, the user to recombine or relink the Application with a modified version of the Linked Version to produce a modified Combined Work, in the manner specified by section 6 of the GNU GPL for conveying Corresponding Source. 1) Use a suitable shared library mechanism for linking with the Library. A suitable mechanism is one that (a) uses at run time a copy of the Library already present on the user's computer system, and (b) will operate properly with a modified version of the Library that is interface-compatible with the Linked Version. My 2nd question Would it change the ability for me to stay closed source if i were to use an altered version of one of these libraries? It is my interpretation that in this case the only source you would need to provide is that of the modified library, and that the application itself can remain closed source. I'm basing this on grounds that nothing has changed from the situation for my 1st question other than the fact that the modified component library is now a derivative work under standard GPL v3.0. finally my 3rd question what is the legal effect on static vs dynamic linking? This seams to be a bit iffy. Again see section 4d of the LGPL v3.0. By this wording dynamic linking is much preferable, and there are basically no requirements. If you choose to link statically though(in other words as part of the project build) things get complicated. To fully understand see LGPL definition of "Corresponding Application Code", and then see sections 4 5 and 6 of the GPL document. Full source is not required, but as far as i can tell you are required to provide all necessary materials for someone to build the project from scratch, so they can use a different version of the library if they so choose. This, in my opinion, would not be closed source. I hope that is clear enough? I did quite a bit of looking around the internet in coming up with this answer, and in the end even some reading of the license, though I'm not sure I've actually read them through in there entirety. Keep in mind that there are multiple version of each license, and you should check version numbers for each LGPL library you use. There is a lot of good information on on opensource.stackexchange, although much more than one can process in a single sitting, and with occasional disagreement on finer points. Below are some related links. gnu.org/licenses/gpl-3.0.txt gnu.org/licenses/lgpl-3.0.txt copyfree.org/content/standard/licenses/2bsd/license.txt opensource.stackexchange.com/questions/1700/are-derivative-works-a-subset... opensource.stackexchange.com/questions/2772/can-this-nvidia-licence-be-us... opensource.stackexchange.com/questions/2488/do-i-need-to-host-qt-source-w... opensource.stackexchange.com/questions/1431/are-there-examples-of-proprie... opensource.stackexchange.com/questions/5162/are-the-terms-of-lgpl-3-0-alr... | The creative commons licenses explicitly include a paragraph that they cannot be revoked once granted. That is an important concept of all free licenses (CC, but also MIT, Apache etc) Now it's a fact that Flickr (and maybe other sites) do allow changing the license to something less permissive. If you use one of their images, it's really best to keep a proof that it once was available under the CC license you originally got it with. This can be e.g., a screenshot or a link to the wayback machine. Wikimedia commons is often affected by this problem, as people regularly upload files from Flickr (which is absolutely ok, if they have a CC-by-sa or similar license at the time of the upload). Commons has installed a review process for such uploads. Trusted users check that the uploaded files really have the license on Flickr that the uploader declared. If later the license on Flickr is changed by the original owner, the history on Commons is considered to be enough evidence that the license was, in fact, permissive earlier. More about this can be read here. | If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well. |
Explain WARN act compliance after-the-fact? In recent news, a major company (Twitter) abruptly laid off a large number of staff effective immediately, apparently in violation of the Federal WARN Act and the similar California-specific act, which requires 60-day notice for significant layoffs. Then, in an apparent effort to comply with the act retroactively, the company announced that now-former-employees would continue to be paid and receive benefits for 60-days (but would still be locked out of company resources, and not actually "working" for the company). Is there a basis or precedent for this? It seems to me that the WARN violation already occurred, and attempts to retroactively address it with a re-branded severance package should be futile. But it also seems incredible that such a large company, presumably with an well-staffed legal department could make such an unforced error. Is there legal nuance here that I'm missing? | The US Department of Labor Employer's Guide to Advance Notice of Closings and Layoffs states Can I pay my workers their salary and benefits for 60 days in lieu of notice? Neither the Act nor the regulations recognize the concept of pay in lieu of notice. WARN requires notice, making no provision for any alternative. Failure to give notice does a significant disservice to workers and undermines other services that are part of the purpose of the WARN Act. However, since WARN provides that the maximum employer liability for damages, including back pay and benefits, is for the period of violation up to 60 days, providing your employees with full pay and benefits for the 60-day period effectively precludes any relief. (emphasis mine) So from the Federal perspective, so-called pay in lieu is technically against the WARN act, but no penalty may occur. Note that payment in lieu is not unique to this situation at all. For regulated high-trust industries, such as banking and aviation, pay in lieu is basically required due to the risk of employee sabotage. | Typically in defamation law, claims made persuiant to litigation are not defamatory, since they are going to be tested for validity if the case goes to trial. I'm not familiar with any differences in what is generally done in settlements between the U.K. and the U.S., but since both are Common Law countries, and Settlements are very common in civil proceedings in the U.S., it's a good start. Generally a settlemant can occur anytime before the verdict of the case is rendered, although usually it will happen after preliminary hearings during the Discovery phase. In the U.S., Discovery is very broad and one need not prove that the requested items contain evidence but might contain evidence. This means that, for example, you could request a substantial amount of e-mail records from the opposing party because somewhere on the company e-mail server, there might be something to help your case. And even if after you sift through the emails and find no smoking guns related to your case, you could find some dirty laundry that's unrelated but still damning... if not more so than the initial case. Many people, especially big compainies, would rather just give the ex-employee some what he/she wants, if it means they don't get to see the proverbial man behind the curtain. Additionally the practice might fall into a legally gray area of the law that, if it reaches trial, could hurt the company or even the industry if a judge rules against the company, effectively saying that this gray area is now definately illegal. Better to eat the loss of capital with the settling out of court than to take the much larger hit of the buisness practice being illegalized all together. Typically in settlements, both parties agree to terms and sign a contract. While the whole of the terms are never discussed, almost all include that the plaintiff will drop the case and never bring the matter to court again and that both parties will sign a non-disclosure agreement (NDA) meaning that they won't discuss the rest of the settlement terms with anyone not party to them. If the plaintiff does break the NDA, the defendant can sue for breech of contract and recover at the least the monitary compensation they awarded in the settlement. Conversely, if the respondent breaks the NDA, the plaintiff can refile their initial suit with the addition of breech of contract (and this time it will get to court... and all the dirty laundry sees the harsh light of day.). While the respondent in a settled case can possibly sue for defamation if the plaintiff said the respondent did what the initial suit claimed they did (legally, it was never proven or disproven), or they were guilty (again, since no verdict was reached at trial, no guilt was established), the breech of contract is a much more airtight case and doesn't open up discovery to the respondent's cupability in the settled case (since the breech is about discussing the settled case at all, not the validity of the accusations of the settled case). Typically they would not go this route because then it opens the can of worms the settlement was trying to keep a lid on. | Quitting before the start date: is the non compete enforceable? The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause. The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later. Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade. | The relevant legislation is the Employment Act 1996, but in plainer language ACAS describe that they can make deductions for the following reasons: the employee's contract specifically allows the deduction it was agreed in writing beforehand they overpaid the employee by mistake it’s required by law, for example Income Tax or a court order the employee missed work because you were on strike or taking industrial action The first two provide pretty wide latitude into what they can make deductions for so long as it's in the contract/a written agreement The employer can't make deductions that would result in your wage dropping below minimum wage except in the following circumstances: tax or National Insurance something the employee has done which their contract says they’re liable for, such as damage to a vehicle through reckless driving repayment of a loan or advance wages an overpayment made to the employee made by mistake buying shares, other securities or share options in the business accommodation provided to the employee – find out more about accommodation deductions on GOV.UK something the employee uses – for example union subscriptions or pension contributions I'm not sure if it matters whether the employer is a private individual or a company Nope - for these purposes an employer is an employer To look at your specific examples: but assume that the employee is not doing a very good job No.. incompetence can get you sacked or fired - but it can't get your wages docked. At least not unless there was some performance-related-pay element to your wages already in the contract. But that would be difficult, it would have to be quantifiable. There's a reason why such structures typically have a base salary with performance-related elements paid as bonuses, because it's easier to simply not pay extra if thresholds aren't met than it is to deduct from a base wage. snoozing on the job Again not unless that was specified in advance - and that would be an oddly specific thing to include. Most likely they'd just get fired, in the majority of employment scenarios taking unauthorized sleeps on the job is going into Gross Negligence territory if there's a pattern. taking personal phone calls Taking personal calls is something that's more likely to be covered by a contract or company policy - but again it's more likely to lead to disciplinary action or sacking than wages being docked. You'd have to get into measuring how much time was lost in order to dock the appropriate amount etc. late into work You'd think this would be a slam dunk - you're late and therefore not meeting your contractual obligations. But in reality the same requirements as above apply - there needs to be explicit agreement in advance of the deduction in either your contract or other written consent for an employer to dock wages. It's probably more common than the other examples for such a provision to exist, but it still needs to be there. | we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early & unilateral termination to be an option, it would have to be provided in the terms of the contract itself. | If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand. | The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime. | They can ask, but there is nothing in law - that I can find - which obligates an answer. (There may be some exceptions that require a previous employer to provide a reference which might include this detail, but that does not appear relevant here.) As an aside, there is an ongoing #EndSalaryHistory campaign by the Fawcett Society which is focused on equal pay and sexual equality in the workplace, and they are calling on employers to: stop asking salary history questions... |
What is the history of minors being unable to bind themselves to contracts? What was the first jurisdiction that had special rules for contracts to which a person under a certain age is a party? How did the modern concept that people under 18 can back out of contracts except those for essential products or services develop in English common law? | This was at least a feature of Athenian law. In the Aristarchus of Isaeus (early 4th century BC), it is recorded that "the law expressly forbids any child—or woman—to contract for the disposal of more than a bushel of barley". This is a sufficiently ancient and transmissible principle of law that there well may have been Egyptian and Sumerian analogs. You might get the details that you seek by focusing on medieval English common law. | Contracts that violate local law are void in just about every jurisdiction, as are contracts against clearly defined public policy. In many cases, laws are specifically designed to restrict otherwise valid contracts; for instance, in the US, an employment contract that pays less than $7.25 an hour will normally be invalid, even if the company and the employee both agree to the reduced wage. In employment law, where contracts are fairly common, the laws would be virtually meaningless if contracts took precedence. In the case of independent contractor status vs. employee status, California law does not consider someone to be an independent contractor just because their contract says so. "Independent contractor" is defined in California law to be any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished. (California Labor Code, section 3353) If this definition isn't satisfied, it's irrelevant what the parties agree the status is; it's not an independent contractor status. According to the state department of labor, the test is that found in Borello v. Dept. of Industrial Relations (a California Supreme Court case), which lays out a multifactor test for contractor status and says that The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. Likewise, with product liability, a country can generally have laws mandating liability for people providing a product or service; the extent to which this happens depends on the jurisdiction. For instance, India may not want a big company like Uber to be able to block liability claims by putting some legalese in front of average consumers who aren't able to make a detailed risk-benefit analysis. Alternatively, India could decide that Uber is better able to take the risk from bad drivers than average consumers are, so the right policy is to assign the risk to Uber. Whether Uber should be able to avoid liability is something that every country can decide for itself based on public policy considerations; the point is that if they do decide that Uber should be liable for damages, their law trumps Uber's contract. Uber actually tries to limit liability in their EULA, and to avoid an employer-employee relationship in their driver agreement. Their US EULA and driver agreement says they aren't a transportation provider and you aren't getting transportation from them, and even if you are they aren't liable for damages. However, if that provision violates the law in some state, the provision is invalid. Likewise, if they claim it's not an employment contract but it meets the "employee" definition in some state, it's an employment contract. | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). | I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question. | 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. | tl;dr It seems like a bad idea. Massachusetts's statutes don't seem to expressly prohibit it—and I didn't find any Massachusetts cases where the registered agent's age was at issue. But registered agents have some fiduciary duties, and the agent has to have the capacity to receive all forms of legal process. Some possible roadblocks are: "minor" is a broad term that courts don't seem to have interpreted in the context of registered agents, and each form of legal process sets its own requirements. Background First, the term "minor" encompasses extremes: a 1 year old doesn't have the capacity to receive and forward legal process to the intended party, but a 16 year old might. Some jurisdictions recognize a "suitable age and discretion" rule, though it hasn't been extended to the context of registered agents. See, e.g., Fed. R. of Civ. Proc. 4(e)(2)(B). Massachusetts isn't one of those jurisdictions. See Mass. R. Civ. Pro. 4(d)(1). In the broader law of agency, minors do have the capacity to serve as "agents"—though their ability to affect the legal relations of the principal is limited. For example, the enforceability of minors' contracts is an issue, and minors can't enter into durable powers of attorney or serve as trustees. See Restatement (Third) of Agency § 3.04. The problems associated with appointing a minor as an agent in Massachusetts are longstanding. In Commonwealth v. O'Leary, 143 Mass. 95 (1886), a mother had her minor daughter enter into a contract of sale for alcohol for the mother's use. While the court recognized the daughter as the mother's agent, it still characterized the transaction as an illegal sale "to" a minor. In the case of a registered agent, the primary action Massachusetts expects of the agent is the receipt and forwarding of the principal's legal correspondence. Courts have found that this creates a fiduciary duty on the registered agent's part. See Int'l Envtl. Mgmt. v. United Corporate Servs., 858 F.3d 1121 (8th Cir. 2017). This makes sense because the service of process satisfies constitutional requirements embodied in the Due Process clause. So in predicting whether a court would extend the "suitable age and discretion" rule to registered agents (or even needs to), it would likely consider that the agent has fiduciary duties, albeit more limited than those of a typical trustee. Second, Mass. Gen. Laws ch. 156B § 49 governs corporations and requires that the agent be capable of receiving "all lawful processes in any action or proceeding". When the agent is an individual (as opposed to a company), that person must be a resident of Massachusetts and have a "business address in the commonwealth". Mass. Gen. Laws 156C § 5 governs the process for LLCs, and Mass Gen. Laws 156D § 15.07 details it for non-Massachusetts companies. Massachusetts's statutes don't expressly prohibit minors from serving as registered agents, but the agent must have the capacity to receive all forms of lawful process. Thus if some lawful process requires delivery to an adult, the minor wouldn't be capable of receiving it. | 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). | So far as I can see, no US law required an airline to demand written parental consent for a passenger aged 17 in 2004, nor does any law requires such consent now. A passport could probably have been required. Minors in general may make and enforce contracts, including those for purchase of travel services. Parental consent is only required for a few specific activities, and air travel does not seem to be one. The question asks "Was I liable at 17 or 18...?" Liable for what? There is no liability unless there is wrongdoing or negligence or at least harm to someone. I don't see what there was to be liable for here, so there is no reason to try to determine who was liable. Had a law been violated, it would make sense to ask who was criminally responsible, but apparently none was. If no one was harmed there is no civil liability. I am not clear why the OP thinks there was a legal problem. Nothing in the question indicates that there would have been. |
Are witnesses allowed to give private testimonies? Alice's grandpa Greg is on trial. Alice's testimony is crucial to get Greg convicted. But, for some reason or another, Alice doesn't want to appear in court as a witness in front of Greg to badmouth him. Is Alice allowed to give private testimony to the jury/judge without Greg finding out about it? If you want a bunch of example reasons for Alice to want to do so: She loves her grandpa and doesn't want to badmouth him to his face. She feels threatened by her grandpa and wants to remain anonymous to him while still giving testimony. She was raped by grandpa Greg and can't mentally bear to even look at him. As a follow-up question, does Alice electing for some sort of "private" testimony weaken the case against Greg in any way? | united-states The Sixth Amendment gives a defendant in a criminal case the right to “confront one’s accuser”, and the Supreme Court has taken a notably originalist view of this right, holding that this means face-to-face cross examination under virtually all circumstances. While there are some small exceptions related to minors and to witnesses who became unavoidably absent after giving a sworn statement (none of which could apply to Alice), and while the Supreme Court hasn’t explicitly ruled out cross examination over videoconference, the idea of anonymous testimony in a criminal case is unthinkable. Part of an effective cross examination is arguing why the witness’s testimony might be unreliable, and a defendant who didn’t know whose testimony it was would be hamstrung at that. | He was indicted on many charges including 1st degree rape. So your question is why the jury returned the specific verdict, and did not convict on all charges. There is no record of the jury deliberations, so the best we can conjecture is that they didn't find the other charges to have been proven, and in lieu of a tell-tale juror, we can't know what evidence persuaded the jury. He was convicted on counts of criminal sexual assault in the first degree and rape in the third degree, but acquitted of two counts of predatory sexual assault, and it is suggested by media who make suggestions that this is because the jury did not believe the testimony of Annabella Sciorra. The crime of third degree rape (the charge involving Jessica Mann) is when a person engages in nonconsensual sex with another person. The crime of first degree rape, a charge that he was acquitted on, is when a person subjects a victim to nonconsensual intercourse through forcible compulsion, or when they are incapable of consent by reason of being physically helpless. A person is guilty of a criminal sexual act in the first degree if they engage in oral or anal sex with someone who is incapable of consent, or if they use forcible compulsion. The statutes are here, §130.00 ff. | united-states Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay). A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies. A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased. A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. "on which day of the week did you beat your wife?"). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer. | 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. | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | if the witness ends up being not favorable to your case, then you can have the judge declare him to be a "hostile" witness, therefore allowing you to ask leading questions. This is not really accurate. A typically case where a witness would be called a "hostile witness" for leading question purposes would be a case where the plaintiff calls the defendant or someone closely affiliated with the defendant as a witness. The nature of the relationship and not the actual content of the testimony determines if someone is a hostile witness. Neutral third parties are not "hostile witnesses" for this purpose even if their testimony if not favorable to your case. The relevant Colorado Rule of Evidence which tracks the federal rule which is the model for the vast majority of states describes the rule as follows: RULE 611 Mode and Order of Interrogation and Presentation (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. 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. A typical, run of the mill, example of a hostile witness who is not necessarily an adverse party or strictly identified with an adverse party would be the uncle of a criminal defendant, called by the prosecution, who is appearing to testify by subpoena because he was unwilling to testify voluntarily. See, e.g., Vigil v. People, 415 P.2d 863, 864 (Colo. 1966). Before the Federal Rules of Evidence were adopted, a variety of precise relationships to a defendant that would qualify you as a hostile witness were set out by rule or statute, and the Federal Rules of Evidence liberalized the practice of examining hostile witnesses with leading questions by making it a general standard, rather than a more detailed rule. | It is somewhat understated, because your silence can also be used against you. In Salinas v. Texas, defendant Salinas was "just talking" to police, not in custody, and his silence (as opposed to shock and outrage) at the question of whether shell casings found at the crime scene would match his shotgun. This "adoptive admission" was introduced as evidence against him. In order to prevent your silence from being used against you, you must invoke the 5th amendment. There are two exceptions to the rule that you must invoke the 5th to be protected by it. First, a criminal defendant need not take the stand and assert the privilege at their own trial. Second, a witness’s failure to invoke the privilege must be excused where governmental coercion makes their forfeiture of the privilege involuntary (Miranda). In lieu of coercion, you must preface your silence with an invocation of your 5th amendment rights. | Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked & answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false & misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness. |
Would it be illegal for me to act as a “Civillian Traffic Enforcer”? I witnessed a silver Mustang full throttle from an intersection today and was wishing there was something i could do. (Or, substitute some other clear traffic infraction or dangerous driving — whatever premise is needed to make this question sensible.) Theoretically, with a dashcam record as evidence, would it be illegal for me to give chase and attempt to get the driver to stop, place him under civil detainment, and call a local or state enforcement officer? | While local law varies, most jurisdictions do not authorize citizens' arrests for traffic violations. Generally, citizens arrests are authorized only for misdemeanors and felonies outside the traffic code. Indeed, there are many traffic offenses for which law enforcement is authorized only to stop a violator and issue a ticket, but not even law enforcement is authorized to actually arrest someone. And there is no such thing as a citizen's citation or ticket. Citizens arrests also usually require that the citizen witnessed the crime in progress, but that requirement would be met in this case. If the case had been a hit and run, however, a citizens' arrest probably would have been legally authorized, although the wiser course of action would still be to call the police and to follow the offender at a safe distance. | What, if any, is the tolerance built into speed limits in India? None in statute (that I can find), but the police may have an informal policy1 to allow for other factors like inaccuracies in one's speedometer and misreading the needle due to parallax. 1The one I am aware of is "10% +2" where, say, anyone going over 35mph on a 30mph road gets a ticket etc | The situation in Texas is complicated. Driving faster than the posted maximum speed limit is not in and of itself a crime; rather, per Texas Transportation Code 545.352(a), it is prima facie evidence that the speed is a violation of 545.351(a): "An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing". It is theoretically possible to defeat a speeding ticket by demonstrating that the speed was, in fact, reasonable and prudent. Texas also has a law regarding minimum speed, 545.363(a): "An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law". Since the speed limit is not a hard limit, the "compliance with law" clause does not protect you. If you get rear-ended while driving slower than the flow of traffic, your best defense is probably 545.351(b)(2): "An operator...shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care". The question in court becomes your claim that driving slowly constituted "due care" versus the other driver's claim that their speed was "reasonable and prudent". It's likely that you'll win, but it's not the slam-dunk case that it would be in a state where posted speed limits were hard restrictions. | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | You are completely in the wrong. It is against the law to operate a motor vehicle without a license. It is against the law to have a motor vehicle that is not insured. It is against the law to violate the conditions of your probation which almost certainly provide that you are not allowed to operate a motor vehicle until your license is reinstated and you have insurance in force. Your personal belief that you didn't break the law is not a valid reason not to pay a fine on a ticket that is ratified by a court. The cop was right when he told you that you were crazy. | The problem with these situations is that you don't get to choose how it goes once it's in the hands of law enforcement. Possible scenarios on bringing a complaint to police or prosecutors: "So you guys had a dispute, but everyone's OK now. We're not pursuing this; we have more important things to do." "Hmm ... that could have gotten ugly. We'll do an investigation and check the records of both you and the bus driver to see if either of you have any priors." "We're trying to make this a more bike-friendly city. And we're cracking down on CDLs especially. Thanks, we'll investigate that driver." "Thanks for the evidence. You're going to get charged with criminal mischief, and the bus driver is going to get charged with assault." Of course, you could also send a complaint to the bus company. They are (hopefully) more likely to worry about what their drivers are doing. The DoT is also concerned with CDL safety, so you can file a complaint with the FMCSA NCCDB. | 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. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. |
What is the authoritative version of the Constitution? Is there a single authoritative copy of the Constitution, i.e. if it contradicted every other copy, it would prevail in a court? For the original articles, the original copy would be the obvious choice, but it doesn't include amendments. | The Constitution of the United States: Analysis and Interpretation, also called the "Constitution Annotated", is the constitution of record: the only constitutional law treatise formally authorized by federal law, the Constitution Annotated functions as the official Constitution of record What version is authoritative can be meaningful. See William W. Van Alstyne, "A Constitutional Conundrum of Second Amendment Commas". And although phoog and I have provided different answers, I think we are both correct. The text as shown in the Constitution Annotated is what is universally accepted as the version to quote from in judicial submissions and reasons. But it's because it has drawn from the version in phoog's answer. Basically, the document in the archives is authoritative, but there is no need for writers and judges to go look at that when they are quoting, because the Constitution Annotated is deemed to have replicated that content faithfully. | 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. | The Supreme Court generally treats the Copyright Clause and the First Amendment as complementary, not conflicting: The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper Row observed: "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Eldred v. Ashcroft, 537 U.S. 186, 219 (2003). Although the Court didn't remark on it, this treatment is also consistent with the canon called generalia specialibus non derogant, "the ancient interpretive principle that the specific governs the general." Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 21 (2012). Here, the First Amendment supplies a rule that Congress may not abridge the freedom of press generally, but the Copyright Clause supplies a rule allowing Congress to abridge the right to use specific writings. The Copyright Clause is more specific, so it creates an exception to the First Amendment's general rule. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause | So my understanding is that the phrase "common law" can refer to either the concept of laws established by court precedent or it can refer to a specific body of laws that have been established that way. Yes. Should I just be inferring that from context? Yes. Is there a single body of "common law"? No. Are there distinct bodies of "U.K. common law" and "U.S. common law" for example? Yes, furthermore there is different common law in England/Wales, Northern Ireland & Scotland and each state of the US. Further, Scotland and Louisiana are not straightforward common law jurisdictions but rather a blend of common and civil law. If so, how are they related? They are related in that they all: have a common source, middle English common law evolve in the same way - judges interpreting the current common law and the statutes of the legislature follow an appeals system through higher levels of courts. They do not all go in the same direction though. Do judges in common law countries cite court decisions in other common law countries? Sometimes; it depends on the "distance" of the other jurisdiction. A judge in New South Wales is quite likely to consider how judges in Queensland and Victoria have considered similar laws, less likely to look at the UK and Canada and extremely unlikely to look at the USA. This has a lot to do with how far back it is since the "last common ancestor" of the law; the longer the corpus of law has been separated the more likely that the principles have diverged, partly this is cultural drift but mostly this is differences in statutes that actively modify the common law. Usually, jurisdictions within the same country are quite close to each other; partly due to common culture but often because of a genuine effort to "harmonise" laws across borders. There are occasions, however, where legislatures "steal" laws from other jurisdictions, in which case they often look to each other for early development of common law on those laws. For example, the Alberta (Canada) Builder's Lien Act 2000 and the NSW (Australia) Building and Construction Industry Security of Payment Act 1999 both address the same "wrong" and both had a common and parallel genesis pre-enactment; early cases in each jurisdiction were watched by the other. | Facts are not subject to copyright. Only a specific expression of a fact. When you describe a fact in your own words, then you are the sole copyright owner of that description, no matter who taught you that fact. But keep in mind that in the world of academia it is customary to always state your sources. But that's not a legal requirement. That's a topic for Academia Stack Exchange. | Note the following argument: the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarize, “a single state cannot use its power to derail the functioning of the United States.” (Amar is a Yale constitutional law professor, Kalt, his student) On the other hand, you have the argument by a Hofstra constitutional law professor that the 25th amendment can be applied when the President is occupied with a criminal case, ergo, the functioning of the United States can be carried on unimpared. At the end-of-the-day there is no absolute answer as it is still being argued academically and has never been specifically settled by the courts. | This is an important question that affects consumer advocacy, blog-based-journalism, political speech and spending, and probably other things. People disagree about what the answer is. This podcast episode features both sides of the argument. Professor Volokh holds the view that the freedom of the press is "freedom to print", "freedom to use the printing press". Freedom of the press is the freedom of everybody to use the printing press. Assessing the grammar of the clause, he argues that this points in the same direction. The text says "freedom of speech or of the press". He points out that speech is not a group of people. It would be odd to treat "speech" as an activity, but to treat "press" as a group of people given the parallel construction. This side of the argument is described more in this article by Prof. Volokh. Professor West argues that there is a defined group of people called "the press" that deserves protection under this clause. This article explains Prof. West's position in detail. The main point is that "An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause." If "press" means simply the right to publish speech, then it becomes redundant because courts have held the right to publish speech is given under that "speech" portion of the clause. Justice Stevens's concurrence in Citizens United also argued for "some kinds of identity-based distinctions" regarding whether a person is a member of the press. Each side can give examples of the term "the press" being used at the time of the First Amendment that is consistent with their favored interpretation. I think to get the best idea of the two sides to this question, you should read Citizens United (including all dissents and concurrences), read the two articles linked above, and listen to the podcast episode. |
Does Vermont require inspections of vehicles operated on private land? I am considering where I want to move after leaving college, and one of the front runners has been Vermont, until I found that they have annual inspections of motor vehicles. The main reason this matters to me is that I wish to tinker with different sorts of vehicles and engines on my property, and I am concerned that the state government will infringe on my ability to do so. Is my concern warranted? | 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. | I'm not a lawyer; I'm not your lawyer. Victoria The Road Safety Act 1986 (Vic) s 73A makes the obstruction of the operation of a safety camera or speed detector an offence. It is likely that the obstruction of a mobile speed camera would fall within this offence. The law does not restrict the operation of the device to police, and so it may not be relevant whether the car was marked or not. New South Wales Certainly, the obstruction of an authorised officer is an offense as per the Roads Act 1993 (NSW) s 240 and the Road Transport Act 2013 (NSW) s 173 Obviously these apply to NSW and Victoria only; I haven't researched the other states yet. It's possible, though not definite, that other states will have similar laws. It is also likely, though not definite, that people who attempt to obstruct it may be charged with obstruction of traffic in some way, as most states require you to not obstruct the normal passage of traffic unreasonably. (eg Road Obstruction (Special Provisions) Act 1979 (NSW) s 4) | Since there is no search or seizure involved in having a driver's license, requiring a person to update their address is not a violation of the 4th Amendment. It is also not "testifying against oneself in a criminal case", so it does not violate the 5th. As has been repeated many times, driving is a privilege and not a right, meaning that there is no fundamental constitutional right to drive. Strict scrutiny would not render the requirement to have a license unconstitutional, and it certainly would not invalidate the requirement to give a correct address and update that address as necessary. There may be issues regarding a requirement to produce identification, but there is no legal precedent for the idea that an ID law law and a federal "must show" statute would violate the 4th (that is not to say that the courts could not find there is such a basis if the question arises, but it has not yet been found). Since there is no national ID law, one can only conjecture what the outcome of judicial review would be, but if such a law survived strict scrutiny, it would be inconceivable that a portion of the law requiring you to keep your address current would fail such scrutiny. A curiosity search would still be barred. | Since no jurisdiction is specified, I decided to search in maryland in the united-states As far as I can tell, there is no state or federal law which prohibits a private individual from owning a decommissioned military tank. Most public highways and roads have weight limits, and many tanks would exceed them. Most tanks, or at least most older tanks, are not in any case "street legal" not having required headlights, brake lights, air bags, and other safety devices. Treads must be modified to avoid road damage. None of this would be relevant if the tank was kept on private land and not used on public roads or streets. If somehow the main gun or a mounted machine gun were still in place, and not disabled, permits would be required that are almost impossible to obtain. Specifically: "State Laws and Published Ordinances – Maryland Statutes current through chapter 18 of the 2020 session lists Code section 4-401 which provides that: (c) Machine gun. "Machine gun" means a loaded or unloaded weapon that is capable of automatically discharging more than one shot or bullet from a magazine by a single function of the firing device. Section 4-402: (a) Evidence of possession. The presence of a machine gun in a room, boat, or vehicle is evidence of the possession or use of the machine gun by each person occupying the room, boat, or vehicle. ... (c) Registration of possession. (1) A person who acquires a machine gun shall register the machine gun with the Secretary of State Police: (i) within 24 hours after acquiring the machine gun; and (ii) in each succeeding year during the month of May. Section 4-501 (b) Destructive device. (1) "Destructive device" means explosive material, incendiary material, or toxic material that is: (i) combined with a delivery or detonating apparatus so as to be capable of inflicting injury to persons or damage to property; or (ii) deliberately modified, containerized, or otherwise equipped with a special delivery, activation, or detonation component that gives the material destructive characteristics of a military ordnance. (2) "Destructive device" includes a bomb, grenade, mine, shell, missile, flamethrower, poison gas, Molotov cocktail, pipe bomb, and petroleum-soaked ammonium nitrate Section 4-503 (a) Prohibited. A person may not knowingly: (1) manufacture, transport, possess, control, store, sell, distribute, or use a destructive device; or (2) possess explosive material, incendiary material, or toxic material with intent to create a destructive device. | This an instance of the general rule ignorantia legis neminem excusat: ignorance of the law is no excuse. If the municipal ordinances state that a particular place does not allow parking at certain times, then if you park there you have violated the law and will get ticketed. There is no requirement that there be signs prominently posted saying that you must obey the law in this particular location. A law might itself require there to be postings, for example speed limit law pertaining to school zones typically are stated in terms of "posted" boundaries. Assuming that the ordinance doesn't have such a "as posted" requirement, you have no legal leg to stand on, and the burden must be shifted to your political leg. If, for example, you were in Pennsylvania, 75 PaCSA 3353(d) permits local parking ordinances: The department on State-designated highways and local authorities on any highway within their boundaries may by erection of official traffic-control devices prohibit, limit or restrict stopping, standing or parking of vehicles on any highway where engineering and traffic studies indicate that stopping, standing or parking would constitute a safety hazard or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic. Signs are kinds of traffic control devices. Since PA does not statutorily prohibit overnight parking, any local restrictions on overnight parking would require signage. Thus restriction such as this one that "The following vehicles shall not be parked between 9:00 p.m. and 6:00 a.m. on the streets...", applying to commercial vehicles among others, would require a sign. That borough has an interesting ordinance stating that In the event of a conflict between the Codified Ordinances of the Borough of Lansdale and the provisions set forth in the Pennsylvania Motor Vehicle Code at 75 Pa.C.S.A. §§ 3351 through 3354, as amended from time to time, the provisions of the Codified Ordinances of the Borough of Lansdale shall control. Generally speaking, local ordinances are subordinate to state law, so this provision is legally questionable (although: the borough does not actually deny the signage requirement, so technically this is not a conflict, it is just ignoring state law – if there is no signage). The borough could of course argue that they were unaware of the state requirement to post no-parking signs, but ignorantia legis neminem excusat. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | Let's deal with the somewhat misguided notion of "public space": what it means and what it doesn't: "publicly owned" is not equivalent to "public space" - No 10 Downing Street is "publicly owned"; it is not "public space". "privately owned" can be "public space" - the publically accessible parts of shopping malls are privately owned public spaces. "public space" does not mean you have unconditional access. Access may be limited or subject to restrictions placed on it by whoever has lawful authority over it. For example, the aforementioned shopping mall is not public when the mall is closed, roads may be closed for maintenance, street festivities or emergencies etc. So, people with legal authority over the space can restrict or ban your access if, for example, you repeatedly flaunt the rules that they impose on the space. Their private security can request that you leave. If you refuse, you are trespassing and subject to arrest, either by security as a citizens arrest or by the police. | If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per RCW 11.08.140 it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has the duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears. Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under ORC 2105.07, the prosecuting attorney of the county in which letters of administration are granted upon such estate shall collect and pay it over to the county treasurer. Such estate shall be applied exclusively to the support of the common schools of the county in which collected. |
How is the quality of an expert witness judged? When bringing in an expert to testify something, obviously that expert doesn't have to bring in their resume and go through 3 rounds of interviewing with every member of the jury, as if they were trying to get hired at Apple. So what is stopping someone from bringing Dr. SnakeOil from Scam College in as their expert witness to testify something? As a simple example, even chiropractors are controversial in the medical field. If Charlie the Chiropractor comes in and says the defendant's back was in too much pain for him to jump out the window, is that word allowed in the courtroom as expert testimony? Or, as a more extreme example, is Wally the Witchdoctor allowed to come in and say the same thing? Ideally, one would have Sam the Stanford M.D. make the statement, of course. Basically, what is the standard of quality for an expert witness, or are juror's/judges supposed to make up their own minds based on short descriptions (e.g. they graduated from Harvard, they've treated 1000 patients, etc.)? But that also seemingly leads to problems. Not everyone will know that UCSF is the best medical school in the world (I'm showing my personal bias here xP), or that Donda academy isn't accredited, etc.. | canada Qualifed expert Experts do have to essentially "bring in their resume." For example, in Ontario, an expert's report must outline "the expert’s qualifications and employment and educational experiences in his or her area of expertise." Rules of Civil Procedure, 53.03. An expert must "have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify." R. v. Mohan, [1994] 2 S.C.R. 9. The risks The Supreme Court has recognized (Mohan): There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. ... The cases address a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination; the risk of admitting “junk science”; and the risk that a “contest of experts” distracts rather than assists the trier of fact. Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money. [Citations removed] The gatekeeping role of the judge The judge is tasked with a "gatekeeping role": "the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks." The judge is to compare the potential value of the expert evidence with its potential risks. In doing so, the judge looks at (R. v. J.-L.J., 2000 SCC 51): the subject matter whether this is a scientific question whether the expert evidence is on the ultimate issue before the court whether the evidence would be precluded by another exclusionary rule whether the expert is properly qualified the relevance of the evidence the necessity of the evidence If the question is a scientific question, Canada has adopted an approach similar to that used in the United States that asks (R. v. J.‑L.J., 2000 SCC 51; R. v. Trochym, 2007 SCC 6): whether the theory or technique can be and has been tested whether the theory or technique has been subjected to peer review and publication the known or potential rate of error or the existence of standards whether the theory or technique used has been generally accepted Evidence admitted is not evidence accepted If the judge is of the view that the expert evidence is admissible, then it is up to the opposing side to introduce competing evidence regarding the question at issue (even using their own experts) and can cross-examine the expert on their qualifications or the scientific bases for their opinions. | In the United States, different jurisdictions have different rules about what topics may be addressed in cross examination. In the federal courts, Fed. R. Evid. 611 generally discourages cross examination on matters not addressed in the direct examination, although it also permits questions on "matters affecting the witness’s credibility." So if a witness is asked on direct examination only about whether A stopped at the intersection before B crashed into him, the cross examination probably shouldn't go into questions about how severe the injuries were, what the weather conditions were, etc. But the court should allow cross-examination on whether the witness is the plaintiff's sister, or whether the witness was previously convicted of perjury. (Despite the rule, the court has a great deal of latitude as to how to handle these questions, practically speaking.) In the state courts, the rules may be different. In Ohio, for instance, Rule 611 is roughly identical, except that it generally allows questions on "all relevant matters." So now the questions about the weather and injuries are fair game, along with the questions about the witness's credibility. In any event, the questions will remain subject to the other rules of evidence, so questions about sexual history might be excluded by the rape shield, and questions about irrelevant matters should be prohibited, as well. | One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination. The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant. When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness. Imagine the following interaction: Defendant: I have a spotless driving record. Prosecutor: Are you saying you've never been issued a traffic ticket? Defendant: Um, Uh, well... When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror. By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant. | 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. | First, while Law and Order should not be taken as an accurate depiction of a New York trial, it especially should not be taken as an accurate depiction of an Australian trial. Australian law, while it has some major similarities with US law (both ultimately derive from the law of England), is not US law. With procedural matters (such as "may jurors ask questions of witnesses"), it can potentially differ from court to court. In general, jurors may not simply ask a witness a question. The jury's job is not to investigate and figure out if the defendant was guilty or not; it's to evaluate the cases presented by each side. US (and Australian, as far as I know) courts use what's known as the adversarial model, where the prosecution and the defense both present the best cases they can and a neutral third party decides which case was stronger. In a US criminal trial, the state is expected to justify why someone should be in jail; the jury shouldn't be helping them justify it. This isn't how all jurisdictions around the world work, but it's how the US does. One concern with juror questions is that it has the risk that the juror will not be impartial. Jurors are not supposed to get into arguments with witnesses, or to go after them to try to prove a point. In your case, the juror might be introducing an entirely different line of reasoning from the one either side is presenting, and that's simply not their job. People have raised the concern that a juror thinking up questions might be deciding the case before they hear all the evidence, and might give too much weight to the answers to their own questions (or read a lot into it if a question is denied). There are also rules on what questions may be legally asked; lawyers know these and jurors generally don't, which is why jurors may almost never directly ask a question to a witness. Where they can ask questions, it's virtually always written questions, which the judge reviews, gives to both sides to see if anyone objects, and then reads to the witness in a neutral tone. | It doesn't really require anything beyond your say-so that it is what you say it is; that would be enough to satisfy the requirement for authentication. From there though, as with any evidence, it's going to be up to a jury to decide how much weight to give the evidence. So the more you can show them to prove that the record is real -- and to knock down any questions the opposing party will raise -- the more likely they are to believe it. So if you just bring a printout that looks like it could easily have been forged, the jury may be thinking about that. If you can bring in a data forensics expert to say the document couldn't have been faked, that's probably going to help. Addendum: As a practical matter, I wouldn't expect this to be much of an issue. Unless you're dealing with a savvy opposing party, the authenticity of e-mails seems to be generally assumed. Courts (1) generally assume that parties aren't perpetrating frauds; and (2) are generally run by judges with little to no technical savvy, who don't realize that one could forge an e-mail, let alone all the different ways it could be done. I've personally entered countless e-mail printouts without them being questioned, even though either party could have just gone down into the e-mail thread and changed what the other side had said earlier in the conversation. To avoid the issue, though, it might be that sending the e-mail to a Gmail account would elimimate the question. | united-states Witnesses are generally confined to giving testimony from their own personal memory; most of the time, they can't read a statement into the record or just tell the jury to go look at some other piece of evidence. But this creates problems when a witness knows an important fact but doesn't remember it when she takes the stand. Maybe she counted exactly how much money she stuffed in the robber's bag as she was doing it, and she wrote it down as soon as he fled, but a year later, she can't remember that it was $93,736.45. But the prosecutor isn't allowed to just give the witness a stack of evidence and let her go hunting through the documents to answer each question. Instead,he goes through the "Do you remember" colloquy to lay the necessary foundation to refresh the witness's memory, as contemplated by Rule 612, which then also triggers certain rights for the opposing party with respect to the document used to refresh the witness's memory. | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. |
