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What would be required to overturn the Grainger test? It seems to me the Grainger test seriously risks politicising the judiciary, leaving them to decide, quite undemocratically, in fact, on behalf of the populous what types of beliefs are or aren't acceptable or more specifically "worthy of respect" within a "democratic" society, thereby turning the judiciary arm of the state into a sort of ideological arbiter that chooses or refuses to officially certify and endorse certain ideologies as "worthy of respect." Further this determination (ie to apply the Grainger test) is quite loaded and subjective (see the differing rulings between first and appellate instances of Forstater for an illustration of this) to the sympathies of the particular judge in each case, thereby seriously threatening to erode the rule of law based on capricious ideological whims of each particular judge. Seen from another angle, it can be pointed out that there is no parliamentary designated or transparent process to designate beliefs as worthy or unworthy of respect so there is truly no democratic oversight or accountability on these determinations at all, given the inherent and painstakingly ensured independence of the judiciary. What would be needed to mount such challenges to the Grainger test and challenge the validity of this apparent power grab by the judiciary? | The judiciary is an arm of the state There is no “power grab” by the judiciary: they are simply exercising the Constitutional power they have to act as a court of record (given to them in the Supreme Court Act) and resolve disputes. In the UK (among many others), judges get paid to interpret the law - both statute and customary law - weigh the evidence and make decisions. You seem to think this isn’t their job but it is precisely their job. In general, judges try to leave their personal and political opinions outside the court, however, they are human and mistakes are sometimes made, from bias or otherwise. That’s why there is an appeals system - one judge has made a decision, 3 or more others review it. The Grainger test is as much a part of the law of the UK as the Equality Act is. It can be changed by an act of Parliament or it can be changed by a future appellate court at the same level or higher in the hierarchy. Parliament’s role is to write laws of general applicability, the administrations role is to administer those laws, including making decisions about individuals, the judiciaries role is to decide specific controversies by interpreting the law and providing guidelines for consistent decision making by future judges and officials. | Just like every other contested assertion They hear the testimony (evidence-in-chief, cross-examination, redirect), look at whatever physical evidence and submissions on the law that the party wishes to make. The other party will do the same. They weigh the evidence including such vital considerations as to whether they think one party or the other or both are full of shit and, if the evidence is such that the party has proved their assertion on the balance of probabilities, it is now a fact which bears on the judgement. | 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. | I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand. | To what standard does the evidence need to be convincing so that the judge is satisfied that a jury could “reasonably convict” the defendant? The High Court expanded on the answer to this question in Mitchell, the decision you cited, at [32]: [In R v Kim [2010] NZCA 106] the Court of Appeal discussed the meaning of “insufficient to justify a trial” in the context of sufficiency of evidence: It is for the jury to determine whether the evidence is, or is not, sufficient to establish guilt. It is not for the Judge to predict what the jury will find. The test is whether the evidence, if accepted by the jury, is sufficient in law to prove the essential elements of the charge to the required standard. If so, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds. Can circumstantial/cumulative evidence be sufficient? In 2015, Dr Chris Gallavin, Dean of Law at Canterbury University, wrote: Circumstantial evidence is the bedrock of inferential reasoning. As advocates, we are well aware that a case is not “weak” by virtue of it being based upon circumstantial evidence alone (a common misconception). Circumstantial evidence will often form the base of a strong case, again, in both the criminal and civil jurisdiction alike. Does this evidence meet the standard asked about above? Unfortunately this question is not allowed, because the rules state: Please don't ask questions seeking legal advice on a specific matter. These are off-topic for Law Stack Exchange. While users generally contribute answers in good faith, the answers are not legal advice, and contributors here are not your lawyer. The test of “insufficient to justify a trial” is somewhat Delphic because it calls for an evaluative judgment. That judgment can only be formed by a court with relevant jurisdiction. | The First Amendment controls in the US, so it does not matter if this is Idaho or Berkeley CA. This is clearly an expression of a political viewpoint, which is protected by the First Amendment. Any attempt to suppress a political viewpoint by appeal to "obscenity" or "zoning" or the like will ultimately fail in the courts. The word fuck is not lewd, filthy, or disgusting, and clearly does not constitute "obscenity". There is a test, the "Miller test", for obscenity, that requires all three of these conditions to be met: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. The word fuck is not obscene under this test, especially in this context. | 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. | In any court, there will be situations where a judge has discretion to make some decision. The judge might have to decide "did X meet the burden of proof", and due to the situation two reasonable and competent judges could come to different conclusions. You couldn't blame either for the decision, even though they would make opposite decisions. On the other hand, a judge might make gross mistakes. The judge might decide "X met the burden of proof" when this is clearly a mistake. That's what the appellate court is interested in. An appellate court checks whether the judge made mistakes that a judge shouldn't make. So in this situation, the appellate court doesn't decide whether X met the burden of proof. The appellate judge decides "did the trial judge make a decision that a trial judge shouldn't have made". An appellate judge might think to himself or herself: "well, I would have decided differently, but this trial judge’s decision was one that a reasonable judge could have made", and if that is what he or she thinks, the original decision will stay intact. |
Giving information to patients about schedule 2 drug stocks at a retail pharmacy in Florida (US) Context: There is currently a nationwide shortage of Adderall, a schedule 2 drug. One of the pieces of advice for patients is to see about getting the drug in a different formulation, as not all versions of Adderall are equally out of stock (Size of pill, extended release vs immediate release, etc.). Not knowing how quick or diligent my medial provider would be, I attempted to do my due diligence in finding out what would be in stock before contacting the prescriber, thus reducing the size of the task I was asking for. I was told by the pharmacy staff that since this was a schedule II drug, they could not share that information of what they had on stock with a patient. The only way to get that information would be for the provider to either send in an Rx for something that might not be on hand or for the provider to call the pharmacy and talk to them directly. I've been trying to determine if this is actually a law or just a store policy. I read http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0893/Sections/0893.04.html in detail, the Florida statute governing pharmacy behavior on controlled substances and could not find anything there. I then skimmed the rest of chapter 893 and did not see anything there. I then did my best to skim the US code 21 USC 13 but could not find anything there either. This pretty much exhausted my "not a lawyer's" ability to research this topic. So...is there something in either state or federal law preventing this communication, or just store policy? The main reason I want to know is if it is the former, I'd like to put forth a proposal to the appropriate agency that during a declared nationwide shortage of a drug (Which the FDA has done), these communication rules be lowered or waived as not all patients have on the ball providers...and keeping people in frustrating, difficult, out of control places with regards to their psychiatric medication does not seem to be a great idea! | I don't know of any law, state or federal, that would prohibit the disclosure of these facts. Such a law would almost certainly be unconstitutional under Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, (1976). In that case, consumer groups sued to invalidate a Virginia law prohibiting pharmacists from disclosing the prices of their products to the general public. The state argued that "purely commercial" speech did not enjoy First Amendment protection, but the Supreme Court disagreed, holding that unless it is deceptive or misleading, commercial speech enjoys normal First Amendment protections: Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. ... But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 770 (1976). I'd therefore assume this is just a matter of store policy. From the pharmacy's perspective, advertising its inventory of controlled substances probably makes as much sense as putting up a sign advertising how much money is currently in the cash registers. | It is capitalized because the word NEXIUM has a conspicuous definition. In other words, they're using it in the specific way they have defined it to mean. This is to differentiate it from any other meaning it may have in some other context. Obviously with NEXIUM, it's a word they just made up and it's very unlikely that it could ever be confused with anything other than their particular drug. But what if the drug were called PRAXIA? The word praxia might be confused with the medical term. It's also the name of a city in Romania (I just learned that while looking that word up). But PRAXIA in all caps refers specifically to their drug, and there can be no ambiguity between that and other uses of the term. This is especially important for drugs, since they are legally required to disclose the side effects in their advertising, and you wouldn't