Why was the house of lords seen to have such supreme legal wisdom as to be designated as the court of last resort in the UK? Indeed their judgements seemed often to be quite sage, insightful, and eloquently given. But why would that tend to be the case? As I understand it, to become a lord, one must inherit a seat through the noble peerage; the House of Lords is not elected. Thus, while they will be likely to nearly all possess some substantial degree of education, class, and culture, it seems as though there is hardly anything to guarantee that any of them, much less any definite subset, will have had any particular degree of legal training. Where did they used to derive their legal wisdoms from? I suppose I am missing to an extent the fact that they are after all along with the House of Commons the very ones who devised most legislation in the UK to begin with, so that they can be nearly guaranteed to understand it and to accurately divine its true original intent. | The origin of Parliament was from the curia regis, the King's Court. In that early form, the King's Court exercised both judicial and legislative functions. In 1215, with the Magna Carta and the beginning of Parliaments, the House of Lords assumed the judicial functions of the King's Court. Prior to 1876, it was possible for any member of the House of Lords to hear appeals. Eventually, however, the judicial function tended to be exercised by those appointed specifically to judicial office in the House of Lords, although this was not a formal restriction until 1876. Since 1876 and until 2009, the judicial function of the House of Lords was formally restricted to be exercised by the Law Lords (see s. 5 of the Appellate Jurisdiction Act 1876). However, the outcome of the appeal was also still formally an action of the entire House of Lords, on the recommendation of the panel of Law Lords that heard the appeal (see Stanley Clark, "Gentlemen, Their Lordships", p. 1443-44). And custom was that only the Law Lords that heard the appeal would vote, with all other members of the House of Lords abstaining.1 Rather than lords via hereditary peerage, the Law Lords were Lords/Ladies holding special qualifications and having received specific appointment to be a "Lord of Appeal in Ordinary." Among other qualifications, they would have already served in a high court or practised as a barrister for fifteen years. As an example of the kind of background a person might have before appointment as a Law Lord, this is Lord Denning's Wikipedia introduction: He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when he was appointed to the Probate, Divorce and Admiralty Division of the High Court of Justice, and transferred to the King's Bench Division in 1945. He was made a Lord Justice of Appeal in 1948 after less than five years in the High Court. He became a Lord of Appeal in Ordinary in 1957 and after five years in the House of Lords returned to the Court of Appeal as Master of the Rolls in 1962, a position he held for twenty years. In 2009, the judicial function of the House of Lords was transfered to the UK Supreme Court. The Law Lords at the time became the first justices of the UK Supreme Court. 1. Citation practice is to indicate that a judgment is from the House of Lords by using parentheses after identifying the reporter. E.g.: "Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25 (H.L.)." Starting in 2001, the House of Lords used vendor-neutral citations managed by the British and Irish Legal Information Institute. The vendor-neutral citations for judgments from the House of Lords use "UKHL" as the abbreviation. BAILII has also provided many older judgments from the House of Lords with unofficial neutral citations following the same convention. | SCOTUS blog regularly does posts on that kind of topic (see, e.g., their Stat Pack) and if you looked at their sources or the authors of those posts, you could probably easily find more. There are people who do that and make their findings publicly available, but I don't know them off hand. | "Ignorance of the law" refers to a (non)-defense for committing a crime ("I didn't know it was against the law"). In this case, the government hasn't passed a law saying that "the term 'simple majority' shall always be defined as..." – there is no law saying that "simple majority means more than half of the total number of votes". Instead, terms are generally given their "common meaning". A reasonable case can be made that the common meaning of "majority" is "more that any other choice", and one can point to ample evidence showing that, such as this. However, one can also argue that extra weight should be given to to specialized definitions appearing in The Standard Code of Parliamentary Procedure or Robert's Rules of Order (or other such document), in support of a competing definition of "simple majority". Both sides will need to provide evidence that supports their interpretation of the phrase, based on external sources (parliamentary handbooks, dictionaries, and so on), as arguments for a particular interpretation of the term. The courts will be most impressed by evidence pertaining to the behavior of the parties, so that if everybody agrees that they understood "simple majority" to be "the choice with the most votes", then that is how the term will be interpreted. | One direct statement about this is in White v. Tommey [1853] 10 E.R. 483, in which the House of Lords had to consider whether to allow a rehearing of a case which they had previously decided, on the basis that there had been misrepresentation the first time round which affected their judgement. The Lord Chancellor, Lord Cranworth, said: What ought your Lordships to do in this state of things? It was pressed very strongly on the part of Tommey by his counsel, that your Lordships in truth have no jurisdiction; that after a matter has once been heard and adjudicated upon in this ultimate Court of appeal, there is an end of it, that there must be an end somewhere, and that if it can be said that the trustees can be heard now to come and call in question the decree of 1850, what is to prevent Mr. Tommey coming afterwards, in 1860, and praying your Lordships to reconsider it again, and so toties quoties to the very end of time? In this case, the Lords sent the case back to the Court of Chancery in Ireland, setting aside their earlier orders relating to the appeal. This did not amount to a rehearing of the merits in the House of Lords, but their correction of a mistake in the proceedings and restoring the status quo ante. In an earlier case, Stewart v. Agnew [1823] 1 Shaw 413, another Lord Chancellor, Lord Eldon, observed: It is infinitely better that the matter should be here finally decided upon one hearing, even if the decision is wrong, than that there should be a new litigation unknown to our proceedings, as to this matter of rehearing; - nor can any one say where it is to stop. In general, it is to be hoped that the decisions of this House are right; but, whether right or wrong, it has been taken for granted that considerations of infinitely greater moment than the considerations which arise out of the particular mischief in particular cases, have led this House to determine, that where a matter has been heard between parties at the Bar, and the House has given its decision upon the merits discussed by those parties, the House will not rehear the cause. | Basically, it is a historical accident with a healthy mix of partisan politics thrown into the mix. The history is recounted here. Circuits were much less important until the intermediate U.S. Court of Appeals for the various circuits were created by Congress, in the Judiciary Act of 1891, commonly known as the Evarts Act, established nine courts of appeals, one for each judicial circuit at the time. Before that time, circuits were simply an administrative tool of the U.S. Supreme Court for assigning work loads of justices assigned to tasks in connection with these circuits, which was adjusted from time to time with the 9th Circuit being the last one to be created in the pre-intermediate appellate court era. The Tenth Circuit was established on February 28, 1929, under Tenth Circuit Reorganization Act of 1929, which broke the then-Eighth Circuit into the Eighth Circuit and the Tenth Circuit. The circuits have generally have had three or more states, have not split any states, and have been contiguous. As new states were admitted this ended up leaving lots of states in the 9th Circuit and there was no where else to add Hawaii and Alaska. Reassigning a state from the 9th Circuit to an existing circuit is complicated because it leaves open the question of which circuits precedents to turn to for pre-split law. If one turns to the new circuit's pre-reassignment case law, the law in the reassigned states suddenly changes on a variety of issues upon which people have acted in reliance on the old law. If one turns to the old circuit's pre-reassignment case law, then the case law is not uniform for all states in the circuit. Politically, splitting up the 9th Circuit has been discussed seriously many times, but there has not been a political consensus around a particular proposal to do it. The fact that the 9th Circuit has quite a few states in it really isn't the main issue. The issue is that it has a huge number of cases relative to the other circuits. As a result, a split is justified by the sound non-partisan reason that it is much larger in terms of caseload than any other circuit giving it more judges, twenty-nine, than any other circuit, and limiting the effectiveness of its en banc review process which doesn't include all sitting judges to resolve intra-circuit concerns about a three judge appeal panel's resolution of a case. The conservative states whose politicians want out of the left leaning 9th Circuit don't have enough population, collectively, to justify a circuit of their own, and wouldn't be fully contiguous, which makes their politically driven split proposals problematic. Arizona, Idaho, Montana and Alaska would like to be in a more conservative circuit. Hawaii, Washington State, Oregon, and California, are by and large, content to be in a liberal leaning circuit. Nevada is relatively ambivalent, but it is convenient for it to be in the same circuit as California because the two states have so many economic ties with each other that sharing the same body of federal precedent is convenient. Guam and the Marianas Islands, which are U.S. territories in the 9th Circuit, don't really have a say in the matter. California is also so dominant in terms of case load, that a California plus one or more states solution for one of the resulting circuits in a split, with the remaining states in another circuit, leaves the circuit with California in it overloaded and too large, while the remaining states in the other circuit with too small of a docket. More than 50 percent of the Ninth Circuit caseload comes from the Central District of California. This is more than the caseload of some other entire U.S. Court of Appeals circuits. California as a whole accounts for about 63% of the 9th Circuit's work (about 18 judges worth), and about 13% of the number of appeals lodged nationwide. The First Circuit, which includes Maine, New Hampshire, Massachussetts, Rhode Island and Connecticut, is the smallest of the U.S. Court of Appeals Circuits which manages with just six judges, about half as many as are necessary to consider appeals from the Central District of California alone. | The law does have examples They are called “judgements” Every case decided by a court is an example, in common law jurisdictions at least. When those cases are decided by an superior court they become precedents - binding “examples” on courts in their hierarchy and persuasive “examples” on other courts. When you go to a lawyer for advice, she doesn’t just parrot back the statute, she looks at the precedents and decides whether the case decided by the House of Lords in 1848 or the High Court of Australia in 1912 more closely matches your situation. Also, statute law often has examples written into them Statues exist in hierarchies, Constitution, Acts, Regulations, Departmental Policies etc. and the lower you go the more specific the law is and the more likely it is to have examples. For example, this answer I wrote for another question quotes examples from the new-south-wales Evidence Act. | The legal system advances practitioners on a number of criteria, not all of which relate to their legal education. It's essentially the same for all professions - your schooling/education may or may not determine your success in the field. Also relevant would be the social circles you navigate, your achievements post-education, and so on. | Because the courts or the legislature decide they have them There is no doubt that both the courts and the legislature in common law countries have the ability to find, create, or extend rights and this has been done in the past. This is, in fact, where legal rights were created. The US Bill of Rights was created by the people in 1791. If the people in 2191 want to grant rights to AIs then they can do this. This is legally possible. Whether it's a good idea is a matter of philosophy and politics. |
Are jurors allowed to disquallify each other? Say Mike the Murderer is on trial and there's no doubt he's the murderer. 12 jurors meet. All of them think he's obviously guilty, except for one David the dissenter. Is there any way the other 11 jurors can stop David from hanging the court? In particular, in the case that David is a bad-acting juror. For example David brags to the other jurors that he wants Mike the Murderer to go free because he's sexy David says he hates the other jurors and is hanging the jury to spite them This is just one example of the broader question of if jurors are allowed to disqualify each other. One final example I want to give is: what if it so happens that two people on the jury are boss Bob and employee Emma? Emma has every reason not to stand up against boss Bob during jury deliberation. What are Emma and Bob supposed to do in this case? And what about the other 10 jurors, if this comes to light? | Jurors cannot directly disqualify each other. However, they can inform the trial judge if they have reason to believe that one of their peers should be discharged. The judge will then allow the lawyers for both sides to ask the juror questions before deciding to dismiss them. In some jurisdictions, the judge may be required to hold a hearing to examine the evidence. Jurors may also be charged with contempt of court for interfering with a defendant's right to a fair trial, and could be disqualified from jury service in the future. Your examples of juror misconduct point at bias or refusal to deliberate, e.g. when the juror has made up their mind ahead of time (but not because they are using faulty logic). Depending on the jurisdiction, the trial may continue with a smaller jury. In some jurisdictions, the judge will have to declare a mistrial if no replacement juror can be found. See: Juror misconduct | Not generally. While double jeopardy considerations does not apply in Canada until the final verdict (i.e. all appeal processes have been exhausted by decision or failure to appeal within the time limit), the right to a jury trial for serious offences, both under the Constitution Act, 1982 (or the Charter, its bill of rights Part) and the Criminal Code (section 471, which not only makes the jury trial a right, but also the compulsory mode of trial unless both prosecutor and the accused consent), exist. Under common law principles, the jury's verdict, in the fact-finding role exclusive to the jury, is almost sacrosanct. Even if in Canada an appeal court can set aside a jury's verdict of acquittal or conviction, they may only do so if there is a reviewable legal error (for appeals from the Crown and the accused), or if the verdict of conviction is plainly unreasonable and cannot be supported by evidence (or otherwise may constitute a miscarriage of justice). In the first case, the reasoning is that the jury's verdict was defective due to e.g. insufficient or wrongful instructions, seeing evidences that should not have been admitted or failure to see evidences that should have been admitted. In the second case, the appeal court acts as a safeguard, much like in the U.S., for the accused to prevent wrongful convictions however it may occur. Even then, the appeal court cannot in essence conduct a new trial from the appeal records and substitute its own factual findings for those made by a jury, unless it finds that no properly instructed jury can reasonably convict the accused based on the evidences presented (R. v. W.H.). Now going back to what the trial judge can do after a jury's verdict. The proper course of action in case where the Crown's case cannot support a conviction is for the accused to seek a directed verdict before presenting any evidence. If the judge grants the motion, the judge (not the jury) enters a verdict of acquittal, which can be appealed for errors of law. Otherwise, the trial judge has no capacity to usurp the fact finding role of the jury. The judge can, however, in exceptional circumstances, declare a mistrial or stay of the proceedings (i.e. the proceeding is concluded without a verdict, due to e.g. abuse of process by the state or other considerations to preserve the integrity of the justice system) following the jury's verdict. All most all cases on this issue followed a verdict of conviction. In one unusual case (R. v. Burke), a verdict of "acquittal" was involved. The verdict is in quotes because in this case, the court recorded a verdict of acquittal apparently contrary to the jury's intention, as the jury foreman had coughed before pronouncing "guilty as charged" and the judge (along with the court reporter, the prosecutor and the defence lawyer) misheard "not guilty as charged". After seeing the accused in the parking lot, some jury members were confused and returned to the court and reported the error. However, not all jury members could be immediately contacted and the jury had only reconvened in the court with the accused a couple days after the original verdict, and after some newspapers had reported on the situation. The trial judge decided to enter the intended verdict of "guilty". The accused appealed and the Supreme Court decided in this particular case that: the trial judge can nonetheless exercise a limited jurisdiction after the jury's discharge; the judge could enter the intended verdict if it did not give rise to a reasonable apprehension of bias; in this case, due to the media reports and relatively long delay between the original verdict and the reconvening of the jury, which may have improperly influenced the jury, a mistrial should have been the appropriate remedy instead of entering the intended verdict. On the appropriateness of a mistrial, the Supreme Court said In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy. This case does not directly apply to a case where the jury intended an acquittal, but the considerations may still be applied in extremely limited circumstances. While no one but the jury is privy to their deliberation process and no judge can overturn a jury's acquittal because they think the jury's verdict is unreasonable, it could be imagined that, for example, if a jury reports an acquittal and a member of jury before being discharged makes a claim of jury intimidation or the Crown presents clear evidence of jury manipulation, the trial judge might still have the authority to declare a mistrial. But this has not been clarified in jurisprudence. | 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. | Generally speaking, jury trials in England and Wales are allowed (but can be waived by a defendant in most cases) for offenses punishable by more than six months of incarceration (i.e. serious misdemeanors and all felonies), with exceptions for domestic violence cases, serious and complex fraud cases, Diplock courts in Northern Ireland prior to 2008, cases where there is a serious risk of jury tampering, and in cases where double jeopardy defenses are at issue. It appears that jury trials are mandatory, however, and cannot be waived by defendants, in some serious criminal cases. (Historically, trial by jury was suspended in most cases during World War II.) English law enforcement officials can also detain people without trial for limited periods of time (generally up to 28 days prior to 2011 and now 14 days) without criminal charges in terrorism cases. This detention without trial procedure was instituted at the same time that the Diplock court system was shut down. (Courts-martial present another issue entirely.) Diplock courts were instituted out of concerns about jury nullification and jury tampering, and the latter concern remains an all purpose reason to deny a jury trial in a particular criminal case. Importantly, since 1967, juries in England and Wales need not be unanimous. Up to 2 dissenting votes are allowed on a jury of 12 and up to 1 dissenting vote is allowed on juries with 8 to 11 members remaining at the time of deliberations. The failure of up to three jurors on a jury of twelve (used in the Crown and High Courts) to complete the trial is allowed without a substitute and up to 1 juror who doesn't complete a trial is allowed in a jury of eight in County Court. From the first link above: A coroner must summon a jury for an inquest if the death occurred in prison or in police custody, or in the execution of a police officer's duty, or if it falls under the Health and Safety at Work etc. Act 1974, or if it affects public health or safety. Coroner's juries have 7-11 members and a minority report of 2 members of that jury can be its verdict. In civil cases, juries are used in eminent domain valuation cases, where the judge might be seen as having a conflict of interest. Further, as explained in the first link above, they are also used as follows: In 1998 less than 1% of civil trials in England and Wales were jury trials and these were principally defamation cases. Section 69 of the Senior Courts Act 1981, which replaced s. 6 of the 1933 Act in respect of High Court trials, provides that trial shall be by jury on the application of a party where the court is satisfied that there is in issue: a claim of fraud against the party; or a claim in respect of libel, slander, malicious prosecution or false imprisonment unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. FYI, Scottish practice with regard to jury trials is completely distinct from the practice in England, Wales and Northern Ireland and is beyond the scope of this answer. Both the size and process of the jury, and its availability are different in Scotland. | Typically at trial, the "Trier(s) of Fact" (usually the Jury, unless the defendant requests a bench trier, then it's the judge) will have instructions from the "Trier of Law" (always the Judge) that will allow them to find guilt for "Lesser and Included Charges". For example, in the U.S., unjustified homicide (legal definition used for manslaughter and murder) comes in three broad types: 1st Degree Murder, 2nd Degree Murder, and Manslaughter (ordered from worst to lesser offense). All the elements to convict on Manslaughter exist in 2nd degree murder, and all elements to convict on 2nd degree murder exist in 1st degree murder. This means that a jury can be given the option that if they don't think the evidence supports a 1st degree charge, they can see if it supports a 2nd degree or Manslaughter. However, they can only convict on the charge or the the most serious "Lesser and Included" charges. They cannot find guilt for all three for the same offense. This is not in violation of double-jeopardy as this is all presented at the same trial. Double-Jeopardy attaches once the jury is fully selected. If the jury acquits, the prosecutor cannot try for a lesser charge. They have one shot. The only time that you can be tried for the same crime a second time is if you are acquitted and it turns out that you were acquitted because the "trier of fact" was corruptly influenced by you or people acting on your direction to find you not guilty (the idea being since the fix was in, you were never in jeopardy to begin with). In all of American Law, this has happened exactly once, so it is very rare. Mistrials are another way to get a second trial but mistrials typically come about because of either lawyers misbehaving such that an impartial trial is no longer possible (if it's the prosecutor, they can't retry... if they could it would incentivize them to misbehave in front of a jury that is not favorable to them in the hopes of refiling and getting a more favorable jury). Mistrials rely on a legal fiction that the trial that was declared a Mistrial never happened in the first place. If the mistrial is declared on appeal, it is only to the benefit of the convicted, so it is essentially him waiving his right against Double-Jeopardy. Depending on the reason, the prosecution may not refile the case (usually because new exculpatory evidence was found) or cannot (if they did not reveal the exculpatory evidence prior to the trial). Edit: Since this is U.S. specific, it should be pointed out that in the United States, Double Jeopardy applies only to one jurisdiction. At any given time in the U.S., you are almost always under 2 jurisdictions (the state/territory's jurisdiction and the Federal government's jurisdiction) and as much as 7 (at the "Four Corners" you are under the Jurisdiction of four states, 2 tribal governments (which are independent of the states those reservations exist in) and the Federal Government). This means that if the state charges you with a crime and fails to properly prosecute you, the Feds can also charge you with a crime and prosecute you properly. Typically, the Federal government will prosecute you only if there are federal laws that you violated that the state has no equivalent of OR the state has done an optionally poor job of prosecuting you or properly punishing you (we're talking 30 days jail time for 1st degree murder). It is rare for the feds to go after common criminals and they only will go for them if the crime involves crossing state lines as an element of the crime OR the crime involves federal property. YOu are more likely to see federal kidnapping charges against non-custodial parents who take the kid to another state than you are Federal Murders. Typically, the Feds will be satisfied if the crime is tried in state court, no matter the result (it also helps them getting away with the Dual Jurisdiction rule. You can't challenge it if you aren't made a victim of it). To give an example of when they might come in, if a non-U.S. citizen enters the United States by way of illegal crossing of the Canada-U.S./Montana Border, and then proceeds to kill a U.S. border agent in the process and is caught by Montana State Police, who can prosecute him and for what? Montana can prosecute him for one count of 1st Degree Murder for the murder of a person under the jurisdiction of Montana (the border guard). The Federal Government can prosecute him for one count of 1st Degree Murder for the killing of a person under the jurisdiction of the U.S. Federal Government, an additional count of Murder under the Felony Murder rule (If someone dies as a result of your illegal criminal action, that death is a 1st degree Murder) or under the law against killing a federal employee while carrying out their duties (this second option might be rolled in with the killing someone under Federal Jurisdiction). Montana cannot prosecute the accused for the Felony murder because U.S. states cannot enforce immigration law. Therefore, in the eyes of Montana, the accused was not committing a crime that lead to someone's death. He just killed a man. The feds will likely have Montana take first crack at the case because Montana has more immediate access to labs and evidence than the Feds and because states tend to be quicker about this stuff. Once the case resolves, the Feds will then figure out if they want to charge him for both Murder charges and the Immigration violation, only the Felony Murder Charge and Immigration violation (and accept Montana's outcome of the similar murder charge), or just the Immigration violation (and accept the outcome of Montana's trial for both possible Federal murder charges). For academic purposes, the trial for the Immigration Charge will likely be held after the sentence for the Montana charges (if there are any) are carried out because deporting the suspect back to Canada (or his home country) will result in zero jail time because no element of the crime took place there. | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | was there a good way to publicly shame Bob, and prevent him from getting his next job, without breaking Carol’s confidence? Apparently not. The conclusion that Bob's violations of company policy are short of breaking any laws leaves little to no reason for publicly shaming him. Details on the company policy, the facts, and the statements might make a difference, but your description is generic in that regard and would require us to speculate on what they could be. Could there have been grounds for a lawsuit? It largely depends on the terms of the publications, their veracity & import, and --if false or unfounded-- their effect on Bob's prospects and/or whether the statements are defamatory per se. Would a truth defense for a statement such as, “We completed an investigation of Bob for professional misconduct,” require disclosing the investigation? Yes. A defendant has the burden to prove the [affirmative] defense(s) on which he intends to premise his position. Note that the statement “We completed an investigation of Bob for professional misconduct” in and of itself is not really a truth defense because it is inconclusive as to whether Bob was found to have incurred misconduct. The sole fact that Bob was investigated does not justify imputing to him disreputable conduct. Would a defense that the investigation gave them legitimate reasons to believe that the insinuation they made is true require them to disclose it? Yes. Bob is entitled to gather from the defendant the bases for the latter's allegations. Otherwise defamers would systematically elude their liability by sticking to generic allegations only. Are there other good defenses that could have gotten the lawsuit dismissed as frivolous? That requires us to speculate because we are given no details about the underlying events, Bob's pleadings, the evidence obtained during discovery, and so forth. That being said, a prevailing defense does not imply that the lawsuit is frivolous. Would the identities of the witnesses have been redacted? No. The fact that Bob did not break any laws suggests that the matter does not warrant measures akin to witness protection. Nor does your description reflect that the communications are protected by some privilege. Is it credible that Ethan had a good legal reason to keep this “in the family” for Carol’s sake? That is unanswerable because, inter alia, it is not about the law, it is unclear what exactly "Carol's sake" entails, and the substance of the company's other scandals as well as Ethan's reason(s) are unspecified. Ethan's "good legal reason" does not necessarily have to protect or advance "Carol's sake". | The defence sees the prosecution evidence; witnesses don’t From context, it appears that Ms. DeCoutere was a prosecution witness, not the defendant. As such, she would not be privy to the evidence that either the prosecution or defence had or intended to present. No doubt both the prosecution and the defence would have known about the photograph and, I would imagine, it was introduced by the defence precisely because it contradicted the witness’ testimony. Further, revealing such evidence to her by either side would be misconduct - witnesses are supposed to recount the facts as they recall them without prompting or aide memoirs (police are an exception - they are allowed to refer to their own notebooks). |
Anonymous manufacturers Some manufacturers are not putting their names on their products: no contact numbers nor e-mail address for support to keep in touch with the manufacturer if something happens to your bought item(s). Is there any legal requirement for the manufacturer to make themself known? | Sort of. In the US, an example of a labeling requirement is 16 CFR Part 1101. In certain circumstances, there must be "public disclosure of information from which the identity of a manufacturer or private labeler of a product can be readily ascertained". Not everything is subject to this mandatory disclosure – it is driven by safety of consumer products. The Consumer Product Safety Commission summarizes some of the requirements here, and the strongest requirements are on "child products". A train car-load of pig iron would not be subject to such labeling (but then, you would probably know the manufacturer from the contract that you had to buy the iron). You can garner all of the safety regulations from 16 CFR Ch. II. 16 CFR Ch. I is the regulations established by the FTC under the Fair Packaging and Labeling Act. This requires all "consumer products" to have a label, especially Part 500. This only applies to commodities in a package or with a label (not hardware from a bin or bulk sim-cards). §500.5 is the section that says that you have to say who the manufacturer is. | First, "I've seen some people say it is legal to do so but I want a second opinion." This is not a legal opinion. This is only in response to the question "Can you use (TM) on a product that is not Trademarked"? Second, you did not specify a jurisdiction. Since you mentioned Apple, I will assume USA. tl/dr: Yes, you can used the TM mark and no, it is not fraudulent. In the USA, there are three "trademark" symbols, (R), (TM), and (SM). (R) - (Registered) The federal registration symbol. This may be used only once the mark is actually registered in the USPTO. It my not be used while the application is pending. (TM) - (Trademark) / (SM) - (Service Mark) - According to the United States Patent and Trademark Office: If you claim rights to use a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim of a "common-law" mark. No registration is necessary to use a "TM" or "SM" symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration. | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. | Is the their username alone, without any attached profile (like their email address or real Name) still considered personal data that has to be deleted? For something to be ‘personal data’ it must information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly. In other words: If the natural person can be indirectly identified from the username, it is personal data. If he cannot, it is not personal data. This obviously depends on the circumstances. If the user used something very similar to his real name, or his email address or uses the same nickname on a lot of different systems, then it probably is personal data. If it is an unique pseudonym that is not used elsewhere, it is less likely. If you want to make sure you comply with the right to erasure, you may want to scrub your wiki database, replacing all the username of the deleted user with "anonymous" (or something like that). If you want to be able to treat these as separate users, your scrubbing process may use unique anonymous identifiers ("anon-1", "anon-2", and so on). | The question is always, would a reasonable customer be confused into thinking that the two are the same, or that there is some relation or sponsorship or attribute to one product or firm the rightful reputation of another. That is always dependent on the specific facts and the specific market involved. So-called "famous" marks get extra protection. The exact markets involved will matter. Any stylizations such as colors and typefaces may matter. Logos may matter. I can't say if one of those specific names would be found to infringe on the other. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | Businesses do hold customers' email addresses. These are routinely stored and communicated between the businesses' internal IT systems. There is nothing illegal about this. The only difference that internal email communication makes to the above is that not just machines but employees see the customers' email addresses. So, essentially the question is: is it legal for a business to show its customers' email addresses to its employees? As per Australian Privacy Principles, personal information needs to be kept secure. Businesses therefore have duty to do their best not to leak customers' personal information (which includes email addresses). Limiting the circle of people who see personal information only to those who need to see it is essential to perform this duty. So, essentially, the answer depends on whether all those people CC'ed actually needed to see the email addresses for business purposes. If, for example, one of those people was your office cleaner, then you have done bad job in performing your duty to secure personal information. Should that cleaner leak the email addresses outside the business, you will be held liable. | Point three should include "to the best of my knowledge and belief", or be modified to state that none of those "house or the adjacent shop" have informed the affiant of any such delivery, or delivered any such package to the affiant. It might add that the affiant had questioned such persons and they denied receiving such a delivery. The point here, of course, is to prove that the package was never properly delivered, no doubt in support of a claim on the delivery service. The ordinary assumption is that if a person in the "house or the adjacent shop" had accepted a package, it would normally have been given to the addressee at an early opportunity. |
Can you be arrested for accidentally signing a recipt for someone else's order? I may have signed a credit card receipt for someone else's pizza order, giving a tip as well. The deliver driver gave my address so I had assumed my aunt or uncle ordered without telling me, then I got the customer receipt with the delivery address on it and it wasn't my address. Can I be arrested for this? | The primary question is whether you actually committed a crime in signing a credit card receipt, when you are not the cardholder nor are you authorized to sign on behalf of the cardholder: did you commit fraud? It is not possible to accidentally commit fraud, you have to have intended to deceived the other party that you are authorized to sign. For the sake of discussion, I will assume that you had no such intention. Presumably, the person who ordered the stuff will wonder "where is my stuff?", will complain to the vendor, they may then find the signed receipt and some evidence regarding where the goods were delivered. Whether or not they contact you asking for an explanation / return of the goods, the police would have to investigate the situation in light of some allegation that you committed fraud. The police will not just come knocking on the door and nab you (in the US: North Korean law is different). In many jurisdictions, there is a requirement for a warrant supported by probable cause. If the investigation provides sufficient credible evidence proving that you did intentionally falsely sign the receipt, to the point that given those facts you would be convicted of the crime, then there is probable cause for a warrant for your arrest. The fact of signing a receipt is not probable cause to support such an arrest, but other facts could be added to reach that level of evidence. | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. | Lying in itself ("of course you will get a wifi signal here") is not a crime. However, if you have proof that the lies were intended to benefit your landlord at your expense ("You won't sign the lease unless there's wifi? No problem") and that they actually did so ("You've signed the lease, it's too late to back out"), he may be guilty of fraud, which is a civil wrong and may be a crime. You would be well advised to consult a lawyer before going amy further, since there are probably ten people believing themselves to be victims of fraud for every one who actually is so in legal terms. The lawyer will also probably tell you that the best you can hope for is restoration to the state before the lies (in my example, the lease is cancelled and you get your deposit back), though the authorities will look at prosecuting the landlord. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” | Assume that this happened in a matter that goes to court. In civil court, there is no "innocent until/unless proven guilty". In civil court, the judge hears everyone's story, and decides which story is more likely to be true. So I tell the judge "I sent a letter by registered mail; this is what was in the letter, and the post office reported to me that they delivered the mail, and someone signed for it". And you say "I never received a letter". The judge will believe me and the post office. You say "I received a letter and signed for it, but there was just a birthday card inside". Who does the judge believe? Does he or she believe that you received a letter with the contents I said and you are lying about it, or does she believe that I sent you an unsolicited birthday card by registered mail? Why would I do that? So they believe me. Now if you said "I received a registered letter containing just a birthday court, so I immediately called my secretary and three other people in the office to see this and to verify there was nothing but the birthday card, and here they are as witnesses", then the court might start believing you. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | 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. |
How are ties in a US Congressional election dealt with? Suppose candidates Alice and Bob are running for US House of Representatives in a Colorado district, and are the only people to do so in that district. The final vote tally (after whatever challenges Alice and Bob decide to throw) comes out to a tie. How would the tie be broken? | Election procedures are generally a matter of state law, so the process will be different from one state to the next. In Colorado, the law in question is Colo. Rev. Stat. § 1-11-101: If at any general or congressional vacancy election ... any two or more persons tie for the highest number of votes ... for representative in congress ... the secretary of state shall proceed to determine by lot which of the candidates shall be declared elected. The question then becomes how the secretary of state will "determine by lot" who is the winner. As far as I can tell, this process is not established by statute, nor has the secretary of state promulgated any administrative regulations establishing a system for drawing lots. In other states, it typically comes down to something quite random: flipping coins, drawing names from a hat, dealing poker, etc; I assume the secretary of state could choose any of these. The answer could be different for other races, though. Both chambers of the General Assembly would vote on a joint ballot to decide a tie in a race for governor, secretary of state, treasurer, or attorney general. This also assumes that Bob and Alice are facing off in the general election, not the primary. In a primary, tying candidates get to choose their own tiebreaker. If they can't agree on one, the secretary of state chooses by lot. | Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely. | There seems to be no current applicable prohibition state law in Iowa in Iowa Code 39A, the Election Misconduct and Penalties Act. It is also not at all clear that precinct caucuses count as "elections" as applicable to the sections with criminal prohibitions (the precinct caucus does not appear to constitute a "primary election" under Iowa law). | My understanding is that the syndicate would be committing an act of extortion. Under the RICO Act, IF the politician conspired with the syndicate OR IF the politician had something like an 'understanding' with the syndicate, then they (any, and all involved) could be charged with the crime (extortion), racketeering and conspiracy. Additional crimes/laws to consider: Campaign finance violations Money laundering Compelled speech (1st Amendment) | You can see the whole regulations on www.legislation.gov.uk. It is a referendum. There does not need to be a "winner". A referendum is meant to understand what the general populace wants. And "they are split exactly 50/50 between X and Y" is a valid result in that frame. The point that made this referendum special was that the ruling party had promised, that they would actually do what the referendums outcome would suggest, even if they were not legally bound by it and were not even in favor of it as a political party. So what the ruling party would have done when confronted by an absolute exact tie (not only percentages, but actual votes) is anybodies guess. I don't think anybody had a backup plan for what happens if the 33,577,342 votes came out exactly 16,788,671 to 16,788,671. The chance of that... was not real. You prepare for that about as much as for an alien invasion on election day. | A person should register to vote in their state of residence. Aka the state where they claim to be a resident. Unfortunately, residency is defined by the individual states and the definitions aren't consistent. Even more unfortunate is that the state where a person is registered to vote is often used as a criteria in determining a person's state of residency. So, chicken and egg. Unfortunate on top of that is that residency requirements are different according to purpose. For example you may fit a definition of resident for the purpose of vehicle registration but not for income tax purposes. The important thing is to be consistent. If a student claims to be a resident of her home state so she doesn't have to change her vehicle registration, she should not claim the school state in order to get out of income tax (or any such things). After consistency, be reasonable. Based on your facts, I think FL is the best bet. She lives there and intends to live there. That's also a good place to pay taxes! But there's the rub. If she tries to claim FL as her residency for income tax purposes someone might take issue with the fact that she hasn't moved her drivers license. TLDR; plan to register where you'll live when the election happens. If anything is glaringly wrong with that plan, seek alternatives. There is nothing glaringly wrong with registering to vote in FL. Oops, forgot to add, this document purports to summarize state laws regarding registration: http://www.eac.gov/assets/1/Documents/Federal%20Voter%20Registration_6-25-14_ENG.pdf | The Federal Election Committee's Congressional candidates and committees campaign guide (212-page PDF) has lots of information about how campaigns must be run under federal law. All candidates for US Federal offices with over $5000 of donations or expenditures are required to register a campaign committee with the FEC. Campaign donations are generally accepted by the campaign committee (not the candidate himself/herself) and disbursed by same. Within 15 days after an individual becomes a candidate as described in Section 1, he or she must designate a principal campaign committee. This designation is made by filing either a Statement of Candidacy (FEC Form 2) or a letter with the same information. 101.1(a) and 102.12(a). Within 10 days after it has been designated by the candidate, the principal campaign committee must register with the FEC by filing a Statement of Organization (FEC Form 1). 52 U.S.C. §§ 30102(g), 30103(a); 102.1(a). This committee would probably still exist after the candidate's death,* and would be responsible for any decisions regarding the disposition of remaining campaign funds at that time (just as if the candidate had withdrawn from the race.) So by law, the answer is "the campaign committee". The FEC does place restrictions on what a campaign can do with leftover funds, but the options are: Settling debts. Note, in fact, that the campaign committee cannot terminate its operations if it has any outstanding debts or obligations. (p. 137 of the FEC guide) Start a non-profit organization. Convert to a multicandidate committee (this is really just a special type of non-profit, I suppose.) Donate the unused funds to charity. Donate the unused funds to another candidate's committee, subject to a $2000 limit. (p. 19) Donate the unused funds to a party organization (no limit as far as I can tell.) So: The treasurer's idea of paying off the debts is in fact required by law before the committee can wind down its operations. The campaign committee can't send more than $2000 directly to any other federal candidate, so John's wife and John's replacement are constrained in this regard. Beyond that, where the funds end up will depend on who is on the campaign committee and what procedures the committee uses to make decisions. *Technically, it appears to be legal for the candidate to be both treasurer and custodian of records for their own campaign — which are the only two positions on the committee required by law. It is conceivable that a campaign organized in this way could end up with "orphaned" funds, without anyone authorized to dispose of them. I'm not sure what would happen in this case. | The Board of Estimates still gave small boroughs like Staten Island more representatives per voter than large boroughs like Manhattan. Therefore it violated the one man, one vote principal which is evaluated with respect to all representatives having votes in a body, not just those that hold a majority. The analysis is to take all at large seats that don't violate the one man, one vote rule off the table and look at the fairness of the allocation of the remaining seats. This was an easy case, not a hard one, for the U.S. Supreme Court. The leading case are: First, Baker v. Carr, 369 U.S. 186 (1962) (holding that malapportionment claims under the Equal Protection Clause of the Fourteenth Amendment were not exempt from judicial review under Article IV, Section 4, as the equal protection issue in this case was separate from any political questions). As Wikipedia explains (links to selected full text opinions added): The "one person, one vote" doctrine, which requires electoral districts to be apportioned according to population, thus making each district roughly equal in population, was further cemented in the cases that followed Baker v. Carr, including Gray v. Sanders, 372 U.S. 368 (1963) which concerned state county districts, Reynolds v. Sims, 377 U.S. 533 (1964) which concerned state legislature districts, Wesberry v. Sanders, 376 U.S. 1 (1964) which concerned U.S. Congressional districts and Avery v. Midland County, 390 U.S. 474 (1968) which concerned local government districts, a decision which was upheld in Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1989). Evenwel v. Abbott (2016) said states may use total population in drawing districts (as opposed to eligible voters). |
A prosecutor and a defense attorney have a romantic relationship. What consequences could happen if caught? Perhaps more of a question concerning legal culture than individual laws. I am writing a story with this as a subplot, and I want to know what could happen to either party if a judge/prosecutor's office/public defender's office/bar association etc were to find out. | If the two lawyers will never be on opposing sides of a case, there's no conflict of interest and thus nobody cares. For example, two lawyers in different fields probably won't encounter a conflict. If the lawyers are involved in the same field, there's a risk of a conflict of interest. Normally, the lawyers can shield themselves from legal trouble by disclosing the conflict any time it comes up. Where possible, the lawyers should avoid such cases before the conflict even starts (i.e., a lawyer should not take a case if they believe that the other lawyer will be on the other side). Similarly, disclosing the relationship to their boss allows their boss to avoid assigning such cases. In short: Such a relationship could have consequences, but a competent, ethical lawyer is unlikely to experience them. | Are police required to contact a real lawyer if you ask? give opinions from a number of lawyers and police in different jurisdictions. The basic consensus is that in most jurisdictions, such behavior will get the case thrown out of court and often get the police officer who tried this fired. HOWEVER there was a case where this was tried and while the case was thrown out on appeal, it was not as simple as the postings in the above article may have made it appear. This story shows a case where the Tennessee police actually did this. While the lower court allowed it because the defendant was "gullible", the appeals court rejected this argument. [T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments. | This is not a true defense. It would only go to the credibility of the defendant's account claiming that he was not the perpetrator. Nothing prevents someone who is homosexual or asexual from sexually assaulting someone of the opposite sex within the meaning of the law. Sexual assault is often motivated by reasons other than sexual attraction in any case. Also, some people who publicly hold themselves out as being homosexual are actually bisexual. It is probably relevant evidence, but ultimately, it is up to the jury to decide who to believe and what happened based upon all of the facts and circumstances. | 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. | 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). | Errors in the Question Of course, this is not actually what really happens. What really happens is that the original crime is not tried. It is simply ASSUMED to have taken place and there is a presumption that the original actor was guilty of some crime. Obviously this is incorrect and unjust. This is incorrect. To convict a person of being an accomplice, in either US or UK courts, there must be evidence proving that the crime took place. This an essential element of the crime. It need not be proved who committed the crime as a principal, although there is often evidence about that. But an essential element of the crime of being an accomplice is that the underlying offense is a crime and did occur. Like all other elements of a crime, this must be proved beyond a reasonable doubt. Therefore, it would seem that from a theoretical point of view, an accomplice should only be charged and accused once someone else has first been convicted of a crime. Only then should the accomplice be accused of helping that person. That is not the theory that the legislatures of either the US or the UK have adopted. Indeed I do not think that any common-law country has adopted this theory. The law could be changed, and one might argue that it should be. But what the law should be, as opposed to what it is, is not generally on-topic here, as opposed to in politics.SE. Accomplice The LII Definition of "Accomplice" is: A person who knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime. An accomplice is criminally liable to the same extent as the principal. An accomplice, unlike an accessory, is typically present when the crime is committed. Nothing there suggests that the principal must be convicted first. The Wikipedia article "Accomplice" says: An accomplice differs from an accessory in that an accomplice is present at the actual crime, and could be prosecuted even if the main criminal (the principal) is not charged or convicted. An accessory is generally not present at the actual crime, and may be subject to lesser penalties than an accomplice or principal. ... The fairness of the doctrine that the accomplice is still guilty has been subject to much discussion, particularly in cases of capital crimes. Accomplices have been prosecuted for felony murder even if the actual person who committed the murder died at the crime scene or otherwise did not face capital punishment. In jurisdictions based on the common law, the concept of an accomplice has often been heavily modified by statute, or replaced by new concepts entirely. In The Wikipedia article "Accessory (legal term) In the section on "England and Wales it is said: A mens rea {guilty state of mind] is required even when it is not required for the principal offender (for example, when the principal commits a strict liability offence). The defendant must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In R v Bainbridge (1960) 1 QB 129 the defendant supplied cutting equipment not knowing exactly what crime was going to be committed, but was convicted because the equipment supplied was not used in the ordinary way, but for a criminal purpose instead. The accomplice must also know of all the essential matters that make the act a crime ... In the section "United States" it is said that: U.S. jurisdictions (that is, the federal government and the various state governments) have come to treat accessories before the fact differently from accessories after the fact. All U.S. jurisdictions have effectively eliminated the distinction between accessories before the fact and principals, either by doing away with the category of "accessory before the fact" entirely or by providing that accessories before the fact are guilty of the same offense as principals. The Model Penal Code's definition of accomplice liability includes those who at common law were called accessories before the fact; under the Model Penal Code, accomplices face the same liability as principals. It is now possible to be convicted as an accessory before the fact even though the principal has not been convicted or (in most jurisdictions) even if the principal was acquitted at an earlier trial.(Wayne LaFave, Substantive Criminal Law § 13.1(e) (2d ed. 2003).) 18 U.S. Code § 2 - Principals provides that: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. Note that there is no requirement that a principal be first tried or even identified to convict one who abetted a crime. All accomplices are abettors, although not all abettors are accomplices. The Model Penal Code (MPC) published by the American Law Institute says, in section 2.06 of the code, that: § 2.06. Liability for Conduct of Another; Complicity. (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. ... (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. (Emphasis added) The official commentary on subsection (7) says: Subsection (7) speaks to the relation between the prosecution of the accomplice and the treatment of the person who is alleged to have committed the offense. In accordance with modern developments, this subsection provides that the accomplice can be prosecuted even though the other person has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, has an immunity to prosecution or conviction, or has been acquitted. The MPC was the result of a 10-year review of the laws then existing in the various US states. It was an attempt to rationalize existing laws and provide a consistent framework for criminal law in the US. It was offered to the states for adoption in whole or in part, and several states have adopted significant sections of it, and others have been guided by it in revising their legal codes. Section 2.06 (7) makes it clear that no previous prosecution of a principal is required for prosecution of an accomplice in any state that has adopted the MPC. Effect of the Theory of the Question The question asserts: Therefore, it would seem that from a theoretical point of view, an accomplice should only be charged and accused once someone else has first been convicted of a crime. Only then should the accomplice be accused of helping that person. If courts adopted that as a rule, it would mean that if the principal escaped, or died, no accomplice could be prosecuted. Indeed consider the case of a crime boss, who is often an accomplice to the crimes of his (or her) henchmen. Such a boss would need only to have the actual criminal sent out of the country, or killed, to be quite safe from prosecution under the proposed rule. Hardly an improvement to my eyes. Such a rule would also mean that an accomplice could not be pressured, by means of a threat of prosecution, to disclose the actual criminal, or testify against that criminal. Again, not desirable. Use of UK Law I would add that in my answer to the linked question, sources from several US states were cited, and no UK sources. Indeed UK law does not seem to have been cited in the comments either, but this is a matter on which US and UK law are quite similar. | Not in jurisdictions I am familiar with. A "Power of attorney" is a power to act as an attorney-in-fact, not to act as an attorney-at-law. A layperson practicing law for someone other than herself is usually the unauthorized practice of law and is illegal in most jurisdictions. It would be permissible if a jurisdiction carved out an exception for a particular kind of case, but they generally don't and are very unlikely to do so in a criminal case. For example, in Washington State "Limited Practice Officers" can assist people with one of a very limited set of civil legal forms that do not need modification. There may be some exceptions, but they would be more likely to occur before a matter becomes criminal. For example, the accountant who represents a taxpayer before the IRS, or the agent who files a form containing perjury to a federal agency like the post office or homeland security on your behalf. So it is very unlikely, but if it is important to you you can ask someone familiar with your kind of case in your jurisdiction. | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. |
How to address a Conclusory Statement I understand that a conclusory statement consists of, or relates to, a conclusion or assertion for which no supporting evidence is offered. UPDATE: Assume that Bob worked in the US in 2021 and had a duty to pay Federal income tax and failed to do so. For example, as a working American, Bob has a duty to file and pay Federal income tax. An IRS investigator sends a letter to Bob indicating Bob did not file and pay his 2021 federal income tax. The investigator demands a timely written response. The investigator asks Bob if he will file 2021 and any delinquent taxes immediately with the required penalty. Bob replies to the investigator with: I [Bob] have been in the work force for 35+ years and filed / paid taxes many times. Thus, I have not violated relevant tax law and will not agree to pay any penalty. Bob's claim of not violating law, relies on past performance of filing taxes. As I understand it: Bob has a duty to file and pay taxes for each and every working year and it is obvious that the years prior to the year in question are irrelevant. I would like to understand (preferably from legal practitioners that have effectively used this term) if said claim is conclusory? | I [Bob] have been in the work force for 35+ years and filed / paid taxes many times. Thus, I have not violated relevant tax law and will not agree to pay any penalty. This is not a conclusory statement. It is an irrelevant statement. Example 1: "Bob was not required to file a 2021 tax return. Therefore no offence has been committed.". This is conclusory because it offers a conclusion without explaining how it was reached (why was Bob not required to file a 2021 tax return?). Example 2: "Bob filed his 2020 tax return. Therefore no offence has been committed". This is irrelevant because the alleged offence relates to 2021, not 2020. You can work out the difference by imagining what would happen if Bob substantiated his claims. If Bob submits evidence to show that he has been "in the work force for 35+ years and filed / paid taxes many times", it will make no difference to his case because it is irrelevant (unless he can also show that he filed and paid in relation to 2021 specifically). A conclusory statement on the other hand is capable of being effective if it is backed up by supporting evidence and arguments. In example 1 above, if Bob submits evidence to show that he was not required to file in 2021, then his conclusion will be effective. Note: the phrase "conclusory statement" does not appear to be a commonly used one, returning only 171,000 results on Google. I've personally not come across it (england-and-wales), but perhaps it is more common elsewhere. | It should be legal (though I can't find an analogous case where the court has ruled that it is). There is a regulation summarizing the government's position (thus, what will be enforced in 17 CFR 240.10b, which prohibits use of "manipulative or deceptive device or contrivance" in stock trading. Section 240.10b5-1 says: The “manipulative and deceptive devices” prohibited by Section 10(b) of the Act (15 U.S.C. 78j) and §240.10b-5 thereunder include, among other things, the purchase or sale of a security of any issuer, on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information. The executives clearly have a direct duty of trust of confidence. Section 240.10b5-2 enumerates the following duties: (1) Whenever a person agrees to maintain information in confidence; (2) Whenever the person communicating the material nonpublic information and the person to whom it is communicated have a history, pattern, or practice of sharing confidences, such that the recipient of the information knows or reasonably should know that the person communicating the material nonpublic information expects that the recipient will maintain its confidentiality; or (3) Whenever a person receives or obtains material nonpublic information from his or her spouse, parent, child, or sibling; provided, however, that the person receiving or obtaining the information may demonstrate that no duty of trust or confidence existed with respect to the information, by establishing that he or she neither knew nor reasonably should have known that the person who was the source of the information expected that the person would keep the information confidential, because of the parties' history, pattern, or practice of sharing and maintaining confidences, and because there was no agreement or understanding to maintain the confidentiality of the information. In the hypothetical, (1) is plainly not applicable. (2) is predicated on having a relationship (which doesn't exist) and the information-having expecting you to keep the information secret (he doesn't know that you have overheard them). (3) is likewise not applicable. The basic rule is that you can't "misapproprate" information, but you can use information that falls into your lap (even from a person who has a duty to not disclose the information). This subsection starts saying "For purposes of this section, a “duty of trust or confidence” exists in the following circumstances, among others", which means they aren't necessarily giving you an exhaustive list. Still, there is currently no legal basis for prosecuting a person who overhears information from someone he has no relationship to, even if you are pretty confident that the information has not been made public. | They have the same standard of proof but different onus The legal system places the onus of proving an allegation on the person making the allegation. For your example, this is A if they are suing B or the government prosecutor if B is being prosecuted. The standard of proof is “beyond reasonable doubt” if B is defending a criminal prosecution and “balance of probabilities” if B is defending a civil prosecution or a lawsuit. Courts have historically been reluctant to define these terms further because doing so can lay grounds for an appeal if the judge oversteps so they mean what their plain English formulation means and what they mean precisely in any given case is one of the things the trier of fact has to decide. For A or the prosecutor to win, they have to meet this burden for each and every element of the offence or cause of action; if they don’t, then B wins. So, B doesn’t have to offer a defence at all and will still win if A doesn’t meet their burden. If B does offer a defence then the trier of fact compares the evidence of each side and decides which they prefer and therefore whether A has met their burden. A jury doesn’t have to give reasons for their decision; a judge does. In general, the decisions of the trier of fact are not appealable unless there was no reasonable basis in evidence to support the decision. For example, the evidence of B might not be believed - this is fine, unless the reason for not believing it is that B has a beard and everyone with beards are liars. Options 2 and 3 are simple matters of comparing evidence and deciding which is preferred. Option 1 is different; it is what’s called an affirmative defence. Here, A has met their burden because B conceded. Now B is relying on the position that they had a legal excuse, that is B is alleging a position and B has the burden of proving it. Now, the burden on B is always “balance of probabilities” because B is not alleging that anyone committed a crime so they don’t have to reach the criminal standard. | 31 USC 330 enables the Dept. of Treasury to regulate those who are in the practice of representing persons before the Department. This results in Circular 230 which is a part of the Code of Federal Regulations. Part 10.3 specifies various types who are authorized to engage in the practice. The meaning of "practice" is not defined in the federal regs or the US code, so it has its ordinary meaning. To "practice" something is to habitually do something as a profession (not necessarily for money). The situation you describe does not in any reasonable interpretation constitute being a "practice". Moreover, except for talking to an IRS agent on the phone, the actions could not be construed as "representing" (and if I am correct in surmising that this was a simultaneous conversation with 3 people on the line, this wasn't "representing" since representing meaning to "do in someone's place", not "help someone while they do"). This contrasts with the typically stricter rules about "practicing law", which forbid filling out legal forms and so on. | So these are the basic rules of the tax game: The taxpayer (employee, in this case) is liable for tax on income earned by him. On occasion, the payor of the income to be received by the taxpayer is required to withhold tax on the payment, remit the withheld tax to the IRS/state/local tax authority and pay the balance over to the taxpayer. If that happens, the taxpayer is entitled to a credit against his taxes for the amount withheld by the payor. Failure by the payor to withhold the required amount of tax does NOT excuse the taxpayer from paying tax on the income he earned. So company B is right. | When it can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Which is the standard the New York appeals court endorsed in 2014 for “defamation by implication”. So, on the face of the statements, they have to imply fraud and they have to show that the speaker intended to imply fraud. Whether they did that is up to the jury. | This is one of the things Martha Stewart was convicted of. 18 USC 1001 is the US federal law requiring truthfulness. That statute forbids you to falsify, conceal, or cover up a material fact. One limitation on how broad this law is, is that it has to be a matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States". If your neighbor is an FBI agent and he asks if you're the one who broke his window, and you lie, that's not a federal matter. Another limitation is that the lying has to be material. The essential part of the law is subsection (a). Subsection (b) then states an exception: (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Then you also owe a lesser duty of truthfulness to the legislature. Taking note of US. v. Yermian, it is not required that the person you lie to be a federal officer. Yermian lied to his employer, who was a defense contractor, and the fact that the relevant form was submitted to the government for scrutiny is what made it a matter in federal jurisdiction. Comparing the wording of 1001 to the perjury statute, the operative expression for perjury involves statements "which he does not believe to be true", we can see that the perjury statute requires telling the literal truth (see Bronston v. US), which allows so-called lies of omission (of a particular subtype: much more could be said about that). In contrast the lying statute forbids both literally false statements and concealing of the truth. I don't have cases at my fingertips that indicate how broad your truthful answers have to be, for example if you think the FBI is trying to put away a friend and ask you about what he did on June 14, and you know that he did a bad thing on June 13, would it be lying in the relevant sense to conceal that fact which they didn't ask about. [ADDENDUM] A session of perusing cases has led to a tiny bit of further information. A literal reading of the statute says that you are in violation of the law if you falsify a fact (sloppy epistemology, unless it refers just to altering records and evidence), or conceal a fact, and the courts recognise this as a fundamental division. As for falsifying, the way that has been applied is to refer to cases where the accused makes a statement which asserts something that he knows to be untrue. Thus, saying "No" to a question when the truth is "Yes" is a violation. A propos concealment, in US v. Diogo 320 F.2d 898 the court states that False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a 'trick, scheme or device.' This case is pre-Bronston so there is mixing of concepts from perjury law and lying law, which would not happen now, but we can steering clear of their perjury citations. The crucial fact is that accused(s) were technically married in New York, for immigration purposes, and they were accused of a 1001 violation for having indicated that they were married. Part of the government's case was that such a marriage is not valid, and the court rejected that conclusion. The government's second prong was to maintain that the court "should affirm appellant's convictions on a theory of concealment", and this too the court rejected, saying "proof of their ulterior motives in marriage would not be tantamount to proof of willful and knowing concealment of these material facts". What they said on the forms was literally true, and they did not have a duty to volunteer information that they probably knew the government was interested in. Contrarily in a later case, US v. Zalman 870 F.2d 1047 we are told that the underlying purpose of a marriage is a material fact which bears upon the validity of the marriage, and that any false or fraudulent misrepresentation regarding the actual purpose of a marriage in order to gain status as a resident of the United States can be punished under 18 U.S.C.A. § 1001 so you have to be more truthful than the literal truth standard. There are also circumstances where there is an independent duty to give information, such as reporting income to the IRS. In US v. Hernando Ospina 798 F.2d 1570 the court maintained It is clear that in order to support a section 1001 concealment conviction there must be a legal duty to disclose the facts the defendant was convicted of concealing citing US v. Tobon-Builes 706 F.2d 1092, where again there was a legal duty to report "existence, origin, and transfer of approximately $185,200 in cash". In other words, it is not clear what information you are allowed to not volunteer when asked a question in a federal matter. | Yes, in england-and-wales the Criminal Finances Act 2017 introduced 'Unexplained Wealth Orders', which compel the respondent to provide a statement: (a) setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made, (b) explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met), (c) where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and (d) setting out such other information in connection with the property as may be so specified. There a few requirements set out in section 362B, for example, the property must have value of over £50,000; there should be "reasonable grounds" for suspicion that the respondent would have been unable to obtain the property using their lawfully obtained income; the respondent or their connections must have either been involved in serious or organised crime, or be a politically exposed person, and so on. If the respondent refuses to make such a statement, the police may apply for a Civil Recovery Order to confiscate the property, with the property in question "presumed to be recoverable property" (section 362C(2)). Giving false information in such a statement is a criminal offence. |
Do young animals count as pedophilia? So, someone has been accusing me of pedophilia since I have an attraction to young animals. I know that it's pedophilia if the person is attracted to young human children, but does it count as pedophilia if the person is attracted to animals instead of humans? | No. According to the Section 18 of the U.S. Code, § 2251: (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct,shall be punished as provided under subsection (e) [...] and a minor is defined (Section 18 of the U.S. Code, § 2256) as "any person under the age of eighteen years". As such, you cannot be considered a pedophile. However, if you have sexual intercourses with animals, depending on the State laws on the matter, you might be charged with bestiality or similar offences. | Yes, this is legal, unless Richardson, TX has a specific local law making it illegal. In the US, discrimination is legal, unless it discriminates against one or more specific enumerated classes. Under federal law, and as far as I am aware, Texas law, students are NOT a protected class. As such discrimination against them is legal, unless Richardson, TX or its incorporating county have a specific law or regulation prohibiting it. Incidentally, age is generally not a protected class, and when it is a protected class, it is generally only illegal to discriminate against people above a specified age, not below. Note that discrimination happens all the time, over a variety of factors, that many people don't even consider discrimination. For example, many colleges and universities discriminate on the basis of GPAs for acceptance to various programs; this is legal. In the past, many colleges and universities discriminated against potential students on the basis of sex or race, which is now illegal. | People aged 19 and 18 are "teens" and legally permitted to perform in pornographic videos. That's how it's legal. | Indecent exposure is a misdemeanor under Maryland law (11-107). There is no statutory definition of indecent exposure, since it's been a long-standing offense and part of common law. Messina v. Maryland cites various definitions of indecent exposure, noting Ordinarily, the place where the exposure is made must be public. What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers In that instance, the question was whether the law required multiple victims to constitute a crime, and the court said that it did not. What you propose does seem to fit the characterization "likely to be seen by a number of casual observers". There have been a number of upheld convictions of people exposing themselves on their own property but in a manner that can be seen from the street, so the defense "I was on my property" doesn't go anywhere. Accidentally being seen while inside and naked would not be a crime because, as Messina said, "Indecent exposure, to amount to a crime, must have been done intentionally". The question is whether you know that you will be seen: "An exposure becomes indecent, and a crime, when defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others". It's not absolutely guaranteed that you would be prosecuted, but it's pretty clear that what you propose does constitute indecent exposure. | There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case. It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required? In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain. | The relevant (criminal) defence is Sec 11(b)(3) [the Civil defence in Sec 11(a)(iii) is an easier one]: (3) Notwithstanding any other provision of this Act, it shall be a defence to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species. I would say that the defendant could easily demonstrate a "good faith belief that he was acting to ... any other individual, from bodily harm from any endangered or threatened species." Even if there were other ways to rescue the child other than lethal force to the gorilla they all would have necessitated exposing the child to a longer period of danger, exposing another person to danger or may have had less predictable outcomes (e.g. tranquilisers have an onset time) all of which would be unconscionable. | The closest possible prohibition is found in s. 286.1 of the Criminal Code, which makes it an offence to pay for the "sexual services of a person." "Sexual services" is not a defined term. The Department of Justice provides its opinion about what this term might cover, but that is not determinative. In relation to a charge of the previous version of this prohibition (which also used the term "sexual services"), counsel was unable to direct the judge to a definition of the term, and the judge was unable to find one (2015 ABPC 241). The judge adopted a test that requires the service to include "some sexually suggestive physical act on the part of the person providing the sexual service". This is a test somewhat stricter than the one proposed by the Department of Justice in that in addition to merely being "sexually stimulating or gratifying," there physical act itself must be "sexually suggestive." [50] What is a “sexual service”? Counsel have not directed me to, nor have I been able to find a definition of the term “sexual services”. [51] Sexual services” would clearly include any type of sexual intercourse, or physical contact for purposes of masturbation. It would also include posing for nude photographs. A request “to touch or feel the breasts of the [female] complainant” is an attempt to obtain the sexual services of the complainant. In my view, “sexual services” would also include dancing in a sexually provocative or stimulating fashion. In terms of a general definition, I think the phrase “sexual favours rendered ...for the sexual gratification of the customer” is sufficient. [52] However, I am of the view that the “sexual services” or “sexual favours for the sexual gratification” of a person requires that there be some sexually suggestive physical act on the part of the person providing the sexual service. The sexually suggestive physical act may be many things, such as posing nude, or sexually suggestive dancing, or suggestively removing clothing. That list is not exhaustive, and, with the creativity of the human mind, I doubt one could ever create an exhaustive list. However, the common element is that some sort of sexually suggestive physical act is necessary to constitute the sexual service. [53] In the case at bar, the accused had M.C. engage in what one might call “fantasy role playing”. If the role playing involved M.C. performing a sexually suggestive physical act, then the definition of “sexual service” might well be satisfied. However, in the case at bar, M.C. took on the fantasy role of being the slave in a master/slave relationship. M.C. did not perform any acts as a slave. The “slave role” was one in the mind of the accused (and perhaps M.C.), and had its expression in the content of emails and text messages between Mr. Peterson and M.C., but M.C. did not engage in physical acts for the sexual gratification of the accused. ... [54] M.C. was cast in the role of a slave in fantasy role playing, but the playing really only occurred in the heads of Mr. Peterson and M.C. That does not constitute the act of Mr. Peterson obtaining the sexual services of M.C. [citations removed] But this was a lower trial court's reasoning that has not been adopted by others yet, and no other court has needed to develop the definition at the margins. | In general, the law is not based on the species, it is based on the use of the animal. This gives rise to the difference between food rabbits and pet rabbits, and so on. The definition or applicable offenses are spelled out in each state's criminal code. In Washington, Chapter 9.08 RCW covers "Crimes relating to animals", and 16.52 RCW covers "prevention of cruelty to animals". 9.08.065 defines a "pet animal" as a tamed or domesticated animal legally retained by a person and kept as a companion. "Pet animal" does not include livestock raised for commercial purposes and then makes it a crime to steal a pet animal (this is in addition to regular laws against theft that applies to any property). So if you steal someone's pet goat, that's two or more crimes, but if you steal a meat goat, that's one less crime. The main anti-cruelty laws are in 16.52. Distinctions may be made between between domestic animals and generic animals, or between livestock and others, or food animals and others, so it just depends on the action being forbidden. RCW 16.52.205 says you commit first degree animal cruelty if you intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an animal. There is no other provision allowing you to torture any animal, not even a backyard rat. It is generally illegal to poison animals, but RCW 16.52.190 allows euthanizing by poison, or pest-eradication by poison (insects are animals too). Thus it is legal to poison a pest rat but illegal to poison a pet rat. There is also a general exception, in 16.52.180, that No part of this chapter shall be deemed to interfere with any of the laws of this state known as the "game laws," nor be deemed to interfere with the right to destroy any venomous reptile or any known as dangerous to life, limb or property, or to interfere with the right to kill animals to be used for food or with any properly conducted scientific experiments or investigations, which experiments or investigations shall be performed only under the authority of the faculty of some regularly incorporated college or university of the state of Washington or a research facility registered with the United States department of agriculture and regulated by 7 U.S.C. Sec. 2131 et seq. This allows you to kill chickens for food, and might be construed as allowing you to feed rats to your snake (the law does not say "used as food for humans"). The definition of 1st degree cruelty also has an exception that "Nothing in this section may be considered to prohibit accepted animal husbandry practices" (however, keeping an animal as a pet or educational object does not constitute "animal husbandry" in the ordinary meaning of words). There is no clear statutory division in Washington between feeding rats to reptiles, and feeding dogs to reptiles, and if you were to feed kittens to your monitor lizard, you might well get arrested. Idaho animal cruelty law also forbids cruelty to any animal: Every person who is cruel to any animal, or who causes or procures any animal to be cruelly treated, or who, having the charge or custody of any animal either as owner or otherwise, subjects any animal to cruelty shall, upon conviction, be punished in accordance with section 25-3520A, Idaho Code. and cruel(ty) is (a) The intentional and malicious infliction of pain, physical suffering, injury or death upon an animal; (b) To maliciously kill, maim, wound, torment, deprive of necessary sustenance, drink or shelter, cruelly beat, mutilate or cruelly kill an animal; (c) To subject an animal to needless suffering or inflict unnecessary cruelty; (d) To knowingly abandon an animal; (e) To negligently confine an animal in unsanitary conditions or to negligently house an animal in inadequate facilities; to negligently fail to provide sustenance, water or shelter to an animal. Again, feeding a rat to a snake is not intrinsically malicious, nor is feeding a puppy to a turtle intrinsically malicious. A distinction can be made under the related law on torturing a companion animal (an extension of the original anti-cruelty law): A person is guilty of the offense of torturing a companion animal if he tortures a companion animal as defined in this chapter. where "companion animal" is defined as those animals solely kept as pets and not used as production animals, as defined in this section, including, but not limited to, domestic dogs, domestic cats, rabbits, companion birds, and other animals. This gives a basis for distinguishing feeder rats from feeder puppies. Torture is then defined as the intentional, knowing and willful infliction of unjustifiable and extreme or prolonged pain, mutilation or maiming done for the purpose of causing suffering. "Torture" shall not mean or include acts of omission or of neglect nor acts committed unintentionally or by accident. "Torture" also shall not mean or include normal or legal practices as provided in section 25-3514, Idaho Code. And thus it is not clear that feeding an animal to a turtle counts, since the purpose is to feed the turtle, not to cause suffering. The exceptions spelled out in 25-3514 might be applicable, but there are not clearly applicable. One exception is "The humane slaughter of any animal normally and commonly raised as food, for production of fiber or equines" – perhaps using an animal as feed for another animal can be "humane slaughter", perhaps rats are "normally and commonly" raised as food, unlike dogs. It is not currently against federal law to slaughter cats and dogs for meat, but there is a bill in Congress which would make it so. The bill has 245 sponsors in the House, so it is likely to pass. |
Is it legal to keep an old hole-punched driver's license or permit? It is illegal in Oregon to possess two drivers licences, but when you get a new one, the DMV hole-punches the old one and gives it back to you. The paper temporary license is valid for driving privileges but not for ID in all circumstances. The DMV employee told me they "recommend" that I destroy my instruction permit and temporary license after my permanent license arrives on the mail. Is it legal in Oregon to keep a hole-punched driver's license or permit after it has been replaced? | ORS 807.550 says "A person commits the offense of holding multiple licenses if the person applies for and accepts a license or driver permit, other than an instruction driver permit, when the person holds an existing license or driver permit". There is a corresponding regulation Driver and Motor Vehicle Services Division 735-062-0096 elaborates, procedurally (1) When DMV issues an interim driver card or an interim identification card to an applicant under OAR 735-062-0094, DMV will invalidate and return the driver license, driver permit or identification card the applicant surrendered. An invalidated driver license or driver permit may not be used as proof of driving privileges, but is not deemed cancelled under ORS 801.175. (2) DMV will invalidate a surrendered driver license, driver permit or identification card by hole-punching the card. (3) The invalidated driver license, driver permit or identification card must be destroyed by the applicant when: (a) A valid driver license, driver permit or identification card issued and mailed by DMV is received by the applicant; or (b) Driving privileges or rights to an identification card have been suspended, cancelled or revoked. This suggests that it is possible that your mutilated, invalidated permit is returned but you are not in possession of a replacement, for example the new license is not mailed to you at the same time as the cancelled one is mailed back. At any rate, it is not legal to keep the old cancelled one, and still have its replacement. | I'm assuming you are talking about something like this You didn't specify where you live, but in many places it is illegal to block the sidewalk with a car. I just looked up my local ordinances and it is there. In fact, it is your driveway, but often the land up to and including the sidewalk is considered part of a public easement. Typically you are required by law to maintain any grass in the easement, but if the sidewalk were to fall into disrepair, the local government would fix it. Information on easements can also be found in your local ordinances, here is an example in my area. Should I fight this ticket? You can try, but I doubt you will win. Is there anything I can do to my driveway to allow me to actually use it? I would suggest asking on Lifehacks. And post a link here to your question if you do, I'd be curious to know what they come up with. | I think it's important to keep in mind the essence of your actions. @Mowzer gave a great answer on the matter in hand, but I'd like to add a point of view. Is it illegal to eat while driving? Like pointed out by @Mowzer, if no law prohibits it, it's allowed by default (lots of countries have this premise). But what about the consequences of your actions? Maybe there's no law against eating in the car, but there sure is one in my country that specific says that you are not allowed to drive without using both hands in the wheel. The only exception to this rule is to take out your hand from the wheel to use the stick to change gears. Another point of view to add is the liability. Let's say you're minding your own business while driving and a lunatic trying to commit suicide jumps in front of your car. It's a pretty straight-forward case, you have no reason to be blamed. Now, let's add to the same scenario your snack; with a small change, you are now facing a accident that may have been caused by reckless driving (another thing commonly illegal). To sum up, the law is not really like math that have axioms that determine true or false statements without any distinguishment. That's why every case is single handled in the law by it's particularities. | Tennessee Code 55-50-301 (a) (1): No person, except those expressly exempted in this section, shall drive any motor vehicle upon a highway in this state unless the person has a valid driver license under this chapter for the type or class of vehicle being driven; Moreover, under 55-50-504 (a) (1), it is a crime to drive with a revoked license: A person who drives a motor vehicle within the entire width between the boundary lines of every way publicly maintained that is open to the use of the public for purposes of vehicular travel, or the premises of any shopping center, manufactured housing complex or apartment house complex or any other premises frequented by the public at large at a time when the person's privilege to do so is cancelled, suspended, or revoked commits a Class B misdemeanor. | 2201.4 Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic control devices. I'm failing to see the "... except when pulling over for the police" subclause. Equally there is no "... unless you think you should" subclause. If you choose to have a hearing the evidence will show unambiguously that you drove the wrong way in a one way street and you will testify as to your reasons for doing so. For you to avoid the violation you would need to convince the examiner that a) you are telling the truth and b) that your mindset is in any way relevant. Unless the officer clearly directed you to pull into that spot, the decision to do so appears to be yours. I'd pay the fine if it was me. | This is allowed under the police's "community caretaking" function. See South Dakota v. Opperman 428 U.S. 364 (1976): To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge. | Someone is yanking your chain. The law regarding birth certificates §31-10-9 states that "A certificate of birth for each live birth which occurs in this state shall be filed with the State Office of Vital Records within five days after such birth and filed in accordance with this Code section and regulations of the department" ("shall" means it is mandatory). The law regarding issuing certified copies of vital records, §31-10-26, says that (a) In accordance with Code Section 31-10-25 and the regulations adopted pursuant thereto: (1) The state registrar or local custodian, upon receipt of a written application, shall issue: (A) A certified copy of a vital record in that registrar's or custodian's custody or abstract thereof to any applicant having a direct and tangible interest in the vital record (a parent has an obvious direct and tangible interest in their child's birth certificate). There is no legal basis for denying a person the right to obtain a birth certificate, and a law prohibiting issuance of a birth certificate to a person who owed money to a hospital would be contrary to the Equal Protection clause of the Constitution. However, the hospital is not obligated to give copies of birth certificates, and probably cannot issue a certified copy ("(d) No person shall prepare or issue any certificate which purports to be an original, certified copy or duplicate of a vital record except as authorized in this chapter or regulations adopted under this chapter"). USCIS states that "The only birth certificate acceptable for Form I-9 purposes must be an original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States, bearing an official seal (hospitals register births, on which basis government registrars certify births). Your home country obviously cannot issue a birth certificate: only Georgia can (and must). | Since this apparently amends the law giving colleges and universities the power to adopt and enforced various regulations, what it really means is that if such an institution adopts a rule in violation of this law, it may not legally enforce that law. It might also give an affected student a right to sue if such a rule is adopted and enforced. As a comment by ohwilleke mentions, such a law might well authorize a court to issue an injunction forbidding the institution from enforcing the kind of rule prohibited by the law. Note that it is not at all uncommon to have "or else" provisions in different sections of the law. For example Section 123 of the (hypothetical) New France state code might prohibit having a faked driver's license, section 124 prohibit obtaining a license through false or misleading statements on nthe application, and section 458 say "anyone who violates sections 123, 124, 125, or 126 shall be fined up to $2,000, or imprisoned for up to 1 year, or both, as a court may think just". Thus it is not always easy to find what penalties, if any, apply to a code section. |
What is the limit to my entering an unlocked home of a stranger to render aid without explicit permission As I understand it in the USA if I, a normal citizen, walking by a stranger's home and witness them suddenly get electrocuted or otherwise seriously harmed I'm allowed to enter their home to try to render aid, even uninvited, since I have a reasonable belief they would prefer me to come into their home under those circumstances. I'm wondering where the line is drawn for that. I presumably can't barge into a stranger's home because it looks like they are having a bad hair job and I need to give them a perm this instant. How serious would the need have to be before I could justify entering their home? If I see someone appearing to be about to commit suicide can I reasonably barge in to try to stop them for example, even though presumably at that moment they did want privacy to continue following through with their suicide? On a related note when, if ever, would I be authorized to break into a home that was otherwise locked to render aid? | What you are describing seems to raise the defense of necessity. I cannot pinpoint the line for you or tell you whether any particular action would lie on one side or the other, but I can describe the test. In Maryland, there are "five elements necessary to consider before applying the defense of necessity" (Marquardt v. State, 164 Md. App. 95, 135-36 (2005), citing Sigma Reproductive Health Center v. State, 297 Md. 660, 677-79 (1983)): The harm avoided — this need not be physical harm but also may be harm to property as, for instance, where a firefighter destroys some property to prevent the spread of fire which threatens to consume other property of greater value. The harm done — this is not limited to any particular type of harm but includes intentional homicide as well as intentional battery or property damage. An illustration is supplied: `[A]s where A, driving a car, suddenly finds himself in a predicament where he must either run down B or hit C's house and he reasonably chooses the latter, unfortunately killing two people in the house who by bad luck happened to be just at that place inside the house where A's car struck — it is the harm-reasonably-expected, rather than the harm-actually-caused, which governs.' Intention to avoid harm — to have the defense of necessity, the defendant must have acted with the intention of avoiding the greater harm. Actual necessity, without the intention, is not enough. However, an honest and reasonable belief in the necessity of his action is all that is required. The relative value of the harm avoided and the harm done. The defendant's belief as to the relative harmfulness of the harm avoided and the harm done does not control. It is for the court, not the defendant, to weigh the relative harmfulness of the two alternatives. To allow the defense the court must conclude that the harm done by the defendant in choosing the one alternative was less than the harm which would have been done if he had chosen the other. Optional courses of action; imminence of disaster. The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something which violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. For example, "[a] prisoner subjected to inhuman treatment by his jailors is not justified in breaking prison if he can bring about an improvement in conditions by other means." Marquardt at 137: in order for the defense of necessity to have been warranted in this case, appellant must have presented "some evidence" that there was a choice between two evils, that no legal alternatives existed, that the harm appellant caused was not disproportionate to the harm avoided, and that the emergency was imminent. | I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level. | Here's what I had to do : After going through this harrowing phase, I thought I will post an update in case some one is in such a situation. The Northern Territory's Personal Violence Restraining Order act has a clause (section 21) which basically says if the applicant believes a third party knows the defendant's name then the applicant can request the court to order the third party(power, water, electoral roll, etc) to provide the name if the applicant has already made reasonable efforts in finding out the persons name and hasn't been able to. The third parties will only oblige to a court order. I am almost certain every state/territories' act (in Australia) will have such a clause. It was a challenge to get the court registry to accept the application as the front counter staff/supervisor/supervisor's supervisor were all unaware of this provision (to make an application for a PVRO but get the judge to first order the third party). I had to carry with me the act with the highlighted portion for them to read, analyse and consult with other court staff to even take my application in. At least in the NT there are community legal help services available for no fee and I highly recommend them. | The theatre is a private place. You may enter it only with the permission of the owners. They are not obliged to grant you that permission. They have the right to refuse admission on almost any grounds they choose. I say "almost" because many jurisdictions have laws about things like race or gender discrimination. I suspect in India it would be illegal to say "You can't come in because you are Hindu." The point is though, that there is a short list of reasons which they aren't allowed to use. Any other reason is legal. | 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). | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | Entering onto someone's land without lawful excuse is trespass Permission is lawful excuse. You don't have express permission. You have implied permission to enter in some circumstances, for example, to approach someone's front door or to reasonably recover your property. You would also have lawful excuse if you were a police, fire or ambulance officer discharging their duties or if you were in physical danger if you didn't enter - running from an assailant across someone else's property is not trespass. Among others. Whether the field is fenced or not or if that fence has an opening or gate does not give you permission although it can remove some implied permissions, not least that you do not have implied permission to enter over the fence. If its not your field, stay out of it. | Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead. |
What does the law say or accept about consistency of signatures used for employment? An employer in USA is hiring contractors who will work remotely from India. They plan to setup an office in India within a year. The offer letter is sent via https://<companyName>.workable.com, and signing the offer letter can be done by either uploading a photo of the candidate's signature, signing using the computer mouse or by typing the candidate's name, which gets displayed in a fancy font. Question: If a candidate chooses to sign by simply typing their name as shown (as an example) in the first and second photos, they'd obviously have to stick to the same name and font when signing the contract and non-disclosure agreement. But what repercussions would it have in future? If the candidate has to sign any more company documents much later (signing physically with a pen on paper or even signing electronically), would it have to match with the signatures that were first made in the offer letter? Or would commonsense be accepted, that the signature is basically the candidate's acceptance of the terms of the agreement, and that the signature can vary? ps: I'm hoping this can't be misused by the employer or any third-party that gets hold of the document. | If a candidate chooses to sign by simply typing their name as shown (as an example) in the first and second photos, they'd obviously have to stick to the same name and font when signing the contract and non-disclosure agreement. This assertion is incorrect. But what repercussions would it have in future? If the candidate has to sign any more company documents much later (signing physically with a pen on paper or even signing electronically), would it have to match with the signatures that were first made in the offer letter? No. Or would commonsense be accepted, that the signature is basically the candidate's acceptance of the terms of the agreement, and that the signature can vary? Yes. A signature is ritualized way of showing legal agreement. The content of the signature does not impact its legal validity. For example, it used to be commonplace for illiterate people to sign contracts, wills, and other documents prepared by someone else and read to them with an "X". So long as a signature is made by the person who is supposed to be signing it with an intent to legally agree to what they are signing, it is a valid signature. When a signature is obtained in a manner that does not reflect the intent of the person signing it to legally agree to what they are actually signing, that is a special category of fraud called "fraud in the factum". For example, substituting a deed to a house from a receipt for a package delivery at the last moment when the person signing it doesn't notice the switch, is "fraud in the factum". A court's conclusion that there has been "fraud in the factum" has the legal effect of causing the document signed to be treated as if it was never signed at all. In contrast, different legal consequences are present when someone signs a document, knowing what they are signing, for reasons that rely on false statements that have been made to them, which is called "fraud in the inducement." If someone tries to enforce an agreement that purports to be signed, and the person who allegedly signed it claims that the signature was forged by a third-party, inconsistency between the signature and other times that the person who allegedly signed something did so is evidence that the signature is a forgery. But it is not conclusive evidence. People's signatures change over time for a variety of reasons, sometimes dramatically in a short period of time, for example, in the case of a stroke or a hand injury. When signatures differ over time and there are allegations of forgery, then it is a question of proof for a finder of fact (i.e. a judge or jury) to decide if the alleged forgery is really a forgery. Many businesses that routinely accept small dollar value personal checks, for example, also take a thumb-print of the person signing the check in order to make it cheap and easy to litigate the question of whether a signature on a check is forged, and to discourage litigants from falsely claiming that a check was forged in the first place. This practice was established because lying and claiming that a check was forged used to be a tactic that was used on a recurring basis in civil cases and in criminal bad check passing prosecutions to escape liability. | 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. | This aspect (and many others) of contract law is applicable in the US and various countries of the EU. can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? No. The company would incur breach of contract. There is no need for a formal contract. The candidate only needs to prove that the company agreed (in writing, orally or clearly through its conduct) to cover or reimburse those expenses and that this elicited a meeting of the minds. The agreement would be void if the candidate incurred the expenses despite knowing (via timely notice) that the company changed its mind. Likewise, if the candidate lied on his CV, the contract (here, the company's agreement to cover the expenses) would be voidable by the company, since the candidate's intentional misrepresentations preclude the aforementioned condition of meeting of the minds. --Edited on 1/18/2019 to add ...-- Per suggestion by @KRyan, the aspect of void or voidable contract is expanded. But first, two disclaimers are pertinent: We need to be mindful that many of the follow-up concerns are either premised on or inspired by the situation described in the underlying Workplace SE post. These are somewhat beyond the scope of this Law SE question but addressed nonetheless, given their relevance as well as the OP's & audience's interest. The follow-up hypotheticals [in this Law SE question] and clarifications thereto neither speculate nor pass judgment on the stranded candidate who asked on Workplace SE. The Workplace SE post reflects a company's breach of contract. The subsequent comments here about fraud hypotheticals are mostly derivative inquiries beyond what is described in Workplace SE. In particular, we do not assume whatsoever that the stranded candidate committed fraud. The_Sympathizer commented: can the contract be voided on the spot like that without first proving in court? As it seems like it grants a rather "vigilante" justice power that is open to abuse, since effectively the "punishment" (cancellation of the flight and thus inducing a rather serious physical situation) is administered before any due process has been afforded the one accused. Yes, it can be voided on the spot (aka sua sponte). "Vigilante" justice denotes a self-attribution of punitive powers that exclusively belong to the state/government/court, whereas a party's voiding of a contract is the act of foreclosing his losses/exposures with respect to a contract that de facto never existed (such as when that contract was induced by fraud). I agree that unfortunately that is open to abuse: As a pretext to actually incur breach of contract, a company might allege that the contract was void. That is why (if taken to court) it will be the company's burden to prove that (1) it reasonably relied upon a candidate's representations (2) which were significant and blatantly false (3) given the candidate's knowledge that his lies contravened the job's core requirements. That can be quite burdensome. For instance, is the company handing out airfares without first conducting some competent corroborations about the candidate's credentials/skills? If so, one can hardly concede the company's allegation of reasonable reliance. The resulting finding would be that the contract was not voidable by the company, and thus that it is liable for breach of contract. Also, belatedly "informing" the stranded candidate that the company "is going in a different direction" falls short of evidencing that the contract was voidable. That applies even if the candidate performed very poorly in the interview or screening process. Given the hardship imposed on a stranded candidate, a company has to be morally and legally very judicious about its method and timing for "going in a different direction". But absent any representations or [company's] bylaws to the contrary, a company generally does not have the obligation to afford due process to a candidate. The court is the entity with an obligation to enforce due process as provided by law (although many of us in the U.S. have repeatedly experienced the courts' disavowal of due process). --End of edit on 1/19/2019-- a binding agreement requires both sides to give something Here, the candidate's consideration is his time and effort to accommodate the company's interest in assessing the candidate's profile at a location that is convenient to the company. | Given that the purpose of the bonus is to incentivize you to stay, and you are willing to do that, I see no reason why you shouldn't keep the signing bonus if you are fired. While this is not totally without ambiguity, it is at least a fair reading of the statement that a pay back applies only to a voluntary departure, and ambiguities are generally interpreted against the drafter. Also, keeping the signing bonus compensates you for having to start up at a new job only to have it promptly dissipate. | Basically, "in the course of your employment" means "while you are working, or should be working, for the employer". If you're not using company resources or time to create or acquire the works in question, and the works are unrelated to company business, they're quite unlikely to become the company's property. (Particularly since the company almost certainly doesn't have an interest in controlling the distribution of your vacation photos.) When you let your personal side projects and the company's stuff get intertwined, that's where the troubles begin. Works made on company time, or using company resources, or to do company-related things, may be claimed by the company, and this agreement basically says you'll cede ownership of the works to them, patents and all, for whatever amount of money they decide it's worth paying you. | This depends very much on the nature of the agreement, and whether it affects the client's rights and obligations. It may also depend on which US state this is in. If the agreement is "We will hold the negotiating meetings at your office instead of mine." the client's rights are not affected and the client probably has no veto. If the agreement is "Yes we will plead guilty to manslaughter." it isn't valid without the client's consent. If the client is giving up any rights or making any significant concessions, then the client's consent is probably required, but I can give no better answer without an indication of the subject of the agreement. | As far as I can see this means that I sign away any rights I currently have to any IP and also that I sign all rights to any IP I create whilst working for the company. The hiring manager says that I have this wrong and that it only means anything related to work that I would undertake during my employment with the company. Based on the quoted language, the hiring manager is correct. The key phrase is "all rights to all material created in the course of your employment with the Company" This means things created as part of your new job. It does not mean copyrights or other IP you now own, nor does it mean rights to things you create outside of work hours, unrelated to your job, not as part of any work assignment, and not created on work premises or using work equipment. You might want to confirm this by talking with a local lawyer with some IP experience and some employment law experience. A one-time consult should be available at a fairly small cost. The section about "whether now existing or created in the future" refers not to existing IP, but to existing kinds of IP and existing laws. If the UK should pass a new "algorithm rights " law next year, this language attempts to make sure that such rights are covered without needing you to sign a revised contract. Note that this phrase occurs as part of the definition of the term "Intellectual Property Right", and it is limited by the phrase "in respect of the material created by you in the course of your employment." A contract that attempted to claim all existing IP you may hold that is unrelated to your employment, or one which tried to claim IP having no relation to your future employment might be held void as against public policy. In any case, if it was ambiguous, any such ambiguity should be resolved against the drafter of the contract (here the company) and in favor of the other party. A separate email might be taken into account as showing what your "meeting of the minds" was with the company insofar as the contract language is ambiguous. It will not, however, be effective in changing the plain meaning of the contract. | Possibly If the texts are sufficiently precise that they constitute offer and acceptance then they would create a contract notwithstanding that “some documents” were never provided. First, your offer must have been sufficiently clear that it was open to acceptance by a simple “yes” or “ok”. Given that you had a lease, a simple offer to have another one would be enough as “on the same terms” is implied. Second, she must have accepted your offer unconditionally. “Yes, I’ll put together some documents to sign” is an unconditional acceptance even if the documents never appear. “Yes, I’ll put together some documents to sign first” or “Yes, I’ll put together some documents with the terms” aren’t. The first is a conditional acceptance and the condition wasn’t met. The second is a rejection with an intention to make a counter-offer that never eventuated. Third, real estate is heavily regulated. There may be specific requirements (such as a particular form of contract, or that it be witnessed) that mean there is no binding lease even though there would be a contract at common law. |
Would staggered layoffs circumvent the WARN Act's protection against mass layoffs? The U.S. federal Worker Adjustment and Retraining Act (WARN) states that employers with 100 or more employees must provide at least 60 days advance notice before a mass layoff affecting 50 or more employees. Are there any protections against an employer circumventing the WARN act by staggering layoffs over multiple days? For example, could an employer lay off 200 people without notice by laying off 40 employees each day for a week? | Are there any protections against an employer circumventing the WARN act by staggering layoffs over multiple days? For example, could an employer lay off 200 people without notice by laying off 40 employees each day for a week? The WARN Act's definition of layoffs measures the number of employees laid off in "any 30-day period". 29 U.S.C. § 2101. So, to lay off 200 people without notice, it would have to stagger it at 40 people a month over five months, not over five days. | The answer to your question is that your manager cannot ask you to undertake training without payment. All employees are entitled to be paid for the work they have done. They are also entitled to be paid if they are ready and willing to work but their employer has not provided them with any work to do, unless your employment contract says otherwise. https://www.citizensadvice.org.uk/work/rights-at-work/rights-to-pay/ Zero hours contracts can be very complicated legal issues, but you are entitled to be paid for the time you spend there doing what your employer has asked you to do. However, if your employment were to be terminated due to a disagreement then you may not be able to make any claim before an Employment Tribunal as you do not yet have a sufficient length of employment. There are many legal complications, and each case is different and individual. Giving general legal advice is beset with all kinds of problems. You may wish to direct your employer to the Citizens' Advice page. If they do not agree to either pay you for your time there or allow you to leave when they do not wish to pay you then your best option might be to seek employment elsewhere. | > What does that last sentence mean? It means that federal law does not provide premium pay on Sundays and Holidays the way MA does. > Should I be getting paid more than I am? No. Check out G.L. c. 151, § 1A: the hours so worked on Sunday or certain holidays shall be excluded from the calculation of overtime pay In other words, take your eight hours on Sunday and subtract that from the total hours for the week. That number minus 40 is how many OT hours you get. This calculation is called crediting - basically the employer credits your time-and-a-half Sunday work against your total hours for the week. Crediting is allowed and it is why you do not get the Sunday pay on top of your overtime. If you want to get in the weeds take a look at Swift v Autozone where the MA Supreme Court describes why crediting is allowed. Also see 29 U.S.C. 207(h)(2) which tells us that extra compensation is creditable.. | According to your description, you have a contract to work 200 hours, and this must be accomplished between May 12 and July 10. Apparently you are 25 hour short on that obligation, which may mean that you probably will be in breach of contract. I don't see what error there is w.r.t. the date: whatever the contract says, that is what you agreed to. Perhaps you are wholely responsible for the shortfall of hours, or perhaps the employer bears some responsibility (e.g. making it impossible for you to work). It sounds like the employer is offering you an accommodation so that you can fulfill the hours part of the contract, by extending the termination date. Technically, you also have to do the work by a particular date, but a reasonable delay in performance is standardly allowed under contract law, unless the contract has a "time is of the essence" clause which states that completion by the specific date is essential to the contract. If not, then there is reasonable flexibility in completion. Doing less than you contracted for, on the other hand, is not a standardly-available option. Pursuant to the comment, it sort of sounds like the employer made it impossible to satisfy the conditions of the contract, and wants to use the end of contract date as a form of hardball to extract additional hours (i.e. "we'll sue you for breach of contract for not having done this by the deadline, unless you agree to work an additional 15 hours"). Hardcore deadlines without a time is of the essence clause don't support a claim for damages in case of minor delay, and even less so when the employer bears responsibility for the delay. Consulting an attorney (bring in the contract and all), in this case, would be a good idea, if they are hinting at a lawsuit if you just walk away 15 hours short, or won't accept your compromise. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). | Quitting before the start date: is the non compete enforceable? The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause. The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later. Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade. | I believe that legally they can't force her to use sick leave since she has met the 40 hours minimum required as a salaried employee. Is this correct? Unfortunately, as far as the Department of Labor (DoL) is concerned, the employer is correct here, provided that this is company policy. First, there is no "40 hours minimum required", the DoL simply says that a salaried (exempt) employee must be paid the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. This is then limited by the "allowable deductions: Circumstances in Which the Employer May Make Deductions from Pay Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. (Source: dol.gov) Emphasis Mine This means that as long as the employer has a policy or practice requiring the employee to use Paid Time Off (PTO) for sickness (sick-days), then the employer is allowed to make deductions from the employee's salary for those days. So in short, yes, the employer can require that the employee use PTO to cover sick days, regardless of the actual number of hours worked in that week, month, year, etc. There is currently no federal requirement for employers to provide paid sick leave, although some states like California may have local laws. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. |
Is being harassed or provoked a valid defense for assault? Earlier this year, Mike Tyson was recorded assaulting another airplane passenger after the victim "harassed" and threw a water bottle at Tyson. The victim apparently needed medical attention; however, no charges were filed: Authorities will not file criminal charges against former heavyweight champ Mike Tyson after he was recorded on video punching a fellow first-class passenger aboard a plane at San Francisco International Airport last month, prosecutors announced Tuesday. The San Mateo County District Attorney's Office said it has closed the case and decided against pursuing charges based on "the circumstances surrounding the confrontation." Does this mean that if someone is harassing me, if I retaliate and assault him, the law will side in my favor because I was provoked? And if so, to what extent do I need to be "harassed" for assault be considered justified defense? | The general rule is that force may be legally used in defense of self. I will draw on RCW 9A.16.020, other jurisdictions say essentially the same thing. The relevant parts are: (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 Curated internet videos don't tell the whole story, but for the sake of argument I will assume that Mr X chucked a bottle at Tyson, and Tyson proceeded to punish him with his fists. Both parties thus committed a crime. The new report indicates that there will be no prosecutions "based on 'the circumstances surrounding the confrontation'", which I take to include all of the available evidence. Prosecution for a crime is discretionary. There is no requirement at a prosecutor file charges in every instance where (in the prosecutor's professional opinion) a conviction can be secured. The abstract law is clear: both parties committed a crime. The abstract law is also clear that a prosecutor has discretion to decide whether to prosecute. | The First Amendment does indeed guarantee the freedom to express any idea or viewpoint, the limitation being incitement to immediate lawless action, recently reaffirmed in Snyder v. Phelps (many free speech cases have been about criminal restrictions on speech, this applied even to a suit for intentional infliction of emotional distress). There isn't a clear line that distinguishes "advocating violation of the law" and "inciting to immediate lawlessness". Saying "(You should) shoot The Man whenever you see him" would be protected expression, but "There's a cop, somebody kill him" would be incitement. It also has to be a "credible" incitement, so saying "Kill him now!" to a room full of pacifist nuns would not constitute incitement. Things said to an angry mob would be more along the lines of incitement. | Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000. | Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous) ... do we have to pay the $$ to "lawyer up" if we want to be safe? If you get sued, you will definitely want a lawyer. If you don't get sued, well, in that case you're safe. So your first question is whether the supposedly aggrieved party will actually sue. Your second question is, if they sue, do they have a good case? That question will be useful in deciding whether to settle. If the threats are empty then you might want to hire a lawyer to call their bluff. Otherwise you may have to endure the continual empty threats. This is especially true if the libel case is weak. Your lawyer can write a letter that explains why there is no case. If they do sue, they will have to identify the specific libelous statements, so you will at that point be able to refute the claims. But you'll also want a lawyer at that point, so you won't have to be directly concerned with the details; your lawyer will take care of them. As suggested in a comment, do keep in mind that a true statement cannot be libelous, by definition. To the extent that you can prove that every statement in the piece is true then you don't have much to worry about. But even then you'll want a lawyer's advice, because even if you know yourself that everything is true, you don't know what it will take to prove that in court. (Another aspect of the element of falsity is that statements of opinion are generally not defamatory.) To learn for yourself about the elements of libel you can start with Wikipedia or a bit of internet searching. To get a thorough analysis of the facts of your case in light of the laws of the relevant jurisdictions, you will need to engage a lawyer. It might not cost as much as you fear. | It looks like this is covered by article 34 of the criminal code you linked: ARTICULO 34. - No son punibles: [...] El que obrare en defensa propia o de sus derechos, siempre que concurrieren las siguientes circunstancias: a) Agresión ilegítima; b) Necesidad racional del medio empleado para impedirla o repelerla; c) Falta de provocación suficiente por parte del que se defiende. Se entenderá que concurren estas circunstancias respecto de aquel que durante la noche rechazare el escalamiento o fractura de los cercados, paredes o entradas de su casa, o departamento habitado o de sus dependencias, cualquiera que sea el daño ocasionado al agresor. Igualmente respecto de aquel que encontrare a un extraño dentro de su hogar, siempre que haya resistencia; English (my translation, no guarantees): ARTICLE 34 - Not punished are: [...] Someone who acts in self-defense or in defense of their rights, as long as the following circumstances apply: a) illegitimate aggression b) a rational need for the means used for preventing or repelling the aggression c) a lack of sufficient provocation on the part of the defender It is understood that these circumstances apply with respect to someone who during the night defends from a housebreaking or a breach of the enclosure, the walls or entrances to their home, or the home of their dependents, no matter what damage is caused to the attacker. Reading these rules, which look quite similar to the law in most other countries, I'd say shooting an armed intruder would be covered. It would probably already be covered under the general rules ( a) to c) ): There is an illegitimate aggression, and shooting is necessary for stopping the agressor, because no milder means is practical in the situation. Additionally, the last paragraph would apply, which provides additional protection to someone defending their home, so even if a judge decided that normally shooting someone attacking with a knife is not necessary for protection, it would still be ok for home defence. | IMO this is a perfectly reasonable question, amenable to a common law analysis: (1) indicates that A has committed the tort of false imprisonment (Restatement of Torts, 2d, §35). Because of 2-4, we can see that A intends to confine B (though vide infra). The confinement is complete (§36), this being a single aisle plane although the same would be true if this was a 5-aisle plane. A has no authority to confine B (§ 41) and is not otherwise privileged, and is accomplished with a physical barrier (§38). B knows that he has been confined (§42). B is "privileged to use any means of self-defense to protect himself against confinement which he is privileged to use to protect himself against a harmful or offensive contact or other bodily harm" (§68). B uses reasonable and minimal force not likely or intended to cause death or serious bodily harm (§63), force which is privileged and thus protects B from being subject to liability (§10). A commits the tort of battery (and a second round of false imprisonment) by taking B down (§13). A is not privileged to use force in self-defense. There is no reasonable belief that B will spontaneously turn on A and use further, unprivileged force – A is simply punishing B for his minimal use of force in self defense, so A's final act is not privileged. There is a related but distinct scenario that adds a material fact, which could change the analysis: C calls out "Excuse me, my flight flight leaves in 15 minutes, may I pass?" whereby A allows C to step ahead of him in the queue. A has no obligation to let anyone jump the queue, but may consent to inconsequential contact which might constitute battery. It is reasonable to conclude that there is apparent consent (§50) given to anyone (§52) when A makes way ("making way" is a publicly-available fact, but "for C to pass" is a private fact of A's state of mind which B cannot reasonably infer: except, B has heard the "May I pass?" request). So the analysis really hinges on how to interpret 2 and 4. Coupled with 6, we (jurors) have a preponderance of evidence showing that A intended to confine B, and battered him when his confinement failed. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | You cannot be successfully sued nor charged with a crime in the US merely because a movie, book, or other work is violent. Consider the rape scenes in the movie Deliverance, or John Hersey's The Wall, a 1950 novel which describes in detail the Warsaw Ghetto and the massacre and torture of its inhabitants by the Nazis during WWII. Or Plevier's Stalingrad, a 1940s novel about the aftermath of the Battle of Stalingrad, also during WWII, and the suffering of both Russian and German soldiers and civilians there. (Both novels were later filmed in less violent versions.) Many other examples could easily be mentioned. Triggering anxiety or PTSD in a reader or watcher would not be grounds for a suit either -- attempts to bring such suits have been dismissed. Claims that violent works inspire or encourage crime or anti-social acts have led to attempts to regulate such works, from comic books in the 1950s to video games in the 1990s. None of these works have prevailed. The so-called Comics Code Authority survived for a time because it was a strictly voluntary process -- some publishers never submitted content to the CCA censors. The Motion Picture Production Code was similarly voluntary, as is the current system of movie ratings. Works that defame someone can be the subject of libel suits. But to win such a suit in the US, the plaintiff must show that statements were made that were false, and not matters of opinion. The plaintiff must also show that such statements were "of and concerning" the plaintiff, that is that they were specifically about the plaintiff. The plaintiff must in most cases further show actual harm to the plaintiff's reputation, unless the false statements were of the limited category known as per se libel, which give rise to a presumption of harm. These include false claims of improper business or professional conduct, false claims that the plaintiff committed a serious crime, or false claims of sexual improprieties. Moreover, in many cases in the US the plaintiff must show actual malice, that is that the defamer made the false statements knowing them to be false, or with reckless disregard for whether or not they were true. This applies when the person bringing suit is a public official or public figure. Mere general violence will not be grounds for a libel suit. Incitement Several comments have asked if violent depictions could constitute incitement and therefore be unlawful. The current rule in the US is that speech (or writing) can only be punished as incitement if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". This language comes from Brandenburg v. Ohio, 395 U.S. 444 (1969), and has thus been stable for over 50 years. Prior to that the US Supreme Court used the "clear and present danger" test, first adopted in Schenck v. United States, 249 U.S. 47 (1919) The actual passage from Schenck was: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. In Brandenberg the Supreme Court held Ohio's criminal syndicalism statute unconstitutional, because that law generally criminalized simple advocacy of violence. Under neither test would a book or movie that simply depicted violence be subject to legal action simply for that reason. A work would have to specifically advocate violence. Under the current Brandenberg test the work would have to urge people to violent lawbreaking right away, when it is read or watched. and actual lawbreaking would need to occur, or be reasonably likely to occur, for legal action to be constitutional. Actions against incitement under this test have been largely aimed at speeches before crowds or groups, urging them to riot or take other violent and unlawful action right then. While a book, movie, or video could be incitement under this test, it would need to be much more than just violent, it would need to strongly advocate present unlawful violence. That is not what the question asked about. |