want someone potentially confusing the name of the drug with the condition it treats. You see this in contracts as well. When a contract provision is written in ALL CAPS, it is done to conspicuously call attention to the text, either because it is redefining an established legal term or is modifying rights you may have under the law (e.g. LIMITED WARRANTY, SEVERABILITY, BINDING ARBITRATION, etc.) There is no established rule for this, by the way. It's mostly a matter of style. Some laws require conspicuous disclosure of certain provisions in contracts, so ALL CAPS has traditionally been used to meet that requirement. NOTE: The term "Nexium" (not in caps) is simply the registered trademark for the drug. It simply protects their intellectual property (i.e. the name), and isn't intended to describe or define anything in a legal way. Fun fact: Subway got sued for making "Footlong" sandwiches that were not actually 12 inches in length. They tried to argue that "Footlong" was a trademark and not intended to convey the length of their sandwiches. They settled the lawsuit, because really, that's a jackass move right there. I wonder, though... If they'd called it a FOOTLONG, would that have made a difference? ;-) | As it turns out, Talgov has a convoluted way it bills taxes which it doesn't explain on its bills or website. Its website claims to bill electricity at a rate of $7.59/month + $0.10522/kWh but, with taxes, it actually comes to $8.5631 plus $0.11598/kWh. On top of the advertised rate, it bills a gross receipts tax of 2.56406%. It also bills a public service tax of 10% on the monthly charge + $.07792/kWh + the gross receipts tax. That gets you the higher effective billing rate I mentioned above. The $.07792/kWh is reached by replacing the ECRC rate from the website with $.0077/kWh--I don't know why and I can't find an official document saying this--but that's what is happening apparently. So, Talgov doesn't bill sales tax after all and private residences are not exempt from the taxes it bills. Thus, it has not overcharged me a tax I should be exempt from and Talgov is allowed to do what it is doing, but it would be better if they represented their billing rate more honestly on their website. I'm also still not sure how they reach their 2.56406% gross receipt tax rate. The Florida statute that addresses gross receipt tax seems to specify either 2.5% or 2.6% (I can't figure out which should apply), but not something in between: (b) 1. The rate applied to utility services shall be 2.5 percent. 2. The rate applied to communications services shall be 2.37 percent. 3. An additional rate of 0.15 percent shall be applied to communication services subject to the tax levied pursuant to s. 202.12(1)(a), (c), and (d). The exemption provided in s. 202.125(1) applies to the tax levied pursuant to this subparagraph. 4. The rate applied to electrical power or energy taxed under subparagraph (a)3. shall be 2.6 percent. I found the information about the Talgov tax rates in a document from a Jacksonville utility company that compares utility rates for various utility companies, including many in Florida. Some Florida companies use a 2.5% gross receipt tax and some use a rate between 2.5% and 2.6%. This is also strange because that Florida statute seems to suggest the rate should be uniform statewide. TL;DR: Talgov is not charging sales tax, but rather some other taxes that I am not exempt from. I was able to figure out what rates they were charging for those taxes, but not why. | It is conceivable that A's employer would claim that the intellectual property was actually created by A in the course of their employment rather than B. That would be a question of fact for the lawsuit to determine. Realistically, assuming A and B both testify that B created the intellectual property with no input from A and A's employer had only the IP address as evidence, it is pretty unlikely that the fact finder would find that A created the intellectual property. A's employer would almost certainly need to provide some additional evidence that would show that the balance of probabilities favored the employer's position (i.e. A works at FedEx writing software for package logistics, B is a 12 year old kid with no formal computer science training, and the intellectual property in question involves the implementation of sophisticated graph traversal algorithms that would be common in package logistics applications). | The relevant legal requirement to have accurate records is 45 CFR 156.526, where An individual has the right to have a covered entity amend protected health information or a record about the individual in a designated record set for as long as the protected health information is maintained in the designated record set. The request can be denied if the record is accurate and complete. A simple and pointed solution is to print that page and circle the section, in a letter requesting an amendment. A somewhat more costly and much more effective solution would be to get a lawyer to write a letter in legalese. It is hard to imagine that the provider would not comply. You will notice that they have 60 days to comply (+30 days extension if requested). If for some reason they insist on leaving the record as is, you have the right to insert rebuttal statements into the record (basically, prove that the record is false). There is no realistic hope of compensation for annoyance, but you can hope for a correction. | The health insurance contract should set forth what is and is not covered in detail (in addition, there would be a short summary version). They probably don't have to provide procedure codes that are covered or not covered because no such one to one correspondence exists because the language of the insurance contract is controlling and does not exactly correspond to procedure codes. For example, one of the basic eligibility questions is whether a procedure is medically necessary. A procedure may be medically necessary for one person, but not for another, and usually a denial based upon medical necessity is subject to appeal to other medical professionals engaged by the insurance company. Unless the insurance contract provides that an EOB must contain procedure codes, it probably doesn't have an affirmative obligation to do so, because there is no general principle of law that would require them to disclose their internal classification of services provided outside of a litigation context. And, in a litigation context, you probably could obtain procedure codes in discovery from the insurance company, as the code assigned to a procedure on an EOB would almost surely not be privileged or a legally protected secret. It may very well be that the company has an in house set of procedures for certain common diagnosis codes that are routinely allowed or are flagged for review by an insurance company bureaucrat. But, that would ordinarily be considered something of a trade secret of the company and is not a statement of what is or is not allowed under the actual health insurance contract. However, the privilege against disclosing the information in that context would flow from trade secret law and not from the fact that they are PHI. I don't agree that PHI is the correct reason for failing to disclose that information (unless some case law of which I am not aware has interpreted it differently). The federal law definition of PHI is at 45 CFR 160.103: Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and (iv) Regarding a person who has been deceased for more than 50 years. The cross reference to 20 U.S.c. 1232g(a)(4)(B)(iv) reads as follows: (iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice. In short, it is B.S. that you are being given an illegitimate reason for not complying with your request, but it is probably still within the company's rights for other legitimate reasons to deny your request. | This practice is known as "rescission". It is legal under 45 CFR §147.128 in some circumstances. The regulation says (a) A group health plan, or a health insurance issuer offering group or individual health insurance coverage, must not rescind coverage under the plan, or under the policy, certificate, or contract of insurance, with respect to an individual (including a group to which the individual belongs or family coverage in which the individual is included) once the individual is covered under the plan or coverage, unless the individual (or a person seeking coverage on behalf of the individual) performs an act, practice, or omission that constitutes fraud, or makes an intentional misrepresentation of material fact, as prohibited by the terms of the plan or coverage. The law also prohibits surprises: A group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide at least 30 days advance written notice to each participant (in the individual market, primary subscriber) who would be affected before coverage may be rescinded under this paragraph (a)(1), regardless of, in the case of group coverage, whether the coverage is insured or self-insured, or whether the rescission applies to an entire group or only to an individual within the group. (The rules of this paragraph (a)(1) apply regardless of any contestability period that may otherwise apply.) Note that the regulation pertains to insurance plans, and not employers. The employer may in good faith believe that you are stuck with the medical bills, but their opinion does not matter as far as this regulation goes. However, the employer also does not have the right to "declare" on behalf of the insurance company that your wife was covered. If you assume that she had coverage because the employer (mistakenly) said you did, but there was actually no coverage, then that is between you and the employer, or possibly you and the doctor. A prior question is whether she was actually covered in that past period. The contract between the insurance company and the employer might hypothetically state that only employees are covered, and may have accidentally submitted enrollment information with mistaken information ("X is an employee"). Since there was no intentional misrepresentation (we assume), coverage cannot be rescinded. Also note that rescission is retroactive cancelling, not prospective cancelling ("henceforth, you are not covered"). | There is no state that requires you to show ID to obtain medical care. To the extent that this is done it is done at the behest of whoever is paying for the care to determine that you are someone who is authorized to benefit from this payment, and not an imposter, or as a matter of policy of the doctor. (An exception to this general rule applies when one wants to pick up a prescription for a controlled substance or a Sudafed product, where you must indeed show ID to show that your name matches a prescription or to insure that the right name is entered into the Sudafed database.) It might be more convenient for the doctor in terms of collection of bad debt, insurance policy claims (where an insurance card would normally be required, at least), protection against fraud claims from an insurer, and medical record keeping to have a name, so a doctor might make it a policy to require ID, but it is not required by law (except where a government benefit provider like Medicaid or Medicare is involved and has a regulation requiring it). For example, in the Las Vegas shooting, where there wasn't time to process paperwork, hospital triage officials simply assigned an alias to every incoming patient and wrote it in marker on their body to keep the medical records straight, and to allow that alias to track medical costs to be billed when the time came to get the proper intake paperwork filled out and the file sent to the accounting department. There are also other circumstances that do not involve emergency treatment (e.g. STD testing, methadone treatment at free clinics, and clinical trials) where an alias rather than a true name is sometimes used to keep track of patients. |