Are parents allowed to not pay for their children's surgery? Through public internet group chats, I was able to meet a teenage girl that suffers from a medical condition. According to her, she lives in the US, but in a neglectful household where her parents pay little attention to her. Doctors say one of her limbs will have to be amputated eventually, but not in the near future, meaning that she will probably still have around ten years to pay for the surgery after becoming an adult. She seems to be already assuming that nor she nor her parents will pay for the surgery, so that she will simply lose her limb. I wonder however what her options are. My concerns are the following: what if, as an adult, she needs the surgery but is incapable of getting it due to lack of money? Are there any laws that will grant her the right to a free surgery since she is underage? Are her parents spared from paying for the surgery because she will have the option to pay for it herself one she is an adult? I would really appreciate any help. | Parents have a legal obligation to care for their minor children: it is illegal to harm a child through action or inaction. State law and associated welfare programs are complex: you can start here. If surgery is medically necessary, her insurance should cover it. If her parent do not have medical insurance, they still have the obligation of care; though various governmental programs may alleviate the problem, such as the state medical assistance program. The parents may therefore be in violation of the law, and anyone may report this to DSHS (specifically through Child Protective Services). This obligation terminates when the child turns 18 (assuming that someone does not petition for adult guardianship). Legislation is not crystal clear as far as what constitutes "injury of a child ...under circumstances which cause harm to the child's health". CPS has no authority to compel parents to pay for a medical treatment, but they can go to the courts on behalf of the child. At that point, it's hard to say what the court would order. For example, if the parents are capable of providing medical insurance and just willfully chose to not cover their child, the court could order them to get insurance. It is virtually guaranteed that the courts would not order the immediate amputation of the child's feet, and there would be no legal basis for ordering the parents to pay for the procedure in a decade, after the child is an adult. However, if you are suggesting that there is an immediate treatment (which the parents have opted to not provide, hence the prospects of later amputation), then it is reasonably likely that the courts would order the parents to provide for the treatment (if it would be possible for them; otherwise, the state may intervene and provide for the treatment). | Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion. I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here. | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | Because the law of negligence has developed to include a duty of care between physicians and patients and the standard of care encompasses the things you describe. The common law conceives of the doctor and patient in such a close relationship of neighbor-ness that it makes sense to impose such a duty. The harm that flows from breach of that duty is often reasonably foreseeable. Another distinction is that you come to a physician with an illness and expect care and they purport to deliver it. Their care and advice is often not a product/service that you might have the option of not buying. There is no competing legal duty that pulls the physician in any other direction than to meet the standard of care. There is no corresponding duty of care between an instructor and student to instruct any particular syllabus content. It would be a novel addition to the common law if this were to be recongized. There is no standard of care dictating the content of the syllabus. Any obligation to deliver a particular syllabus would be placed on the professor by the university (perhaps further dicated by professional accrediting bodies). I do not foresee the common law developing to include such a duty of care between professor and student. The value of academic freedom weighs against the law imposing a strict duty on syllabus content and the kind of harm that might flow from presenting out-of-date information is vague and not often reasonably foreseeable. Such a duty could give rise to a spectre of of indeterminate liability. And it isn't clear that the interest in presenting the latest and current theories always outweighs the interest in presenting a historical perspective. These are all reasons why I highly doubt the common law would ever evolve to recognize the duty you're proposing. | The "Privacy Rule" (45 CFR Part 160 and Part 164, Subparts A, E) don't forbid this. Sect. 164.502 states the general rule: (a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. "Health information" is defnes in part 160 as any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Your picture would not constitute health information (and anyhow, they are allowed to gather health information, just not freely disseminate it – the pictures on the wall were presumably with permission). There is no general law (which would be state law) against taking a person's picture (though commercially exploiting someone's picture would require permission, via the concept of personality rights), and it is directly required in a number of instances (for identification purposes – school ID, driver's license, passport, voting in some states). It is an unusual requirement and since they scanned your driver's license it is especially inexplicable. Assuming that this is just a story they tell all patients because they want before and after pictures (which you would have to consent to, if you didn't already in one of those "sign here" flurries), saying that this is for "security purposes" would be untrue, but I don't think it's actually illegal. Taking but not using a photo would not cause you harm, so if you had let them take the picture, there would not be a basis for suing. If they use it for advertising without permission, that would be a problem. | If they do a treatment which you didn't consent to and harm you they risk being sued. As such, they get you to sign a consent form to prove you agreed to the treatment and were informed about what was going on and any material risks. They had implied verbal consent from you which is enough legally, but there's a risk that if it went wrong you could claim you didn't consent, they lied about what treatment you had, and they illegally did it. As an example, they often drip something into your eye which can sometimes cause blurry vision for a while. If you had blurry vision after and crashed your car you could theoretically sue them because you say you didn't consent to that and they have no proof you did. | Is there any state where someone doing this would potentially face manslaughter or murder charges, due to some variant of a 'life starts at conception' anti abortion law? Not really. Those laws are currently unconstitutional. A state could certainly prescribe some criminal punishment in a case like this one, but punishing under existing manslaughter or murder laws would almost surely not be upheld under existing law (subject to change without advanced notice by the U.S. Supreme Court). If someone knowingly and intentionally destroyed an embryo conceived via IVF but not implanted yet what kind of consequences do they face? Is the potential life treated differently or is this just destruction of property? This is a tough question that probably doesn't have a uniform answer under the law of all U.S. states. For one thing, it isn't clear who, if anyone, has property rights in the embryo. It is certainly conceivable that a state might instead conclude that the donor receiving the IVF treatment has only contract rights in it (and breach of a contract is not a crime). It might be viewed as a property destruction case. There might be a specific statute on point. There might be a civil lawsuit remedy. In most states, this would be an issue of first impression and a court would look a competing ways that cases had been handled in other jurisdictions to decide what to do in its case. | Any parent may leave a child in the care of another responsible person. There is no special license required. The parent may use sound judgement in selecting the caretaker. Nor does a caretaker even have to be an adult -- teens are often used as baby sitters. If a reasonable parent would have known that a particular person was not a safe caretaker, then selecting that person might be negligence or child endangerment. Nor is there any legal requirement in most US states that a child be under anyone's direct supervision at all times. See "Free range parenting". Again, if in particular circumstances a reasonable parent should know that supervision is needed, failure to provide it might be child neglect or endangerment. Some US states set minimum ages for children to be unsupervised. NJ is not one, to the best of my understanding. |
Is it considered harrassment in the US to call a black man the N-word? I recently saw a Youtube Short featuring a man interviewing Jordan Peterson and they were discussing the legality of calling someone by racial slurs, specifically the N-word. Seemingly having actually to do with the legality of calling transpeople by their deadnames or old pronouns. Peterson was not suggesting at all that it is OK to call a black person the N-word, but that he simply stating that it is not illegal in the US. Host: For example, if a black guy said "Hey, I'm black." You can just say no, you're not, and then can you use racial epithets, or what he considers to be racial epithets?... Peterson: Can I? Of course I can. Whether I should or not is a different issue, and whether or not it should be illegal is a completely different issue...no its not [illegal] Host: If a black guy repeat to call him [sic] the n word Peterson: [interrupting] It's not illegal Host: its harassment Peterson: ...It's not illegal in the United States...there's no disagreeing This got me curious as to who was right? When, if ever, would calling a black person the N-word not be covered under free speech? I'm guessing it varies from state to state, but I'm not certain. | The spectrum of "illegal" is broad. One way in which racial epithets are (indirectly) illegal is via anti-discrimination laws, indeed labeled "harassment" by the EEOC Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. If an employer tolerates racial epithets, they are likely to be the target of a harassment lawsuit. There is no limit on who utters the epithet, thus a customer can be the trigger for a suit. In cases not involving supervisory employees, liability arises if the employer "knew, or should have known about the harassment and failed to take prompt and appropriate corrective action". Analogously, racial epithets in educational institutions are actionable. Framed in terms of a random epithet by a non-employee or campus visitor (where the institution has minimal leverage over the offender), the institution must act, when it becomes aware of such circumstances arising, and cannot just say "What can we do??". A second (remote) possibility is through the fighting words doctrine, that the government can limit speech that is "likely to incite immediate violence or retaliation by the recipients of the words". This arose initially in Chaplinsky v. New Hampshire – one of the holdings was that The Court notices judicially that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. There have been numerous refinements of the doctrine over the decades, so the mere utterance of a racial epithet would not run afoul of properly-restrained "breach of peace" laws. One of the two most-relevant current opinions is Brandenburg v. Ohio, 395 U.S. 444, where the court held that the government cannot forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action but uttering an epithet is not advocacy of force or law violation. The second is R.A.V. v. City of St. Paul, 505 US 377 where defendant was charged with violating an ordinance that prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" SCOTUS ruled that "the First Amendment does not permit a state to use content discrimination to achieve a compelling interest if it is not necessary to achieve that interest" (emphasis added), holding that A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. A further holding is that the law is is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. The court has not clearly identified a context in which a law against a racial epithet would be constitutional, they have simply identified other bars that would have to be cleared for such a law to be permissible. No utterance, devoid of context, is illegal, so to discover where such an utterance could be part of a prosecutions, we would need a lot of specific context in the hypothetical. | Actually, he has been libelling you which is defamation in writing - slander is verbal defamation. Notwithstanding, if what he has done has or is likely to cause damage to your reputation and is a statement of fact that is not true then it is actionable. Neither name calling nor his opinion that you "are the worst person in the world" are statements of fact. Saying you left rotting food and that you threw garbage on the lawn are. You could sue for damages or seek an injunction requiring him to withdraw his statements and apologise, however, a better (and cheaper) first step would be to send a cease and desist letter. You can find templates online or pay a lawyer to send one. The latter is likely to scare the s@&t out of him and may be worth the money just for the satisfaction. | We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered. | It is illegal to threaten to report a person for violating the law (it is illegal to threaten a person). There are laws in California that limit official cooperation with ICE investigations, therefore the police will not arrest a person for being an illegal immigrant. This is basically a limit on use of state and local resources, and the state has the power to control its purse strings. The state has no power to mandate that individuals not report a suspected or imagined violation of federal law to federal authorities, and there is no California law purporting to have that power. | The dichotomy between solicitors and barristers in the UK isn't one based on verbal definitions in the English language. In other words, the fact that barristers argue and solicitors don't isn't something that's inherent to the words, it's just how British law decided to divide it. Since those countries with solicitor generals don't have this dichotomy, they generally don't have anything actually called a barrister, and there's no reason why the solicitor general couldn't be called that, since solicitor doesn't require that he not argue in court. | 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. | 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. | No. It is an often repeated misconception that "Freedom of Speech" means that no one can restrict speech ever. This is not the case. Let us look at the US Consitution's First Admendment, which contains the "Freedom of Speech" clause: Congress shall make no law ... abridging the freedom of speech, or of the press... (Emphasis mine) As one can see, the First Amendment only restricts government actions. (It also stops other branches of government from restricting speech, because those branches are innately weak with very few powers granted to them by the constitution; the majority of executive or judicial branches powers are granted to them by a law passed by Congress, and Congress cannot give a power to another party that they do not possess). A Home Owner Association (HOA) is not a government or government agency; it is a private organization (and it is not the same as the "private management company" that manages the condominium, which is probably in the employ of the HOA; which also means that emailing the manager is not emailing the HOA board). Their power stems from a contract, one that your friend signed when they bought the property (one of the conditions agreed to is that a member who sells or gifts their HOA-member property can only do so to someone who also agrees to the contract). That said, HOAs can be horribly abusive and many states have laws that restrict what kinds of rules and penalties can be applied by an HOA. But that is not a constitutional matter (at either the Federal or State level), nor a question of "Freedom of Speech", but rather a limitation on the kinds of behaviors that can be enforced by contract. |
Does the death of a party involved in the execution of a will mean that they do not inherit? A friend of mine is engaged in a lengthy probate process over her inheritance from her parents with her brother as the executor. Without getting into details of why it's been so protracted, it's been going on for well over a year now with all of the attendant drama and legal measures. Her health has been poor, and recently she's been worried that she might die (with attendant nightmares of parties involved plotting to hasten the situation), effectively turning the entire inheritance over to the remaining sibling (which yes, the inheritance wouldn't do her much good there, but her plans, including her will, involves disbursing her assets to various friends and charitable interests). So, my central question is, does the death of an inheritor during the probate process result in their "share" reverting to the remaining inheritors? This is a Pennsylvania case, for the sake of state law. | The common law rule was that to inherit you have to outlive the decedent from whom you are inheriting, and that the inheritance would pass to your estate if you died before distribution was made. Statutes in some jurisdictions provide that someone must survive for a longer period than that to be eligible to inherit, often five days, in order to simplify the factual issues in the common situation of a joint accident. Pennsylvania is one such state. But a will or trust can deviate from the default rule, and in U.S. practice, driven by federal estate tax laws, it isn't uncommon to require someone to survive the decedent by at least six months to inherit from them under an instrument. In this case, where more than a year has passed since the death, the inheritance would not lapse for these reasons. It also isn't uncommon for a trust, either established during life, or established at death, to provide that distributions from the trust are made at the discretion of the trustee and to require in those cases that the person receiving the distribution also be living at the time of the distribution. These trusts also typically contain specific provisions that spell out the rights of a beneficiary who dies before the trust is fully distributed. | There are multiple kinds of joint ownership, centered around the question of survivorship. One possible outcome is that the deceased willed their property to some other person Smith, therefore Smith will not have A's interest in the account. Let's assume that the accounts and house are both joint tenants with right of survivorship. Then the survivor simply is the only person who has the right to access the account. However, the account probably cannot be closed, because as far as the bank knows, the deceased spouse still has an interest in the account, and will require the spouse to sign the paperwork. Therefore the surviving spouse will have to bring in paperwork to establish that the deceased spouse is deceased. Similarly, a deceased spouse can remain on the deed, but when it comes time to sell the house, it will be necessary to legally "extinguish" the deceased spouse's interest in the house. It can also complicate mortgage-refinancing or using the house as security for a loan to leave the paperwork unresolved. | Conditions in a will are.. complicated. As a rule of thumb you can impose conditions but that doesn't mean they are always going to be upheld. Some will be ruled void where they are considered "against public policy" - where it's against the public interest to consider the condition valid. e.g: encouraging someone to commit a crime; inducing the future separation of a married couple; unreasonable restrictions on marriage; depriving a parent of control over their children; requiring a child to change their religion. That sort of thing. Another way is if the condition is "impossible" (or so improbable/impractical as would make no real difference) e.g. you can't say "they have to leap the grand canyon on a skateboard" or "must visit mars and bring back ice cream first" that sort of thing. Alternatively if the condition is too vague or uncertain e.g. "the beneficiary will inherit when they are ‘suitably’ married" or impractical to enforce e.g. "no one with the surname Booth may enter the property on a Wednesday". I'm not sure those are going to apply here - the condition sounds specific and not particularly difficult to achieve or to measure compliance. That doesn't mean it's going to stick though - you can challenge the condition in court and they might chose to void the condition. Since the condition sounds like what's called a "condition subsequent" (i.e. it comes into effect after receiving the "gift") the court can use discretion to have the gift still take place if the condition is voided. How about if they were not allowed to sell it for 20 years, or 100? The 100 years variant could fail under "impossible" - since it would take the time period the beneficiary was required to comply with the condition past the point they could reasonably be expected to comply with it (since people typically live that long), similarly with the 20 years (or even the 10) if it was going past the remaining expected lifespan of the recipient. Basically it boils down to "challenge it in court and see what they say" - but as ever consult an experienced solicitor before doing anything along those lines. Having a condition declared void doesn't always translate as "you get it free and clear" - in some circumstances it means the gift becomes part of the Residuary Estate instead. | Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense. | 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. | The rules for a Texas power of attorney are summarized in this page from Texas Lawhelp. The actual law is 2005 Texas Probate Code CHAPTER XII. DURABLE POWER OF ATTORNEY ACT Both of these indicate that the agent (aka attorney-in-fact) must be specifically named in the POA document. My experience with a POA in a similar situation in NJ is that multiple agents may be named, or backups in case the primary agent dies or is not available. However the Texas pages do not specifically say that. But in any case the agent or agents must be named in the POA signed by the principal, who must be of sound mind at the time the POA is signed. An agent does not have the power to name a replacement or backup agent. An Agent might be able to give a POA to another person to act in the agent's place, but that POA would lapse if the agent died, and the law does not specifically permit this, so it might not be valid in any case. A Texas court can appoint a Guardian for an incompetent person, and such an appointment takes precedence over an existing POA. That would be a way to deal with the situation if there is reason to think the agent might die or become unavailable while the principal is mentally incapable. | This is allowed in Colorado. Colorado's version of the Uniform Probate Code authorizes such a document for tangible personal property which is usually called a "Personal Property Memorandum." This is authorized by Colorado Revised Statutes § 15-11-513. The section of Colorado's probate code states: 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. New York State Law NYS has a requirement that the Will is signed by 2 Witnesses and (I believe -- keep me honest) notarized. So I'm hoping this is a way for me to add items to the Appendix without needing to re-sign, re-witness and re-notarize every time I think of something else. Is this strategy valid & enforceable? This is generally not permitted in New York State The legal formalities for the execution of wills and trusts in New York States are among the most strict in the United States (Florida and Maine have been more strict from time to time). This cannot be done in a way that is valid and enforceable in New York State. One can determine this from a review of the relevant New York State Statute which is called the Estate, Powers, and Trusts Law (EPTL), that does not contain a parallel provision to the Colorado statutory section. Therefore, in New York States, all dispositive provisions of a Will related to tangible personal property must be executed with the same formalities as any other Will or Codicil (i.e. it must be signed by the testator and two witnesses, a notarization is not required). Oral and unwitnessed handwritten wills are rarely allowed in New York State New York State does recognize oral wills (called nuncupative wills) and wills in the handwriting of the person making them (called holographic wills) as well, but only in very limited circumstances. The pertinent provision of the EPTL state: (a) For the purposes of this section, and as used elsewhere in this chapter: (1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses. (2) A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by 3-2.1. (b) A nuncupative or holographic will is valid only if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea. (c) A will authorized by this section becomes invalid: (1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces. (2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force. (3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made. Wills valid where executed will generally be honored If a Will accompanied by a Personal Property Memorandum were drafted and executed in Colorado while someone was domiciled there, and then was presented to a Surrogate's Court in New York State for probate, because the person who wrote it was domiciled in New York State when they died, however, the New York courts might honor the Personal Property Memorandum on the theory that the validity of the execution of a Will is usually governed by the law of the place where it is signed and not by the law of the place where it is probated. The alternative of a revocable trust in New York State A workaround somewhat similar to a personal property memorandum could be done with a revocable trust, but this has its own limitations. In New York State a trust or amendment to a trust not created by a last will and testament must be either (1) signed and notarized by the creator of the trust and also by the trustee if there is one separate from the creator of the trust, or (2) signed by the creator of the trust and witnessed by two witnesses in essentially the same way that a will would be witnessed. Unlike most U.S. states, New York State does not recognize trusts that are signed but are not notarized or witnessed, and unlike most U.S. States, New York State does not recognize orally created trusts. Trusts validly formed and amended outside of New York will generally be honored This is, of course, assuming in both cases that New York State law governs the formation of the trust. New York State choice of law rules, however, will generally recognize the validity of a trust formed with formalities that were valid in the place where it was executed if the person executing it was domiciled there. | In the United Kingdom: A person has no authority to access an online account of a deceased relative, unless this has been agreed with the operator of the website (etc). If a Power of Attorney over the deceased's financial affairs existed, this ceases upon death. Using a person's login credentials without permission from the owner of the website would be a breach of the Computer Misuse Act 1990, as amended by Part 5 of the Police and Justice Act 2006, and Part 2 of the Serious Crime Act 2015. Actus Reus The offence is made out once a defendant has caused a computer, which would include his own computer, to perform a function with intent to secure access. The access to the program or data which the accused intends to secure must be 'unauthorised' access. Mens rea There are two elements: There must be knowledge that the intended access was unauthorised; and There must have been an intention to secure access to any program or data held in a computer. There has to be knowledge on the part of the offender that the access is unauthorised; mere recklessness is not sufficient. This covers not only hackers but also employees who deliberately exceed their authority and access parts of a system officially denied to them. Crown Prosecution Service legal guidance Additional note for accessing online banking and similar accounts: A person who accessed a bank computer with the intention of transferring the deceased's funds to themself (such funds being the property of the estate, not the person) thus committing theft, would potentially be committing the further offence under Section 2 of the CMA of Unauthorised access with intent to commit or facilitate commission of further offences If the person has a legitimate claim on the funds in the bank account, i.e. they are an executor or administrator of the estate, there is an established procedure to claim the funds from the bank. This does not include being given access to the deceased's accounts or statements, as these remain confidential. The bank will provide a closing balance at the date of death, together with a list of regular payments in/out of the account (those being parties the executor/administrator should advise of the death) together with a statement for any transactions after death ie during the period of executry of the estate. |
What are the laws about valid marriage as it concerns citizenship? For countries where marrying a citizen rapidly accelerates the process of getting citizenship, are there any laws clarifying the terms under which this is legitimate? For example, if it was believed that the marriage was only in order to gain citizenship, would it be rejected or is there no legal objection to this? | switzerland A mariage that is only made to get citizenship or a residence permit is illegal. The german legal term for it is "Scheinehe". This is defined as Eine [Scheinehe] liegt dann vor, wenn das heiratswillige Paar offensichtlich keine Lebensgemeinschaft führt, sondern die Bestimmungen über Zulassung und Aufenthalt von Ausländerinnen und Ausländern umgehen will. A sham marriage (see below for terminology) is on hand when the couple that requests the marriage obviously doesn't live in a partnership but wants to circumvent the laws about immigration and residence of foreigners. The marriage registrar may deny the marriage, or it may even later be voided. This source says that you can get a fine or a prison sentence of up to three years for this. If one even takes money to enter a fake marriage with someone, the sentence can be up to five years. So, better wait for the right one ;-) Terminology remark: It needs to be distinguished between the terms "Scheinehe" (english "sham marriage") and "Konvenienzehe" ("marriage of convenience"). The later is a marriage mostly to keep one's social status and is typically arranged by the parents. This is legal and was very common in former times. In some countries, e.g. in India, it is still common. It differs from the sham marriage by the fact that the social status of both spouses is the same. | 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. | I assume that since your wife entered on a K-1 visa, that you are a U.S. citizen. This makes a difference because the time limit is different in each case. Spouses of U.S. citizens can apply for naturalization once they have been lawful permanent residents and married to their spouses for three years: The spouse of a U.S. citizen who resides in the United States may be eligible for naturalization on the basis of his or her marriage. The spouse must have continuously resided in the United States after becoming an LPR for at least three years immediately preceding the date of filing the naturalization application and must have lived in marital union with his or her citizen spouse for at least those three years. If this doesn't apply for whatever reason, then the general rule for naturalization of permanent residents applies, and she will have to wait five years instead: An applicant must also reside continuously in the United States for at least five years as an LPR at the time of filing, though the applicant may file his or her application up to 90 days before reaching the five-year continuous residence period. | Does this mean that anyone who is born in the US is automatically a US citizen, whether they want it or not? Yes (subject to a couple of exceptions, namely the children of diplomats with full immunity and the children of a hostile foreign occupier). Or does this amendment just offer the possibility of requesting citizenship? In other words: is there an action to be made in order to become a US citizen when born in the US (and therefore one is not before this action is performed)? No. For someone who falls under the 14th amendment's citizenship clause, the only way to avoid being a US citizen is to relinquish or renounce it, which generally means that one is stuck with the US citizenship for at least 18 years. Most countries' citizenship laws, or at least all of those with which I am familiar, operate this way—automatically—for "normal" cases of acquisition of citizenship by virtue of the circumstances of birth. This is true whether the citizenship derives from the place of birth or from the parents' citizenship. | First, it is quite unlikely that a US court would take on the case. Someone will have more details, but for example in EU law if you move away from the place you last lived together, you can only file for divorce in the country where your partner is living (in this case, India). Annullment is a much more serious matter than divorce, so I doubt any American court would take this case: Annulment would mean that a US court would have to decide that an Indian registry office didn't do its job right. Second, A needs convincing evidence. Frankly, "masculine appearance" and "typical masculine voice" are just opinions and therefore not evidence. Even if the court were convinced that B has a "masculine appearance" that's not evidence for being a male. A has to show the evidence, and as half of us know and the other half learned in their biology lessons, there is some pretty convincing evidence that someone is a man which A didnt' mention. And I'd ask anyone not to edit this out, because it is quite essential to the case. B doesn't have to visit a doctor and get a statement that she is a woman (which would destroy any case immediately), because based on the available evidence, A will lose the case anyway. On the other hand, after that court case has finished, B can at any time (after appropriate waiting times according to US law) come to the USA and file for divorce. | Statelessness is a very serious condition. It is quite likely that a person such as you describe may be required to board an aeroplane to that country but will not be permitted to pass through immigration on arrival - Mehran Karimi Nasseri lived in Charles de Gaulle airport for 18 years in this condition. There are many people in the world who are stateless and this may or may not affect their lives. Citizenship is generally only an issue when crossing international borders or in employment situations, the latter is significant in advanced countries but less of an issue in countries with less-developed economies. | I am not sure what you mean by "accept". A citizen need not agree that any particular law is desirable, or good policy, or even rational. What a citizen must do is comply with all laws, or risk proceedings to enforce them, criminal or civil depending on the law in question and the specific circumstances. More exactly all valid laws must be complied with. In the US and many other places there are mechanisms for challenge laws as invalid. It is not generally a defense against an accusation of breaking a law that the law is not rational. | In the United States, the answer depends on who is unlawfully in power. In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker. But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified. A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels. |
Meta wrongly suspends a Canadian Consumer's account. What are Canadians' causes of action? Fact Pattern for Consumer who lives in Canada, and is Canadian citizen. I forgo naming territories and provinces, because this fact pattern has happened to Canadians across provinces. But Consumer is not American citizen, and is not connected to California. Premise that Consumer has done nothing wrong, Consumer has not paid any money to Meta, and Consumer has a contract with Meta.⓵ Meta suspended Consumer's Facebook or Instagram account for no reason at all, or for a wrong reason. Consumer emailed Meta Inc. multiple times, and sent multiple letters by registered mail. Consumer can prove registered letter's delivery to, and receipt by, Meta Inc. But Meta never responded to Consumer. Questions What jurisdiction or court must Consumer file her Claim against Meta Inc.? Can Consumer sue in her Canadian province or territory? What are Consumer's causes of action? I am iffy about Andrew Oh-Willeke's answer, as he doesn't cite the following paragraph from Instagram's Help Center revised 26 July 2022. How We Will Handle Disputes. If you are a consumer, the laws of the country in which you reside will apply to any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms ("claim"), and you may resolve your claim in any competent court in that country that has jurisdiction over the claim. In all other cases, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim, and that the laws of the State of California will govern these Terms and any claim, without regard to conflict of law provisions. Without prejudice to the foregoing, you agree that, in its sole discretion, Meta Platforms Inc. may also bring any claim we have against you related to efforts to abuse, interfere, or engage with our products in unauthorized ways in the country in which you reside that has jurisdiction over the claim. ⓵ Postulate that Consumer has a contract with Meta Inc. Clifton Gilley has J.D. from Seattle University School of Law, cum laude. On Quora, Gilley wrote Consideration is merely "something of value"; it need not be money, though many think that is so. Facebook is offering you usage of their service, which they consider "something of value" in exchange for your agreement to the terms of service. The user agrees to grant Facebook license to use their content in certain ways, and that license is also "something of value." That is technically sufficient to create a binding contract. Facebook collects and uses a massive amount of user-generated data on a daily basis to sell advertising and for other purposes; there is certainly valuable consideration being given by the user here. Jennifer Ellis has JD from Widener University School of Law in Delaware. On Quora, Ellis wrote There is mutual consideration. Facebook allows people to use its site. That is the thing of value that the user is getting. Facebook benefits from people using its site. That is the value Facebook is getting. | Most user complaints against Meta are subject to binding arbitration under the applicable terms of service (which is the principal contract between a user and Meta) and cannot be litigated in the court system. The example of a dispute in the question would not generally fall within the exceptions to the arbitration clause. It states, in part: The Instagram Service is one of the Meta Products, provided to you by Meta Platforms, Inc. These Terms of Use therefore constitute an agreement between you and Meta Platforms, Inc. ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION BELOW. . . . How We Will Handle Disputes. Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Instagram ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Instagram users. If there is a final judicial determination that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with this provision's limitations, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision. Instead of using arbitration, you or we can bring claims in your local "small claims" court, if the rules of that court will allow it. If you don't bring your claims in small claims court (or if you or we appeal a small claims court judgment to a court of general jurisdiction), then the claims must be resolved by binding, individual arbitration. The American Arbitration Association will administer all arbitrations under its Consumer Arbitration Rules. You and we expressly waive a trial by jury. The following claims don't have to be arbitrated and may be brought in court: disputes related to intellectual property (like copyrights and trademarks), violations of our Platform Policy, or efforts to interfere with the Service or engage with the Service in unauthorized ways (for example, automated ways). In addition, issues relating to the scope and enforceability of the arbitration provision are for a court to decide. This arbitration provision is governed by the Federal Arbitration Act. You can opt out of this provision within 30 days of the date that you agreed to these Terms. To opt out, you must send your name, residence address, username, email address or phone number you use for your Instagram account, and a clear statement that you want to opt out of this arbitration agreement, and you must send them here: Meta Platforms, Inc. ATTN: Instagram Arbitration Opt-out, 1601 Willow Rd., Menlo Park, CA 94025. Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username, email address or phone number you use for your Instagram account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute you send to us should be mailed to Meta Platforms, Inc., ATTN: Instagram Arbitration Filing, 1601 Willow Rd. Menlo Park, CA 94025. Before we commence arbitration, we will send you a Notice of Dispute to the email address you use with your Instagram account, or other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration. We will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees for any arbitration we bring or if your claims seek less than $75,000 and you timely provided us with a Notice of Dispute. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider's rules, including rules regarding frivolous or improper claims. For any claim that is not arbitrated or resolved in small claims court, you agree that it will be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim. The laws of the State of California, to the extent not preempted by or inconsistent with federal law, will govern these Terms and any claim, without regard to conflict of law provisions. While I haven't checked every single Meta service, I would strongly suspect that the Terms of Service for all of their online offerings have very similar provisions to this one. | False statements are generally protected by the First Amendment. If the video was an obvious gag or work of fiction, in which a reasonable person would understand that you were not truly endorsed, your false statement would almost certainly be protected by the First Amendment. But many false statements are not protected, typically because of their negative effects on other parties. Classic examples include defamation, perjury, and fraud. A lie about an endorsement could easily fall on either side of that line. If you are making the video in a context in which reasonable viewers would be led to believe that you truly were endorsed by that company, I could easily imagine a set of circumstances that would lead to liability: If you're releasing the video as part of a commercial endeavor, you're looking at possible claims for false advertising, unfair competition, and trademark violations (false designation, dilution, etc.). If your video is harmful to the company's reputation, you're facing a potential claim for product disparagement or trade libel. These are the corporate equivalents of the libel actions most people are more familiar with, and they generally require proving the same kinds of facts. A right of publicity/misappropriation of identity action is possible but very unlikely. Most states are very stingy about allowing businesses to bring these claims, so this one would probably be very jurisdiction-specific. Proving the case generally requires the company to show (1) that you made a commercial use of their identity, (2) that they did not authorize it, and (3) that the use caused economic harm. Beyond those, there's a whole host of business torts that I could try to squeeze this into but that are probably less likely given the hypothetical you've presented. I'd also note that your assumption about proving damages is not well-founded. Especially among the largest companies, businesses are very protective of their brands, and they invest absurd amounts of money to protect them. Pick any company with a high enough profile that someone would want to fake their endorsement, and I'd be willing to bet that their legal department could pretty quickly prepare a detailed estimate of the related damage to their brand. If a case went to trial, you'd normally expect to see an economist present an expert report calculating damages, which would begin (but not end) with any unjust enrichment you experienced because people thought you had the company's endorsement. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | united-states In US law this is covered by 17 USC 512 (c) which was added to the US copyright law by the Digital Millineum Copyright Act (DMCA) Under that law, the service provide is not liable if The service provider does not actually know that content posted is infringing; and The provider does not have good reason to belive that content is infringing; and The provider promptly removes or makes inaccessible infringing content once the provider knows or has reason to believe that content is infringing; and The provider complies with the DMCA take down procedure; and The provider has and publishes the contact info of a designated agent to receive complaints and takedown notices. (The above is a paraphrase of the actual text of the law, rewritten for clarity.) The above is all true no matter how short or long the videos or music selections may be. The length is not relevant, except as it may affect a claim fgor fair use, where length is only one of the factors to be considered. The above would also apply if the video, as opposed to the music, was a copyright infringement. Note that the individual poster can still be liable for copyright infringement, and the service provider may be required to respond to a subpoena for information identifying posters. Note also that a service provider must warn posters not to post content protected by copyright to which the poster has no rights, and must have some procedure in place to limit or cancel the access of posters who persistently post infringing content. | DMCA applies as long as the the website is being hosted inside the U.S. The location of the copyright holder is irrelevant. For step-by-step help drafting a valid DMCA notice, see Step 2 of https://nppa.org/page/5617. If the site fails to comply with a valid notice, they lose the benefit of DMCA's safe harbor provisions and become themselves liable for continuing to host the infringing work, and you can sue them. (Prior filing suit, though, I imagine a letter from a lawyer that says, "Hey, my client sent you a valid DMCA notice a while ago; kindly comply at once, or we will actually sue you," should be sufficient.) The requirement to submit a photo appears to be totally unnecessary. A valid DMCA notice includes a signature (electronically including your name in an email is sufficient) and an assertion, under penalty of perjury, that the writer is authorized to control the copyright work and that the work is being used illegally. Beyond a signature and contact information, no further identity verification is necessary. The DMCA handles this by opening the submitter to perjury charges if the takedown was submitted illegally. Of course, any site might choose to ignore your DMCA takedown, at their own peril. They might bet that you won't actually hire a lawyer and follow through on your legal right to file suit, or they might not understand that identity verification is not a legal requirement listed in 17 U.S.C. § 512(c)(3). Your options are either: follow the law as written and file a valid takedown notice, and then hire a lawyer when they don't don't comply with the rules written in 17 U.S.C. § 512 follow their additional rules to get them to comply, which may be more difficult but might not require hiring a lawyer | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right. |
Why does it matter that a group of January 6 rioters went to Olive Garden for dinner after the riot? CNN has an article pointing out that the rioters went to Olive Garden for dinner and spent $400 after the riot. The article implies that where they went for dinner, and how much they spent, is relevant to their trial. Why does it matter where they go for dinner and how much they spend? What they did at the Capitol was both illegal and immoral, but going to Olive Garden is neither. | The article says: Defense lawyers say the evidence does not show a celebration of violence. Which implies that the prosecution claimed exactly that, or at least that the defense anticipates the prosecution to claim something along those lines. The article also says [bold italic emphasis mine]: Defense lawyers for Rhodes have previously addressed the dinner, saying that prosecutors’ theory of the episode is incorrect. Rhodes’ lawyers said in a court filing the dinner is evidence that the militia leader wasn’t working to foment a revolution. “The conditions would never be better. Yet, Rhodes and the others left the Capitol grounds and went to Olive Garden for dinner,” lawyers for Rhodes wrote. “The answer is quite simple: because stopping the certification, overthrowing the government, was not Rhodes’ intent. It was not the Oath Keepers’ intent.” So, from the CNN article, it seems that the prosecution interprets this as celebrating a successful attack whereas the defense argues that leaving the Capitol to go for dinner instead of continuing the attack proves that they didn't want to overthrow the government. Why does it matter where they go for dinner and how much they spend? It doesn't matter where, exactly they went, which restaurant they went to, and that it was an Olive Garden. For the prosecution, what matters is that they appeared to celebrate, for the defense, what matters is that they left the Capitol. It also doesn't matter how much, exactly, they spent. What matters is that the amount of money can be used as a proxy (by the prosecution at least) for how many people attended the "celebration", how long it lasted, and how much value was placed on the "celebration". (In general, people spend more money when they are celebrating something than when they are just getting a bite because they are hungry.) So, in short: Prosecution: Celebrating how close they came to overthrowing the government proves that was their goal. Defense: Going for dinner when they had the chance to finish the job proves it wasn't their goal. | 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. | "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. | I can't see anything to say this is a state-wide ban. Do they have to give an opportunity to return unused fireworks for a refund? The ban imposed by Portland Fire and Rescue appears to relate to the use, not possession, of fireworks so I assume that the stores' / State's regular refund policies would apply. Due to unusually hot temperatures and dry conditions, PF&R is announcing an immediate ban on the use of all legal and illegal fireworks... | There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof." It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist. Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table. In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous. So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage. | In many countries (for instance, the US), churches and mosques are private property. In general, the owner of private property can throw anyone off their property; claiming you're doing an extensive period of praying doesn't matter, because they are under no obligation to let people stay as long as needed to pray (they can kick someone off the property for just about any reason). If there's a contract in play things are different, but contracts aren't in play in this situation. That said, nothing stops the church or mosque from letting the homeless stay there; this is actually not that uncommon (charity being a fairly common religious virtue). | In short, no, that cant be a pardon for those police officers who would be now influenced to take more violent actions towards those they detain. Pardons are only applicable to past actions. You may be pardoned before charges are filed, but the actions must have already occured. Though I less certain about this, simply because Ive never heard such a thing proposed, I would also note that it is highly improbable that the actual statement he made - generic and during a speech - could everbe interpreted as an affirmative act intending to grant pardons to anyone who may act in that manner in the future. | Overview, reasonable judgement As with the frequently used standard, the "reasonable person", whether an assembly is "peaceable" or not is a question of judgement. In some cases it is clear. A group throwing stones and Molotov Cocktails at a group of opponents, or at the police, is not acting "peaceably". What about a group holding signs and chanting "No Justice, no Peace"? Calmly singing 'We Shall Overcome"? In short, there is no bright-line separating "peaceable" from not. It is not like a trespassing case where one either did or did not cross a boundary, or a speeding case where one did or did not go faster than the limit. There are, however, an number of fact patterns in which assembled protesters have been held not to have justified arrest, and various other circumstances in which dispersal and arrests have been held justified. See the cases below. Each person must use judgement as to whether a group's actions are "peaceable" when deciding whether to join or remain a part of such a group. A police official must make a similar judgement when ordering a group to disperse. Later, a court may have to make a similar judgement when deciding whether someone accused of "riot" or "disorderly conduct" was within his or her constitutional rights, or if a police officer acted unconstitutionally. The circumstances and the details of the actions will matter. The right of assembly, like the right of speech is subject to "time, place, and manner" restrictions, so long as such restrictions are content-neutral. See this page from teh Library of Congress To be clear, a police officer's judgement does not make a group's actions constitutional or criminal, that decision is for a court. But an officer must make an on-the-spot judgment as to whether, and if so how, to react to the group's actions. If the court later finds the officer's actions reasonable in light of the specific events and circumstances, it may treat the officer differently than if it finds the LEO actions unreasonable. But my point above was that everyone involved had to make judgements, and that the law expects everyone to act in a "reasonable" manner, and there may be consequences later for those held not to have done so. Selected Cases Shuttlesworth In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) The US Supreme Court dealt with a case involvign a civil rights protest march. Justice Stewart described the events as follows in the majority opinion: On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed. At the end of four blocks, the marchers were stopped by the Birmingham police, and were arrested for violating § 1159 of the General Code of Birmingham. The opinion went on to say: There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any "parade," "procession," [Footnote 1] or "demonstration" on the city's streets or public ways. ... This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. ... It is argued, however, that what was involved here was not "pure speech," but the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety. That, of course, is true. We have emphasized before this that "the First and Fourteenth Amendments [do not] afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Cox v. Louisiana, 379 U. S. 536 ... But our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U. S. 229; Thornhill v. Alabama, 310 U. S. 88. The Court overturned the conviction of Shuttlesworth. It did not deal with the peacefulness of the march, except in the above quoted description of events, no allegation of violence was made, only of lack of a permit (which had been applied for and refused, with an indication that no permit would ever be granted to that group.) Ward In Ward v. Rock Against Racism, 491 U.S. 781 (1989) The Copurt held that: even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. (Clark v. Community for Creative NonViolence, 468 U. S. 288) Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. Ward was a Speech (music) case, not an assembly case, but the standard from Ward has also been applied in assembly cases. Jones Jones v. Parmley, 465 F.3d 46, 56–57 (2d Cir. 2006) was a right-of-assembly case. In it, people were accused of violating the very law (NYS 240.10) mentioned in the question, as well as other NY State laws, including disorderly conduct. The events described produced a whole series of court decisions. The linked opinion is from the US 2nd Circuit Court of Appeals, not the Supreme Court, but it reviews and quotes many relevant SC rulings. The linked opinion is actually on a claim by various law-enforcement officers (LEOs) for qualified immunity in a suit by people arrested. When it was brought, the various charges against those arrested had already been dismissed or found to be without merit. The Court of Appeals opinion says, in relevant part: The Supreme Court has declared that the First Amendment protects political demonstrations and protests — activities at the heart of what the Bill of Rights was designed to safeguard. See Boos v. Barry, 485 U.S. 312 ... Indeed, the Court has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder. See Cox v. Louisiana, 379 U.S. 536 ... First Amendment protections, while broad, are not absolute. Regan v. Boogertman, 984 F.2d 577, 579 (2d Cir. 1993) It is axiomatic, for instance, that government officials may stop or disperse public demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Cantwell v. Connecticut, 310 U.S. 296, (1940). Indeed, where a public gathering threatened to escalate into racial violence and members of a hostile crowd began voicing physical threats, the Supreme Court expressly sanctioned police action that ended the demonstration and arrested the speaker, who defied police orders to cease and desist. Feiner v. New York, 340 U.S. 315 ... the Supreme Court has long applied the "clear and present danger" test to protest cases to determine when police interference is constitutional. Moreover, although defendants make much of the fact that some demonstrators had allegedly violated the law, transforming the peaceful demonstration into a potentially disruptive one, the Supreme Court has expressly held that " [t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected." NAACP v. Claiborne Hardware Co., 458 U.S. 886 ... The Supreme Court has already ... made clear that the police may not interfere with demonstrations unless there is a "clear and present danger" of riot, imminent violence, interference with traffic or other immediate threat to public safety. Cantwell, 310 U.S. at 308-309 (finding no imminent violence where anti-Catholic diatribe angered listener and provoked suggestion of violence). Neither energetic, even raucous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or inconvenience pedestrians, justify police stopping or interrupting a public protest. Cox I, 379 U.S. at 546-47, 549 n. 12 (group of protesters who provoked a visceral, angered response and slowed traffic did not jeopardize their speech rights); Edwards, 372 U.S. at 232, 237 ("clear and present danger" means more than annoyance, inviting dispute or slowing traffic). ... Plaintiffs also allege that they made no threats of physical harm to police or members of the public, did not incite violence or disorder and displayed no dangerous weapons. ... We are mindful that the First Amendment does not insulate individuals from criminal sanction merely because they are simultaneously engaged in expressive activity. Section 240.10 of the [NY] Penal Law states that four or more persons assembled for purposes of engaging in violent and tumultuous conduct likely to cause public alarm constitutes an unlawful assemblage. N.Y. Penal Law § 240.10. Conviction under this law requires "an incitement which is both directed towards and likely to produce imminent violent and tumultuous conduct." Jones, 2005 WL 928667 ... New York courts have interpreted [N.Y. Penal Law § 240.20(5) (disorderly conduct)] to permit punishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic. People v. Pearl, 66 Misc.2d 502, 321 N.Y.S.2d 986, 987 (1st Dep't 1971) ("Something more than the temporary inconvenience caused to pedestrians by the demonstrators' blocking of the west crosswalk, requiring them to enter the roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic."); [P]laintiffs had an undeniable right to continue their peaceable protest activities, even when some in the demonstration might have transgressed the law. Claiborne Hardware, 458 U.S. at 908. Plaintiffs still enjoyed First Amendment protection, and absent imminent harm, the troopers could not simply disperse them without giving fair warning. *City of Chicago v. Morales-, 527 U.S. 41, 58 ("[T]he purpose of the fair notice requirement [in disorderly conduct statutes] is to enable the ordinary citizen to conform his or her conduct to the law."); Feiner, 340 U.S. at 321, 71 S. Ct. 303 (finding no First Amendment violation where imminence of disorder was "coupled with petitioner's deliberate defiance of the police" and their orders to disperse) Specific actions Actions that have been held to be permitted as part of a protest or assembly, not justifying police intervention, include: walking in orderly fashion, remaining on the sidewalks except at street intersections, not interfering with other pedestrians or traffic; picketing and parading, even without; a permit when a permit has been improperly denied; orderly, nonviolent protests; A diatribe that angered listeners and provoked suggestion of violence; Energetic, even raucous, protesters who annoy or anger audiences' Demonstrations that slow traffic or inconvenience pedestrians; Peaceable protest activities, even when some in the demonstration might have transgressed the law; Actions that have been held not to be protected thus justifying police intervention, include: Violating a regulation of the time, place, or manner of speech that is narrowly tailored to serve the government's legitimate, content-neutral interests; Demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Where a public gathering threatened to escalate into racial violence and members of a hostile crowd began voicing physical threats; Defying appropriate police orders to cease and desist; Makin threats of physical harm to police or members of the public; Inciting violence or disorder with a direct appeal to imminent lawless action; Imminent disorder when coupled with petitioner's deliberate defiance of the police and their orders to disperse; Summary While there is no single bright line rule on what constitutes "peaceable assembly", the test for the "clear and present danger" of violence or lawless action seems to come closest. In mot cases police must unless there is an immediate prospect of harm, order an assembly to disperse and give them a reasonable chance to do so before making arrests, particularly forceful arrests. Failure to do so may subject LEOs to personal civil liability. |
Do US public school students have a First Amendment right to be able to perform sacred music? I believe that in the US, public schools are allowed to perform music with religious texts, and that this has been upheld by the Supreme Court on the grounds that the music program is teaching music, heritage, and culture, not indoctrination. I lack the legal knowledge to be able to quote case law and wouldn't mind being educated or having my assumptions corrected. If a public school banned the performance, by students, for a public audience, of music with religious texts, could a student or student's parent (assuming the student is a minor) claim that their First Amendment right has been violated by the ban? This is a public performance, by students, which is organized by the school. The concert program is a long-standing tradition which usually includes many different songs from all over the world and a small number of sacred songs. The administration is considering banning the ones with religious content. Edit to clarify a few comments: No student would be forced to do anything at contrary to their beliefs. The performance would be singing, instrumental. | This question mixes up two separate although related issues: Does a student have a first amendment right to perform "sacred" music during school time? Is a public school allowed to include such in its curriculum, or does the First Amendment's Establishment Clause forbid that? The answer hinted at in the question applies only to issue 2, while the title of the question goes to issue 1. Engel v. Vitale, 370 U.S. 421 (1962) held that school officials may not compose an official prayer, and mandate or encourage its recitation. (mandatory recitation would probably have been prohibited by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) much earlier.) The ruling of Engel v. Vitale, would also have applied to sung prayers. Later rulings, consistent with Engle prohibited "one minute for prayer or meditation" ( Wallace v. Jaffree (1985)), clergy-led prayer at middle school graduation ceremonies (Lee v. Weisman (1992)), and school-organized student-led prayer at high school football games (Santa Fe ISD v. Doe (2000)). But none of these prohibited religious music as part of an instructional music program that was not a form of worship. All the above cases prohibited school-organized prayers intended as prayer or worship. As to issue #1, it is settled that students have the right to pray privately, in ways that do not disrupt school activities. It is hard to see how performing religious music could be done privately and non-disruptively. Neither students nor their parents have a right to insist that certain topics be included in the school curriculum. The students have a right to pray, but not to insist that the school organize prayers or include religious music in its music program. | There is no country in the world that has absolute freedom of speech. There are many that have extreme limits on it. The country with the greatest freedom is probably the United States of America but even there there are limits. For example, it is illegal to defame someone. That is, make a factual statement about a person or organization that is not true and that could damage their reputation. For your case, as a student of the school you are subject to the rules of the school. If your statement breaks those rules you can be sanctioned. If the school is public, it would generally be as restricted as the government is in limiting free speech but, as stated above, such restrictions depend on where you are. | Whether the use of excerpts from songs protected by copyright in the cover version of a different song is a "fair use" under US law is always a fact-driven question, and often there is no clear answer to fair use issues short of a lawsuit. One must remember that fair use is a specifically united-states legal concept, and that reproduction of such a cover version outside the US would not be protected by fair use, even if it was fair use under US law. Fair use is defined by 17 USC 107. That law spells out the four factors that must always be considered in any fair use claim. They are: (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. These have been explained and analyzed in several answers here on law.se, recently including this answer. In this case the commercial nature of the compilation probably causes factor (1) to lean against fair use. The creative character of the songs being used will cause factor (2) to lean slightly against fair use. That the use is for a charitable purpose might have a positive effect on factor (1), although it does not fit the "educational" purpose specifically mentioned in the law. I don't see how this would be in any way relevant to the other three factors, but it might influence the decisions of copyright owners. There is not enough information in the question to even approximate an analysis of the other two factors in this case. Note that the "substantiality" mentioned in factor (2) refers to how much of the source work is used, not how large a part of the resulting work it forms. Note also that there is a wide range of what has been acceptable here. In one famous case (Harper v Nation Enterprises) some 300 words of a 500 page book were found not to be fair use because they were held to be the "heart of the work"; in that case there was also a substantial market effect. One might want to consult a lawyer with expertise in copyright and music to get a better idea if the specific use seems likely to be a fair use. Alternatively, one could ask the copyright owners of the works of which excerpts are to be included if a license can be obtained. Some owners will in some cases provide licenses for a small fee or even for no fee if the source is properly acknowledged. Others will not. Licensing of one song by a given artist does not affect whether use of another song by the same artist is or is not fair use, but it might influence the willingness of that artist to license the second song on favorable terms. | The first sub-question here is whether (public) schools can compel (parents of) students to acquire internet service, a computer, and a webcam. The MA Dept. of Education maintains that public schools must purchase at public expense textbooks and other instructional materials and supplies intended for use and re-use over a period of years, and computers fall in the category of materials intended for schools to purchase and use and re-use. There is no legislative authority to compel parents to purchase equipment or sign up for internet services. If there is a choice between in-person and online instruction, the legal requirement to attend school can be satisfied by in-person instruction. The second sub-question is whether, if a child does have the technical ability to be connected to class via the internet, can they legally require the camera to be turned on? Every district has rules, so if there is a rule requiring parental consent in this situation, then parental consent is required. If it is legal at that level, there is still a legal risk to the school. Schools can generally do those things that are reasonably necessary for educating students as long as it doesn't infringe on fundamental constitutional rights, and the camera-on requirement is educationally reasonable. The risk to the school is violating the federal law FERPA, specifically a potential violation of the privacy requirements. Schools must protect personal information, which includes anything streaming from the camera (pictures, for example, are personally identifiable information). If you assume that they have an absolutely secure connection, then there is no risk of privacy violation. However, if you believe, even reasonably so, that a school practice creates a risk of breach of privacy, that still does not create a special right to avoid school. | The Establishment Clause of the First Amendment to the United States Constitution does not prohibit people with no affiliation with the government from trying to convert people to their religion in a way not endorsed by a government official or agency. It could be that there is some content neutral prohibition on strangers accosting young school children if that person is so persistent that it amounts to content neutral harassment, or that the person might actually be a sex offender prohibited from contacting children. But, the facts of the question don't seem to compel this conclusion. Even if it violates any law to do this, it is not a violation of the U.S. Constitution. | Almost no constitutional right, for the most part, applies or gives rise to an all-encompassing right at all times. Schools can determine that certain times are off limits as activity during those times may interrupt the environment most conducive to learning, or for other articulable reasons; this is fine so long as it is applied evenly. Schools may say you may not hand out literature at certain times, only before or after classes, weekends, or put limits on the place or manner of distribution. There are examples of this premise that exist, pertaining to nearly every right, otherwise considered absolute. This is no different than the principle that while Americans enjoy the right to free speech, not all speech is protected at all times, or that the right to bear arms does not apply to all people, places, or environs. | 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. | Your question is whether you can copy instrumental portions of recorded music, and modify it to create a new work, without permission. The answer is that this is illegal. This would be creating a "derivative work", and under copyright law, only the copyright holder has the right to authorize creation of a derivative work. Whether or not you have paid for a copy of a recording, you would still need a separate license to legally extract and use part of a recording. This includes taking just one instrument, and includes taking just a part of one instrument. Material on Youtube is subject to different licenses: in some cases items are free of restrictions, in some cases, you can't legally copy them at all. The standard Youtube license does not allow any copying. Copyright infringement of music is rather common. Enforcement of copyright must be pursued by the copyright holder, and you would need to discuss your specific plans with a copyright attorney to determine your probability of getting sued. Ultimately, you might get away with minimal copying, relying on a fair use defense (you still get sued, but you might prevail and not have to pay). There are street rumors that there is an N-note threshold for copyright infringement, where people often pick numbers from 3 to 7, but in fact there is no clear rule. This resource assembles relevant case law. Bridgeport Music v. Dimension Films, in the 6th District, establishes the rule that any amount of copying is infringement, whereas VMG Salsoul, LLC v. Ciccone in the 9th District rejects that finding and allowed a case of .23 seconds (230 milliseconds) of copying. The "de minimis" doctrine is independent of "fair use" which has a statutory basis, but seems to have arisen from similarity doctrines which are involved in proving that copying took place. |
Lawyer tells me I can't get certified copies from Post Office I'm remortgaging and doing a transfer of equity of my main home. My lender's solicitor has asked me to give certified copies of my photo ID and proof of address. I asked them if I could do it at the Post Office, and they said no, it has to be a solicitor, accountant, bank manager or financial advisor. Can they really specify who I get my certified copy from? Doing it with a solicitor will be 4 times more expensive than doing it at the Post Office. | Your lawyer may be misinformed as the Post Office offers a Document Certification Service: If you’ve been asked to provide photocopies of documents to someone, our Document Certification service will for a fee certify and confirm that these are a ‘true likeness’ of the original. Fees, as per the link, start at £12:75 for 1-3 copies. | Unless the notary personally knows the signer, the notary should, and normally will, ask for identification, and the name that the notary puts in the notarization certificate should be copied exact6ly from whatever ID is presented. For Alan Jones to sign as J7, he would need some sort of official proof, acceptable to the notary, that he is "J7". What would that be? I doubt that any notary would certify such a doccument. (If the document is signed as "Alan Jones" but the ID says "Alan J Jones" I am not sure if the notary must follow the ID or may follow the document, assuming that the notary is convinced that the two are the same person. Many notaries in practice will follow the ID.) I agree that the normal way would be for the document to say "Alan Jones, also known as 'J7'", and possibly include wording such as "I Alan Jones, am the person who posts on site XYZ.com as "J7", and specifically who posted a message starting {quote} at {timestamp}." (Or it could give the secure hash of the message, or of several messages.) This would clearly est6ablish a link between the document and the online conversations/acts that it is meant to refer to. The questions says: a need has developed for Alan Jones to sign a document using the name J7 I doubt that doing such a thing is either required or helpful. Rather I suspect he will need to sign a document in which he acknowledges being the particular "J7" involved in the matter. | Can the subject actually sue me in England, or is it possible to sue only in the EU country I posted the article from, or in the US where the article is actually hosted? Yes. If the online encyclopedia is available in the UK, then you have libelled them in the UK and, indeed, in every country where it is available. They can choose to sue in and under the laws of any country where they were libelled. If the subject can and does sue in England, what happens exactly? This is laid out in the Civil Procedure Rules Am I correct in presuming that I will be notified of this by mail and asked to enter a defence? You will definitely need to be served with the Particulars of Claim, however, this may come by other methods than snail mail. If so, what happens if I ignore the matter? Will a default judgment against me necessarily be entered, or will the court duly consider the plaintiff's case, perform the bare minimum investigation/reasoning necessary to determine which arguments of theirs are (un)sound, and so possibly rule in my favour? A default judgement will be entered providing the Particulars of Claim show a cause of action on its face. The court will not examine any evidence or enquire into the veracity of the statements made on the Particulars of Claim. In short, unless the plaintiff has ballsed something up - you lose. If I do choose to respond, can I hire an England-based lawyer to handle everything remotely, or can I be compelled to physically attend the court in England? You are generally not required to attend court in a civil matter unless you need to testify. Even then, arrangements can be made for remote testimony. If the court rules for the plaintiff and awards damages, can this judgment be enforced in the EU, or would it apply only in the UK? It can be enforced in the EU. As a courtesy or by treaty, domestic jurisdictions will enforce foreign judgements in most cases. If the court rules in my favour, would I recoup my legal fees? You will probably recoup some but not all of your legal fees, say 50-60%. Costs orders are complicated - talk to your lawyer. | Often one chooses your accountant, your financial advisor, or your lawyer. Another option is to appoint the trust department of a bank. I personally, as a lawyer, have a policy of not consenting to do that except in rare cases like the one in this question, of a client who just doesn't have anyone and has an estate sufficiently small that a bank trust department would not be cost effective or well suited to handling some aspect of the executorship. But, I have done it a few times in those cases. Most lawyers I know of take a similar position. If no executor is designated, your estate will usually be administered either by a large unpaid creditor, or by the public administrator (whose job is primarily to administer estates in cases where there are no next of kin, no executor has been designated, and there are no unpaid creditors who have stepped up to do the job). | The document involves the bank cancelling the deed of trust (i.e. basically the mortgage) that you gave to the bank for the loan, because it was paid in full. In a deed of trust, the legal fiction is that you transfer the property to a trustee for the benefit of the bank. The bank was a grantee of an equitable interest in the property and a beneficiary of the trustee of the deed of trust. You were the grantor in the original transaction, giving the property to the trustee of the deed of trust, in which the bank and the trustee were grantees. Now, the bank is the grantor giving back to you what you gave up when the deed of trust was created, and you are the grantee of the rights that the bank acquired under the deed of trust. This is a routine document with nothing that seems to be amiss or needs to be clarified. It just means that the deed of trust is gone and that the property is now free and clear again. Depending upon local real estate practice, it may need to be recorded to establish that fact in the public record. | First of all, the USA's legal system is not here to be referee to every single little "gotcha" mistake, and every little mistake doesn't mean a payday for someone. The employee at the tax preparer screwed up. They mixed up your folder with the other guy's folder. It was an honest mistake, which is another way of saying "nobody stands to gain from this." The best LEGAL action you can take is to either destroy the copy in your possession, or mail it back to the tax preparer, and call it a good day, done well. The law of torts exists to adjudicate sincere and structural divergences of interests, not to fix silly mistakes. As a point of law, what was the damage of this "event?" Some random person (you) saw a 1099 belonging to someone else. In good faith, you attempt to find and reinstate the rightful owner with their document. All good. As it is, you have zero "standing" in a case of inadvertent clerical error between two other parties. | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. | Essentially, if there is no written agreement or receipt of payment, the only records that exist will be in the payment itself. If it was paid by cash, there's probably no recourse without additional facts. However, if it was paid electronically, then even if there's no narration (description) that claims that the payment was for rent, it is still possible that you would be able to file a summons requiring the recipient bank to produce the information relating to the entity that holds the account the money was sent to. The information they have may be limited, but generally this would include: Name Address Date of birth (for natural persons) Phone number The above information is typically required under anti-money laundering and counter-terrorist funding legislation. Additionally, if it was paid electronically, the regularity of the payments and the regular amounts may be persuasive. Finally, it's not proof, but you can swear an affidavit or a statutory declaration attesting to the truth of your assertions, but without additional evidence (the aforementioned transaction information), it doesn't really hold weight on its own. |
Using Times New Roman for academic paper without license? As far as I understand Times New Roman is not a free font but a license to use it for personal purposes is included in products like Microsoft Word. Suppose I do not own a copy/license to any such product that includes the font. Can I legally just download the font from the internet and use it to write and publish an academic paper? | The question of whether publishing a document that uses a font is a violation of the copyright of that font depends on the method used for publication, but leaving that aside, in the specific case of the font Times New Roman, the answer is a qualified yes. Times New Roman was one of the fonts included in Microsoft's Core Fonts for the Web package in the late 1990s. This was a package of specific fonts which Microsoft made available for free distribution. The license that was used specifically allowed redistribution of the fonts as long as they remained in their original form and were not sold or bundled for profit. Microsoft discontinued the project a few years later, and newer versions of the fonts are no longer available under the same license, however the original font license remains in effect for the specific versions which were released under it. This version of Times New Roman is quite old and has a limited character set, but it's still usable. As long as you distribute the original font package unchanged with the EULA intact, and do not sell it, you are allowed to distribute an unlimited number of copies of the font. | The creator of the derivative work has copyright in the derivative work. The copyright would protect only the new elements of the derivative work. Wikipedia is a good place to start. In the case of a book with updated grammar, depending on the extent of the changes, it would probably be easier to copy the original directly than to eliminate the updates from a copy of the derivative work. | This appears to mean that the author, while retaining copyright, is allowing anyone to make copies without asking permission from the author. This would seem to be similar to a CC-BY license, or perhaps more exactly a CC-BY-ND license, as the author has apparently not granted the right to create modified versions or other derivative works. This does not require one who makes such copies to distribute them free of charge, unless there is another provision not mentioned in the question. Amazon, or anyone else, would be free to sell copies at any price they cared to ask. If the author wanted to limit the sales price, that would take another provision, and might not be enforceable. | If you are using just the names, there is no issue - you can't copyright a fact. If you are using actual images (you appear to say you are not, but you also asked "Am I allowed to include images of Google Maps) - then the answer is still yes within your usage case - provided you attribute them to Google. If you look at this link it specifies that you are OK to use this in Reports and Presntations, Books which are not guidebooks and which have less then 5000 copies and presentations. If you are using them online, you need to use the imbedded versions (ie you can't just screenshot them - you need to link to them). If you are still unsure, you can contact [email protected] to request specific permission. | Unfortunately the answer is a vague "it depends." Commercial versus non-commercial is not clearly defined in actual law, and is usually up to the specific license to define what it considers to be commercial use. If you were putting them on your business cards, then it's just being used for advertising and whether it's commercial use is a bit controversial. If the license explicitly prohibits the use of the work in advertising, then the license should explicitly mention that and should not rely on the term "commercial use" to cover or protect it. Creative Commons ran an excellent study on commercial versus noncommercial use back in 2009: Defining “Noncommercial” - A Study of How the Online Population Understands “Noncommercial Use” In the United States, for example, the Copyright Act does not define a copyright owner’s rights in terms of commercial or noncommercial use. Instead, copyright law sometimes attaches legal significance to whether a use is “commercial” or “noncommercial” or whether a user is deemed to be a commercial or noncommercial entity, However, rarely are the terms defined, and the law offers no specific guidance on how to differentiate between commercial and noncommercial uses or users of copyrighted works. If you were putting them on a business card you were making for the client, then that would be more clearly identified as commercial use because you're using it in something you are selling for a profit. What your client will be using them for is not relevant, because you're the one selling them to the client and you need to have the right to be able to do that. | No. Copyright protects expressions of ideas, not ideas themselves and not historical facts either. Conceivably, the persons written about might have a commercial right to use of their person or image, but the doctrine there is not copyright and the analysis is different. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | I assume you are talking about United States federal copyright law. You can freely use any: material published before 1923 material published between 1923 and 1963 for which the copyright was not renewed material explicitly placed in the public domain material not copyrightable (such as any US government publication) material whose copyright has been abandoned (for example the author died with no heir) |
Can one be banned from TfL services? Btp are often keen to advise that station staff are entitled at their own discretion to refuse members of the public carriage or entry to the stations like any privately owned business and it becomes then a civil matter between the parties. But tfl is paid for by the public as an essential service with taxes. Other private businesses are able to permanently ban one from admission to their places of business. Can tfl do the same? | Yes. Here is a tally of bans from a four-year period. Here is one specific example. | The First Amendment forbids the government from abridging your freedom of speech. There is no (federal) law against your private employer doing so. A good summary is https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html | Say I build myself a faraday cage/wave screen around my house, potentially resulting in poor nework coverage for my neighbours. Questions about land property and constructing permits apart, can I be sued for that? By the network operator? by the neighbours? In most countries, the use of the radio spectrum is regulated (who may send what on which frequency, at which power, etc.). As part of these regulations it is usually forbidden to interfere with the reception of radio waves. So if what you do causes your neighbours to have reception problems, then yes, that will most likely be illegal. In France, the government agency responsible for these problems is ARCEP (Autorité de Régulation des Communications Électroniques et des Postes). If someone notices reception problems, they can complain to ARCEP, as explained for example on the page Le traitement des plaintes en brouillage ("Handling of complaints about jamming"). While you will probably not go to prision for jamming reception, you could have to pay a significant fine. This article on cell phone jamming mentions a penalty of "up to six months in prison or a 30,000 € fine" for "selling or installing" a cell phone jammer. In addition to that, anyone harmed by the reception problems could sue you in civil court and try to collect financial damages (how much that would be will be up to a judge to decide). That said, note that a faraday cage around your house should not hinder reception outside your house. A faraday cage only influences reception inside the cage, not outside. However, that is off-topic here :-). | Under 42 USC 2000a(a): All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. So a business may be generally prohibited from discriminating against you on the basis of your religion, but I don't know of any law that requires stores to accommodate whatever aversion or hostility you may feel toward gay people or their allies. On the contrary, such businesses have a First Amendment right to display such decor. So legislation that required them to stop speaking out in support of nice gay people would be struck down as unconstitutional. | You can basically take pictures of anything from your property if it is "public" (i.e. easily visible from your property). People on the road are in public, and have no reasonable expectation of privacy. The basic restrictions on photography are (1) you cannot trespass (you aren't), and (2) you cannot take pictures of certain government operations (e.g. airport border crossing – certain aspects of government prohibition may require lawsuit to rein in government policy that is at odds with the 1st Amendment; also secret military installations, for which there is specific law, 18 USC 795). Commercial exploitation of people who you photograph is strongly protected in California, and that is it. | 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. | 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. | No. Just because some building is "owned by the public" or State, doesn't mean it's public property. A state's national guard installation comes to mind immediately. State workers' offices are not public places. Airport hangars/buildings/runways. You can't just go hang out in the DPW garages. |
"Public domain": Can I sell prints of the James Webb Space Telescope? The new telescope delivers stunning images of the cosmos which are available on NASA's web site. The content use policy page states: Unless otherwise specifically stated, no claim to copyright is being asserted by STScI and material on this site may be freely used as in the public domain in accordance with NASA's contract. Does "in the public domain" mean that I can legally make prints of those images and sell them in order to make money, for example in a store or flea market? | Yes. I am tempted to leave the above as the entirety of my answer, but to expand: Yes, you can do that. You won't (as a business matter) be able to charge all that much because many people will realize they can just download a similar picture from the net and print it off themselves. You can charge a bit because you've framed them (perhaps), and chosen the nicest, and perhaps you have a better printer, or have used the expensive glossy paper. Also, if you are successful charging a lot, other people will start selling the same pictures for slightly less (and you won't be able to stop them). | The relevant concept is dedicating a work to the public domain, that is, saying in the work something like "This work is dedicated to the public domain". I understand that this isn't entirely reliable in European civil law. The preferred alternative is to license it to the public. However, you have to decide how "free" you want the work to be made. The normal state of affairs, where you do nothing and just rely on copyright law, is that you have the sole right to allow copies to be made and derivative works to be created. Thus if someone were to make a derivative work based on your composition, they would need your permission: but then they would have the right what they created (such as a translation). If you just abandon your property right to the work, you impose no obligation on others, and a person can freely create a translation (which is now their property). If you execute the right public license, you can allow people to use your work as long as they include that license in their versions. A fairly common public licensing scheme is the Creative Commons licenses. That article gives a decent summary of relevant rights and how particular licenses correspond to configurations of permissions. I would say that the most difficult thing to do is to figure out what you don't want to happen, and pick a license that matches that interest. | It's allowed by the Creative Commons Attribution -ShareAlike license, and intentionally so. The Wikimedia Foundation wants things like this to be possible; that is part of the goal of open content. (This license is also used on Stack Exchange content, so the same applies to e.g. this answer.) However, it is important to remember that this is not a public-domain equivalent license. If you copy from a Wikipedia article (or an SE post), you must comply with the "Attribution" and "ShareAlike" requirements. Attribution: You must give credit to the author. For Wikipedia articles, which typically have many authors, a link to the page is sufficient; editors agree to this in addition to the license when they save their edits. For Stack Exchange content, a link to the post itself should be enough. (To get a link to a post, click the "share" link below the post.) ShareAlike: If you modify the content, you must release your modified version under the same or a compatible license. You can't copy this answer, add more information (or translate it into another language, or make any other change), and keep an all-rights-reserved copyright on it, or release it into the public domain; your version must also be released under CC BY-SA. As long as you follow these requirements, copying is allowed and encouraged. | united-states Facts are not copyrightable. Assuming Scrapehero collected these facts in a legal manner and assuming the source of these facts does not contain copyrighted (protected) material, then selling such a collection may be legal. Of particular relevance is Feist Publications, Inc., v. Rural Telephone Service Co.. Here, Feist Publications copied Rural's phone directory into Feist's own phone directory. The supreme court found that Rural's phone directory was not copyrightable and thus not protected. Of course, this cuts both ways. Assuming Scrapehero did not inject creativity into the data, nothing stops a recipient of such data from distributing it themselves. In practice, this probably isn't a concern for Scrapehero. This answer is US-specific. Some countries recognize Database Rights, which may prevent such activity. | What you're describing is generally permissible in the United States. The photographer has copyright in the photograph itself, not in the items photographed. This means that they have copyright in the way that they composed the photograph -- what background they placed it against, lighting, camera placement, etc. -- but not in the ancient manuscript. If you are strictly transcribing the text of the script, you're not infringing on anything that's copyrighted. If you make a sketch, there's more potential for infringement, but I suspect that you would not be working to faithfully copy the angles of the shadows as much as you would working to faithfully copy the image and condition of the artifact. Even if you were, calling that a copyright infringement would require that the image truly be copyrighted, and I'm not 100 percent convinced that they would be. Copyright is only available to original works of authorship, and that means that the author has to make some meaningful efforts to create something new out of the copyrighted elements discussed above. But what has the photographer done in that picture of the Coronation Oath? It appears that they've photographed the book head-on, as it's displayed by the museum, with lighting as provided by the museum, in an effort to recreate the display one would see while visiting the museum. Is that really sufficiently "original" to merit copyright protection that could be invoked to prevent someone from drawing a duplicate? I doubt it. But that picture of the Ge'ez book may be different. Someone appears to have grabbed the book, opened it up under weird lighting, kept their hands in the photograph, and otherwise actually composed a photograph that may not be particularly artistic, but is nonetheless difficult enough to duplicate that it can be considered original. So let's be generous to the copyright trolls and assume that the sketch you're imagining is protected. Even then, that only raises the question of whether the copy is a fair use. You haven't said anything about how the hypothetical copier would be using these materials, but I have a hunch that the idea isn't to launch a multimillion dollar merchandising enterprise. If the idea is more academic or cultural, you'd have a better claim to fair use. Again, you can review this fair-use explainer to get a better idea. | According to EU case law, everything in your scenario is legal except if Example Site is hosting the image without authorization and Pirate Site is a for-profit site, then Pirate Site is presumed to be violating Article 3 of the Copyright Directive on communication to the public (in this scenario, Example Site is also trivially violating Article 2 on the right to reproduction). In Meltwater, Case C-360/13, the court ruled that browser cache and on-screen copies fell under the temporary reproduction exception, Article 5(1) of the Copyright Directive. This means that the visitor is not infringing copyright (IPKat reference). In BestWater, Case C-348/13, the court ruled that embedding content was itself not a communication to the public when that content was hosted with rightsholder authorization, and so did not violate Article 3. This means that Pirate Site is not infringing on communication to the public rights (it is also not creating a copy itself, so is not breaking Article 2) (IPKat reference). When content is not hosted with authorization, the situation is quite a bit more nuanced. GS Media, Case C-160/15, is the controlling case. Here, the court ruled that if a link (note it doesn't even have to be embedded/hotlinked) is posted by a for-profit site, that site is expected to have done its due diligence to ensure the linked content is hosted legally. Therefore, it is presumed to be violating Article 3, i.e., the burden of proof is on the link posting site to demonstrate that it had done its due diligence in verifying the legality of the linked content. So in this scenario, Pirate Site is presumed to be infringing on communication to the public rights (IPKat reference - WARNING: slightly NSFW image here, Playboy was one of the parties to the case). | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | As the quote in your question notes (albeit in contrapositive form), Asimov's fiction may be made legally available for free download on the net with the permission of his estate. It is either that case that Princeton University's physics department (or whatever individual person or agency put up the story online) has obtained permission from Asimov's estate to distribute the story on their website, or they simply distribute it without legal permission, and Asimov's estate has not taken legal action to have it removed, which they may or may not choose to do in the future. Consider also that the Princeton distribution does not appear to have been meant to be in any way public: looking one directory level up (Princeton University Physics 115A and B: Physics for Future Leaders) shows a course overview with syllabus and lecture notes, without any apparent link to the story. Probably, it was put online for use exclusively by students taking that particular class, and the professor(s) just didn't put any controls to stop it from being accessible to anyone who knew the URL. This doesn't really change that fact that its public accessibility is, strictly speaking, copyright infringement, but it may be a favorable factor toward a finding that distribution outside of the class was innocent infringement, which can lessen (or, rarely, nullify) the penalty. (And it may be quite possible that distribution within the class was defensible under fair use/dealing, which considers educational context as a favorable factor.) |
Can one require data of which one is the subject to be erased as well as disclosed? Under the GDPR, one is entitled to receive any data including CCTV footage that one may feature in if it still exists. However, can one as the data subject also require by request for such footage to be permanently erased, either before, or after, one has received it pursuant to an SAR? | The Art 15 GDPR Right to Access is pretty absolute, the Art 17 Right to Erasure not so much. Whether you can successfully request erasure of your personal data will depend on the purpose and legal basis for that processing. Short decision schema to check if erasure should be granted: no, if any of the Art 17(3) exception applies yes, if the data is no longer necessary for the purposes for which it is being processed (Art 17(1)(a)) yes, if the legal basis was Art 6(1)(a) consent (Art 17(1)(b)) if the data is being processed pursuant to a legitimate interest, yes, if the data subject successfully objected to the processing (Art 17(1(c)) yes, if the data is being processed for direct marketing purposes (Art 21(2)) yes, if the data subject objects on grounds relating to their particular situation, unless those grounds are overridden by a compelling legitimate interest For example, CCTV recordings on private property are often stored for some time for a legitimate interest to deter crime and to be able to investigate criminal acts if they should occur. A data subject could object to the recording, but would likely be unsuccessful: it doesn't make sense to let individuals opt-out from security measures, otherwise bad actors could use this to destroy evidence. Thus, the objection and consequently the request for erasure should be denied. | What are the reasons/ legal requirements that the police might need my personal information, given that I had not been able to provide any further information/ witness testimony to the incident that they were investigating? The police in england-and-wales have a duty to undertake reasonable lines of enquiry and to carry out a proportionate investigation in to allegations of crime. No-one is legally obliged to answer house to house questions but, notwithstanding the honesty and integrity of the majority of members of the public, any information held by the police may need to be corroborated to identify or eliminate suspects, witnesses, evidential opportunities or other lines of enquiry. Also, if it is established that someone has no information that may assist the investigation this is recorded to prevent duplication of effort thus enabling the police to focus their resources accordingly. All the while complying with the relevant privacy and data retention legislation. | Under GDPR Article 6 section 1(f), a lawful basis for processing is: 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. It seems that informing a data subject of the availability of a possibly better-focused related site would be a "legitimate interest", and merely doing a broad geo-locate on the IP does not seem to impact the "interests or fundamental rights and freedoms of the data subject" so it would seem this could be done without specific consent in advance. I don't know of any legal case on this specific point, however. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | This article basically says "it depends": If it is genuinely used to improve tenant safety then that is OK, but if it is used to track your private life then that is not acceptable. Cameras that cover communal areas used by several properties are generally acceptable, but cameras covering individual properties are much less so. It sounds like this falls into the latter category. Assuming you haven't got the camera yet, I suggest you write to the Landlord asking for a written justification of the cameras, and a policy for the use of the camera. E.g. it will only be viewed if an incident is reported. Once you have the justification you can then look for inconsistencies (e.g. if they aren't planning to snoop at random times, how are they going to notice someone up to no good? And how would they tell?) You could also just say "no". The installation of this camera probably counts as a material variation of the rental agreement. You could also propose a compromise: you will install the camera, but only provide footage as you see fit rather than allowing your landlord to view the camera at any time. CCTV installations are covered by the GDPR, so you should ask your landlord for the associated paperwork. Amongst other things they will need to state how long they want to keep the footage and provide a justification for that. "We might want to re-run it" is not a justification. Having all this stuff written down will help if you ever suspect he is abusing the footage. Edit Another thought: does the landlord own other properties? Are they having cameras installed too? If not, why not? They should have a policy about this. | The site would combine the data in novel ways, which is processing the data. Processing personal data which is publicly available is still processing personal data. You would have to take GDPR into account. That does not mean the processing is forbidden, but you need a legal basis for doing it. In many ways, having the informed consent is the easiest legal basis, but there are others. The data subject would have the right to demand information about the data you hold, and to demand the correction of wrong data. There is not necessarily a right to demand deletion, but if consent is withdrawn and you have no other basis for data processing, you have to delete. Note also that the consent basis would mean you have to actively contact the people whose consent you seek before the processing starts, and document how you do it. That makes pay-per-request models difficult. But consider that the news media can process some data about some people without the consent of the subjects of their activities. They just need to balance privacy and other legitimate interests all the time. | Maybe not. The ICO says that The right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. It might be valid to interpret the DPA / UKGDPR in a way that the relevant personal data undergoing processing in their system is the existence of the letters, but that you are not entitled to a copy of the letters. This is in line with the purpose of the right to access, that you can check what data they are processing about you and whether it is correct. If that argument holds and the data subject insists on receiving a copy of the letters, it might be legitimate to charge them a fee for these copies. But in practice: The data controller might not make this argument and just hand over the copies. It is worth a try. A right to access founded in data protection might not be the only way to receive a copy of these materials. If the letters are relevant for legal proceedings, they could perhaps be requested during the disclosure process. | These documents constitute personal data and - in principle - you, as the subject, have the right to get a copy of them by issuing a "subject access request". The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form. (Art. 15 (3) GDPR) GDPR applies to controllers of any kind, including government organisations. The subject access request can usually be a simple email. The ICO has a template for this: https://ico.org.uk/your-data-matters/your-right-of-access/ (but keep it simple, you can literally just ask for "all personal data" they have on you; no need to speculate on what kind of data they may have). The subject access request is sent to the actual controller, but if you don't get a response to your request after 30 days, you can file a complaint with the supervisory authority (see here for Germany; note that federal institutions are supervised by the BFDI, not the data protection authorities of the Länder). Also note that you may have to go through some trouble to be properly authenticated by the controller. They do need to be certain that you are the data subject. There are also reasons why a controller can refuse to provide some or all of the information (e.g. if your request is clearly excessive or unfounded, if it's impossible to comply without violating another data subject's rights), but I would be surprised if any of those applied in your case. Your rights can also be restricted depending on the legal basis for processing. This includes rights that are illogical as well as some that provide special protection for processors: You can't object to processing based on consent (but you can revoke your consent), fulfilment of contract (but you can cancel your contract), a legal obligation on the part of the processor, or a vital interest (but you still have the right to erasure) Your right to portability and right to erasure does not apply if processing is based on a legal obligation or a public task (justice, parliamentary or government functions, statutory functions etc.) your right to portability also doesn't apply if processing is based on vital interest (e.g to protect someone's life) or legitimate interest of the processor. It is possible that processing all or some of your data was based on the performance of a public task, in which case they will refuse your request. |
Law behind copying items multiple times Hypothetical scenario: Mr. Peter creates a piece of know-how, e.g. a unique pizza recipe. Can he sell the recipe to more than one company? What is called a type of contract that enables multiple different companies to be allowed to use Mr. Peter's recipe for making a pizza according to his recipe commercially? Mr. Peter lives in the European Union. (It is different comparing to selling a car. Once a car is sold, it cannot be sold to other people from the original owner.) Thank you. | I'll ignore whether a recipe is actually a good example, but I assume you're asking how a person who owns the exclusive rights to copy a thing (copyright) or to use a thing (patent) can allow multiple other entities to copy or use the thing. This is possible by granting each a non-exclusive licence. In the case that the piece of knowledge is not protected by any intellectual property regime, the holder of the information could just treat it as a secret. The information holder could enter into contracts to sell that information to various entities, each promising in return not to further disclose that information. This is the case for lots of sports data. | I'm not sure this would be a copyright violation. 17 USC 117 says: (a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner... Due to the shutdown of the license server, it is impossible to use the program without an adaptation. It is therefore an "essential step in the utilization of the computer program", and not infringing, in my opinion. | If you own the copyright (because you wrote the book), you can do whatever you want with it. If someone else has the copyright, you have to get their permission to do what you propose. That could be the author, the author's estate, or some other party. It then depends on what the interest of the rights-holder is: they could say "No way!", "Sure, for a payment of $100,000", "At $1 per copy, here is how you must keep track of copies", "Okay, as long as you include this notice that prevents further re-distribution" or "Huh, I never thought of that. Sure, I grant you complete license to do whatever you want". A publisher is relevant only when the publisher requires a transfer of copyright to the publishing company, or if the rights-holder has granted them a certain type of license (e.g. an exclusive license). If the author has granted someone else an exclusive perpetual right to distribute, then they cannot also grant you a license to distribute for free. That is really the author's problem, though, since the publisher doesn't hold the copyright so can't sue you, instead the publisher would sue the author for breach of contract. | Disclaimer: I'm from the US and don't claim to know German or Turkish law. So let me discuss some general principles here, but details may well be different in Germany and Turkey. You're mixing together three very different things: trademark, copyright, and patent. Copyright protects the expression of an idea, in this case, the exact computer code, images, etc. If you didn't copy his code, the chance that you would coincidentally write identical code is remote. The fact that you both have a line of code that says x=x+1 wouldn't give him any grounds for a lawsuit. He'd have to show substantial portions of the code were identical. If you didn't deliberately copy his code, this isn't going to happen. Barring some extraordinary and unbelievable coincidence, you can't violate copyright accidentally. Trademark protects names and symbols used to identify a company or a product. If you decided to call your software company "Microsoft", then that other Microsoft could sue you for trademark infringement. Likewise if you copied somebody else's logo or other distinctive graphics. This is very different from copyright. It is quite possible to violate someone's trademark accidentally. Especially if he gave his company or product a rather generic name. Like if someone called his product, say, "Password Manager", someone else might make a product with the same name without ever having heard of the original. Ditto if he has some simple logo or other graphics. If you did accidentally duplicate a name or graphic elements, well, in the US a court would likely order you to change your name or graphics and that would be the end of it, unless you refused, in which case you'd end up in court. US Courts have ruled that very generic names have limited trademark protection. An example I saw recently was "Main Street Auto Repair". A court said that the owner of that name could prevent someone else from opening a shop in the same town with the same name, but he couldn't sue someone in another town who happened to use the same name. This is why, by the way, companies often use made-up words for their product names. In your case, this should be a trivial issue. If he is claiming trademark to the look of the main menu screen, just change the colors or move some buttons around. If it actually went to court, you should be able to argue that the similarity was accidental and when you were informed you promptly changed it, and that should be the end of it. Depending, I guess, on how hard-nosed the judge is, etc. Patents are different still. A patent gives the owner the exclusive right to use an invention or process for a specified period of time. It doesn't matter if you invented the same thing entirely independently. Whoever filed the patent first has exclusive rights. There have been cases where an inventor lost out to someone with a similar invention because he submitted his patent application one day later. If this other person has patents that you are infringing, you are pretty much out of luck. | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | At least in the United States (and I'm pretty sure this is true around the world), facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340. In this case, it looks at first glance like the person who made that site made their own selection of which materials and which sources would be included; the one place where they really seem to have copied their selection is from glass catalogs with datasheets from specific manufacturers, who would have a hard time arguing that "everything we manufacture in this widely-recognized class of substances" is an original selection. What the author of the website has done is relinquish his rights in his selection and arrangement of the data. In some places, there are other rights besides copyright that do apply to databases; for instance, the EU recognizes database rights to protect significant investment in compiling a database of stuff. But the US does not have that concept. For citing stuff, that's not really a legal question, and has more to do with academic standards. Ask your adviser or teacher if you have one. | There are two scenarios presented: Buying prepared hot food, holding it hot in inventory, and selling it a la carte. Providing a delivery service. In 1, you are a food service business. It is a common business model for street vendors, caterers, or concessionaires to buy prepared hot food from third party commissaries. Food service businesses tend to have specific local and state regulations about food handling, occupational licesnse and food safety certification, inspections, equipment requirements and maintaining temperature logs to be legal, and in the event of food poisoning, anyone in the handling chain could have responsibility. Contact your specific city or state heath department. There is also the question of if Little Caesars etc. wants to be your commissary but that is their business decision. Another answer discusses the intellectual property of their logo and marketing, so I defer to that answer on the question of if they could positively stop you, assuming they don't care to sell into your commissary channel. In number 2, does GrubHub or similar actually ever own the food? They are providing several agent services: on a person's behalf, placing an order as directed. As an intermediary, collecting and transferring payment. As a contractor working as directed by the owner of the food, collecting and transporting it to the owners location when ready. In general the pickup task is something the owner could do and should be able to freely delegate, though I would not be surprised to learn of the existence of at least one city ordinance treating this delivery task as a food handling job subject to health and safety regulations. | If the ability to get a Pannini is conditioned on buying paper towels for money, then he isn't really selling paper towels for $2 and the Pannini for free, he is really selling a package consisting of paper towels and a Pannini for $2, so it would probably still be illegal. The phrase lawyers and judges use to talk about attempts to create loopholes like this one is "too clever by half", which means: "Shrewd but flawed by overthinking or excessive complexity, with a resulting tendency to be unreliable or unsuccessful." |