Search warrants for the property of people not suspected of a crime I'm interested in the New York City jurisdiction. Imagine a person is involved, or suspected to be involved, in a crime, yet they are not suspected of having committed any crime. For example, imagine a journalist that has been sent a letter from a serial killer that they wanted them to publish. I assume it would be natural for the police to want to look into the journalist, and perhaps search their home and communication devices. However, if the journalist were to say no, could law enforcement get a search warrant for this? Or in general, if it could be beneficial to an investigation to search the property of an unwilling person, who themselves are not suspected of any crime, is it possible to get a search warrant? | Police can get a warrant, if the warrant is supported by "probable cause" to believe that evidence of a crime exists. A separate "probable cause" requirement is that to arrest a person, there must be "probable cause" that they committed a crime. However, the Privacy Protection Act makes it unlawful to search "work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication", unless there is probable cause that the person committed the crime in question. There are similar laws ("shield laws") at the state level. Here is a map which gives you an indication what immunities exist in what states. | Is a warrant needed for search or seizure while the garbage is still on private property, as in the garbage cans in this situation? No. The garbage cans as you describe are deposited "for the express purpose of having strangers take it", California v. Greenwood, 486 U.S. 35, 41 (1988) (citation omitted). That willful and informed act strikes any reasonable expectation of privacy. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection", Id (citations omitted). | Wooden made two arguments to suppress the evidence, first that he had not consented to the officer entering his house (the officer and the court disagreed) and the second that even if the officer's entry had been legitimate, the evidence wasn't legitimate because of the Fourth Amendment: Much of Wooden’s challenge turns on the fact that Mason was neither in uniform nor identified himself as a police officer. Both are true. But generally speaking, neither amounts to improper deception in the Fourth Amendment context. United States v. Baldwin , 621 F.2d 251, 252–53 (6th Cir. 1980) (citing Lewis v. United States , 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ). Nor did Mason take any affirmative steps to attempt to deceive Wooden regarding his identity. Mason was silent as to his official position; he did not hold himself out to be anything he was not. He merely asked to speak to Harris and then asked if he could come inside, to get out of the cold. Probably relevant also is that the officer didn't "search" for the rifle that prompted the arrest. Wooden picked it up in plain sight, the search of Wooden's person that revealed the second firearm was done as the officer arrested him for the rifle and the subsequent search of the house was carried out with the consent of the other resident Janet Harris. | If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal. | In part, we don't know because there are currently no rules that address certain outcomes, so it will depend on who is on the Supreme Court when the issue is raised. A warrantless search will not be legal beyond current doctrines regarding crime in progress and imminent danger, even if it involves time travel. So you will need a warrant, and you will need probable cause to get it. Currently, if you break into a person's house to discover that there is a body there, you can't get a warrant to legitimize that illegal search. Adding time travel does not change anything. In situation 1, I assume they have probable cause and a warrant but the evidence was destroyed by the time of the search at time T+n. As long as prior time T is still after the crime, a warrant to search at time T would not be a problem. In scenario 2, there is nothing preventing them from stopping the crime or arresting the perpetrators in the act. However, if they travel back in time and break in to a suspect's house in order to witness the crime, that is an illegal search. You could likewise arrest a person before he escapes to the phantom zone, if you have probable cause that he had committed a crime – by the time of the arrest. Forward time travel poses a more serious challenge, as articulated in Minority Report. It would, or should, be very difficult to issue an arrest warrant at time T based on knowledge of a crime committed at T+n. Because of the arrest, the crime was not committed and there was no probable cause, so there should have been no warrant (oh no, paradox). | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. | You have raised two broad questions. The question about reasonable suspicion asks: when is evidence illegally obtained? That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: what use can the government make of illegally obtained evidence? This is the subject of the exclusionary rule. The short answer is this: The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence ("fruit of the poisonous tree") in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs. To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions. History and rationale of the exclusionary rule The exclusionary rule originated in Weeks v. United States, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that "the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence." Weeks was convicted. The Supreme Court reversed, holding that: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), the doctrine was extended to prevent indirect use of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The Court acknowledged the 'complexities' of this distinction in Nardone v. United States, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to "examine the prosecution as to the uses to which it had put the [illegally obtained] information." Frankfurter J, delivering the opinion of the Court, quoted the above passage from Silverthorne and said: In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Development of modern limits to the exclusionary rule The Court clarified the purpose of the doctrine in United States v. Calandra, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said: The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The Supreme Court endorsed a good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded: The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Court cited Leon and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings: [B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs" ... A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The Court endorsed an even more circumspect approach to the rule in Hudson v. Michigan, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs", which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding" it, and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." We have rejected "[i]ndiscriminate application" of the rule, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,"—that is, "where its deterrence benefits outweigh its 'substantial social costs.'" (citations omitted) Current state of the law As of June 2017, the last word on the rule is the Supreme Court's decision in Utah v. Strieff, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule: First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." (citations omitted) Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine: The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the "temporal proximity" between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider "the presence of intervening circumstances." Third, and "particularly" significant, we examine "the purpose and flagrancy of the official misconduct." (citations omitted) [W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct. Specific scenarios Can the past arrests serve as a basis for reasonable suspicion to stop a person? As a basis for inclusion of the person on an informal watch list? As mentioned in the introduction, this question is not really about "fruit of the poisonous tree." It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Terry v. Ohio, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in United States v. Sprinkle, 106 F.3d 613 (1997): A prior criminal record "is not, alone, sufficient to create reasonable suspicion." Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted) As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? What if law enforcement set up a sting operation targeted at this individual? As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to "warrant a man of reasonable caution in the belief that an offense has been or is being committed": Brinegar v. United States, 338 U.S. 160 (1949). Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before? If the evidence is suppressed then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: Pennsylvania Bd. of Probation and Parole v. Scott. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in Utah v. Strieff: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.' Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine. | No, there is no recourse. An yes, the potential "costs", both personal, financial, social, can be high and are not compensable under an investigatory hold scenario; however, it doesn't usually happen like that. There is no investigatory hold that long without arrest. If the police want to talk to you but don't have enough to arrest you, you can leave any time. If you call your lawyer, he/she will come to the police station and tell the cops to release or arrest you. If the police really want you to stay, likely there is probable cause and they can keep you anyway. The police can arrest you and keep you, without a warrant so long as there is "probable cause" to believe that a crime has been committed (by you). Once arrested without a warrant, this is what is usually referred to as an investigatory hold, where the law says you must be arraigned within 72 hours (some states it must be 48 hours, 1 day less than supreme court says is reasonable). During this time they can investigate their case against you and decide what, if any, charges they will bring. There is no recourse for this, (in the event they bring no charges) unless you can establish that you were held for no reason (including not being falsely identified) and that it was only to intentionally deprive you of your right to liberty. This is nearly impossible to prove, unless you really did nothing and the cop was just messing with you (for instance in a personal vendetta) and you can show that. |
Refusal of service to single customers Bob walked past a restaurant and saw 35% of their tables are empty, so they are reasonably busy, but have plenty of open tables. He asks to be seated as a party of one, but is told in a most palpably disingenuous manner that they are fully booked, and, upon challenging this, that all of those open tables he sees are in fact "reserved." The front of house guy shouts something back to the manager in Bengali, and the manager mutters back in English quite firmly that they have no open tables for a party of 1. Clearly this implies that they have tables available, which they would be willing to seat a walk-in party of two at, they just don't wish to "waste" it on a party of one. This would seem to unintentionally have the effect of sitting on those who are not married and thus single, even though the motivation is clearly profit driven. Unintended discrimination as I understand is permitted by the Equality Act 2010, insofar as it is motivated as a proportionate means of achieving a legitimate aim, however, this must not be simply increased profits if it is not combined with some type of other concern than sheer profit. Is the restaurant's conduct lawful? | Is the restaurant's conduct lawful? Yes They can refuse to serve anyone they like (or don't like) as long as that decision is not discrimatory based on one, or more, of the relevant protected characteristics defined by section 4 Equality Act 2010, which includes: marriage and civil partnership Bob not being in the company of someone else does not equate to his marriage / civil partnership status. It just means he was on his own at the time. HOWEVER, this is a moot point as... Part 3 of the 2010 Act, which deals with discrimination when providing "services and public functions", states at section 28 that: (1)This Part does not apply to the protected characteristic of— [...] (b)marriage and civil partnership. | This is not "libel," which is a form of defamation (publishing a false and defamatory statement that injures another). "Bait and switch" is a type of violation of the Massachusetts Consumer Protection Law. That Law makes it illegal for a business to engage in any false or deceptive practices, or to perform any false or deceptive acts, in commerce. Read more about it on the Massachusetts' state government site. If the restaurant's conduct was deceptive and it caused you harm (for instance, you would not have gone into the restaurant and ordered at all if you had known you had to order a drink to get the favorable price on sliders,) there may be a violation. | 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. | 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. | Extrajudicial implies there is some weight of law behind the casino behaviors you describe. I don't think there is. For example, refusing to cash out chips could just be a management intimidation tactic to try to coerce the customer into agreeing to be "questioned." Which the customer would be under no legal obligation to do. Card counting can't be proven if the counter is not using a device of any kind. The casino can refuse to serve the customer and expel the customer but they can't unilaterally keep the customer's money by not cashing the customer's chips without a judgment. I am not an attorney. This answer is not legal advice. | "How can these things be compatible at all"? The law is that prostitution isn't illegal, which means prostitutes cannot be thrown into jail, they cannot be blackmailed by customers or police officers, for example. This protects and is intended to protect the prostitute. If a business owner tried what you suggest, that would be trouble. It's not asking the woman to do something that would be illegal for her to do, it's asking her to do something that you don't have the slightest right to ask her, which probably constitutes sexual harassment at least. I can't really get how you would think that making prostitution legal and protecting women from harassment would be incompatible. The legality actually takes a huge amount of harassment away. | One can find contradictory claims out there. Here is an English version of the marriage law. There is a surprising amount of legal rigamarole (in Norway, as well) pertaining to clearing "impediments". Assuming that the parties have done their part, then we move to Chapter 4. Article 16: Marriage may take place before a minister of the church, a representative of a registered religious organization empowered to perform such ceremonies, cf. Article 17, or before a civil official so empowered So turning to Article 17: Religious solemnization of marriage shall be performed by the ministers of the National Church, and priests or other representatives of registered religious organizations in Iceland who have been empowered to perform such ceremonies by the Ministry of Justice and Ecclesiastical Affairs and that is now part of the Ministry of the Interior. I can't find any indication that ULC has been approved. There are 49 religions officially listed by Statistics Iceland, including Siðmennt, a secular humanist organization which gained official status on May 3rd, 2013 when the organization was officially registered as a secular life stance organization under a law passed in the Icelandic Parliament on January 30th of that year. A formal ceremony was held by the Interior Minister Ögmundur Jónasson who had strongly supported our cause, to mark this historical event. As a result, Siðmennt gained the same legal and funding status as religious life stance organizations in Iceland. Weddings conducted by Siðmennt celebrants since then are legal and couples no longer have to go to government offices for that purpose. In light of the fact that Siðmennt is officially listed and ULC is not listed, I would conclude that you did not accidentally marry anyone, even if they had dealt with the impediments. | There appears to be no specific number of hours. This article touches on the matter, presenting a slew of cases where e.g. the prisoner was on a hunger strike (self-imposed starvation is not cruel and unusual punishment). Gardener v. Beale upheld a 2-meal plan with 18 hours between dinner and brunch to be allowed. This was, however a temporary exception rather than a long term policy which was to provide 3 meals not spaced further apart than 12 hours. There does not seem to be any period deemed to be legally too long, however a prison system may have (probably does) have a policy, which cannot simply be ignored. |
Can a person sign a contract committing to never taking an ex-spouse to Family Court? Can a person sign a contract committing to never taking an ex-spouse to Family Court? For example, as part of a divorce agreement, my (soon to be) ex-spouse wants me to put money aside in escrow that my ex can use in the event that I open up a case in Family Court. The ex is paranoid that I will continue litigation, as is agreeing to certain concessions if I agree to this stipulation. When my youngest child turns 21, the escrowed money will go to me. But if I open a case before then, he wants to be able to use the escrowed money for his lawyers. Is this escrow arrangement legally enforceable? | Can a person sign a contract committing to never taking an ex-spouse to Family Court? Basically no. There are important circumstances where waiving a right to sue is not allowed as a matter of law, which often apply. This cannot be done: (1) if the existence or validity of the marriage is disputed, (2) in cases where there are (or could be) minor children, (3) in cases where there are adult children in connection with whom there is child support owed, that is not approved by the court with the child or a guardian for a child approving it, (4) in the case of alimony provisions that are "unconscionable" as that standard is defined for family law purposes, and (5) in cases where there was a defect (such as lack of adequate financial disclosure) in connection with entering into the agreement in question. But, otherwise, it is possible to agree to property divisions in a divorce, attorney fee divisions in a completed divorce, and to alimony awards, that cannot be challenged in court except on the grounds shown above. Often a family court will retain jurisdiction to resolve disputes that arise to interpret property division and alimony awards that were properly entered into when the alimony award was not unconscionable at the time it comes into being, and to enforce breaches of the agreement. But this doesn't have to be done. When jurisdiction is not retained, questions of interpretation and enforcement can be brought in a new court. I've seen divorces where ambiguities in property division language in agreements are interpreted by courts decades later to figure out who owns what property. In one such case there were two courts that might have had jurisdiction to interpret the agreement of the parties, neither of which thought that it had jurisdiction over the case, so to parallel consolidated appeals had to be brought to decide which court had the authority to resolve an ambiguity in the original agreement before either court could get to the merits of the dispute between the parties. Of course, at some point, all the kids will be grown, there will be no outstanding child support amounts owed, all property will be divided, and in some cases, all alimony awards (if any) will be fully performed. Once that point in time is reached and the statute of limitations for