What is meant by "right, title and interest"? In contracts what exactly is meant by the words (both collectively and individually) "right, title and interest"? Example from Docracy Assignor exclusively owns all right, title, and interest in and to the Assigned Property Another example from Docracy The Recipient agrees to assign to the Company, or its designee, all right, title, and interest in and to any and all inventions I tried reading the article https://www.adamsdrafting.com/right-title-and-interest/ but found it hard to understand. I just got that some of the words are repetitive. (out of curiosity is adamsdrafting a reputable source?) | Everything In the sense that it means every single legal claim that a person could or might have over or in the thing. Specifically, ”right” means a legal right that can arise in all sorts of ways, ”title” means legal ownership and ”interest” means both of the above plus anything else that may be related to the thing no matter how remote or esoteric. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | You don't really "solve" a problem with IRAC. It is a rubric for summarizing cases and writing about how a legal issue was or should be resolved. As noted by @Putvi it stands for issue, rule, analysis and conclusion. It is common when writing a court opinion, or summarizing a case. For example, you first state the issue: Does the statute of frauds bar claims for promissory estoppel to establish who owns real property? Then to state the rule: Promissory estoppel can overcome the statute of frauds for many purposes, but not for purposes of lender liability or conveyances of real property. Then to provide analysis: Promissory estoppel has been used to substitute reliance for consideration and other formal requirements such as the requirement of a writing in many contexts, but the lender liability statute of frauds was enacted with a broader application than the traditional statute of frauds and the statute of frauds for conveyances of real property is definitional in nature since a conveyance of real property doesn't have a meaning in the absence of a deed or other instrument of conveyance. Since determining who owns real estate and not just who is obligated to transfer it in the future necessarily involves a conveyance, the exception to the promissory estoppel exception to the statute of frauds applies. Finally, you state the conclusion: Therefore, the statute of frauds bars claims for promissory estoppel to establish who owns real property. IRAC is a tool used for communicating legal concepts and conclusions, not for reaching those conclusions. Usually, the first stage of research is that you are presented with a fact pattern from which you have to "spot issues" and you may need to do legal research to use terminology that will be helpful and accurate to determine what the exact issue you want to resolve is and what the legal rule that applies to the case is. This often involves significant analysis prior to stating the rule or defining the issue. Also, it isn't uncommon in adversary practice to start with a conclusion, and see if you can find a way to describe the issue, rule and analysis that will lead to that conclusion. It would also be common to ask a junior attorney or law clerk to IRAC a large pile of cases to allow the senior attorney to focus in on which ones matter more quickly. | Contracts don’t have to be in writing Generally, there are specific exemptions. For example, in some jurisdictions, copyright transfers have to be in writing. Written contracts do not have to take any particular form Again, in general, some specific contracts may need to be in particular forms or explicitly deal with particular matters. Writing doesn’t mean ink on paper Of course, ink on paper is “writing” but so is an email, a text message, a Facebook post, a photo, a comic book. In law, writing simply means a semi-permanent record. Signatures are not required Unless, of course, they are in the specific circumstances. Your examples The plumber’s promise is both binding and unnecessary - the plumber is responsible for his own negligent acts and omissions even without such an agreement. On the other hand, if you promised not to hold him responsible, that promise would be binding. The designer’s agreement to transfer copyright is binding even where such agreements must be in writing because it is in writing. See What is a contract and what is required for them to be valid? | You bought the item following the instructions of the landlords, and they are paying for the item (specifically, reimbursement). So, you were acting as an agent for the landlords, and the item is theirs. Of course, you could withhold it until you get paid (unless your agreement specified otherwise). | The short answer: The title is, more or less, a record of who "owns" the vehicle. It's you if you own it free and clear, the dealer if you're leasing it, and it depends what state you're in if you're financing the car. The registration is a permit to operate the vehicle. In all three situations above, you would hold the registration (you could also not register your vehicle if you're not using it, for instance by filing for a certificate of non-operation in California). | what responsibilities/liabilities does/will his company have given that it's in possession of my property? None. There is no contract (implicit or otherwise) between the owner and you. The owner receives no consideration from you in exchange for storing your goods, and an essential element of contracts is an exchange of considerations. Thus, he has no obligation to continue storing your goods. Another essential element in contract law is that the agreement --meaning the conditions thereof-- be entered knowingly and willfully. Since the time of making the arrangement and up to now, you were reasonably unaware of the likelihood of an obligation to pay the owner. This preempts the owner's right to start billing you. If anything, you would need to prove special circumstances to avail yourself of a viable claim of promissory estoppel. See Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 171-172 (1994): To obtain recovery in promissory estoppel, plaintiff must establish (1) [a] promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise. However, the viability and duration of any relief pursuant to promissory estoppel seems very unlikely in the situation you describe. The hardship you are undergoing --and which prompted you to store your goods there-- is unfortunate. But generally speaking, a third party (such as the owner) who is unrelated to the causation or prolongation of that hardship cannot be lawfully forced to aid you for free. |
Can a football player be prosecuted for tackling a fan? A hypothetical scenario: An athletic event is being played in the U.S. (Let's say it's American football). A fan runs onto the field and disrupts the game. A player performs a rough, aggressive "football tackle" on the fan and holds the fan for security to arrive. Click here for a video of similar circumstances. Although, my question is different than what's shown in the video. My fact pattern includes the player performing a rough / aggressive "football tackle" on the fan. Question Did the player who tackled the fan commit a crime (or tort) of assault or battery against the fan? | I'll use California penal code 837 as an example, though most other states have similar statutes: A private person may arrest another: For a public offense committed or attempted in his presence... 839 says: Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. Generally, someone making an arrest is allowed to use "reasonable force" to effect the arrest. The question then becomes, is the act of interrupting a football game a public offense? Once a fan at a football game enters the field, assuming it is a violation of the license granted to the fan, they are trespassing. These fans are often drunk when performing their midfield dance so that is another public offense for which they could be arrested. Once arrested, the interloper must be turned over as soon as possible to a magistrate or peace officer. The person making the arrest is always subject to being sued. It is a question for a trier of fact to determine if unreasonable force was used in effecting the arrest. My guess is that in most of these cases security simply ejects the exuberant fan from the premises and the fan never looks back. If a lawsuit were to be filed it would be based on unreasonable force being applied during the arrest. California penal code 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Certainly, one could be charged with assault in effecting a citizen's or private arrest but it would go back to the definition of reasonable force and what force was necessary to effect the arrest. If someone resisted arrest I think it more likely that that person could face an assault charge. | This may constitutes harassment, which is against the law in most jurisdictions. But what counts as legal harassment is not obvious. Taking Washington state as an exemplar, RCW 9a.46, the stated intent of the law is to criminalize "repeated invasions of a person's privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim", and mailing glitter in order to annoy a person would not match that desideratum. In Washington, the law is limited to threats of physical harm or restraint or the intent to "substantially harm the person threatened or another with respect to his or her physical or mental health or safety". There is no legal standard for judging what constitutes substantial harm to mental health. California defines "harassment" in its civil code as unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner. More words, but still it is left to the jury to decide whether an act causes severe emotional distress. Emphasis was added in the text to highlight important elements missing from sending glitter to someone for the purpose of annoying. In general, annoying someone is not against the law, but repeatedly and severely annoying someone could be. | Yes Assuming you were assaulted (with or without battery) and you suffered injury (physical or otherwise) during that assault you are entitled to damages. The injury has to flow from the assault but not necessarily from the assaulter. For example, if you fled across the road and were struck by a car you could sue your attacker. Because assault is an intentional tort, it is not necessary for you to prove that actual financial loss was suffered - this is not negligence. The court can assess economic loss, non-economic loss and exemplary (punitive) damages. | I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence). | Not exactly, some actions that fall under "antisocial behaviour" are crimes in of themselves and they can be prosecuted in the normal manner (Of course where someone is prosecuted for those they're prosecuted for the specific crime not "antisocial behaviour") This doesn't mean however that doing anything that's not explicitly illegal leaves the Police powerless. In the Anti-social Behaviour, Crime and Policing Act 2014 there's a pretty broad definition of the term "antisocial behaviour": (a)conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, (b)conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or (c)conduct capable of causing housing-related nuisance or annoyance to any person. A constable can issue a Community Protection Notice (CPN) or the Police and select other organisations the option to apply for a civil injunction aimed at preventing the perpetrator(s) from continuing, the injunctions are ordered by Magistrates sitting in a civil capacity and the standard of proof is the civil one - i.e. "balance of probabilities" not "reasonable doubt". Violating a CPN can lead to a fine of between £100 and £2500 while violating such an injunction is considered Contempt of Court and while that still isn't a criminal offence can still see the guilty party land in jail for up to 2 years. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | "Checking someone's digital footprint" could be stalking, depending on the circumstances. The better question to ask is about the legality of a certain action, and not the specific name used in a jurisdiction (although indeed in Washington there is a defined crime of "stalking"). I don't know what you mean by "checking someone's digital footprint", and it is not defined by law. Looking at RCW 9a.46.110, we can first discern that it does not matter for the definition of the crime where these people live or where the robbery took place. If two people from Alberta travel to Alaska and harass or murder a person from Texas, Washington law does not enter into the equation. The crime that you're asking about is the snooping, so for Washington to have jurisdiction, the snooping has to be "in" Washington. That does not mean that both parties have to be in Washington – there can be complex jurisdictional laws if the accused is in another state or country. The accused can easily be prosecuted in his own state, he can also be prosecuted in a foreign country, if he is caught there or if he is extradited to that country. For the act to be stalking, the first element is that "He or she intentionally and repeatedly harasses or repeatedly follows another person; and...". Harassment is defined in that section as a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or when the course of conduct would cause a reasonable parent to fear for the well-being of his or her child. Since there was no communication between the parties, there is no harassment in the legal sense. There is no "following" either, therefore the act fails to constitute stalking w.r.t the first elements. Since the crime is defined by a conjunction of elements and your scenario fails on the first conjunct, it is not "stalking" (it is also not "harassment" as defined in RCW 9A.46.020, 9A.46.060. | As the answer by Dale M correctly states, it is a statutory cause of action. To classify it further, it would be a strict-liability tort, I believe, as there need be no proof of damages, and there is no duty of care. Instead there is a duty not to engage in the prohibited action. In this respect the statute approaches the criminal. A more familiar but analogous action would be a suit for copyright infringement where statutory damages are sought. The infringer owes no duty of care, and is bound by no contract. But the law imposes a duty not to infringe. The plaintiff need not allege or prove any actual harm, the fact of infringement of a registered work with a valid copyright is all that s/he need prove. The limits on damages are specified directly in the statute, and the court may award any amount that is within those limits, provided the infringement is proved and no active defense is established. The purpose of the award of damages is to deter future violations as much as to compensate the plaintiff. |
CopyFree, LGPL & GPL: is Closed Source Possible? I am working on building an app for desktop deployment. I am using an open-source platform that, for the purposes of this question, can be considered to use a CopyFree license. That platform itself links multiple external libraries though. Some of these libraries are under BSD license, some under LGPL license, and some under GPL license. I want my product to remain closed source. I know GPL requires users of a GPL component to also release there source under GPL, but as far as i know, BSD permits me to remain closed source; I am unsure about the requirements of LGPL for end user deployment. Assuming i can find a workaround for the GPL component, is it legal for me to remain closed source while incorporating external libs that are both BSD and LGPL? Also, I have not made any changes to any of these libraries. Would it change the ability for me to stay closed source if i were to use an altered version of one of these libraries? Also, what is the legal effect on static vs dynamic linking?(I want to be cross platform) Thats 3 questions. I hope this is not too broad? | Ok here is my go at answering my own question: (see comments above & below for links) Depending on what you want to do, GPL can be a bit complicated, with multiple versions, version numbers, and added exceptions over the years. it can be a headache. However, for this purposes of app development incorporating GPL/LGPL libraries, it is fairly straightforward. Keep in mind to check version numbers on all relevant documents, although they are most likely v3.0. As far as I know linking to a GPL library binds you to also releasing your code under GPL. So that is a no-go for closed source, but that brings me to my 1st question. is it legal for me to remain closed source while incorporating external libs that are both BSD and LGPL? and I think the answer to that is yes provided that I dynamically link to said component (.so .dll .dylib .framework). Permission of this is granted under section 4d of LGPL v3.0. d) Do one of the following: 0) Convey the Minimal Corresponding Source under the terms of this License, and the Corresponding Application Code in a form suitable for, and under terms that permit, the user to recombine or relink the Application with a modified version of the Linked Version to produce a modified Combined Work, in the manner specified by section 6 of the GNU GPL for conveying Corresponding Source. 1) Use a suitable shared library mechanism for linking with the Library. A suitable mechanism is one that (a) uses at run time a copy of the Library already present on the user's computer system, and (b) will operate properly with a modified version of the Library that is interface-compatible with the Linked Version. My 2nd question Would it change the ability for me to stay closed source if i were to use an altered version of one of these libraries? It is my interpretation that in this case the only source you would need to provide is that of the modified library, and that the application itself can remain closed source. I'm basing this on grounds that nothing has changed from the situation for my 1st question other than the fact that the modified component library is now a derivative work under standard GPL v3.0. finally my 3rd question what is the legal effect on static vs dynamic linking? This seams to be a bit iffy. Again see section 4d of the LGPL v3.0. By this wording dynamic linking is much preferable, and there are basically no requirements. If you choose to link statically though(in other words as part of the project build) things get complicated. To fully understand see LGPL definition of "Corresponding Application Code", and then see sections 4 5 and 6 of the GPL document. Full source is not required, but as far as i can tell you are required to provide all necessary materials for someone to build the project from scratch, so they can use a different version of the library if they so choose. This, in my opinion, would not be closed source. I hope that is clear enough? I did quite a bit of looking around the internet in coming up with this answer, and in the end even some reading of the license, though I'm not sure I've actually read them through in there entirety. Keep in mind that there are multiple version of each license, and you should check version numbers for each LGPL library you use. There is a lot of good information on on opensource.stackexchange, although much more than one can process in a single sitting, and with occasional disagreement on finer points. Below are some related links. gnu.org/licenses/gpl-3.0.txt gnu.org/licenses/lgpl-3.0.txt copyfree.org/content/standard/licenses/2bsd/license.txt opensource.stackexchange.com/questions/1700/are-derivative-works-a-subset... opensource.stackexchange.com/questions/2772/can-this-nvidia-licence-be-us... opensource.stackexchange.com/questions/2488/do-i-need-to-host-qt-source-w... opensource.stackexchange.com/questions/1431/are-there-examples-of-proprie... opensource.stackexchange.com/questions/5162/are-the-terms-of-lgpl-3-0-alr... | If the app (and the service accessed from the app) truly doesn't have any EULA, ToS, or license agreement, to include restrictions on reverse engineering, you can probably create an alternate front end, so long as you aren't using their logos, etc. However, their data may be a different beast, depending on the nature of it. For example, extracting data from Twitter would potentially violate Twitter's license on the original text copyright held by the authors in question. Wikipedia explicitly includes redistribution in their license agreement with authors/content creators. If all you are extracting and storing is the temperature at a particular weather station, you might have less of a concern. Anything beyond merely factual runs the risk of a copyright infringement as you store the data in your own database. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | Yes, a work with no license is All Rights Reserved, reserved meaning the creator of the work. Who is the creator of the work ? Everyone who contributed it, unanimously. Yes. If people contributed any copyrightable part of your work, in theory you cannot add any license or grant any right to use/reproduce/whatever the work without their unanimous agreement. That's very cumbersome, and almost nobody really does that, but it's what the law is. Big serious companies and repos require contributors to waive their rights on the code they contribute, by agreeing to a contributor's agreement. For example, python/cpython requires you to give your contribs a license allowing the python org to do essentially what they want with it, even though you retain copyright over them. If your project is not so serious, I suggest it should be enough to make the license clear, and that by contributing people are agreeing to place their contribution's code under the license. If it's a free license, that's all you need. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | Is it illegal to ask a company for money in exchange for information on a bug in their software/website? That in itself is legal. Indeed, the company would incur unjust enrichment if it coerced you to disclose your discovery for free. Only if you threatened the company to divulge to others your discovery unless the company pays you, it would be illegal and trigger charges such as extortion (likewise, legislations outlaw the unjustified delivery of programs or instructions for hacking a software/network/etc., although this goes beyond your actual question). Can the company take legal action against me? That seems doubtful, futile, and it could backfire (please note I have not done any research on legal precedents about this). Although the terms and conditions of the website or the End User License Agreement (EULA) of software might prohibit you to reverse engineer (RE)/decompile/etc. the application, anti-RE clauses are unenforceable and the remedies therefor are indeterminate because the sole act of conducting reverse engineering does not subject the company (or third parties) to any losses. The company's decision to take legal action for your discovery could backfire from two standpoints. First, it calls attention to the fact that the software at issue is defective and unsafe. And second, the bug is likely to be detected by someone else anyway, thereby potentially compromising customers' systems. | You cannot use the libraries trademarks, but that does not stop you from using your own. For example, you cannot use the name Twitter Bootstrap to endorse, promote or use as the name of your project. | 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. |
Answering crown bail with coronavirus Meet Bob. Bob has been charged with an either way offence, for which he has elected to undergo a jury trial in crown court when appearing before a magistrate. The magistrate bailed him for another month, to reappear at a crown court after that time to re-enter his plea. However, in the days leading up to his scheduled appearance, he has tested positive for Coronavirus. What does the law requires Bob to do? | The very first thing Bob should do is call his doctor to see if he needs medical treatment. The second thing Bob should do is call his lawyer (solicitor and/or barrister), who will be familiar with the necessary procedure to request an adjournment. In general, court proceedings can be adjourned if the defendant's presence is required but they cannot attend due to ill health or similar involuntary issues. A medical certificate may be required, so Bob may need to contact his doctor to see about getting one. Details about the requirements for a medical certificate are in Section 5C of the Criminal Practice Directions. In particular, 5C.2: If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) being adjourned rather than the court issuing a warrant for the defendant’s arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail. | No If she has probable cause, yes. The question is whether "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts [Bob is a thief] are probably true"? Its likely that the answer to this question is yes. None No Charlotte listens to Alice, Charlotte asks Bob questions which Bob may or may not answer. Charlotte can ask Bob to produce the receipt, Bob doesn't have to. Charlotte can ask to search Bob, Bob doesn't have to consent. If Bob tries to leave, if Charlotte has reasonable suspicion the Bob has committed a crime (which she could certainly justify) she may detain him temporarily without arrest. If Charlotte has probable cause to believe that Bob has committed a crime (which she could probably justify) then she can arrest him. | The defence in a criminal case has no obligation to inform the prosecution of anything. The onus is on the prosecution to provide the evidence to convict and the defence doesn't have to and indeed shouldn't help them do it. The defence can and probably would use conflicting statements by a prosecution witness to discredit that witness in the eyes of the jury. These do not have to be material to the case: just showing the witness is inconsistent in general is helpful. | He cannot enter a Guilty Plea until he has been charged with a crime. He would only be charged with a crime if the Prosecution believes they have enough evidence for a conviction. If they believe "the true culprit is still out there", they would not arrest or charge or attempt to prosecute "Bob". He can hire an attorney, and go on TV and say he is guilty, and beg to be prosecuted. The District Attorney (or similar Office) can simply respond, "We are aware of the claims by Bob. At this time, we do not have enough evidence to support charging Bob with a crime. The investigation continues." Somewhat ironically, if they have substantial evidence that Bob is not the murderer, he can then be charged with Making a False Report. | The Howard League for Penal Reform, who I presume are well informed about the subject, issued a press release including the following: “There remains the problem of people who have had the criminal courts charge imposed on them, many of whom will simply not be able to pay. We call on magistrates to exercise compassion and common sense when these unfortunate people are returned to court.” So the answer is yes, unless they can convince a magistrate that the charge is unaffordable when they get hauled back to court for non-payment. As the abolition of the charge was done by secondary legislation, I doubt there would be powers to act retroactively, even if this was thought desirable. | Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions. | The security guard, acting for the (now former) owner of the property doesn't know the new ownership of the property and asks for evidence Bob now owns the property. The security guard is free to ask. Bob cannot produce a receipt for his purchase of the property. The security guard asks which checkout Bob used, so that the security guard can check its records for the transaction. Bob doesn't know specifically and says the checkout was one of three. The security guard asks Bob to remain while each of the three checkouts is checked until Bob's transaction is discovered (or not). The security guard is free to ask. Bob is legally free to leave with his property but the security guard may think he has reasonable grounds for suspicion of shoplifting and decide to try to detain Bob on suspicion of shoplifting until the ownership of the property is established. As any member of the public, the security guard may use "as much force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." (s3 Criminal Law Act 1967) Bob is also free to leave without his property. In this case, as there could be no grounds for suspicion of shoplifting, only attempted shoplifting, it seems unlikely that any force would be reasonable. Of course, depending on retailer policy the security guard may be allowed to ban Bob from the premises if Bob doesn't cooperate. https://www.inbrief.co.uk/employees/being-a-security-guard/ | The Star Vancouver has a good article outlining the actual charges. Meng is not charged with "violating an embargo" but with defrauding U.S. financial institutions. It may be easier to report that the "crime" is violating sanctions but it's a little more nuanced. Meng is charged with defrauding U.S. financial institutions in order to avoid sanctions. From the article: The U.S. authorities allege Meng committed fraud by telling an HSBC executive her company was in compliance with U.S. sanctions against Iran limiting communication technology. The meeting took place in 2013, but the location was not revealed. HSBC is based in London with operations in the United States. Joanna Chiu, the Star reporter who followed the bail hearing, tweeted: US banks became concerned about the relationship between Huawei and subsidiary SkyCom. Meng told banks the two were separate when in fact "Huawei is SkyCom. This is the alleged fraud". Supposedly, the claims were in a PowerPoint presentation made to a financial institution in 2013. As a result of those claims, banks in the U.S. cleared financial transactions for Huawei. The nexus between Meng, Huawei, SkyCom and U.S. law is Meng making claims to HSBC that Huawei is not related to SkyCom inducing U.S. based financial institutions to unknowingly engage in transactions that violated sanctions with Iran. Thus, the fraud charge against Meng. |
In an accelerated possession claim, if no written request for judgment is submitted by the claimant and no defence submitted by the defendant Bob has claimed possession of a property from Alice. Alice has received the form from the court and not returned hers within the allotted 14 days. Under normal possession claims, the passage of this time under Civil Procedure Rules Practice Direction 55A entitles Bob to submit a written request to the court for a possession order without a hearing. However, if he does not submit this and Alice never defends the claim, then it will not go before a judge until one of these things happens and if neither does for 3 months then it will be automatically stayed. However, if Alice defends the claim before Bob writes in with his request for judgment, then it is as if she had done so within the 14 day time limit. It has been suggested by a professional advisor that the above is not true, however, in case Bob has filed an accelerated claim for possession, in which case if after the 14 days no defence has been received from Alice, then it will automatically go before a judge. But I have not been able to find any basis for this claim in the relevant CPR/CPD 55A. Is it correct? And if it is, can an accelerated claim which received no defense within the allotted deadline from Alice and resulted in a possession order being issued by the judge erroneously based on an error of law given all of the information that was apparent in the claim form be subsequently appealed by Alice even though she did not punctually submit her defense form within the 14 day time limit? | I don't wish to gainsay or contradict a "professional adviser", especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed "II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY" in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed. | The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address). | The ordinance is not very specific about how notice is to be given: therefore, it need not be in writing, and it need not be sent by mail. It would not be surprising if the "notification" came in the form of a city person inspecting the reported obstruction, walking up to the house and knocking and finding nobody home (thus triggering the "In case the owner cannot be found" condition), whereupon the city removes the rocks. That clause does not mean "In case we do not know who the owner is", it almost certainly means "in case the owner cannot be contacted immediately". Article III is in general about obstructions on streets, which are not allowed, except by permit in section 78 under "Permit to Obstruct Traffic Lane". Assuming that no obstruction permit was obtained, what usually happens is that an officer is sent to tell the owner to remove the obstruction (more or less immediately), and if nobody is at the site whom they can tell, they probably won't go any further (e.g. asking neighbors where the owner is). There is no legal definition of "reasonable time", instead the law simply takes that to mean "the amount of time a reasonable person would require". It would thus depend particularly on the size of the obstruction and the volume of traffic. One measure would be how quickly the rocks were moved -- if it was a matter of days and there was no notice, written or otherwise, then there would not be the kind of urgency that might justify the "We knocked and nobody was home" version of notification. | Note: The answer to the question is not the same in every U.S. state and territory. I have provided definitive answers only when there is unanimity or near unanimity. Did the deceased's family obligate themselves by not returning the the first service, that of the Notice of Appeal? No. Unless they expressly agree to do so in writing to be responsible for a decedent's debts (which almost never happens in the U.S.) next of kin of have liability regarding the debts of a decedent (at least by virtue of being next of kin, obviously, if they were, example co-defendant in a case who participated in the wrongful conduct, that could be another matter), except that it may result in a claim against the probate estate which reduces the size of their inheritances (potentially to zero), if timely asserted in the probate estate. As the next of kin are they obligated to receive the mail addressed to the deceased? No. Also, counsel for a decedent are terminated as counsel as a matter of law upon the death of a client. It is customary for a lawyer in the case (often, although not necessarily, the lawyer for the decedent if the decedent was represented by counsel at the time of death) to file a document usually entitled "suggestion of death" in the pending case when someone dies. But, no one is obligated to do so, and if the party is self-represented in the case (a.k.a. pro se), or that party's lawyers have withdrawn from the case, neither the decedent's former lawyers, nor anyone else in the case, may even be aware of that fact that the party to the case has died. What would be a possible remedy to keeping the claim active against this defendant albeit deceased defendant? File a claim in the estate of the decedent if the deadline for filing claims has not lapsed (which two years later, it may very well have). Normally, either a claims deadline that functions by operation of law (e.g. a state law non-claim deadline one year after the date of death), or a claim deadline arising from publication of a notice to creditors in the legal section of a newspaper in the area where the decedent died in a manner prescribed by state statute, would bar the claims, especially if the status quo was that they had been dismissed at the time of the decedent's death, even if there were still undistributed assets left in the probate estate after the deadline for filing claims has expired. It may also be possible to do a substitution of parties of the decedent's probate estate for the decedent in the pending case, if a probate estate has been opened and the deadline for filing claims has not yet lapsed. If a probate estate has not been opened, usually, after a certain amount of time, a creditor may open up the estate without the consent of the next of kin, or a public administrator will be appointed if there are no next of kin who have done so, and there are assets left to be managed in the probate estate. The law governing exactly when a probate estate has liability for the debts of a decedent incurred during life is a matter of state law that varies in significant detail between different states within the United States and is quite technical. I've written a couple of Colorado Bar Association journal articles on that subject applying Colorado law (Andrew Oh-Willeke, "Creditor's Rights In Probate - Part I and II", The Colorado Lawyer, May 2015 and June 2015). Note that the general rules may not apply in all cases to lawsuit brought "in rem" (i.e. adjudicating rights in a particular piece of property) although those kinds of cases aren't very common in federal court and would rarely involve the fact pattern set forth in the original post. Footnote Re Federal Civil Procedure For many years there was a lack of clarity, and/or a split of authority between U.S. Court of Appeals Circuits, over the proper time to appeal a ruling dismissing a party entirely from a case as a matter of federal civil procedure in various circumstances. It was resolved a few years ago, but I don't recall the outcome of that case. The general rule, expressed in Federal Rule of Civil Procedure 54(b) is that the dismissal of a party in a case cannot be appealed unless the trial court certifies that decision as final for purposes of appeal which is a discretionary decision for the trial court judge. | Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different. Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were "without legal cause." An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law. Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the "finder of fact," which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence. | 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. | There are a variety of reasons a judge might be disqualified. It could be that the judge was previous an attorney who represented someone (defendant, victim, key witness) involved in the case, it could be that the judge was a family member or former employer of the defense attorney, it could be that someone close to the judge or the judge personally was a victim of another crime committed by the person, it could be that the defendant or the defendant's family was a personal or family friend. The prior involvement in the protective order case could be a factor as well. The record isn't detailed enough to know. "Held" in this context means that the hearing scheduled for 1:30 p.m. on that date noted was actually conducted, rather than being continued or vacated for some reason. Your guess is as good as mine regarding "CFW" and "DB" in this context. My best guess for DB is "daily booking" and CFW might be either the removed or replacement judge's initials (e.g. Carol Francis Wilson) but those are just wild guesses. Neither appears on a list of Oregon Department of Corrections acryomns or this criminal background check abbreviation list, or this list of Oregon law enforcement abbreviations. The only matches on this list of law enforcement abbreviations and none of the matches to DB (dog bite, dead body, detective bureau) make a lot of sense in this context. | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. |
Is it legal to sell currency at a price lower than face value? Here is something that I thought would make a fun PR stunt to promote my business. I stand on the corner of a busy street corner in San Francisco, or any large city, dressed well, say in a business suit, with a sign that reads - Crisp New $5 bills, just $1 And I would have 20 real $5 bills and it would be legit. Now yes on the surface this looks like a dumb stunt financially, but certain people might wonder, especially say, tourists from another country passing by, and think - I don't understand - plus I am enough of an entertainer to say I am from the future or I was told by aliens to do this. I'm wondering about the legal perspective regarding novel marketing that looks suspicious, but I would contend that it is in my right under both free speech and that there is no specific law that forbids the sale of US currency for less than face value. | 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. | 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. | How come this is viable? Because it’s legal. What if people use their service to commit crimes? What if people use a Ford in a bank holdup? Or a Glock in a murder? Or the US Postal Service in a Nigerian letter scam? If the goods or services are legal and not provided for an obviously illegal purpose, nothing happens. | You cannot use a trademark in a way that may cause confusion that your goods and services are associated with or endorsed by the trade marked goods and services. If you are clear that they are not then you shouldn't have any problems on that front. You also cannot defame the brand: that is make derogatory comments that are not true. On a practical note, when Pepsi (for example) sends you a cease & desist notice, what are you going to do? They can go to the petty cash tin for $2 million to make your life a legal hell for 18-36 months: how much do you have to defend your rights? | This is an incomplete answer, but regardless of the state of statutory law in the U.K. and Ireland, most credit card providers, as part of their merchant agreements authorizing a merchant to accept credit card payments, prohibit merchants who accept credit cards from offering a lower price for cash payment than for a purchase using a credit card, despite the fact that in the case of a credit card payment, the merchant has to pay a processing fee to the credit card company that the merchant does not have to pay in a cash transaction. There have been some lawsuits challenging the validity of this requirement, but to the best of my knowledge, none have been successful. Generally speaking, however, it is not illegal to offer a different price if the merchant is paid all at once, as opposed to offering seller financing on installment terms (a different sense of the phase "cash price"), which is a different situation than when a merchant is distinguishing between a credit card payment of the entire price in one go, and a cash payment of the entire price in one go. It isn't entirely clear from your question in what sense "cash price" is customarily used with those tags. Similarly, it is probably permissible to offer one price for people who pay via either cash or a credit card on one hand, and a different price for people who pay via a check (which carries with it a risk that the check will not be honored), since that is not subject to a merchant agreement restriction, although my impression is that checks are used less often for payments in the U.K. (where they were invented) and Ireland, than in the United States. | Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | It is legal for a company to ask for any information they want as a condition of doing business with you, so long as their request isn't proscribed by law. I don't know of any jurisdiction where a request for banking or credit information is illegal. (In this case, however, it does seem like you are being phished. You could report the matter to your country's consumer protection agency.) |
Is it inappropriate to "demand" when asking for remedy? IANAL, but in my profession the word demand has a very negative connotation and is generally not used. When asking for remedy in a pleading: Plaintiff respectfully demands that the judge find that .... Is said preamble offensive to the judge? Is there a standard preamble that does not risk offending? | This is customary legal language in some places that doesn't have the negative connotations that it does in everyday life. The part of the pleading you are referring to is commonly called "the Demand", "the Prayer for Relief", or the "Wherefore clause" depending upon local custom. In the part of Colorado where I practice, the customary phrase is usually: Wherefore, Plaintiff requests that the Court . . . But this is really just a matter of regional custom. Relatedly, in some jurisdictions to sue for breach of contract you have to ask the breaching party to perform and that request, regardless of the actually language used, is usually called a "demand for performance." | 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. | What you are referring to is a Rule 68 (FED. R. Civ. P. 68) offer of judgment (OOJ). Thus far, nearly every jurisdiction's court of appeals has refused to construe these as being binding on the Plaintiff if the offer is denied, even if it offers complete remuneration, especially in a putative class action. The underlying reasons when applied to a certified class differ fairly substantially from an individual plaintiff or a non-certified class. However, there are some kinds of cases where a Rule 68 offer could never fully compensate (as with cases where subjective or non-substantive forms of damage have been requested). A Rule 68 offer is a cost-flipping mechanism, often used by defense attorneys when they are making what they believe is a fair offer (very rarely is the offer one that is equal to the Plaintiff's demand, which is why this issue rarely arises). If a defense attorney makes an offer of judgment, and then the Plaintiff doesn't accept the offer, they need to get a jury verdict in an amount greater than the offer, or the costs are flipped. So, typically, if there is no OOJ and the Plaintiff wins even a nominal judgment (it can be a dollar) the Defendant always has to pay their costs, which can be substantial. When a Rule 68 offer is made, it's a carefully calculated amount that the defendant thinks the plaintiff can't get in a jury verdict, even if they win, but it's typically less than the demand. The reason a Rule 68 offer is almost never "full compensation" is that a Plaintiff's demand for settlement will typically be somewhere in the area of 3x the amount the Plaintiff's attorney estimates the case to be worth. The Plaintiff is informed of this by their lawyer, so they don't have unreasonable expectations. If you think about it, this makes sense from an ability to negotiate perspective, with the logic being that the Plaintiff wants to get as close to full value as they can, and the defense needs their client to think they've saved them from some huge judgement. If a plaintiff demanded only what the case was worth, it would have no chance of settling for true value, or if the case were to settle, the Defense lawyer wouldn't be able to move the Plaintiff down off their number in any substantial way. This way, the lawyers can play their game negotiating the case down to a fair value. Plaintiff gets what their case is worth and Defendant feels like their lawyer saved them from catastrophe. It's all illusion. The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by Plaintiff does not moot the Plaintiff’s claim. The Plaintiff, a private high school, brought the action against the corporate developer of a college-entrance exam, alleging violations of the Telephone Consumer Protection Act and an analogous state statute related to unsolicited faxes it received. Prior to Plaintiff’s deadline to move for class certification, the Defendant made an Offer Of Judgment, offering Plaintiff the amount it could receive under the two statutes for each fax. Plaintiff did not respond within 14 days, rendering the offer withdrawn under Rule 68, and instead moved for class certification. Defendant then moved to dismiss, arguing that the withdrawn offer rendered Plaintiff’s claims moot and divested the court of subject matter jurisdiction. The district court denied the motion, holding that Plaintiff’s claim was not moot, but certified the question of whether an unaccepted Rule 68 offer, made before certification, moots the entire action and deprives the court of jurisdiction. Generally speaking, aside from very specific types of cases involving contracts, or specific types of statutory relief, a Plaintiff typically includes counts for things like NIED (negligent infliction of emotional distress), pain and suffering, loss of consortium, loss of future earning capacity – these are a few of the types of counts whereby there is no specific value a defendant could ever point to being "fully satisfied" – the reason being, a jury needs to determine the legitimate value of these claims unless the Plaintiff accepts a settlement award whereby he/she/it feels as if it's fully satisfied. | The only way in which you could be "incorrectly listed as a defendant" is if somehow your name was typed in as a party (there would be a glaring gap, that no paragraph of the complaint says anything about you as a defendant). Assuming the situation is nothing so bizarre as a typo, you are a defendant. Whether or not you are liable in this case is a matter of fact and law, and the plaintiff's attorney has probably done due diligence in suing everybody imaginable. Perhaps the plaintiff lied to his attorney about material facts (read the complaint); or perhaps there is a credible legal theory under which you would be liable (read the complaint). Your attorney will take care of your problems, to the best of his ability. He may be able to persuade the plaintiff's attorney that they stand no realistic hope of winning and some chance of getting smacked for pointlessly involving you. If the plaintiff's attorney isn't persuaded by the argument, your attorney could submit the legal arguments as a motion to dismiss. If the judge is not persuaded (at this stage), you (your attorney) will have to counter the arguments presented at trial. | 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. | it's not illegal to sign a contract that demands illegal things, however, such a contract, in general, is called an illegal contract. Illegal contracts are null and void. Contracts that violate public policy never have force in the first place. A contract can't force people to declare lies under oath or demand them to murder someone. Thus, a contract demanding such is illegal. As a result, such a clause would not just be unenforceable, it might void the entire contract wholesale if it is not severable. In the least, any clause demanding illegal acts was null and void ab initio, and never was valid. void contracts in law germany explicitly makes contracts void that are "Sittenwidrig" in § 138 BGB and also illegal ones in § 134 BGB Declarations to the Agentur für Arbeit are made under threat of perjury, and thus lying is illegal. It is also Sittenwidrig. This makes the provision void. Murder is illegal, inciting to murder someone is illegal, and so a contract to murder someone for pay is void. Such a contract also is Sittenwidrig. Selling the right to ask to marry your daughter per see isn't illegal, but it is Sittenwidrig and as such the contract is void. california judges refer to such contracts as illegal contracts, defining this as a test where making non-enforcement of such a contract something of public interest: It is in the public interest that people tell the truth to the unemployment office, so a contract demanding you to lie is illegal. It is illegal to lie on the stand (perjury), and thus the contract is illegal. Conspiracy However, the contract can also be evidence of criminal activity in itself: It manifests the will of two parties to commit an illegal act. That is the core of a conspiracy charge. Conspiracy is illegal and usually a felony. germany: Conspiracy to commit a crime is §30 STGB | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | An individual has no authority or legal basis to demand a personal "fine" for a perceived offense. The actions in the two scenarios would both be blackmail. although whether they would be prosecuted is quite another question. It would be reasonable for the shopkeeper to demand compensation for the lost merchandise. The offender (or the offender's parents) might offer to pay, either because they thought it the right thing, or in hopes to induce the shopkeeper not to call in the police. But if they specifically made "no police" a condition of payment, that would be bribery or attempted bribery. The resident in scenario 2 could demand compensation for an alleged civil wrong of excessive noise, whether or not the passer-by was speeding. ote that the amount of noise made would not be directly related to the speed of any driver (although no doubt there would be some relation) and no one driver would be responsible for keeping the resident up. I doubt that a civil suit, if pressed that far, would prevail, although it would depend on the factual details. The specific law of the local jurisdiction would also matter. But the moment there is a threat to bring evidence of a possible crime to the police, and a request for money instead, that is blackmail. |
Could Elon Musk dissolve Twitter now that he owns it? I know that generally if you own a company you can just dissolve it, however can Twitter have certain rules set up in their selling contract or perhaps because it's such a large company, can they somehow stop Elon Musk from just dissolving the company if he felt like it? | Elon Musk doesn't own Twitter He is part of a consortium of investors that own it. What he can and can't do with it will be constrained by any agreements that exist between those investors and, as CEO, a duty to all of the shareholders and to the company itself. However, that jus begs the question: can the "owners" of a company dissolve it? Yes. Or, more precisely, the directors acting for the shareholders can cease operating the company, collect all that it is owed, pay all that it owes and distribute wherever is left over to the shareholders. If there won't be anything left over, then the directors have a duty to point an administrator/liquidator to finalise the company. One of these two things is, ultimately, what happens to every company sooner or later. | This is possibly but not necessarily fine. The data controller (the garage) is responsible for safeguarding your personal data. They must take appropriate safety measures, but this depends a lot on their own risk assessment. For example, to protect the data from being used by employees for their personal purposes, the controller might use organizational measures like a policy “you're not allowed to do that.” Many companies allow employees to use their personal devices for work purposes (BYOD). When the data controller allows this and takes appropriate safety measures, everything is perfectly fine. The company still has to make sure that the data is only processed for legal purses and deleted afterwards. Implementing a BYOD policy in a GDPR compliant manner is difficult but not impossible. A data breach has occurred when the security measures were insufficient and your data was deleted or disclosed without authorization. Your scenario would only be a breach if the company did not have a BYOD policy and the salesman used their personal phone, and arguably then only if that device is also breached. However, do not discount the alternatives: they do have a BYOD policy and the salesman is acting within their instructions the salesman was using a company-controlled device, not their personal phone If you have good reason to believe that your data was mishandled (and these alternatives do not apply), then the GDPR offers you the following remedies: You can of course complain to the data controller, especially if they have a dedicated data protection officer. You can lodge a complaint with a supervision authority, which is the ICO in the UK. They expect you to attempt to resolve your issue with the controller first. The ICO can then decide if they want to investigate the issue. You can sue them for compliance and for actual damages suffered (you have none, though). Note that all of these alternatives are more effort than they are likely worth. In particular, the garage can always correct the problem, e.g. by getting your contact info deleted from the personal device or by creating a retroactive BYOD policy. | It's really your client that should be asking these questions. Writing the app is perfectly legal. So you can enter a contract with that client to write the app and deliver it to them, ready to be put on the Google Play store or the App Store (entering a contract needs to be done carefully, obviously). I'd make 100 million percent sure that the contract states clearly that you have zero responsibility if the app is rejected or removed for non-technical reasons, and that the legality of actually selling and running the app is also not your responsibility. The reason is that I very much suspect that running the app might be illegal, and that the chances of getting it permanently on one of the stores are rather slim. And solving those problems is outside of what a software developer can competently do. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | This is neither unusual nor illegal, assuming that the buyback price is specified in the agreement. If your friend does not wish to take advantage of the "nice discount" he can decline the deal, and decide for himself whether he wishes to buy shares without restriction, at the market rate. (It would be interesting to know what happens if he sells his shares and then leaves the company. I am fairly sure the agreement will cover this, but requiring an ex-employee to buy shares and then give them to the company could be considered unconscionable. That might be worth asking a lawyer about). | could this mean my employer owns the idea and anything I develop --since I would use the same technology for my idea that I do at work? No, unless by "technology" you mean the employer's materials or resources (see condition 3 of the clause). Your remark that "this is completely and utterly unrelated to [employer's] business model" survives items 1 and 2. Likewise, working on your idea outside hours survives the corresponding part of item 3. Would this also mean that any open-source software I develop outside of work automatically belongs to my employer? No, unless the software you develop is "based on [your] knowledge [etc.] of (COMPANY)". |
Could a state legalize murder? Could a state decriminalize killing other people in all cases? (Obviously they wouldn't and shouldn't, but could they legally/constitutionally?) | Yes, it Could A state can repeal or modify its laws against any particular crime, or just decline, as a matter of policy, to enforce such laws. It is in my view quite unlikely that a state would do this in the case of murder, but legally it could. Such action by a state would not affect the federal murder statute is at 18 USC 1111. But that only applies under a rather limited set of situations. According to "When is murder a federal offense?" it applies when: The murder is of a federal judge or a federal law enforcement official (for example, an agent of the FBI, TSA, or ATF),1 the killing is of an immediate family member of a federal law enforcement official. the murder is of an elected or appointed federal official (for example, the President, a Supreme Court Justice, a member of Congress, or the murder of a federal judge) the killing is committed during a bank robbery [or other Federal crime]. the killing takes place aboard a ship at sea (for example, on a vessel that is engaged in interstate commerce per the Commerce Clause of the U.S. Constitution). the murder was designed to influence a court case. the killing takes place on federal property (for example, on national parks or a Native American reservation). The vast majority of murder cases do not come under the current Federal law. | The laws governing the disposal of dead bodies do not make distinctions based upon citizenship. You have heard a myth that isn't true. There are regulations governing the disposal of dead bodies, but this isn't one of them. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | It excludes pain and suffering incidental to lawful capital and corporal punishment Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering. Similarly, corporal punishment such as caning is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture. It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal. Now, organisations like Amnesty International consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture. | This is interesting because things get extremely different on state and federal levels. Quoting this, Under modern U.S. law, suicide is no longer a crime. Some states, however, classify attempted suicide as a criminal act, but prosecutions are rare, especially when the offender is terminally ill. The "some states" part is much more important than was emphasized there, however. A case that reached the Virginia Supreme Court, Wackwitz v. Roy (referred to in Wikipedia) pivoted about the legality of suicide. From the decision: We are aware of only one legislative enactment that addresses suicide as a crime. Code § 55-4 provides that "[n]o suicide ... shall work a corruption of blood or forfeiture of estate." Thus, although the General Assembly has rescinded the punishment for suicide, it has not decriminalized the act. Suicide, therefore, remains a common law crime in Virginia as it does in a number of other common-law states. See, e.g., Southern Life & Health Ins. Co. v. Wynn, 29 Ala.App. 207, 194 So. 421 (1940); Commonwealth v. Mink, 123 Mass. 422 (1877); State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961); State v. Carney, 69 N.J.L. 478, 55 A. 44 (1903); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C.1991). To constitute suicide at common law, however, a person who takes his own life "must be of years of discretion, and in his *865 senses." 5 William Blackstone, Commentaries *189; accord Plunkett v. Supreme Conclave, 105 Va. 643, 646, 55 S.E. 9, 10 (1906) ("`To constitute suicide at common law the person must be of years of discretion and of sound mind.'"). This common law rule comports with a contemporary definition of suicide. Suicide is defined as "the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind." Webster's Third New International Dictionary 2286 (1981). I believe that the "only one legislative enactment" refers merely to Virginia state law, not nation-wide law. Thus, in Virginia, and other states, suicide could be treated as a common-law crime. However, in United States v. Hudson, it was ruled that such common-law convictions are not allowed at the federal level. I'm not always a fan of Google Answers, but the last one here provides a fairly well-documented section on common-law rulings about suicide. Note that in many states, this is not enforced, as common-law rulings are increasingly rare. | The Interstate Commerce Clause effectively means all economic activity in the US is under Federal jurisdiction because even something that's not directly involved in interstate commerce, even something not involved in commerce at all, can have an indirect effect on interstate commerce. In Wilkard v. Filburn the government successfully argued that Federal limits on wheat production were enforceable on a farmer that grew his own wheat to feed his own animals even though the farmer never sold his wheat to anyone and the wheat never left the state. A similar more recent case, Gonzales v. Raich, confirmed that this same principle applied to someone growing medical marijuana for personal consumption in a state where medical marijuana was legal. In your example, the felon is buying a gun manufactured in the same state. While this doesn't have a direct immediate effect on interstate commerce, its indirect effects are more obvious than in the two cases mentioned above. If it were legal for felons to buy guns made in state, but not out-of-state, then it would have a fairly dramatic effect on interstate commerce. Gun manufacturers would set up local manufacturing operations in many states to make guns for the felon market. (In theory at least, in practice I think most if not all states also ban felons from owning guns.) Also since guns are durable items, unlike wheat and marijuana, it's all but impossible to show that the gun will never leave the state and participate in interstate commerce directly. | Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states. Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power. Congress legally could have prohibited interstate commerce in slaves. Congress could have repealed the Fugitive Slave Act. Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition. A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there). Congress could have passed laws requiring negro votes to be counted in federal elections. Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them. But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway. | It depends on the jurisdiction but, very broadly speaking, the person might be ill such that: they did not know what they were doing or that what they were doing was wrong (insanity) their ability to understand their actions or make a reasoned decision or self control was highly impaired but not to the degree of insanity (diminished responsibility or perhaps provocation) they were unconscious when they acted (automatism - e.g. an offence committed while 'sleep walking') Clearly they lack the same culpability as a person with "good mental health", who consciously committed a criminal offence, knowing it was wrong. That does not mean the ill person can 'get away with it'. Claiming diminished responsibility as a defence to a murder charge may mean the person will instead be tried for manslaughter, which is also punishable by imprisonment. Depending on the circumstances a court (and subsequent people in authority) might be persuaded that the person is so dangerous they must be indefinitely detained and treated without their consent. Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Just because a psychiatrist comes along doesn't mean the court will do what the psychiatrist says is best - the court will hear both sides of the argument, establish the facts, interpret the law and deliver a verdict. Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. Certainly, but so far as I'm aware that defence is very rarely used and never successful. |