defects in entering into the agreement has run, then no further family court litigation is allowed. For example, as part of a divorce agreement, my (soon to be) ex-spouse wants me to put money aside in escrow that my ex can use in the event that I open up a case in Family Court. The ex is paranoid that I will continue litigation, as is agreeing to certain concessions if I agree to this stipulation. When my youngest child turns 21, the escrowed money will go to me. But if I open a case before then, he wants to be able to use the escrowed money for his lawyers. Is this escrow arrangement legally enforceable? This is probably legally enforceable if it is mutually agreed to, although I've never seen a case in New York specifically addressing that issue. This is a very different question than the title question. | Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been "sealed" i.e. issued in writing) but still possible. The principle of finality only applies to parties asking courts to reconsider; it does not constrain courts themselves. So, in this example, "the judge agrees to vacate them" but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens). No double jeopardy applies because it is still the same trial. | A contract that tells one party or another to do an illegal thing is void ab initio: courts will not recognize it or give force to it. A contract which doesnt explicitly tell either party to do something illegal but if during the course of fulfilling either party's end of the bargain they commit an illegal act it is up to the courts discretion what happens, whether to find the contract void or to maintain the contract (its a matter of public policy whether they allow the contract to continue existing, or if the contract was such that illegal acts were expected to be commited then the court will likely remder it void) Either way, you cannot indemnify someone for committing an illegal act. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | Can the seller enter a formal agreement with the tenants in which the seller pays a sum of money and in return the tenants vacate the premises before the closing date, and would such agreement hold over the tenants legal right to remain on premises past the closing date? Maybe. It depends on tenancy law in Nova Scotia. Notwithstanding, given that the tenants are “difficult”, what are your plans if they take the cash and don’t move out? What happens if the sale goes though under the assumption that the tenants have left, and in fact the tenants are still occupying the premises? Why would the buyer settle under an “assumption”? At the time of settlement either the tenants have left (so settlement happens) or the haven’t (so the vendor is in breach, settlement doesn’t happen and the buyer decides whether to rescind the contract and claim damages or affirm the contract and claim damages). What guarantees and proofs can the buyer demand as to the vacant status of the property? They take the keys and walk into it. What other questions should the buyer be asking? They should be asking: “Will you be in a position to fulfil your obligations under the contract?” | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. | Generally, you would have to bring an eviction action just as you would for an ordinary landlord-tenant relationship. This means given written notice served as required by MA law of a deadline to leave, and then if the child did not leave, filing an eviction lawsuit and serving the papers on the child, and then attending an eviction hearing, and then, if you prevailed in that hearing as you probably would (probably with horrible TV and newspaper publicity that might go viral in social media), and then, arrangements would be made to remove him and his stuff from the house on an appointed day with law enforcement and movers and you would change the locks. It would probably take a few weeks start to finish. It is not something that a non-lawyer should try to do themselves. A lawyer would probably charge you a few thousand dollars for this proceeding. The main exception would be that generally a parent has a duty to support an adult disabled child who cannot provide for himself. You probably do not have the legal right to simply kick out your child without an eviction action, although few adult children would choose to push their legal rights not to be removed in that manner if they were. The fact that a child would likely end up homeless in some circumstances if you did this is something that most parents would not be at peace with and would regret later even if they felt good about the decision at the time, but that is a parenting decision and not a legal one. | But I don't see how it is connected, because there is no domestic violence, no child custody One does not need to be violent to violate an agreement. There was an agreement to resolve the situation with the house. You ex did not honour it. You can ask the court to convince him to honour it through a motion for enforcement. It's that simple. |
Can my landlord change the fees agreed upon in my original lease? My current lease has one price for pet fees. This is different (lower) than what is advertised on my rental unit's website. My landlord wants me to pay the higher price and won't agree to an addendum of the original price. Can they do that? They have tried to argue that I agreed to this price for my renewal lease (that does not start until next year). I am in Ohio. | Unless there is a unilateral change clause in your CURRENTLY effective lease, then no they cannot change the terms until the NEW lease becomes effective. Your question, however, is not entirely clear. You seem to be asking: "My current least charges me $X/month for a pet and the new lease, starting on 1/1/2023, charges my $Y/month for a pet." In that case it's perfectly OK since it's a new lease that replaces the old one and it's entirely up to you to either agree to it or find another place to live. Ohio also has prohibited rent control and rent stabilization state-wide (Ohio Revised Code, sec. 5321.20). | The term "The Property" does not intrinsically include or exclude a garage in this situation, so the answer has to come from other considerations. The lease is unclear, so the courts will need to look at other factors (such as the picture) to decide which interpretation is correct. Insofar as the landlord wrote the contract and could have included a clause explicitly excluding the garage, but didn't, the courts may rule in your favor under the doctrine contra proferentem. The physical arrangement does support the conclusion that the garage is part of The Property, in particular the access to the part constituting your yard. This assumes that there actually is access to your yard from the garage. Scouring the entire contract, there may be some subtle indication of how the garage is to be treated, such as a clause presupposing that you have access to the garage ("shall clean the garage..."). Then we come to the matter of the key. You say the landlord changed the key: does that mean you used to have a key that gave you access to the garage? If you used to have access to the garage, using a key provided by the landlord, that would support the conclusion that the garage was not a separate item governed by its own contract. If you have never had and were not given access to the garage (no key), that would support the contention that the garage is separate. Similar questions would be raised about the actual use of the garage: has the landlord been using it to store equipment? That would support his contention. Had you been using the garage previously and now months later the landlord wants to charge rent for the garage? That runs counter to his claim that you didn't rent the garage. In other words, since the wording does not answer the question, the full set of circumstances would have to considered. | No The tenant is liable if they break a contract: there is no contract here. One of the tests for a contract is that there is an offer that if accepted will create a clear, unambiguous contract. Looking at the enumerated facts: Alan advertises a room to rent in a joint tenancy property in which they are lead tenant - not an offer, this is an invitation to treat Zoe views the room and verbally expresses an interest in renting it - not an offer, this is the opening of negotiations Alan passes on Zoe's contact details to the estate agent - not an offer, this is communication between one party and their agent The estate agent contacts Zoe by email, providing a draft contract and asking for further information in order to complete her details - not an offer, the contract is a "draft" Zoe provides the requested details, again by email - not an offer, just a transfer of information The contract is drawn up and the estate agents inform both Alan and Zoe that it is ready to be signed - this is an offer A week later (having not yet signed), Zoe informs the estate agent that she no longer wants to take the room - ... that was not accepted Further, the tenant is liable if they are promissory estopped - they have withdrawn a promise made to a second party if the latter has reasonably relied on that promise. Zoe has made no promises other than one to negotiate - she has negotiated. | In general, and in particular in New Jersey, a new owner takes possession subject to existing rental agreements, and in particular subject to existing leases, unless there is a provision in the lease to the contrary. This happens automatically, by law. Thus any lease is as enforceable against the new owner as it would have been against the old. But how enforceable is this arbitration agreement? How enforceable would it have been against the old owner O? The basic fact about a month-to-month tenancy is that either party may end it on one month's notice, for any reason or none. Moreover, when a new owner intds to occupy the premises personally, or use them for his or her family, the requirement to honor a previous lease is, in general, not applicable. T might be able to force N to go through arbitration, depending on the wording of the agreement, and on whether the written lease applies at all after the end of the first year (which it may well not). But on the facts as stated in the question, T would lose in arbitration as well as in court, and if there is any increased expense because of the arbitration, T would be obliged tom pay it. Let us look at the actual NJ law N.J.S.A. 2A:18-53 provides that: any lessee or tenant at will or at sufferance, or for a part of a year, or for one or more years, of any houses, buildings, lands or tenements, ... may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases: a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years. [emphasis added] Section 2A:18-56 provides that: No judgment for possession in cases specified in paragraph "a." of section 2A:18-53 of this Title shall be ordered unless: a. The tenancy, if a tenancy at will or from year to year, has been terminated by the giving of 3 months' notice to quit, which notice shall be deemed to be sufficient; or ? b. The tenancy, if a tenancy from month to month, has been terminated by the giving of 1 month's notice to quit, which notice shall be deemed to be sufficient; [emphasis added] Section 2A:18-57 provides that: If no sufficient cause is shown to the contrary when the action comes on for trial, the court shall issue its warrant to any officer of the court, commanding him to remove all persons from the premises, and to put the claimant into full possession thereof, and to levy and make the costs out of the goods and chattels of the person in possession. No warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession, except as provided for in chapter 42 of this Title. Section 2A:18-61.1 provides that: No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guesthouse or part thereof rented to a transient guest or seasonal tenant; ... except upon establishment of one of the following grounds as good cause ... [emphasis in original] h. The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park But note that good cause is not required for an owner-occupied dwelling with no more than two rental units. T would be wise to consult a lawyer knowledgeable about landlord/tenant law in NJ before attempting to contest the notice or eviction. | Is this even legal? Yes, it is lawful. The Ontario Tenancy Act does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it. Also note that the clause refers to reasonable costs, which implies that those costs must be for a reasonable cause. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious. Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | Is this something for small claims court Yes. The explicitness of your prior leases overrides the statutory variations that might exist among jurisdictions in this regard. And the total of 50$/month for six or seven years indicates that you would have to pursue recovery in small claims court (at least if the landlord refuses to reimburse you). In Wisconsin, the statute of limitations for breach of contract is six years. See 893.43. Statute of limitations means the lapse of time upon which claims of certain type are no longer actionable. Thus, you would only be able to recover the fees of the latest 6 years except for this year's lease, since your current lease no longer specifies that the landlord will cover that cost. For more information on small claims courts, see chapter 799 of the Wisconsin statutory law. | Here is a document from the city, which says p. 16 that Oakland does not have an Ordinance or Regulation restricting the amount of rent a master tenant charges a subtenant. This assumes that subletting is not prohibited by the lease. |
Law about adult video websites retaining actors' PII Pretend there is a British person in the United Kingdom (England & Wales jurisdiction), that for some legally justifiable reason needs to obtain the name (and other information) of a female adult video actress in the United States of America. The video in question is legal (all parties are 18 years or older) and is available on a both well known and popular adult video website. Are there laws in the United States which obligate adult video websites to retain personal information (such as first and second names) of the actors/actresses in the videos uploaded on their website? If so, could someone please provide them? I am unsure as to whether it would be a Federal, State, or other law as I am not familiar with the United States legal system. To make an educated guess, I assume it would be Federal since it concerns somebody from outside the US making a request, but I might be wrong. EDIT: As per Trish in the comments, if this is something applicable to the film producers rather than the adult video website (or whatever) just inform me accordingly. | united-states Are there laws in the United States which obligate adult video websites to retain personal information (such as first and second names) of the actors/actresses in the videos uploaded on their website? If so, could someone please provide them? In the U.S. producers of adult material are required to keep information about the age of their performers pursuant to 18 U.S. Code § 2257 and 18 U.S. Code § 2257A which is part of "The Child Protection and Obscenity Enforcement Act of 1988", and 28 C.F.R. 75 which contains regulations adopted related to that Code section. See also U.S. Justice Department commentary on its website. You can read the full text at the links. The information must be retained for seven years after they are created or last amended, unless the business goes out of business less than two years after the records are created or last amended, in which case the records must be maintained for five years after the business ceases to operate. They key language of Section 2257 states: (a)Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which— (1)contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and (2)is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. (b)Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct— (1)ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2)ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3)record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. Section 2257A extends this requirement to simulated sexual content. The regulations spell out the details requirements more specifically with more precise definitions. Much of this information may only be disclosed to specified individuals and is not necessarily available to members of the general public in the absence of an investigation authorized by the U.S. Attorney General. But access to these records is not governed by these statutes and regulations. An objection to a subpoena and request for a protective order under Federal Rule of Civil Procedure 45 (and related rules) or the equivalent state court rule would be the usual process for litigating that point. Whether the reason asserted is really justifiable would be a question for other law (usually under the law of California where most adult material in the U.S. is produced). | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). | 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? | There are various tangential ways in which this could be illegal, for example if your subjects are celebrities, you take a picture of them and commercially exploit it without permission in a product endorsement. Leaving aside such fringe cases, in the US, the legal right to privacy comes about, at the first cut, by premise trespass law. If the proprietor tells you to go away, you have to go away; if the proprietor tells you that you cannot take pictures, you cannot take pictures (your right to enter is conditional). Neither of those circumstances holds in your case. There are other tort-law bases for a right to privacy: numerous privacy laws regarding privacy and financial transactions (not relevant here), the aforementioned right of publicity (commercial exploitation of likeness), false light (like defamation, about creating a false impression – I don't see what false information is conveyed by a photo). There is also public disclosure of private fact, but that cat is out of the bag because the subject has self-disclosed the supposedly offensive fact revealed by the picture by eating in public. Intrusion of solitude and seclusion does not exist in the circumstance, since the subject is eating in public where everybody can see: there is no reasonable expectation of privacy. This page sums us Virginia law. The main take-away from that is that there is no common law action for privacy in Virginia, and only an action for unauthorized used of likeness or name. | Doesn't being recorded in your own home, or someone elses for that matter, require consent? That's not relevant here. Media outlets are generally not liable for reporting information that was or may have been obtained illegally, provided they are not the ones that did the illegal act, or directly incentivized its commission (e.g. if Gawker had paid someone to get them such a video). The person who filmed this act may or may not have committed a crime, but this was not relevant to the case at hand. In fact, Bollea (aka "Hulk Hogan") did sue those responsible for making the video; he settled with Bubba, but not with Clem. Bollea later added Gawker to the ongoing suit against Clem when publication of the tape was ruled to not be a copyright infringement. Isn't there a reasonable expectation of privacy when you're not in public like that? Also largely not relevant here, as Bollea's claims against Gawker were not about the production and existence of the tape, but of its publication. Bollea did allege invasion of privacy in his suit, but as concerns Gawker this was about publishing the video. Also keep in mind that Bollea had gone out of his way to convert his private life into a public spectacle by virtue of his reality tv program. Your reasonable expectation of privacy goes down when you have already set the bar so low that most every aspect of your private life is on public display. Some of Bollea's legal motions in his failed attempts to convict Gawker of copyright infringement were denied on the basis that publication of the video tape may actually constitute fair use. Celebrities in general have lower expectations of privacy than ordinary citizens. It's the well-known price you pay for fabulous amounts of wealth and fame: lots of people are paying attention to you and are interested in what happens to you, and you can't expect a lot of privacy when everyone's staring at you and hanging on your every word and action. Not that they have zero privacy rights, it's just harder for them to establish the "reasonable expectation". don't I have the right to not have that material distributed even if I were famous and it was "newsworthy"? Your question here is the embodiment of the controversy: where does freedom of the press end and personal privacy begin? Freedom of the press is constitutionally enshrined, and tends to be zealously protected in America as a prerequisite for true democracy and freedom. Personal privacy is not, and emerges more as the consequence of laws and the judiciary's application of certain Common Law sensibilities. There are some constitutional protections against governmental infringements (unreasonable search and seizure, that sort of thing), but the protections you have against non-governmental infringements