Is privilege (over communications) bilateral? In a case of spousal privilege, because both parties are spouses, I assume that what each party says is protected so trying to force either party to divulge would be a problem. But other privileged conversations develop because of an inequity -- one party holds a position so the other party can rely on privacy and protection. The doctor, the lawyer, the journalist, the priest, each one plays a role so other people can depend on privilege. But is that privilege bilateral? If in the course of my conversation with my lawyer, my lawyer divulges information, can I be forced to reveal it in court or is the entirety of the conversation privileged? Are just my words to the lawyer protected (because s/he is the "source" of the privilege -- were s/he not a lawyer, the conversation would not be privileged) or are the lawyer's words back to me equally protected through the same legal privilege? | The scope of attorney-client (solicitor-client) privilege includes the advice received from the lawyer. As long as it "arise[s] from communication between a lawyer and the client where the latter seeks lawful legal advice." If one could be compelled to reveal the advice received back from a lawyer (or if a lawyer could be compelled to reveal advice they provided to a client), that would effectively obliterate the privacy the privilege seeks to protect. The privilege belongs to the client, and the client may waive that privilege. In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice. Where legal advice of any kind is sought from a professional legal adviser ... the communications relating to that purpose, made in confidence by the client, are at [the client's] instance permanently protected from disclosure by [the client] or by the legal adviser, except the protection be waived. (R. v. McClure, [2001] 1 S.C.R. 445). The scope of the privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct (Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809) The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. (R. v. Gruenke, [1991] 3 S.C.R. 263) | This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51) Other states may define "business" more narrowly, or exclude professional services. Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations. Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. | A president can be personally sued, and does not enjoy universal immunity while in office, see Clinton v. Jones, 520 US 681 – in that case, Clinton was represented by private counsel. There are differences between that case and the instant hypothetical, the most prominent being whether such statements might be shielded because of executive privilege. The primary procedural question would be whether a potentially defamatory statement was made in connection with official duties. The limits of executive privilege are not at all clear. That kind of constitutional issue could involve the solicitor general. Let us assume that SCOTUS finds (somehow) that a particular statement is completely outside the ambit of executive privilege (separation of powers). Then it is not an interest of the US government to defend the personal interests of a defendant even if he in in office (whereas it is an interest of the US goverment to defend the official interests of POTUS), and private counsel would represent the defendant. Any settlement or award would be out of the defendant's pocket (as was the case in Clinton v. Jones). | In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | Generally they don't. If the conversation was made while there was a third person present, the person can be a witness at trial. Unless the witness is impeached, the witness's statement may be sufficient for you to meet your burden of proof to show the statement was made, because the burden is just a preponderance of evidence in most civil cases. Note that, the existence of a statement is not sufficient to prove breach of privacy. The context surrounding the statement is important. If you intend to record communications from the landlord in the future, please check with your jurisdiction's laws regarding recording of communications. Many jurisdictions (such as California) only permit a private communication to be recorded when all parties give consent. Not only an illegally recorded conversation is inadmissible as evidence (with the exception to rebut a witness), it is also a crime to do so. Some other jurisdictions in USA allows one party to record the conversation without obtaining consent from the other party. | Online conversations are generally allowed evidence. However, EVERYTHING in the chat should be considered, as well as any later actions. Were there later conversations that said something different? Did the lease you signed have different terms? One line in a WhatsApp does not make your case a "slam dunk". It may only be one piece of evidence in a much larger context. |
Is it legal for a parent in Florida to remove their minor child's doors and install a surveillance camera looking into the bathroom and bedroom? Is it legal for a parent to take off a 15 year old's bathroom and bedroom doors and place a camera that looks into the bathroom and bedroom? | The relevant law is not so specific. It prohibits child abuse and child neglect which are defined only as general standards and not as specific rules. This doesn't appear to be child neglect, indeed, the opposite to the extent that there is such a thing. So, would it be child abuse? This would be up to the finder of fact to determine, and might depend upon the manner in which this is done (for example, what is said to a child about it) and the reason that it is done (e.g. a history of self-harm) and more generally in light of the total context of the situation. But it is not obviously child abuse, unless, for example, recorded video was used for child pornography purposes, which there is nothing in the question to indicate. A comment suggests that the criminal offense of voyeurism (F.S. § 810.140) or video voyeurism (F.S. § 810.145) might be implicated, but both of those statutes apply to "secretly" observing someone or "secretly" setting up cameras, while in this case, the cameras and viewing are anything but secret. So, even if it were child pornography, it would not be voyeurism or video voyeurism under state law in Florida. As a general rule, a child is not entitled to privacy from a parent except in certain specifically defined circumstances (e.g. certain privileged communications). | It is illegal in Morocco to possess or distribute pornographic material of any kind. This includes nudes of the hypothetical Vietnamese girl. | Looks like these cameras are legal: If a dash cam is installed (e. g. for the purpose of collecting evidence in case of an accident), it is important to ensure that this camera is not constantly recording traffic, as well as persons who are near a road. This source, page 10. I assume, "constantly" means you cannot leave it recording round the clock on a parked bicycle, and the records must be retained no longer than is needed for the specified purpose. | I can't find any law that would prevent an employer from requiring this. Under current Florida law, an employer can even demand passwords and access to an employee's social media accounts. A bill was proposed to prohibit this, but it hasn't passed. Generally, an employer can require anything they want as a condition of employment, as long as it is not illegal. Florida has at-will employment so the employer could certainly fire the employee if they don't comply. | north-carolina A parent is responsible for supporting their minor child, therefore they cannot "kick out" their child (they can arrange for someone else to take care of the child but they are financially responsible for this arrangement). This is true even if the parent is a minor. In that case, the grandparents and the parent (who is herself a minor child) are both responsible for the grandchild. We can turn to NCGS § 50-13.4(b) which states the hierarchy of responsibilities: In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild's support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child's conception, the parents of both minor parents share primary liability for their grandchild's support until both minor parents reach the age of 18 or become emancipated. The details could be different in another jurisdiction. | It is probably illegal, just not pursued. In the case of something like bank robbery, you'd have a victim that filed a police report. A murder would need to be discovered somehow - either a missing person report or a dead body. If the porn shoot happened somewhere that a member of the public saw it and subsequently filed a police report, the video could be used as evidence. Absent a report, the police simply have no reason to look into it (unless the police catches them in the act, but we probably don't see those videos posted online). Why would these public offenses go unreported? Perhaps nobody sees it. Perhaps the bystanders in the video are paid extras. Maybe they're filming in what appears to be public but is actually private property. Perhaps they have a permit to use a public space for this purpose. Perhaps they just got lucky. Again, there might be some confirmation bias here - you're not going to see as many videos of folks they catch breaking the law, since they will either be interrupted and stopped or (maybe) have their videos ordered taken down. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. | I guess you are interpreting the answer of the officer the wrong way. Minors do have rights. Plenty of them. But using a phone to contact people their legal guardian does not approve, or to consume media their legal guardian does not approve, is usually not a right minors have. And to make those restrictions stick, your mother took your phone away. Ask for it on your 18th birthday. But when one of you has called the police on a family situation like this, both of you have a problem that goes way beyond property rights. Do you have an adult you can talk to? A teacher? An uncle or aunt? A coach? Try talking to them. If they all side with your mother, consider that she might be right and you are wrong. But often both sides talk themselves into a corner, and a neutral viewpoint helps. If you are truly desperate about your situation, call Child Protective Services. But that could backfire if they believe your mother, and make the family situation worse. Taking a phone away is not neglect or abuse. |
I paid for an airline ticket, I took the flight, but NEVER got charged I purchased an airline ticket, paid in full on my VISA, and took the flight. But the charge NEVER showed up on my VISA. The card has expired. Now, 4 months later, the travel agency is demanding the money. I am wondering If I need to pay? What does the LAW say about this? Thanks. Thank you guys for the comments. I live in Canada. The agency that sold the ticket is in the Netherland, and the ticket was purchased online in Thailand, so the jurisdiction is not clear. I am new here, I think the "law" section is more appropriate but I have no idea how to move the question. Of course if I purchase a service and use it, I should pay for it. However, in this case there is an important "time component" attached. The ticket is a #3000, and at the time I purchased it, I had the money available and ready to pay for it. I purchased it believing I will be billed immediately, and it is on the travel agency that they did not bill me. Now, 4.5 months after the fact, the necessary cash is not available, the purchase itself was attached to a certain point in time, not months later. It is not reasonable for me to put $3000 on hold in case one day sometime in the future they decide to bill me, after 30 days, I assumed I will never hear from them. Anyway, I decided to to what I think is the right thing, and offered to pay half, right away, to settle this issue, providing they reply to my email with "we confirm that half the payment will be considered payment in full, and this matter will be considered closed", surprisingly, they thanked me for my offer, but did not confirm this will end the issue. | You entered into two contracts, one with a Canadian travel agency and on with an airline (maybe multiple airlines). The travel agency acted as your agent, in securing the booking with the airline. In each case, the contract reduces to the promise "I will give you this in exchange for that". The other parties did what they were supposed to do, now you are legally required to pay up. It is highly unlikely that your agreements included a clause to the effect that if they don't get the money from you within a particular short time-frame, the ticket is free. There can be a statutory limit on how long a civil claim (unpaid debt) is valid, but that is measured in years, not months. You can certainly negotiate with the party seeking payment (I assume it is the travel agency). If the agency clearly, unambiguously and explicitly states that they will accept half payment to settle the debt, then if they try to sue you in court, you can produce that email plus proof of payment as evidence that there is no debt. Thanking you for an offer is not clear, unambiguous and explicit acceptance of half payment. | This is just saying that if they can’t host your event then the only remedy you get is your money back that your paid them (your deposit, advance payments, and of course your don’t owe final payments). It is there to make it clear that they are not responsible of any other money. What else might the client want them to refund? Other lost expenses. Non refundable deposits to the band, the florist, the caterer if this is just for the space. The non refundable airline tickets your relatives bought. Prepaid hotel rooms. They will not pay for any of that. The pandemic is a bit of a red herring because although that is of course the big thing now, it says any occurance whether or not the business caused it. The answers to your specific questions though are pretty trivial. -The business did not cause the pandemic or control the state health office (Irrelevant as noted) -There is nothing they can do about it. The state or county will allow the events when the situation improves. But even if say there was no state order but the venue for their own reasons or because they could not get enough staff cancelled, the answer would be the same. | To add to Nij's answer: You write I have not signed any paper document. You seem to assume that a binding contract can only be entered into in writing. This is wrong. In most countries (certainly in Germany), a binding contract generally does not require a written document. A contract can be entered into orally, or even silently ("Schlüssiges Handeln", "Implied-in-fact contract"). All that is required for a contract is that one party made a proposal, and the other party indicated their agreement, implicitly or explicitly ("Willenserklärung"). Clicking "yes" on a website can mean entering into a contract if you could reasonably be expected to understand that you were accepting certain obligations (such as that of paying a fee). So in your case, you probably entered into a valid contract, and will have to fulfill your obligation under it, which means paying. From a practical point of view: If you choose not to pay, the organizers will probably either drop the claim (if you are lucky), or they will pursue it. In that case, they can send you a "Mahnbescheid" for their claim. At that point you either pay within 14 days, or respond that you reject the claim, then there will be a trial, which you will probably lose, and pay a lot more than 40€. If you do not respond to the Mahnbescheid, you will receive a "Vollstreckungsbescheid", and then a visit by a Gerichtsvollzieher (officer of the court). My advice would be to pay and learn to properly cancel registrations. | When you breach a contract, you can get sued in local court, and if you don't show up to defend yourself, default judgment will be entered against you. Then the aggrieved party will have to collect, but the court in Washington (to invent a jurisdiction) can't enforce an order against a person in Norway (to invent another jurisdiction). So the aggrieved party would need to take enforcement of the judgment to the Norwegian courts. In the actual case of Norway, this is fairly simple, you just call an attorney in Norway to do the paperwork. It might be harder if the other jurisdiction is Belarus. If you return to the US, even if there is a money judgment against you for the rent owed, you will not be arrested for that debt. Depending on the state (about half of the states), you might be arrested for failing to comply with a court order to pay the debt. The difference lies in refusing to comply with a court order, versus simply having a debt. The State Department conveniently lists the reasons for denying a visa. Owing money or having an uncollected judgment against you is not one of the possible reasons, in fact even having been ordered by a court to pay, ignoring the order, and the court issuing an arrest warrant does not make you inadmissible. | Technically the signage implied an agreement, and allowed you to infer one. But yes, I think that management could not legally insist on more than the posted price, whether for a lost ticket, or for a particular duration. (Unless the sign included "prices subject to change without notice" or something of the sort.) As a practical matter, challenge this is going to be a pain. The employees on the spot probably have no authority to vary the price merely because the amount programmed into the register differs from the posted sign. At least they will claim not to have such authority. And they won't release the car without being paid the $80 that they will insist is the proper price. To challenge this, a person would probably have to pay under protest, and then sue for a refund, I would hope in a small claims court. Most people will not go to that trouble for $10, which perhaps the management counts on. Publicity might be more effective. | This is likely to be a matter of policy rather than law That is, it’s not likely there is a law prohibiting it but it is highly likely that the person’s training and their employer’s policy on the matter is that they must complete a ticket once they start it. It’s a pretty universal anti-corruption measure - it prevents the situation where they are writing the ticket, the owner appears and offers them half the value of the fine in cash to stop: well, they can’t stop so they can’t be tempted by the bribe. Of course, the bribe can be offered before they start but, when fighting corruption, you minimise the opportunities rather than eliminate them. I know that police and rangers (private people can’t issue tickets) in new-south-wales are so restricted. | No A government performing the functions of government (like issuing a visa) is not in a contractural relationship with the person they are doing it for so there is no basis in contract law for such a suit. It might be arguable that they were negligent, however, first they would have to agree to be sued as they have sovereign immunity, secondly you would need to prove that they owed you a duty of care which I am far from sure they do and thirdly you would need to prove that they breached it which I don't think they did. | Given that this is a UK based company, the most applicable Act would be the Unsolicited Goods and Services Act 1971 A person who, not having reasonable cause to believe there is a right to payment, in the course of any trade or business makes a demand for payment, or asserts a present or prospective right to payment, for what he knows are unsolicited goods sent (after the commencement of this Act) to another person with a view to his acquiring them [for the purposes of his trade or business], shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding level 4 on the standard scale. This law specifically refers to [unsolicited] charges for entries in directories. You also mentioned that they're misrepresenting that a company is already a customer and sending out invoices on that basis. That would be a breach of the Fraud Act 2006 A person is in breach of this section if he dishonestly makes a false representation As to their enforceability, that answer is no. If this came before an actual judge, the judge would throw it out in a heartbeat. No agreement was made to provide a service in return for a payment and these companies rely on sending threatening letters via (seeming) third-parties precisely because they wish to avoid that level of scrutiny. |
Extradition without treaties? I came across some new reports about Japanese scammers being extradited from Thailand. But my research seems to suggest that no extradition treaties exist between the two countries as of now. From both Thai and Japanese sources, these news pieces don't seem to mention anything about treaties or agreements. One of them says Acting bureau chief Pol Lt Gen Sompong Chingduang said the arrests were part of the bureau's crackdown on foreigners working in the country illegally. So is it correct to assume here "extradition" is not used in its most technical sense? It sounds like rather than actual extradition, these cases are about illegal activities in Thailand and the ensuing deportation. How does/can extradition work without extradition treaties? | So is it correct to assume here "extradition" is not used in its most technical sense? It sounds like rather than actual extradition, these cases are about illegal activities in Thailand and the ensuing deportation. There is no technical sense without a law/jurisdiction in context. The plain meaning of extradition is to surrender a person by one state to another state for reasons of alleged or convicted criminal conduct. I would call a deportation an extradition if (a) the other state specifically requested it via official channels and (b) measures (arrests, detention, escorted transport etc.) are taken to ensure the person in question is effectively handed to the other state's authorities (and not just deported anywhere). How does/can extradition work without extradition treaties? As provided by the national law. While the U.S. law may require treaties for most extraditions, other countries may do things differently. Canada, for example, permits a case-by-case agreement in its Extradition Act, which you could probably call a mini "treaty" since unlike in the US the executive authority alone is competent to enter into international agreements: 10 (1) The Minister of Foreign Affairs may, with the agreement of the Minister [of Justice], enter into a specific agreement with a State or entity for the purpose of giving effect to a request for extradition in a particular case. Other countries like China do not require a treaty for an extradition to occur. Article 15 Where there is no extradition treaty to go by, the Requesting State shall make a reciprocity assurance. Extradition Law of the People's Republic of China Apparently, Thailand is also one of such countries. Section 8. The extradition shall commence with an extradition request from the Requesting State. The extradition request from the Requesting State that has an extradition treaty with Thailand shall be transmitted to the Central Authority. Where the Requesting State has no extradition treaty with Thailand, the request shall be transmitted through the diplomatic channels. Extradition Act of Thailand Now there is still the possibility that this is a simple deportation since the news sources or even police officers do not always use the technically correct terminology. But lack of treaties alone is not a basis to assume that it is not an extradition (and the existence of treaty is not enough to assume that it was an official extradition). | There's not any well-defined notion of what a person with a Red Notice is "allowed" to do. The notice doesn't have any legal force of its own. You can read more about Red Notices on Interpol's web site: INTERPOL cannot compel any member country to arrest an individual who is the subject of a Red Notice. Each member country decides for itself what legal value to give a Red Notice within their borders. So it would be up to the US authorities to decide what, if anything, to do about the Red Notice, in compliance with US law. We can only speculate as to why they declined to flag his passport and/or detain him. Without knowing anything about the specific case in question, here are some possibilities: They may have felt there wasn't sufficient evidence against him to justify detaining him. The conduct of which he was accused may not have been a crime under US law. They may have believed the Brazilian arrest warrant was primarily politically motivated. They may have wanted to annoy the Brazilian government, or make a political statement against its actions, by failing to cooperate. They may have decided that it simply wasn't a good use of their funds to pursue the case. They may have been lazy or incompetent or oblivious and simply not known where he was or what he was planning to do. The fact that he was intending to travel to Brazil voluntarily may or may not have been a factor in their inaction. | On the first page of https://www.gov.uk/duty-free-goods/overview you find: "You can bring some goods from abroad without having to pay UK tax or ‘duty’ (customs charges), as long as they’re for your own use." And on the next page "... will use them yourself or give them away as a gift". This clearly doesn't cover anything that you bring into the UK to sell it. And a bit further on the site it says "You must tell customs (known as ‘declaring’) on arrival in the UK if you have goods: ... that you plan to sell". Since you are asking here, it is quite obvious that you intend to sell :-) You said "e.g. say this guys comes every month from Russia to France for unrelated business, each time he fills up his luggage with the maximum allowed amount of goods that comply with custom laws". If this guy sells the stuff to you, then the maximum allowed amount of goods to import without paying taxes is zero. Once he is willing to pay taxes, there is no limit. Obviously regularly importing things from Russia or France and selling in the UK at a profit means that he is running a business in the UK, which means he would have to register a business, pay corporation taxes etc. It's all a matter of degree; for small amounts nobody cares (up to some limit you don't need to register a business or pay taxes; I don't know the details). | It depends on the law in country B Some countries allow extradition of their citizens and some don’t. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | I assume the goal here is for nation A to prevent citizen A1 from travelling/emigrating to nation B. It can be done, but not in the way you're suggesting. It can be achieved by instituting exit visas. Wikipedia reference: Nepal requires citizens emigrating to the United States on an H-1B visa to present an exit permit issued by the Ministry of Labour. This document is called a work permit and needs to be presented to immigration to leave the country. Which is essentially what you're after, if I understand your question correctly. In short, nation A cannot tell nation B to not grant a particular visa. But nation A can require citizen A1 to get nation A's explicit permission to travel to nation B. However, as you can see in the list of examples on the Wikipedia page, exit visas are not all that common and are often linked to fascist or authoritarian regimes (which means that imposing an exit visa is liably going to raise a few eyebrows in western society, to say the least). I was genuinely surprised that Nepal still has an exit visa; I initially wrote my answer under the assumption that I would only find historical occurrences. | Yes, and this is very common - Cuba, North Korea and Iran are often excluded. Mind you, this is from a US perspective. The banned country may have other ideas about the legality of the ban under its laws. But if you weren't planning to do business with that country anyway, that's not exactly going to hurt you. | These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ...the documents have been published by the hackers, they are now public by virtue of being put on the Internet. But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information. |
I just got a facebook trademark infringement notice by email from Meta I am the owner of https://*******onfacebook.com . Its a free tool to find mutual friends between two or more people. I made a facebook account to promote this website on many FB groups about mutual friends. The account got blocked because i had spammed too many different FB groups. Then i made the mistake of appealing the block using the same phone number that's connected to my regular facebook account, so now they know my first and last name as well... Shortly after this F*ck-up I received the following email in the inbox of my normal email address. To Whom It May Concern: We are writing concerning your registration and use of the domain name *******onfacebook.com, which contains the famous Facebook trademark. As you undoubtedly know, Facebook is the leading online social network service. Meta Platforms, Inc. (“Meta”), previously Facebook, Inc., adopted the name and trademark Facebook in February 2004 and, since that time, has actively used the Facebook name and trademark in connection with its online social network service, including maintaining the web site www.facebook.com. The term Facebook is one of the most famous trademarks on the Internet. Meta owns exclusive trademark rights to the Facebook name as a result of numerous trademark registrations in the United States and internationally, as well as related common law rights. Accordingly, Meta enjoys broad trademark rights in the name Facebook. Meta has made a substantial investment in developing and providing its services. As a result of its pioneering efforts and devoting substantial effort and resources to providing only high quality services, the Facebook name and trademarks are widely known among the consuming public worldwide, and the name and trademarks embody substantial and valuable goodwill. Accordingly, we were concerned when we learned of the registration and use of ******onfacebook.com. As we hope you can appreciate, protection of its trademarks is very important to us. The registration and use of [[domain_name]] violate the Lanham Act (15 U.S.C. 1051 et seq.) because it infringes and dilutes the famous Facebook trademark. Infringement occurs when a third party’s use of a company’s trademark (or a confusingly similar variation thereof) is likely to confuse consumers as to the affiliation, sponsorship or endorsement of the third party’s services. Trademark dilution occurs when a third party’s use of a variation of a company’s trademark is likely to lessen the distinctiveness of the company’s famous trademark. We have filed numerous proceedings before the United Nation's World Intellectual Property Organization's arbitration panel in order to protect our rights, and have recovered thousands of domain names. We are concerned that registrant’s unauthorized use of the Facebook name may cause confusion as to whether registrant or registrant’s company’s activities are authorized, endorsed or sponsored by Meta when, in fact, they are not. We understand that you may have registered *********onfacebook.com without full knowledge of the law in this area. However, we are concerned about your use of the Facebook trademark in the domain name. As you may know, the Anticybersquatting Consumer Protection Act provides for serious penalties (up to $100,000 per domain name) against persons who, without authorization, use, sell, or offer for sale a domain name that infringes another’s trademark. While Meta respects your right of expression and desire to conduct business on the Internet, Meta must enforce its own rights in order to protect its valuable and famous trademark. For these reasons, and to avoid consumer confusion, Meta must insist that you immediately stop using ********onfacebook.com and disable any site available at that address. You should not sell, offer to sell, or transfer the domain name to a third party and should let the domain registration expire. The domain name, *******onfacebook.com, is currently resolving to a parked page, pay-per-click advertising, sponsored links or other unauthorized use. Please disable the servers so they do not connect to a page with content. Please confirm in writing that you will agree to resolve this matter as requested. Sincerely, Meta IP & DNS Enforcement Group Legal Dept. Meta Platforms, Inc. _Any personal data collected by Appdetex and used to identify individuals for the purpose of this communication have been done in accordance with applicable privacy laws and the Appdetex Privacy Policy available at: https://www.appdetex.com/legal/privacy-policy. Certain information provided herein may be confidential and/or protected from disclosure under applicable law. If you are not the intended recipient of this transmission, please notify the sender immediately and do not deliver, distribute or copy this transmission, disclose its contents, or take any other action in reliance upon or as a result of the information it contains._ I am not diluting their trademark and am not claiming affiliation with Meta or Facebook. There is a disclaimer on the website that says that the trademark is used nominatively only. Just as the website www.twittervideodownloader.com is using the trademark Twitter nominatively as well. That website is still up, so what's wrong with mine? I used the answer from this lawexchange post to create the disclaimer. The subject of the email i received is Privacy Forward - [from:enf.facebook.1******@ad-facebook.com] *******onfacebook.com - Notice of Facebook Trademark Infringement. The email originates from ***********@identity-protect.org. What should i do? Do they really have something on me? They're saying i'm violating the Lanham Act (15 U.S.C. 1051 et seq.) because i'm diluting the trademark Facebook. But how am i diluting their trademark? The site hosts nothing more but a free tool. They are also saying that *The domain name, ********onfacebook.com, is currently resolving to a parked page, pay-per-click advertising, sponsored links or other unauthorized use.. This is again not true. It resolves to an angular app for determining mutual friends between two or more facebook users online. It currently does not show any advertisements either. The content also looks like a standard template because they forgot to replace [[domain_name]] in the phrase The registration and use of [[domain_name]] with the url https://*****onfacebook.com . It could very well be that they didn't even bother to read my disclaimer. What should i do? Do they really have legitimate grounds to sue me? I must add that i reside in the Netherlands so the website https://*********onfacebook.com is not subject to US law. Can they file a case against me even when there is no ground to do so at all? | Since your website operates in the US (regardless of where you live), it is subject to US law, so you can be sued in the US. Also in The Netherlands: there is a non-trivial chance that the parent corporation registered their trademark in The Netherlands (and anywhere else they operate). Your domain name could be cancelled by ICANN as a result of a court proceeding in either country. You should consult with an attorney, if you want to fight this. In court, you could try to argue that your use of their trademark does not violate trademark law, and you might read this in preparation. This article gives an overview of trademark litigation in The Netherlands, and §9 explains how infringement is assessed. | "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. | While German law indeed requires providing correct contact information it does not require the recipient to answer queries. It is there so that you can submit legal notifications. In your case I wouldn't be so sure that the information is not correct. However, even if the contact information is incorrect, there is not much you can do about it. This is reserved to the following groups by § 8 Abs. 3 UWG: every competitor; associations with legal personality which exist for the promotion of commercial or of independent professional interests, so far as a considerable number of entrepreneurs belong thereto, and which distribute goods or services of the same or similar type on the same market, provided such associations are actually in a position, particularly in terms of their personnel, material and financial resources, to pursue the tasks, under their memoranda of association, of promoting commercial or independent professional interests, and so far as the contravention affects the interests of their members; qualified entities that prove that they are entered on the list of qualified entities pursuant to section 4 of the Injunctions Act or on the list of the Commission of the European Communities pursuant to Article 4 of Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumer interests (OJ Number L 166 page 51); Chambers of Industry and Commerce or Craft Chambers. Unless you are a competitor you are out of luck. The hoster or other providers can't do anything and don't need to, as they are not required to check legality of their user's websites. It doesn't really matter where you are by the way for these laws. | A slogan such as "The Stripe of Bitcoin" might well be taken to indicate that the seller of a product or service is trading on the good reputation associates with the mark "stripe". If so, that would probably be a form of trademark infringement, assuming thst "Stripe" is protected as a trademark, unless the permission of the holder of the trademark "Stripe" was obtained. Payment processing and cryptocurrency handling are sufficiently closely related that customer confusion is possible. Note that competitive use is generally permitted. One can, for example market a soft drink with the tag "The cola that's better than Coke" without permission from Coca-cola (which i doubt anyone would ever get). This is because when a marketer says "X is better than Y" no one reasonably thinks X is sponsored or approved by Y, nor will anyone be lead by this tag into thinking that X and Y are the same. Other forms of nominative use are also allowed without permission from the trademark holder. For example, a computer component might have been advertised as: "compatible with Intel Pentium", as this is just using a trademark to name a related product, and does not imply affiliation or sponsorship. But a tag such as "The Rolls-Royce of pencils" might be ruled to be infringing, even though Rolls does not, as far as I know, make pencils. Note that the details of trademark law vary significantly from one country to another. Note further that trademarks protected in one country may not be protected in another. The question does not specify any jurisdiction, so no answer can refer to the particular country that the asker may have in mind. | 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. | There are three main aspects to this: Its their website, and their terms of service. They can enforce those terms, or change them (in some appropriate manner). You have no recourse if they remove you, block you, or delete your account, for example. That's the measure that you would probably have, virtually every time. To claim damages, or litigate beyond just website access control, requires a legal claim. But there's a catch there. To claim damages, they need to show actual damage, which they wish to be compensated for. If you misused their website but no actual harm can be shown, the total damage claimable is zero, whether or not you followed their rules. Merely entering dishonest information isn't by itself harm. So they would have to show they suffered damage/harm because of that, which is directly attributable to your behaviour, was foreseeably harmful etc, or similar. They also need to consider legal costs, and ability to enforce, especially if you are in a different country. If for some reason the computer use was also illegal, then a criminal act could be committed and they could notify law enforcement. For example suppose you did this in the little known country of Honestania, where the law says that to prevent trolling and online abuse, anything posted on social media under any but your own legal name is a crime. Or suppose you'd been banned from the system and ignoring/evading such a ban was criminal computer use or criminal trespass due to the forbidden/unauthorised access (which can happen in several places). But this is purely for completeness; I guess you'd know if you were taking it further, into criminal computer use. | Under the Berne Convention, a copyright notice is not required at all, although using one is good practice. Using one usually eliminates the claimed status of "innocent infringement", which, if found true by a court, greatly reduces damage awards. It is usual to place such notices at or near the start of a work. That is where people tend to look for them, and I don't see any good reason not to follow this practice. The book tradition is the the copyright page comes before any part of the actual work, including the table of contents, sometimes with a continuation at the end of the work, if there is more than one page of notices. But that is not now a legal requirement, if it ever was. In short, there are no rigid rules on this, but putting a copyright notice at or quite near the start is good practice, and I would suggest sticking to it. | It wouldn't be frivolous, but I doubt either party could prevail in a trademark suit The test to use for trademark infringement is a set of factors known as the Lapp factors. Per A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198 (3rd Cir. 2000): [L]ikelihood of confusion for both competing and noncompeting goods should be tested with reference to the following: the degree of similarity between the owner's mark and the alleged infringing mark; the strength of the owner's mark; the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; the length of time the defendant has used the mark without evidence of actual confusion arising; the intent of the defendant in adopting the mark; the evidence of actual confusion; whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media; the extent to which the targets of the parties' sales efforts are the same; the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors; other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market. Let's take a few of these. the degree of similarity between the owner's mark and the alleged infringing mark Low, but non-zero. They're facially completely dissimilar: the words sound and look nothing alike, and their logos are completely different as well in both design and color. The only similarity is that they are both parts of Nikola Tesla's name. The USPTO gives as an example "LUPO" and "WOLF" being similar, "because, when the Italian word 'LUPO' is translated into English, it means 'WOLF.'" However, in that example, the words have identical meaning in different languages. Overall, this seems to weigh against infringement, as neither company is associated with the actual person, and Nikola is a common given name. the strength of the owner's mark Tesla's is quite strong: they're quite prominent. Nikola probably less so. Would weigh in favor of Tesla in a suit. the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase Extremely high: the Tesla and Nikola trucks start at ~$40k and $60k, respectively. This weighs against infringement, as consumers are unlikely to make such an expensive purchase hastily. the intent of the defendant in adopting the mark Both chose the mark to pay homage to Nikola Tesla. Per the same case, "defendant's intent will indicate a likelihood of confusion only if an intent to confuse consumers is demonstrated via purposeful manipulation of the junior mark to resemble the senior's." None appears clear here, which does not support infringment. the evidence of actual confusion I couldn't quickly find any. I'm sure a lawyer would search more thoroughly, but this seems to weigh against infringement. whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media the extent to which the targets of the parties' sales efforts are the same These are probably pretty similar. Would weigh in favor of infringement. As with any balancing test, it's a bit of a guessing game how a court would weigh the factors, but given the low similarity, high price, and lack of evidence of actual confusion, I find it unlikely that a court would find either party has infringed the other's trademark. |
What is the legal basis or standing of Transport for London (TfL) charging a driver's award for returning items lost in taxis? Is it lawful to charge someone more than postage and storage fees for example, in order to reunite them with their lawful property? Is it even legal to charge them storage fees? If so then what is the legal basis for this? | Yes - they can charge a reasonable amount to cover collection, cataloguing, safekeeping and restoration of property. Crucially they aren't specific to just the costs related to an individual item, but rather the estimated income is weighed against the estimated costs of all lost property handling in that year. The legal basis for this comes from the London Transport Act 1982, subsequently amended various times (e.g. by The Transport for London (Consequential Provisions) Order 2003) but the original gives the gist in Part V, Section 19 : The Executive shall have power to fix the charges to be paid to them from time to time for the safe keeping and redelivery of lost property and the charges shall be of such amounts or at such rates as the Executive shall think fit: Provided that - (a) the total of the charges fixed under this subsection and estimated to be received in any year shall not exceed by an unreasonable proportion the cost to the Executive in that year of making provision for the safe keeping and redelivery of lost property ; Since you specifically mentioned the driver award this is further explained in TfL's Lost Property Fees documentation: Cab-driver award Items found in licensed cabs are subject to an additional award, which is given in full to the driver. This award takes into account the value of the item and the time taken and loss of fare in delivering the item to a police station or the Lost Property Office. Which is fairly sensible, cab drivers are only earning when their carrying fares. By taking steps to mean that they aren't out-of-pocket for turning in the lost items TfL is aiming to increase the number that get handed in rather than simply discarded, or in the case of valuable items simply kept. Which is in keeping with the goals of "safe keeping and redelivery" described in the Act. The legal basis for this award is in the London Cab Order 1934, Part VIII: (2) If any property found in a cab and deposited at a police station by the cab-driver be claimed within three months from the last day of the month in which the property is received at the Metropolitan Police Lost Property Office, and the claimant proves to the satisfaction of the Commissioner of Police that he is entitled thereto, the property shall be delivered to him on payment to the Commissioner of Police of (a) a fee in respect of the cost of collecting, keeping in safe custody, and restoring lost property ; b) an award to the cab-driver by whom the property was deposited; and (c) such additional sum (if any) as may be payable as hereinafter provided. | It is almost certainly legal for the sitter to keep the money. She was ready to provide the service, and it is not her fault she couldn't (and she may have turned down other opportunities because she had this one). I think your fiance's claim would be against the firm providing the security service (they are the ones that frustrated the contract). I foresee the following problems: What are her losses? She was prepared to pay $315 (which she has paid), and the dog has been looked after. Where is the loss? (She may be able to argue that it was worth $315 to her, not to have to owe her mother a favour. I don't know if that will fly.) The contract with the security firm almost certainly waives liability for this sort of thing. She would have to convince the court that the contract terms were unreasonable/unconscionable (or whatever the term is in the local jurisdiction). There are two obvious options here: a) see if there is legal cover on her household insurance (or her pet insurance); b) forget it (it's only $175 all told). | As has already been said, as far as the vehicle registration, the officer likely already knows who the vehicle is registered to and whether it's expired or not before he walks up to your car, or at the least, he can easily find that information out. The proof of insurance is a different matter. The officer will need to see it to know if you have insurance or not. To him, it doesn't matter what the reason is that you don't provide it to him. Left it at home, misplaced it, lost it, destroyed it, or just refuse to provide it because you feel you have the right to refuse. He can't "force" you to provide it (unless he is able to search your car and happens to find it there). He can only issue you a ticket for not providing it. But your attitude could play a part in what happens next. Being upfront and letting the officer know you have left your documents at home could help your situation. In my experience... one time that this sort of thing happened to me, the officer agreed to hold my drivers license and allowed me to bring the documents to the police station and retrieve my license. Another time, in a parking related matter, I was issued a ticket, but I was allowed to bring the required documents to the police station where they then "invalidated" (cancelled) the ticket. Of course this won't always work, and is not at all likely to work if you are far from home. Keep in mind, (as far as I know, in most states) the real infraction is that you "don't have insurance"... that you failed to provide proof when asked, is secondary. In many cases (likely nearly all cases), if you show up in court and provide documents that your insurance is current, and was current at the time the ticket was issued, the judge (or the prosecutor) will likely dismiss the case with no penalties. But, what the officer has written down on the ticket about your attitude and what you told him at the time, may have an effect on how this all plays out. | Here's the thing: if the plaintiff/appellant/claimant are the same legal entity as the defendant/respondent, it's plain to see that one of them must lose. For instance, consider a case where two trains operated by the same corporation collide. Assuming that the drivers both performed their duties, the company is vicariously liable – such a case is frivolous and is likely to be thrown out for that reason. It's just a waste of time and money. Or your second example: If the woman was driving the city vehicle and crashed it in the course of her duties, it is the city that will be the defendant in the proceedings, not the woman. So essentially: while it's difficult to prove that something has never happened, these are good reasons to expect it would not happen. | YES in germany §23 StVO (1a) Wer ein Fahrzeug führt, darf ein elektronisches Gerät, das der Kommunikation, Information oder Organisation dient oder zu dienen bestimmt ist, nur benutzen, wenn hierfür das Gerät weder aufgenommen noch gehalten wird und [...] (1a) Whoever is driving a vehicle may only use an electrical device that is serving communication, information, or organization or destined to be used for this if... 1. they don't pick the device up or hold it and [...] That is plenty clear: holding the device is banned in any way, and implies using it under German legal precedent. | We are tying to determine what an acceptable compensation would be It mostly depends on whether the acts and representations by the broker caused you to pay in excess and/or have made it more expensive for you to restore your previous insurance plan. The gaps in your description prevent us from identifying whether your claim(s) against the broker is (are) meritorious from other standpoints. The broker's advice to buy additional insurance suggests that since 2018 you must have paid more than you used to. In that case, you would be entitled to recover from the broker the excess over the premium paid for the insurance you actually had after the old policy got replaced. In England the statute of limitations for claims of breach of contract is six years. This implies that delaying legal action for another year will reduce the amount to which you are entitle to recover. If insurance similar to the old, "excellent" policy now costs you more than it would had the broker never replaced it, you might be entitled to that difference as well. That is because the broker advised you something and she did the opposite, thereby unjustifiably worsening your position. | 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. | Sorry to hear about this. It is possible that your friend’s Facebook account was hacked and the hacker scammed you. It is unlikely that you can get your money back. If the taxi fare cost $80, then $30 wouldn’t have got them home. Unless you paid the taxi company direct, whoever you corresponded with had access to electronic banking of some sort. One would imagine that someone with $500 at home probably has access to $80 electronically themselves. It is a pretty bad day when getting scammed by a stranger is the optimistic case, but I post this answer in the hope that it’s not your friend who scammed you. Before writing off the friendship, you might want to phone or visit your friend to check whether their Facebook account was hacked. |
Have state governments in United States of America prosecuted limited liability companies for not buying worker's compensation insurance? Have state governments prosecuted companies for not buying worker's compensation insurance? Though employees would prosecute in the event of an accident, what else enforces companies to buy it? Does Hybrid work scenario change anything? | Short Answer Most states take failure to get worker's compensation insurance quite seriously and impose significant penalties, sometimes criminal, on a regular basis, for failing to do so. Long Answer The consequences of not obtaining worker's compensation insurance are a matter of state law that varies a great deal from state to state. State governments routinely impose fines on limited liability companies for not buying worker's compensation insurance (the amount of the fines vary significantly from state to state). This probably happens hundreds or thousands of times a year in a typical large U.S. state. It probably happens more often than a tax audit of an LLC or small business entity. It is rarely a criminal offense, however, (or at least rarely prosecuted criminally even if it could be) for an employer to negligently fail to obtain worker's compensation insurance without more serious related aggravating conduct, like fraudulently telling the state that worker's compensation had been obtained using fake documents when it hadn't been done. But there are a few states that are important exceptions to this general rule and impose criminal penalties for failing to obtain worker's compensation, or impose quite large fines for failure to do so. These include: California: In California, it is a criminal offense to not provide workers’ compensation for your employees. It’s punishable by up to a year in jail and a fine of no less than $10,000 – or both. Illegally uninsured employers could face a penalty of up to $100,000. Illinois: An employer who did not provide workers’ comp when it was required must pay $500 for each day of noncompliance, with a minimum fine of $10,000. New York: Illegally uninsured employers could be charged with a misdemeanor or a felony. Fines range from $1,000 to $50,000, in addition to a penalty of $2,000 for every 10 days without coverage. Pennsylvania: In Pennsylvania, intentional noncompliance is a felony of the third degree. It can result in a fine of $15,000 and up to seven years in jail. More examples of states with particularly severe penalties can be found here. Criminal prosecutions for not having worker's compensation insurance in place are not nearly as common as civil fines for failure to do so, but are still routine and would happen many times each year in most states that have criminal penalties for failure to do so. Usually, when an employee is injured on the job in an accident that would otherwise be covered by worker's compensation insurance, an employer who did not obtain worker's compensation insurance has strict liability for all of the injuries, economic and non-economic that the employee suffered. In contrast, if the employer has worker's compensation insurance, the employee isn't ordinarily allowed to sue the employer at all for on the job injuries - this is exclusively the insurance company's problem. This most often happens when a property owner (often an LLC) acts as their own general contractor and hires workers who are misclassified as independent contractors rather than employees to do construction work on the property and one of those workers is injured on the job. But, the remedies for an employee who is injured when an employer fails to obtain worker's compensation insurance differ materially from one state to another state. Some states impose personal liability on the people in the company responsible for obtaining worker's compensation who fail to do so, or treat failure to obtain worker's compensation insurance as a ground for piercing the corporate veil (i.e. disregarding the limited liability protections associated with the entity form). Does Hybrid work scenario change anything? Not really. Usually even a part-time employee is covered by worker's compensation. The standard of proof for showing that someone is an independent contract who needs to get their own worker's compensation rather than an employee is frequently higher for worker's compensation purposes than it is, for example, for income tax purposes. Most state worker's compensation laws provide that certain top level owner-manager type individuals in a business entity who are also employees of the business, can expressly waive worker's compensation coverage, usually by signing and filing a waiver form. Of course, if the only uncovered employees are people who have legally waived coverage, then there is no penalty for failure to have worker's compensation insurance. | In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine." | Apparently, Yes in Epic Systems Corp vs Lewis the US Supreme Court wrote: The Federal Arbitration Act (FAA) generally requires courts to enforce arbitration agreements as written. See 9 USC §§2, 3, 4. The Act’s saving clause—which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” §2—recognizes only “ ‘generally applicable contract defenses, such as fraud, duress,or unconscionability,’ ” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339 The US Congress could change this by repealing or amending the FAA, but has shown no indication of doing so to date. Consumer Contracts In AT&T Mobility Servs. v. Concepcion, he Court held that individual arbitration provisions in consumer contracts are enforceable and precluded parties to such contracts from bringing or participating in class action litigation. In Brian Griffoul v. Nrg Residential Solar Solutions the NJ Supreme court held that the Federal Arbitration Act applied to a lease by NJ residents of Solar Power equipment from a Delaware company, and held that a clause requiring arbitration, and one precluding class actions wore valid and enforceable. It wrote that: The [FAA] and the nearly identical [NJAA] enunciate federal and state policies favoring arbitration" as a mechanism of resolving disputes that otherwise would be litigated. (quoting Atalese, 219 N.J. at 440) Arbitration is fundamentally a matter of contract. Employment In Epic Systems Corp vs Lewis (May 21 2018) Employees challenged a waiver of class action suits as contrary to the Federal National labor Relations Act's section 7 (NLRA Sec 7). The court denied this contention, writing: The employees ask the Court to infer that class and collective actions are “concerted activities” protected by §7 of the NLRA, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §157. But §7 focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. ... In another contextual clue, the employees’ underlying causes of action arise not under the NLRA but under the Fair Labor Standards Act, which permits the sort of collective action the employees wish to pursue here. Yet they do not suggest that the FLSA displaces the Arbitration Act, presumably because the Court has held that an identical collective action scheme does not prohibit individualized arbitration proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32. The employees’ theory also runs afoul of the rule that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468, as it would allow a catchall term in the NLRA to dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings—matters that are usually left to, e.g., the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. ... The Court has rejected many efforts to manufacture conflicts between the Arbitration Act and other federal statutes, see, e.g. American Express Co. v. Italian Colors Restaurant, 570 U. S. 228; and its §7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9. In the article ["Supreme Court Rules in Favor of Employers in Upholding Arbitration Agreements Containing Class Action Waivers"] this case is discussed. The authors wrote: The Court’s opinion, authored by Justice Neil M. Gorsuch for the majority, resolved three cases that were argued together — Epic Systems Corp v. Lewis; Ernst & Young LLP v. Morris; and National Labor Relations Board v. Murphy Oil USA — in all of which an employee who had signed an arbitration agreement containing a class action waiver sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. The Seventh Circuit in Lewis and the Ninth Circuit in Morris had sided with the NLRB and the individual employees; the Fifth Circuit had rejected the NLRB’s view in Murphy Oil. Siding with the Fifth Circuit, the Court’s ruling requires employees who have signed arbitration agreements with their employers containing class action waivers to take their disputes to an arbitrator individually rather than as part of a putative class or collective action. ... Notably, the Court’s opinion discussed Congress’ ability to pass new legislation to reach a different result. In fact, Justice Ruth Bader Ginsburg, reading her dissent from the bench, urged Congress to address the matter. Even if Congress does not act, the Court’s rejection of the NLRA-based challenge does not mean that class action waivers will now be enforced uniformly. The Court acknowledged the FAA’s statutory exception, which permits arbitration agreements to be invalidated “upon such grounds as exist at law or in equity for the revocation of any contract.” The Court held that exception inapplicable here because it includes only defenses that apply to “any contract” (such as duress or fraud), and the NLRA’s arguable attack only on class action waivers does not offer a general defense to contract enforcement. But general state-law contract doctrines such as procedural and substantive unconscionability have played a greater and greater role in disputes over arbitration agreements, and the Court’s decision does not affect those debates. This article and This one offer similar comment. See also hte Wikipedias article "Class action waiver" whre it is stated that: Class action waivers may be found on a standalone basis, though they are more commonly found as part of an arbitration clause, and when paired with such clauses, frequently include jury trial waivers ... the United States Supreme Court ruling in Epic Systems Corp. v. Lewis that such clauses are enforceable. Jurisdiction This answer is entirely US-Centric. The original question asked about a Texas agreement, and I have focused on the Federal Arbitration Act (FAA), which largely governs such issues in Texas and other parts of the US. But similar issues arise in other countries, and this answer has not considered those. | As Mark's answer indicates, you are evidently thinking of the Full Faith and Credit Clause. "Public acts" being laws, it may seem at first glance that states must fully respect the laws of other states. But the interpretation of this clause by the courts is rather different, and has evolved a bit over time. The short of the (modern) matter is that it mostly applies to matters concerning the judiciary. SCOTUS has recognized a "public policy exception" to the clause, which limits the ability of the clause to force a state to abide by laws which are in conflict with their own (for the most part: they don't have to). Driving privileges, and more generally who is licensed to do what (doctors, hunting, concealed carry, etc.), within a state falls under that public policy exception. So Texas does not have to obey New Hampshire's laws concerning the legal privilege to drive. As a basic sanity test, if this were not the case, then why wouldn't everybody in Texas not simply bounce off to New Hampshire for a summer to get their license there and then return to Texas and never bother with insurance? It entirely undercuts the state's sovereignty and ability to set their own laws if any other state can so easily create loopholes around them. Moreover, despite what the name might suggest, a "driver's license" is more a certification that you have the requisite skills, physical performance (passing an eye test), and knowledge to drive safely and in accordance with that state's traffic laws. It certainly makes sense for a state to require you to demonstrate at least that much, but they may also impose additional requirements. A requirement for insurance demonstrates your ability to handle financial liabilities that may reasonably result from your driving. All states currently accept a valid out-of-state license in the above sense: that you are certified to have the requisite skills, that it is valid proof of age, etc. Though if you become a permanent resident there they may require you to take new tests. However to legally drive in any particular state you must not only have such certification (a driver's license) but also satisfy any other conditions, such as age requirements and insurance requirements. As an aside, such state-by-state variations as to who is licensed to do what are in fact quite common, especially across history, even on very prominent issues. But even nationwide resolutions of those issues via SCOTUS have never, to my knowledge, utilized the Full Faith and Credit clause to do so. And, really, how could they? By saying since some state could force all other states to do X via the clause, then X must be a constitutional requirement? Or that any one state could unilaterally dictate laws in all other states? Madness! For one example, anti-miscegenation laws, which outlawed (certain) interracial marriages, were quite common until 1967, when SCOTUS struck them all down using the 14th amendment. More recently, gay marriage was forced to be recognized in all states, also via the 14th amendment. In both cases, before those SCOTUS rulings, the courts had generally recognized that the Full Faith and Credit clause did not compel the state to recognize (out-of-state) marriages it did not want to recognize. These both fell under the public policy exception. | You can read about (federal) damages from the Surface Transportation, but they are at least liable for 60 cent per lb. for damages. The company has to inform you that you have the option for full-value, which you can waive. In addition, they are allowed to limit their liability for damages for items of high value such as furs and jewelry, things worth more that $100/lb (sounds like the coffee table might be such a thing). You are also required to give notice of high-value items. If you waived full coverage in exchange for a lower rate, then it would be non-productive to take them to small claims court. Also, under state law, there may be an arbitration clause which would prevent you from suing them (so, check the contract). | Can a state make a law that deputizes individuals to sue individuals in other states? This question (apart from the question below that implicates federalism concerns about a sister state court process in the secondary question below) would be resolved by the constitutional limitations on personal jurisdiction and choice of law. A state can have a law that authorizes a lawsuit for non-judicial system conduct against a non-resident of the state if it meets the requirements of "long arm jurisdiction." The most succinct description of this requirement is that the person being sued "personally availed themselves" of the laws of the state whose law authorizes the lawsuit, in a manner that would reasonably be understood to subject that person to the state's legal authority. This could involve a lawsuit against someone outside the state arising from an incident that took place in the state. It could also involve a lawsuit against someone who took tortious action directed at a state or people in a state that caused harm, or a lawsuit arising from a business transaction that could reasonably be considered doing business in the state imposing that law. Constitutional law requirements on "choice of law" require that the state or foreign jurisdiction whose law is applied to a question in a dispute must have some meaningful connection to the disputed issue (subject to the backdrop rule that the law of a jurisdiction other than the forum where a case is litigated is presumed to be identical to that of the law of the state where the case is being litigated if no party provides any evidence or legal authorities to the contrary). Case law on state level qui tam litigation (which involve statutes that empower private individuals to sue someone who has wronged the government on its behalf for a share of the amount recovered for the government), the case law regarding private criminal prosecutions that are available in a handful of U.S. states, and some California consumer protection laws (which authorize suits without personal showing of actual damages in some cases when there are fraudulent advertisements) might also be relevant. So would the authority granted to bail bondsmen that is similar to law enforcement authority but limited to people authorized a person posting a bail bond for a criminal defendant who is subject to that authority. Concretely, if the constitutionality of the Texas law was upheld<1>, Texas probably can authorize a lawsuit against a California resident who would be involved in an abortion that took place in Texas that was illegal under Texas law. And, a judgment from a Texas court in a case like that would probably be entitled to full faith and credit in California. But, Texas probably couldn't constitutionally authorize a lawsuit against a California resident in connection with an abortion that took place in California. There would be, of course, many edge cases with no close past precedents, where the application of constitutional jurisdiction and choice of law limitations would be far less clear. <1> The majority opinion by five conservative justices other than the Chief Justice deciding not to stay enforcement of the law specifically limits itself to whether the proper parties were joined to the request to enjoin the statute and states "this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts." A decision that has not been resolved on the merits. The Courts have merely declined to stay enforcement of the law pending the current litigation over the law's validity. Upholding the law on the merits would require courts to overturn existing precedents related to abortion restrictions and other legal issues. Is there any extra legal barrier that would prevent states with pro-choice legislatures from passing laws designed to counter the anti-abortion deputies? For example, California could pass a law that deputizes private California individuals to sue people who sue abortion providers, and could reimburse their court costs up to $10,000. This seems to be a separate question from the question in the title. A law of this character would probably not be upheld. Basically, it would make a state authorized legal process in one state's courts, actionable as illegal in another state. Generally speaking, interference in another state's legal process would either violate the "dormant commerce clause", or the "full faith and credit clause", or constitutional limits on jurisdiction and choice of law, or constitutional standing limitations (even though they don't apply in the same way in state courts as in federal courts, or the "due process clause" of the 5th or 14th Amendments, or the "privileges and immunities clause." The exact legal theory isn't clear because there is really not history of litigation over this kind of legislation and you'd need to resort to vaguely analogous cases. The effort of Texas to litigate Pennsylvania election law administration following the 2020 election was recently dismissed by the U.S. Supreme Court for lack of standing and that is suggestive of how this case might be resolved, even though it isn't strictly analogous. It is also informed by the long standing common law rule, that could conceivably have constitutional dimensions, that litigants participating in a court process in good faith are immune from collateral litigation in another lawsuit over their conduct in the original lawsuit. There isn't a lot of precedent one way or the other with laws having this kind of purpose, and none on a law exactly in this form. Indeed, a dissenting opinion from the U.S. Supreme Court yesterday by the Chief Justice and two of the liberal justices (with which the third liberal justice states he agrees without formally joining that opinion) stated that: The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The last time there was significant litigation of laws with a similar purpose that were adjudicated was in the pre-U.S. Civil War period in abolition of slavery oriented legislation. But, the post-Civil War amendments to the U.S. Constitution and subsequent development of constitutional case law would render most precedents from that time period infirm. | Is it legal in the US for a company that rents out car parking spaces, to bundle the renting of a parking space to buying insurance for the content of the parked car? Yes. Honestly, I'm a little surprised that I've never see this practice in real life. All things not prohibited are allowed, and there is nothing, per se illegal about bundling services and requiring them to be purchased as a package deal (there may be some licensing issues for insurance sales involved, but those would probably be easily overcome). Sometimes bundling gives rise to an anti-trust violation, but neither the parking lot operation business nor the car insurance business are so consolidated that this would fairly be viewed as some kind of anti-competitive practice. | Raise the question with your employer If you believe that you are an employee and not a contractor then there is presumably something you want from your employer. This may be additional wages and entitlements that you would have or will become entitled to for past or future work respectively. Or you may have been injured and want workers' compensation. Or terminated and you want redundancy pay. Whatever it is, work it out and raise the issue with your employer. You might want to consult an accountant or union to help you. They may acknowledge that you were incorrectly classified and give you what you want. Winner, winner, chicken dinner! Or they may dispute it. If so, you need to follow the dispute resolution processes at your workplace. These typically involve informal discussions, escalating to mediation and then to a workplace tribunal run by the government. You will almost certainly want to consult a lawyer or union to help you - given that you don't know where to start the learning curve is likely to be too steep. In virtually every jurisdiction if people are employees at law they can't choose not to be. in british-columbia the relevant law appears to be the Employment Standards Act although it's not unheard of in edge cases for a person to be an employee under one law (e.g. workers' compensation) and a contractor under another (e.g. income tax). From the linked site: The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves? If you are working "for" your own business you are probably a contractor. If you are working "for" your employer's business you are probably an employee. For example, if you are an accountant with several dozen clients, maintain your own business premises and charge for your advice based on the amount quoted rather than by the hour, you're a contractor. If instead, you have 2 clients, work from their premises at set hours and get paid by the day or week, you're an employee with 2 jobs. In edge cases these are not cut and dried - Google are Uber driver's employees. In Australia: no. In California: yes. In the UK: yes. |
Is this laundering money? Arnie is a registered entrepreneur who sells raw wood. He was contacted by Bob. Bob works in a state organization (not private), and was tasked with building several garages on one of the streets of a city. Bob was given a budget, and needs to buy materials for the construction. In this example it's metallic parts (carcass, armatures, or whatever). So Bob contacted Arnie, and here is what they do: Bob transfers a part of the money from the governmental bank account to Arnie's official account, as if he is purchasing metal from Arnie. Arnie withdraws this money from an ATM, and gives almost all of it to Bob. Bob gives some "tip" to Arnie Bob buys metal and other resources from wherever Bob wants, not from Arnie. The governmental money is now cash, therefore it's not tracked anymore. Now Bob can spend this money any way he wants. Bob DOES NOT get anything from Arnie - neither wood nor metal. Arnie just withdraws the money, takes a tip and returns the balance to Bob. It seems that Bob is actually keeping the part of the budget for himself and then buying cheap low-quality materials (or even steals them from somewhere else), employing cheap illegal workers, and saving a lot of money on this construction into his pocket. My country, as far as I know, doesn't care whether the materials were purchased from an entrepreneur who actually sells them (Arnie doesn't sell metal). So according to papers, Arnie sold some metal to Bob, but in reality, Arnie just gave the money back to Bob, in cash after taking a "tip". This makes a backdoor for manipulations like this one. So it seems to me that Arnie basically launders stolen money. Is this true? And if it is, what would be the legal consequences of someone unconnected to the transaction who knows about it reporting or not reporting it? For example, does not reporting it give rise to a risk of civil or criminal liability? ETA: the country is Ukraine. | united-states Under U.S. law in almost every U.S. jurisdiction this would be illegal conduct. Arnie would be a co-conspirator with Bob in money laundering and in embezzlement of government funds. These would usually be criminal felonies. The government (or a private whistleblower called a "relator" in what is called a "qui tam" action, conducted in a procedurally proper way which afford the government an opportunity to sue itself before bringing the private qui tam action) could also sue Arnie and Bob and hold them liable, jointly and severally, for the funds diverted to Arnie and Bob in this scheme, and probably for punitive damages and/or civil penalties as well. If the role played by Arnie was instead played by a U.S. publicly traded multinational company doing business in another country (or by an official of such a company who has knowledge of or is involved in the transaction with Bob), and it was also illegal to do this in that country (whether or not that law was enforced in that country), then the U.S. multinational company involved would also have violated the U.S. Foreign Corrupt Practices Act (FCPA). As noted at the link: The FCPA is jointly enforced by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), which apply criminal and civil penalties respectively. So, in that case, it would be a violation of both U.S. and the other country's laws, in all likelihood giving rise to liability to both criminal and civil consequences in both countries. It isn't patently obvious that this conduct would be illegal under the law of every country, although it seems likely. For example, a sheriff operating a prison in Alabama can do something very similar (skim money off prison operation funds by obtaining low bids for prison service contracts) legally. Similarly, if Arnie had actually gone out and purchased metal parts from a third party at Bob's direction and then delivered those metal parts to Bob's government employer, that would be entirely legal almost everywhere (although any kickback to Bob, if that was what was really happening would still probably be some form of embezzlement in which Arnie might be conspiring). Also, while this is considered corrupt in most of the developed world, in many developing and undeveloped countries, civil servants are paid almost nothing and kick backs for supervising government contracts are tolerated at a minimum as a matter of unstated official policy by senior managers of the government entities that unofficially sanction or encourage this conduct by their subordinates. This reality is one of the main reasons that the U.S. FCPA is heavily criticized politically and in academic commentary. what would be the legal consequences of someone unconnected to the transaction who knows about it reporting or not reporting it? For example, does not reporting it give rise to a risk of civil or criminal liability? Normally, someone not involved in Arnie's company, like a family member of Arnie, would have no legal duty to report this conduct upon learning of it, and would face no legal consequences for failing to report it, if the person not reporting it wasn't actually involved in the scheme. Someone who cared about Arnie might want to counsel him that he is engaged in very risky conduct that could have catastrophic consequences if discovered and prosecuted. They might advise him that while this scheme does generate funds for Arnie that might not be worth the risk. Ultimately, as a practical matter, if that person didn't want to harm Arnie, however, that person would have to let Arnie decide for himself what to do. If subpoenaed to serve as a witness, someone who knew about Arnie and Bob's conduct (other possibly than Arnie's spouse and his lawyer if his lawyer learned about the conduct only after the fact), could be compelled to testify in a court of law against Arnie about what the person who knew about this scheme knew, possibly contributing to Arnie going to prison and facing monetary penalties. | It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit. | Suppose you want to pay for your son's college tuition with cocaine sales proceeds. You hire your son as an actor in your miserable movie and pay him $90,000 for doing so. The movie is produced by a corporation that you don't have to 1099 when you give it money. The corporation treats the money in as a loan which isn't income to it and doesn't have to report the lender to anyone. The son has the money (after paying income tax on it) and can pay for college for the year. The movie company and son don't appear to be doing anything other than being incompetent movie producers and lousy overpaid actors unless you know the big picture. The money has effectively been spent in a way that conceals its illegal origins and makes it look legitimate. Ergo, money laundering. | In the worst case if they shut shop, then how might I go about getting my money back? It is unlikely that you can. A SAFE is not a loan (and for that matter isn't even a share in the company) and doesn't create an enforceable contractual right to get your money back. If you make an equity investment and the company loses money and goes out of business, you lose everything you invested. If the promoter made false representations that induced you to invest, or actively concealed material facts about the investment, you might be able to sue the promoter for securities fraud under federal regulation 10b-5, or under a state securities law, or under a common law fraud theory. You could also sue to issuer of the investment (i.e. the company) but that would usually be futile because the company is broke and hence judgment proof. State or federal securities regulators or a local district attorney or state attorney-general might pursue the case in lieu of a private civil action by you, but getting them to take action is often quite difficult. But, if your investment wasn't induced by fraud and instead the management of the company simply made bad decisions that caused the company to fail, you have no remedy. The investment was for a SAFE (Simple Agreement for Future Equity). I have the signed SAFE with me. This is a very unusual way for a QoZ to be structured, which adds to the sense that this may have been a shady venture. | Who Owns The Bunker? Your relative obviously owns the cellar up to their land property boundary. The people who own the other land would have originally been the owners of that portion of the bunker, assuming that it was not permissive (if it was permissive, an easement by estoppel probably would have arisen). So, then the question is, whether the people in the chain of title to the relative acquired ownership of that portion of the bunker by adverse possession. Normally, adverse possession is acquired when someone occupies land under a claim of right that is open, notorious and hostile. While the use of the bunker would be "hostile" in this case (because the other property owners didn't have access to the bunker), it is not at all clear that it was "open and notorious". Indeed, apparently, the other land owners weren't aware that it existed. So, there would probably not be "squatter's rights" in this situation. Also, adverse possession can't run against the sovereign, so to the extent that the bunker goes under public land (e.g. a public street), that also can't be adversely possessed and that portion of the bunker remains the property of the sovereign land owner. @PaulJohnson in a comment to another post notes that: It sounds like your relative has one of the secret bunkers built for the "Auxiliary Units" who were to wage guerilla war from behind the lines after a successful German invasion. bbc.co.uk/news/av/uk-37947840/… If this were the case, and the government authorized its construction, there would probably be an implied easement that would allow the bunker to be the property of the person owning the entry to it, rather than the other property owners. But, as you note, proving that case would be difficult. It might be possible to scour declassified civil defense records from the WWII era to determine if this was the case, but you might need to employ an archivists or historian to get to the bottom of this question. What if they sell it? Suppose that they do sell it. What happens? Since title is certificated in Britain, there would be no title insurance company to compensate the buyer if someone later claimed to own the property. Your relative would have a warranty of title inherent in the deed to the portion of the property that is legally described in the deed (unless the property were sold by a quitclaim deed specifically disavowing any promise that what was sold was owned by the seller), but that warranty would probably not include the portions of the bunker outside the boundaries of their lot because that is not included in the legal description of the property on the property certificate or the deed. So, if it was sold, the buyer might not have any claim against the seller if the buyer did not get good title to the entire bunker, and would have no one to sue at all, if your relatives died before litigation over ownership of the bunker arose. The buyer might sue your relatives for common law fraud if the bunker were described in the marketing materials for the sale, but if they were told that some of the bunker went outside the lot and that its legal status was unknown, or if the property was sold by a quitclaim deed, that suit would probably not be successful. Other Options Depending upon whether the owner is on good terms with his neighbors, the owner could probably buy the subsurface rights or some sort of easement to that property from the neighbors under whose land it runs, and might even be able to purchase such rights from the local council where it runs under a street. Negotiating the price would be tricky. On one hand, it doesn't hurt the other owners at all. On the other hand, they have the power to deprive your relatives of all use of the property. Often deals like this are done for nominal consideration between people on good terms with each other, but for extortionate prices when people are not on good terms with each other. | When does it become illegal to exchange bitcoin for cash? When the transaction purposefully skips the controls in place regarding anti-money laundering. Generally speaking, the issue is not the mere involvement of cryptocurrency in a transaction, but the crimes a wrongdoer seeks to camouflage or conceal by means of cryptocurrencies. Such crimes typically involve money laundering, identity theft, stolen card numbers, and the like. As quoted in one of the links you provide, "[t]he use of bitcoins in the transactions is a new technological flourish to this very old crime". Is there any direct source or any laws with numbers? Apropos of your first link, mentioning that "a Florida judge threw out money transmitting charges against a bitcoiner" (see also here), I will point out that the court's dismissal of charges against that defendant has been reversed early this year. See State v. Espinoza, 264 So.3d 1055 (2019). Although the judges' narratives of a case are questionable and/or sloppy and to be taken with a grain of salt, the appellate decision cites language from Florida legislation as applicable to virtual currencies (and, impliedly, cryptocurrencies). You will notice that the focus in the Espinoza decision is the interpretation of Florida Statutes in its sections 560.125(1) and (5)(a) (regarding unauthorized vendors), and 560.103(21), (29) (defining monetary value as "a medium of exchange, whether or not redeemable in currency"). As usual, each legislation may present subtle and/or fundamental variations. For instance, the court in Espinoza at 1065 identified that federal law is inapplicable there in that 31 C.F.R. § 1010.100(ff)(5)(i)(A) contemplates that "the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means" (emphasis added), and Espinoza's transaction(s) did not involve a third party. By contrast, the Florida statute does not allude to third parties in that transmission of monetary value, hence preventing the statutory sanctions from being preemptively foreclosed in the matter of Espinoza. What about when someone buys with stolen money or money from illegal proceeds. Did you commit a crime if you sell bitcoin to someone and the money is stolen, or the gift cards are stolen? That also depends on the jurisdiction and the facts of the case. In Espinoza, he was allegedly informed that the cash he received (or was about to receive) in exchange for bitcoins "derived from engaging in illegal activity and that [the buyer] was planning to use the bitcoins to engage in further illegal activity", Espinoza at 1058. The court highlighted the State's argument that "dismiss[ing] a charge of money laundering is improper because money laundering requires intent" (emphasis added), which is sanctioned by section 896/101(3)(c). | It would be a violation of 18 USC 1001, which is the law against making false statements to the federal government. Paul Mozer, who was a Salomon Brothers trader, received a four month sentence for doing something along those lines in 1994. Bidding on something implies an intent to pay for the thing, which in this case is a falsehood: in so doing, one "falsifies, conceals, or covers up by any trick, scheme, or device a material fact" (that you don't intend to pay for the thing). | There is no money being offered or given to the voter. There is a long-running traditional bipartisan expenditure in Pennsylvania known variously as street money and get out the vote money that is legally used to reimburse volunteers for expenses to drive voters to the polls. The second article linked asserts this is a first amendment protected right. This seems in line with such historical expenditures. |
How would selling fake illegal drugs be treated in most jurisdictions? Let's imagine that the police arrested someone on suspicion of selling illegal narcotics. Upon chemical analysis of the seized goods, they discover that these goods are not narcotics, but some perfectly legal substances that the "dealer" was selling to clients as narcotics. What would this person most probably be charged with? Would it be both selling narcotics and fraud? Or would it be just one of these two options? I know that this may vary from country to country, but I am interested in what would the most frequent classification be. | canada Attempt to traffic If the accused believed the substance to be a controlled substance, then the offence would be at least an attempt to traffic. Just because the facts turn out that a particular offence would not or could not be completed, that does not preclude a conviction for an attempt. See United States of America v. Dynar, [1997] 2 SCR 462: For example, A may take possession of property believing it to have been stolen when it has not been; B may smuggle a substance for reward believing it to be a narcotic when it is sugar. ... There is no legally relevant difference between the pickpocket who reaches into the empty pocket and the man who takes his own umbrella from a stand believing it to be some other person’s umbrella. Both have the mens rea of a thief. Here's a more recent example: Mr. Sandhu admitted to transporting packages of sham drugs that he thought contained controlled substances. ... I find that a reasonable, properly instructed jury could find Mr. Sandhu guilty of attempted trafficking in controlled substances. Actual trafficking If in the course of events, the accused made, and intended to make, an offer to sell a controlled substance, that on its own would be the offence of trafficking. R. v. Mamchur, [1978] 4 WWR 481 (Sask. C.A.); R. v. Murdock (2003), 176 CCC (3d) 232 (Ont. C.A.); R. v. Campbell, [1999] 1 S.C.R. 565: The actus reus of the offence of trafficking is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out. ... There is no need to prove both the intent to make the offer to sell and the intent to carry out the offer: ... See also, e.g., R. v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.C.A.), at p. 208, upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercover police officer, with a view to “rip off” the officer and not complete the sale. Fraud If the accused knew that the substance was not what they were passing it off as, the accused would have committed fraud. Section 380 of the Criminal Code: Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service ... is guilty of an indictable offence I do not know of an example where this has been prosecuted, but Wikipedia has a summary of similar law in the United States. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | Many times. See pages 4 and onward here. The 11th circuit (which includes FL) recognizes sentencing manipulation but not sentencing entrapment. The one example from the 11th circuit in that document (US v. Ciszkowski, 492 F.3d 1264) was an unsuccessful claim of sentence manipulation, but it shows the analysis that goes into deciding these types of claims. They say: While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense. ... Ciszkowski, however, has not met his burden of establishing that the government's conduct is sufficiently reprehensible to constitute sentencing factor manipulation. Government-created reverse sting operations are recognized and useful methods of law enforcement investigation. Sanchez, 138 F.3d at 1413. The fact that law enforcement may provide drugs or guns essential to a willing and predisposed offender does not necessarily constitute misconduct. We have previously declined to find that the government engaged in prohibited sentencing factor manipulation in other similar contexts. | Nothing is typical Investigators have wide discretion on how (and if) they pursue an investigation of an alleged crime. When they make an arrest is part of that discretion. Making an arrest starts all sorts of clocks running on the legal process and investigators may not want to do that for all sorts of legitimate reasons. | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. | Not necessarily. Let's say the victim delivered photos of a harm that were alleged to be done by the defendant. That's a crime in itself. But based on this item the DA orders investigation and finds evidence of a real crime. Discovering that the photo was faked can lead to dismissal (with prejudice), but even without the fake photo, there might be a strong case against defendant. Also, the photo could not even be used as evidence in the actual trial stage. A good defense attorney might manage to convince the judge, that the doctored photo should have been discovered such early in the investigation, but I doubt, that one could manage to make everything else in a proper investigation fruit of the poisoned tree unless police screwed up. | No, it is illegal in this case. Article 313-1 of the Criminal Code Fraudulent obtaining is the act of deceiving a natural or legal person by the use of a false name or a fictitious capacity, by the abuse of a genuine capacity, or by means of unlawful manoeuvres, thereby to lead such a person, to his prejudice or to the prejudice of a third party, to transfer funds, valuables or any property, to provide a service or to consent to an act incurring or discharging an obligation. Fraudulent obtaining is punished by five years' imprisonment and a fine of €375,000 In French: L'escroquerie est le fait, soit par l'usage d'un faux nom ou d'une fausse qualité, soit par l'abus d'une qualité vraie, soit par l'emploi de manoeuvres frauduleuses, de tromper une personne physique ou morale et de la déterminer ainsi, à son préjudice ou au préjudice d'un tiers, à remettre des fonds, des valeurs ou un bien quelconque, à fournir un service ou à consentir un acte opérant obligation ou décharge. L'escroquerie est punie de cinq ans d'emprisonnement et de 375 000 euros d'amende. | As far as I can tell, it was punished severely, but not quite that severely. I found Nevada's 1971 controlled substances statute, AB 107. "Marihuana" appears in Schedule I, the list of drugs which are most tightly restricted (Section 31, subsection 4(j)). Section 65 makes it a crime to possess such substances. Under subsection 1, a first offense was punishable by 1 to 6 years in prison, a second offense by 1-10 years, a third or subsequent offense by 1-20 years. There were also fines of up to about $2000-$5000. There was an exception in subsection 3 for marihuana possession of less than one ounce: a first offense could alternatively be punished by up to one year in county jail, probably at the discretion of the prosecutor or judge. Second offenses were treated as a first offense under subsection 1, and so on. Selling and distributing drugs including marihuana was punished more severely. Under Section 62, the punishment was 1 to 20 years in prison for a first offense, and for a second offense, life in prison without possibility of parole. If the drug was distributed to a person under age 21, a first offense was punishable by life in prison, but with possibility of parole after 7 years. There was no exception for small quantities of marihuana. I didn't find a reference to the specific 25 year term you mention. It's possible that it comes from some version of the law as it existed before or after the 1971 statute; I didn't check. Also, marijuana was (and still is) also illegal under federal law; I didn't check what punishment federal law would have prescribed at the time. It's unlikely that the City of Las Vegas would have had separate laws; this sort of thing would normally be done at the state level. As far as I know, this is in keeping with other state drug laws of the time, and given the prevailing politics, I'm not surprised by the law. Drug use was treated very differently under the law than the other "vices" you mention. It'd be outside the scope of this site to discuss the possible factors behind this, but you could perhaps take it to Politics.SE or History.SE. Nevada eventually legalized recreational marijuana for adults in 2017, according to https://norml.org/laws/nevada-penalties-2/. It was not the first state to do so; Washington State had taken a similar step in 2012. |
What is the lawful basis for running Know Your Customer (KYC) checks on startup investors? Suppose you have a startup that raises money from a number of angel investors, many of whom are investing as natural persons. What is the lawful GDPR basis for processing the investors' personal data, including their name, address, and photo IDs? My guess would be either Contract or Legal Obligation (to comply with AML regulations). A subscription agreement cannot be drafted without the investor's personal details. However, it can be drafted without a photo ID, but the photo ID is necessary to check the identity of the investor against an AML database. Note: this question is about a UK company and so about the UK Data Protection Act, but since that is basically a copy-and-paste of GDPR, this question applies to EU companies as well. | england-and-wales 'Know Your Customer' (KYC) is a synonym for 'customer due diligence' checks. The Money Laundering Regulations refer to 'customer due diligence' and not to KYC, so searching the regs for Know Your Customer or KYC will have no results. But you can search the Financial Conduct Authority's handbook for "Know Your Customer" or "KYC" and eventually arrive at useful information. The Regulations create legal obligations to apply 'customer due diligence measures' that necessarily involve the processing of some personal data. As Dale M said, one of the six lawful bases for processing personal data is 'legal obligation' (Article 6(c) GDPR): "processing is necessary for compliance with a legal obligation to which the controller is subject". | You quoted the definition of personal data from Art 4(1) GDPR. This definition of identifiability is further explained in Recital 26: […] To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. […] If the user ID is unique, then the hashed user ID will be unique as well. Thus, the hashed ID will enable “singling out”, and would still count as identifying in the sense of the GDPR. You also claim that there's no way to reverse the hash. This is not quite correct. Assuming that the hash function itself is secure, then the only way to crack the hash is to brute-force the input. The difficulty of brute-forcing depends only on the entropy of the input data, not on the size of the output hash. It is thus comparatively easy to crack hashes of short low-entropy strings like sequential integer user IDs, IPv4 addresses, or weak passwords. In contrast, it would be difficult to crack long random user IDs, such as UUID version 4 identifiers created from a cryptographically secure RNG (CSPRNG). Even if the hashes can't be cracked, they are not anonymous – you can link them to the original user ID, after all. The GDPR only considers data anonymized if there are no “reasonably likely” means to re-identify the data subject. If this de-identification is reversible, it's called pseudonymization instead. If storage allows, a better technique to generate pseudonymous IDs is to create a table that maps the true ID to a CSPRNG-random ID. Unlike a hash, the random ID cannot leak extra information about the original ID. This pseudonymization technique could perhaps also be turned into irreversible anonymization by deleting the ID mapping, assuming that no “singling out” can happen. Pseudonymization is a very good security measure. It is explicitly mandated whenever appropriate in Art 32 GDPR. So you should probably use it. It's just that GDPR continues to fully apply to processing of the pseudonymized data. Since the pseudonymized data is the data subject's personal data, you may be required to delete it when receiving an Art 17 request for erasure. You may also be required to forward the request to others with whom you shared the data. However, the right to erasure has many conditions and exceptions. If you actually need to keep the data for a particular purpose, chances are good that you can keep it. | Among other things, GDPR regulates what you may do with the data within your systems. You can use it for the contracted purpose, or in accordance to law, or with informed and revokable consent, or for some other enumerated purposes. Even with consent, you have to take security measures to avoid the misuse of the data. Remember the software shrink-wrap licenses? "By opening the package, you agree to the terms inside." GDPR makes the equivalent in the cloud world impossible. You have to document exactly what you do with the data, and for any use that is not necessary to perform the service the customer can opt out. In the scenario you describe, it is possible that you are not the data controller under GDPR but the data processor, and that you have a duty to keep the data from separate controllers apart. And delete any batch at the end of contract. If you want to do this professionally, you need to consult a lawyer for your specific plans. | I think this shows a misunderstanding of the meaning of the GDPR. A data subject has the right to demand information, correction, deletion etc. about some of their data held by some institutions, depending on the legal basis for the data processing. One John Smith does not have the right to see the data of any other data subject named John Smith, and he cannot even demand to know if there are other John Smiths in the database. The data controller has to make reasonable steps to ensure that an individual who seeks account information is in fact the individual who is the data subject. In the case of an email, that's usually easy -- if John Smith can access the mail account [email protected], one can assume that he is the John Smith who opened the account. If not, then not. If the data controller has the birthplace and birthdate in their records, they can possibly match that against some government-issue identity document, too, but why would they have that data? | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | This depends on the context – GDPR rarely restricts the use of specific kinds of data (see Art 9) but instead regulates the processing of this data, and the purposes for which it is processed. Personal data is any information relating to an identifiable person (Art 4(1)). So to show that some information is not personal data, you must show either that it doesn't relate to the identifiable person, or that it's not possible to identify the person. Whether a person is identifiable depends on the means of identification that are reasonably likely to be used, taking into account the cost and effort of these means (Recital 26). This recital also mentions that singling out a person is a kind of identification. If you have lots of birthdays so that there are no unique birthdays, or if the birthdays are stored without contextual information that would allow identification, this can indicate that it's not personal data. Some examples to illustrate my views: Scenario 1: you are collecting statistical data in a shopping mall and are collecting birthdays from passer-bys, without any additional information. This information is anonymous and not personal data, since you have no reasonable means to identify the persons. Scenario 2: in an office, there's a publicly visible calendar on the wall with the birthdays of all staff members. However, the calendar doesn't say whose birthday it is. This information is likely personal data, since it's reasonably possible to infer the correct person based on contextual information. At least HR would also have the birthday for all staff members on file, so that the company clearly has the means to identify anyone. (This doesn't mean such a public calendar is illegal, just that there must be a legal basis.) It is more difficult to determine whether information also relates to an identifiable person, i.e. whether this information is about that person. This depends not just on what the information is, but how the information is used. AFAIK there has yet to be EU-wide guidance by the EDBP, but the ICO has listed some hints. I think that a birthday of an identifiable person will almost always relate to that person. | The site would combine the data in novel ways, which is processing the data. Processing personal data which is publicly available is still processing personal data. You would have to take GDPR into account. That does not mean the processing is forbidden, but you need a legal basis for doing it. In many ways, having the informed consent is the easiest legal basis, but there are others. The data subject would have the right to demand information about the data you hold, and to demand the correction of wrong data. There is not necessarily a right to demand deletion, but if consent is withdrawn and you have no other basis for data processing, you have to delete. Note also that the consent basis would mean you have to actively contact the people whose consent you seek before the processing starts, and document how you do it. That makes pay-per-request models difficult. But consider that the news media can process some data about some people without the consent of the subjects of their activities. They just need to balance privacy and other legitimate interests all the time. | 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. |
Can a FOIA request reveal how many times I have entered the U.S. as a citizen? I know there are certain restrictions on personal information for FOIA requests, and verification of such is required beforehand. Even so, should this information be accessible? If so, to which agency do I submit the request? Additionally, I known non-citizens can request and receive this information, but I have not found examples of citizens requesting this information, as I am. | As a US Citizen, you don't get a I-94 recording of entries and exits but : The FOIA site of the CBP, mentions Information Regarding Entry and Exit Note: CBP does not have records on the entry and exit of persons arriving or departing the U.S. before 1982. To be filled with CBP However, this doesn't mentions if this is only applicable to Aliens or US Citizens are included or not. But this CBP help page mentions travel records for US Citizens | We don't have a lot of details, but if you're in the United States, the answer is probably yes. There are rarely any meaningful rules of evidence in student misconduct cases, so pretty much anything can come in. There may be some small difference in the answer depending n whether you're dealing with a public university or private, but in either case, I can't think of any reason why they would not be able to introduce the evidence if they had it. If there's a question about its authenticity, I imagine that would just be up to the misconduct board to decide. If Person X says "Person Y sent this to me," and Person X seems credible, that's probably going to be enough. | Reporting that an SS card is lost or stolen could be useful for two reasons: obtaining a replacement, and finding and prosecuting the perpetrator. You can obtain a replacement card from SSA at any time, and they do not require a justification for a card (they do not investigate thefts). The local police can investigate, but will only investigate a theft (not a simple loss). Their interest would be in prosecuting the perpetrator (and possibly retrieving the stolen property). In the course of investigating, the police will ask (in some form) if you have a clue where it is, and if you do not admit that you know where it is, they can prosecute you, because that would violate your state's version of the false statement law (Washington example here). The physical card is not so important: loan applications etc. don't require producing a physical SS card: what they need is the number on the card. | The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address). | 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. | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. | The "Privacy Rule" (45 CFR Part 160 and Part 164, Subparts A, E) don't forbid this. Sect. 164.502 states the general rule: (a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. "Health information" is defnes in part 160 as any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Your picture would not constitute health information (and anyhow, they are allowed to gather health information, just not freely disseminate it – the pictures on the wall were presumably with permission). There is no general law (which would be state law) against taking a person's picture (though commercially exploiting someone's picture would require permission, via the concept of personality rights), and it is directly required in a number of instances (for identification purposes – school ID, driver's license, passport, voting in some states). It is an unusual requirement and since they scanned your driver's license it is especially inexplicable. Assuming that this is just a story they tell all patients because they want before and after pictures (which you would have to consent to, if you didn't already in one of those "sign here" flurries), saying that this is for "security purposes" would be untrue, but I don't think it's actually illegal. Taking but not using a photo would not cause you harm, so if you had let them take the picture, there would not be a basis for suing. If they use it for advertising without permission, that would be a problem. | Great question - I work for a London based company who use a large amount of location data. The process for deletion of data is not as simple as it first sounds. We recently had a deep dive with our legal team and as a result actually created a product to process deletions. Personal data from users/customer is carried for lots of reasons, not just marketing. What if you're asked to delete data that is needed to bill customers, information that may be relevant to a legal case or information that needs by law to be retained for the purposes of audit? GDPR does not make it illegal to carry personal information, it simply needs you to justify why you are keeping the information - inform the named person about this and provide them with a timescale for deletion. For example if you are required by law to store a record of emails to document the work done, but the user asks you to delete that information. You would be entitled to keep that information but only for the purposes of maintaining that audit trail. You would delete all associated customer data that was unnecessary such as CRM info, payment details etc.. but could keep the audit trail. The proper way to respond to the user's deletion request would be "your data will be kept in a secure server for the purposes of maintaining an audit trail for x amount of time. Once this time has elapsed it will be deleted. If you are unhappy with our use of this data please contact our data officer". GDPR isn't designed to catch you out - if you have a legitimate reason to keep that information then you are entitled to. The law was designed to stop marketers and advertisers hoarding huge amounts of information, as well as undermine Google/Facebook's duopoly on our personal information. |
What is the difference between rules and directions? Some parts of the Civil Procedure Rules seem to be parts of the rules, other seem to be labelled as Practice Directions, however they are still numbered as in the same scheme as the other parts. Then there is the Criminal Practice Directions which makes it handy to conveniently refer to the Civil Procedure Rules as CPR without risking confusion with the criminal ones because I suppose they would be CPD if abbreviated. But what other significance does this difference in terminology have? | There are many Procedure Rules are they just that - the rules that need to be followed i.e. the "what". Whereas a Practice Direction is "how" a Rule should be implemented, or as Wikipedia puts it, a supplemental protocol to rules of civil and criminal procedure in the courts – "a device to regulate minor procedural matters". | While you have correctly stated the usual order of events in a trial, the judge has wide discretion to modify the order if it seems that justice will be served. Even in a serious criminal case, the judge can reopen testimony after closing arguments have started if the judge finds that there is good reason to do so. Traffic cases are generally less formal, and the judge will more freely modify procedure to bring out the facts of the case. I have often seen judges at traffic court ask significant relevant questions, and if they are in fact relevant, i don't think you will get far objecting to their begin asked. I am not a lawyewr, but I also have observed several traffic cases in Maryland and in NJ. | 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. | In the example given, both elements must be established. This is the most common meaning of the word "and" in a statute or rule or contract or other writing, but there are times when "and" does not have that meaning. One must always determine the meaning from context on a case by case basis. Words do not have a single universal meaning in all contexts for legal purposes. This variation by context in the meaning of words for legal purposes is especially frequent in countries with common law legal systems based upon the English legal system such as the U.S., Canada, New Zealand, Australia, and India to have situations where a word often means one thing in one legal context and another thing in different legal contexts. This is because the governing statutes and case law are written on a piecemeal basis by many different people with no one in charge of maintaining stylistic uniformity, over a very long period of time (often centuries). In countries like those of Continental Europe, Latin America and much of Asia and Africa, which have what are called "civil law" systems, that are based on European civil codes, there are comprehensive codifications of the basic laws of the land that are drafted by experts all at the same time, and amended only with great deliberation and care, and these codes tend to use a word more consistently in most contexts than common law legislatures and judges do, although even then, this principle is not absolute. | One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are not required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute. A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – here is the answer that Minnesota gives (all legal citations). | I would say all the similarities and differences between approaching a barrister directly and going through a solicitor are set out in the PDF. The historical division of barristers and solicitors is discussed in the document. Traditionally, solicitors took on cases and did the 'behind the scenes' preparation before a case went to trial, and barristers represented that client in the courtroom using the prepared materials. You needed to go through a solicitor in order to be represented by a barrister; there was no way of approaching a barrister directly yourself as a lay person. While this has changed with the Public Access Barrister scheme, this way of instructing a barrister is still seen as the 'default' method. In the usual scheme of things, you, as a client, would deal with a solicitor, and they would then instruct a barrister to represent you in court. In the Public Access Barristers scheme, you, the client, effectively miss out the solicitor stage and you approach the barrister directly. But this leaves something of a gap. In the typical client-solicitor-barrister model, the solicitor's role is to prepare the case for the barrister: collating documents for court, for example. The barrister then takes the papers, reads them, prepares an argument based on those documents and puts the client's case in a courtroom. (This isn't always the case, as the document makes clear: some barristers are not qualified to conduct litigation, for example, whereas some solicitors are qualified to represent clients in court. It's more the typical and historical model.) In the Public Access Barrister scheme, there is no solicitor to prepare the case. From the PDF provided, this means that: this is cheaper, as you're not paying for two lawyers; but conversely: you will have to undertake some of the preparation yourself, e.g. collating the papers, and there are some cases which are too complex for a client to take directly to a barrister, because a solicitor would be required to prepare all of the documents necessary for the trial. In terms of similarities, you will still end up receiving the advice and/or the representation of a barrister; you simply won't be going through a third party, but will be dealing directly with that barrister. | These are different terms for initiating documents. What one court or jurisdiction calls a petition, another might call an application. "Complaint" may not have a technical meaning in some contexts or jurisdictions, but often it is used to refer to the initiating document at a specialist tribunal. There are other names for initiating documents: notice of civil claim, notice of action, etc. There is no way to know which terms have a technical meaning and what those meanings are without looking to the rules and practice in a particular jurisdiction. "Indictment" is an initiating document in a criminal prosecution. But there are also "informations" (generally implying lesser charges). | 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. |
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