only exist within laws. So the general expectation you can have is that if something is newsworthy, then it's fair game for the press to report on it. The issue falls to what qualifies as "newsworthy", and who gets to make that judgment? Part of Bollea's legal argument was that what Gawker published was not newsworthy, going to the extent of having the editor concede in court that a depiction of Bollea's genitalia was not newsworthy. And this "not newsworthy" angle seems to be the heart of what their case was getting at: what was reported was not done because it was "news", but because it would get Gawker attention and profits at Bollea's expense (including capitalizing on his famous Hulk Hogan persona). It's also the heart of why some people consider this a controversial and potentially problematic case. Those who have voiced 1st amendment concerns have done so primarily out of concern that this trial would allow courts and juries to decide what was "newsworthy" and what was not. Meaning that news outlets might now have to sweat bullets every time they published something because maybe a jury would assert it wasn't newsworthy, leading those outlets to be less likely to report certain aspects of news. Presumably these people feel that the only ones who should be deciding what is newsworthy is the press, and the public vis-à-vis their consumptions and demands thereof. | As someone with ties to the "foreign" community in the United States, I see these "marriages of convenience" from time to time. In their most "legitimate" form, the couple will move to the same address and "technically" live together, but without consummating the marriage so that it can later be legally annulled. American immigration authorities counter this by asking each spouse about the other's underwear (literally!). Some "marriages of convenience" are legal, insofar as they technically conform to the marriage documents, e.g. regarding "co habitation," even while violating the spirit of the law. Others don't. Your best chance of attacking such "marriages" is not regarding the marriage itself (basically only the couple can decide what constitutes a valid marriage), but rather "compliance" with the marriage documents. That's something any law enforcement officer can understand. | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. | Yes and No Selling your own body for sex is legal. Buying sex is illegal. Therefore the transaction as a whole is legal on the part of the seller and illegal on the part of the buyer. See Prostitution in Canada and Prostitution law in Canada. If you think this is odd, you are not alone '... one judge referring to the laws as "Alice-in-Wonderland" and the Chief Justice of the Supreme Court referred to the situation as "bizarre"'. In the circumstances, although I know of no case law on this, it would appear that any contract for prostitution would be void for illegality. Presumably, to enforce payment for services rendered the service provider would need to pursue a quantum meruit claim in equity. |
Can an audio recording prove a defendant's innocence? Defendant is in jail for a gun charge. The gun is not his, nor did he know it was in the vehicle. Defendant's girlfriend has an audio recording of the gun's owner admitting to owning the gun but refusing to say so to law enforcement because he bought the gun off the street. Can that audio recording prove that Defendant is innocent of the gun charge? | Defendant's girlfriend should produce the copies of the recording to police, the prosecutor, and the defense attorney. Possession of the recording should induce the police and prosecution to at least re-evaluate the charges against Defendant, as Defendant would be able to subpoena the gun's owner to testify about the purchase and then use the recording to impeach him if he then denies owning the gun. It is unclear, though, whether the audio actually has any value because we don't know what charges Defendant is facing. If he's charged with unlawfully owning a gun, the recording would likely be quite helpful; if he's charged with unlawfully transporting a weapon, the recording's value would probably depend on whether the law in question outlaws "knowingly" transporting a weapon or "negligently" transporting a weapon, or transporting a weapon regardless of whether he knew about it. | he was arrested despite technically not doing anything wrong He was arrested because there was probable cause to believe that he was involved in the commission of a felony. The arrest was legal even if he was innocent. He has no basis for a successful lawsuit. | How much would I be expected to reveal if not directly connected to the case? For example, if I was asked, "What were you doing in the alley at night?," would you be required to reveal the information if it is potentially humiliating (e.g. you were having an affair) or illegal (e.g. you were getting illegal drugs)? The latter case seems to violate the protection against self-incrimination. Or what happens if you just lie about something inconsequential? You have to answer any permissible questions (i.e. consistent with the rules of evidence) asked. If you were doing something illegal you can claim the fifth and not testify unless you are given "transaction immunity" that your testimony will not be used against you in a criminal case against you. Usually perjury prosecutions require that the lie be about a material fact. Suppose you receive a death threat (either verbal or in writing) from the person charged with and who committed the crime. Something along the lines of: if you testify against me, then my friends will kill you after the trial. What legal options do you have? Tell the prosecutor on the case and ask the prosecutor to provide protection to you and to go after the people making the threat. The witness protection program was created for these cases. | In the UK this is just called "an appeal for the suspect to come forward." The UK police are not allowed to lie or mislead as suggested in the OP, and any reduction in punishment is in the hands of the courts when passing sentence (unlike some other jurisdictions, I believe). | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | 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. | First, as Mark Johnson said. Second, the job of police and prosecutors is not to put people into jail, their job is to put guilty people into jail. If you go to the police and tell them that you beat up a person, then before they investigate, they know that either you are guilty of assault, or you mistakenly believe that you are guilty of assault, or you are a phantasist who enjoys confessing non-existing crimes to the police. The police will either investigate which one it is, and may prosecute you either for assault or for wasting police time, or they may decide based on your behaviour that there was never any assault and not investigate further. I suspect they will at least question you about details of the claimed assault, to decide whether the crime is real or not. | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. |
Enforcing purchase of item "mistakenly listed at too low price" I purchased an item from a legitimate online store of a business registered and operating near me. I paid with credit card and received an email with my "order confirmation", stating the order number, price paid, shipping address, and details of the item paid for. The money was deducted from my account by the merchant. After receiving the order confirmation email, I received a call from the seller saying that the product was "mistakenly listed at a lower price than they wanted to sell it for" so they would not honor the purchase and had already issued a refund. The item was indeed listed at around 10% of the price that I can purchase it elsewhere. Can I enforce the order and have them either send me the product at that price, or the amount of money to buy that same product elsewhere? What is the law on situations like this? Their terms & conditions have no mention of this kind of situation or any general right to cancel the order etc. At what point can the seller cancel the deal without my consent? Before confirming the order? Before taking payment? Before shipping? Before delivery? There must be a clear boundary somewhere. I'd like to know where it is and whether it was crossed in this particular case. | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | Yes, they are. A business can decide not to do business with someone for pretty much any reason. The obvious prohibited reason is due to your race. But I don't see how eBay would even know your race. Some State laws might protect you, but I don't think there's any that applies in this case. For example, California might give you a means of appeal if someone stole your identity and they performed those transactions, not you. But I don't know of any Federal or State law that would change the very, very basic principle of law that a property owner gets to decide who can and cannot access their property. eBay owns eBay. One key benefit of ownership is precisely that you can make decisions that other people consider to be unfair, discriminatory (other than the specifically prohibited categories) and draconian. Other people don't have to agree with your decisions for them to be lawful. | With respect to the two-year guarantee for faulty products, The Consumer Sales Directive does not apply to non-tangible products like softwares delivered by internet. (b) consumer goods: shall mean any tangible movable item, with the exception of: Relevant rules on faulty digital services are contained in the Digital Content Directive, which provides In the case of a lack of conformity, the consumer shall be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article. The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including: (a) the value the digital content or digital service would have if there were no lack of conformity; and (b) the significance of the lack of conformity. However, this is essentially irrelevant for free apps where no reduction of price is possible and it is likely an obligation to fix the app is disproportional given the price is zero. Notably, the directive also puts most responsibilities regarding the "digital environment" (e.g. computers and network costs) on the consumer, as the environment is not particularly tied to the digital service. In your comment, you refer to a 14-day rule. You might be confusing the guarantee laws with the cooling-off period provided by the Consumer Rights Directive. In that case, you have a right of withdrawal but are only entitled to the costs you paid to the trader, and not any other third party, which is zero in the case of free apps. In an analogy to physical goods ordered online, you don't get a refund for your bus ticket if you need to go to the post office to collect it. By the way, Google terms cannot override public law and in fact if you look into Google refund policy you'll see that EU laws are specifically mentioned. | which of these conditions are enforceable (as in I could collect damages from a person for using the wrong plan)? The validity of the contract does not depend on the outlined conditions being that weird. These weird conditions are merely a way of saying that [almost] everyone is required to pay $10/month for using the website. What determines the validity of the contract is the issue of whether users knew or [reasonably] should have known the ToS. If the website does not contain functionality toward reasonably ensuring that users become aware of the ToS prior to using the website, it will be unlikely or impossible for the website owner to establish that a contract was formed. In terms of Restatement (Second) of Contracts at §§ 17-20, users' reasonable misunderstanding would preclude a finding of mutual assent on which contracts are premised. | This follows from a term in your agreement: in opening the account, you agreed to a binding arbitration clause. The general reason why they can do this is because it is not prohibited by law to have such clauses in agreements (in fact, the Federal Arbitration Act protects such clauses from legal challenge). For the same reasons, the clauses can impose deadlines on opt-out or require opt-out by mail as opposed to email or phone call. The premise is that if you find such terms unacceptably onerous or unacceptable, you will not patronize that business. That assumes that the customer read and understood the agreement that they signed, which I grant is often untrue. | Does an agreement in a chat count as a valid contract? In most jurisdictions (and for most transactions): yes. Usually the only thing that matters for a valid contract is that there is a mutual agreement – whether that is in writing, orally, via chat or via sign language does not matter. Of course, having things in writing makes it easier to prove in court if there is a problem, so it's still advisable. What steps could I take if they don't send the money? You can: remind them to pay if they still don't pay, you can sue them. Some juridictions have accelerated court proceedings for simple cases like this (e.g. Gerichtliches Mahnverfahren in Germany), otherwise you will have to sue in a regular court that deals with contract disputes. But I have no names and I am unsure what they can or have to do after they received the package. This is going to be the main problem. It's no good to enter into a contract if you do not know who the other party is :-). You definitely need to find out who exactly entered into an agreement with you. If the sale is to a private person, find out their name and address. If the sale is to a business (seems to be the case here), find the official name and legal type of the business, and make sure whoever you deal with is authorized to enter into contracts. Otherwise the contract will be hard to enforce in court if things go wrong. | A lawsuit is designed to put you in the position you were in before the sale happened. Since the company has already offered you a full refund, suing would achieve nothing except cost you fees; your time and frustration are not legally recompensable. It may be that some consumer-protection office can fine this company for misleading advertising; the case would turn on whether the mistake should have been noticed before customer support sent a false confirmation. If you want to start the process, you should make a formal complaint to your local trading standards/customer service office. You will get no reward except relief to your feelings. | 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/ |
Is it copyright infringement to summarize texts from a powerpoint presentation? I have access to a powerpoint presentation as a student. These slides are part of the course content and every single slide has disclaimer at the bottom that says @McGraw-Hill Education Permission required for reproduction or display I do not aim to copy the material and redistribute it in any way. Instead what I wish to do is learn the material from the slides and then write notes and upload them to a website. But since I learned from the slides, I believe my notes, that will be uploaded/redistributed on another platform to a general audience, will most likely end up looking to a certain extent very much identical to the notes, as if I had copied them directly! Is there any legal issue that should concern me here? Should I move forward with my plan? For your information, the texts in these slides are academic in nature and their content is as summarized as possible. So, on one hand, the texts will be pretty similar regardless the textbook, university, country, since they all talk about the exact same material. And on the other hand, for an introductory course into this scientific field, the texts could not, or should not, be any more summarized nor detailed. Consequently, me too, my notes are not to be any more lengthy, because that would be beyond the scope of the course, and also, not any shorter, because then they will be missing critical details... As a result, I expect my notes to look extremely similar to the "original source"... Is this something to worry me? | 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. | 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. | In the US, at least, facts - like the speed of light, the name of a dinosaur or the moons of Jupiter - are not copyrightable. But the words or pictures, designs and original work used to express and present those facts in books, websites and other publications by individuals and publishers are copyrightable. (Original work doesn't need to be published to be copyrighted; it is copyrighted at the moment of creation.) See How can "factual" intellectual property be protected? Plagiarism can be copyright infringement; it's copying and presenting work of someone else's as your own. But not all copyright infringement is plagiarism in the sense that someone is claiming others' work as their own: if you're selling a T-shirt with an unlicensed design, you're not really claiming the design is yours; you're just trying to make money. If you use all or part of an image or a quote or a song from a copyrighted source in your own work, you need permission and attribute the source. Or, you have to decide if the amount of the copyrighted material you are using might be Fair Use and you don't need permission. But decisions on what might constitute Fair Use are ultimately decided in court, because that's where can you end up when a person or a publisher sues you for alleged copyright infringement. | You don't say where you are located. Copyright laws are different in different countries, am going to assume US laws. Under US law, a faithful digitization of a book does not get a new copyeight, see Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) and thw Wikipedia article about that case (On the issue of mrequired originality, see also FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE COMPANY, INC. (No. 89-1909.) (1991) which dealt with copying a telephone directory.) The court in Bridgeman held that: It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art. ... The mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'" As discussed above, the law requires "some element of material alteration or embellishment" to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works. ... [O]ne need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact as science and technology permit lacks originality. That is not to say such a feat is trivial, simply not original. The more persuasive analogy is that of a photocopier. Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable. The Bridgeman court was actually construing UK law, but the earthlier phase of Bridgeman i and the SCOTUS case of Feist show the same result under UIS law. Note that books and other works published before 1925 are now out of copyright in the US. Copyright can also be lost ion other ways, such as publishing without a copyright notice before the effective date of the 1976 act, and failure to properly renew a work published in the US before 1964. Assuming that the book is not under copyright, neither the library nor anyone else has a US copyright in the PFD. Unless the library imposes some additional restriction by contract, any such PDF may be copied or shared freely. It may even be sold or rented. And the validity of such an additional agreement would be questionable, but since the question does not mention such an agreement, I will not go into that further. | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | Section 108(a) is the most useful for an infringer who posts an entire copy of a protected work in public. Subsections(b,c) require that the copy not be made available outside the premises, which precludes internet posting; (d) requires a user request to make a copy; (e) applies only to items that are off the market and transferred to a specific user; (h) allows more copying in the last 20 years of the period when a work is protected (not applicable here). Subsection (a) allows a library or archive to make one copy of a work, as long as there is no commercial advantage to making the copy, the library is relatively public (it might restrict access to bona fide researchers), and a copyright notice is included: this has the fewest restrictions on copying. The internet downloader is not a library or an archive, so the downloader is not granted any permission under 108 to make a copy. Under 108(a) a library can make no more than one copy available, but every uploading or downloading is "making a copy". A library would be contributorily liable for the illegal downloadings of their "customers". It is difficult to know exactly what one can get away with under 17 USC 107 a.k.a. "fair use". I am fairly sure that posting a copy of a contemporary book in the open is not "fair use" even if the intent is to make it possible for dummies to study chemistry: such copying is not at all transformative, totally unlimited, and provides a significant market substitute for the protected work. | 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. | Ultimately whether one work is derivative of another is a question of fact, and there is no absolute rule beyond taking it to a court. Many cases are clear. A Full translation is obviously a derivative work, The definition in 17 USC 101 is: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. A mere description of a work, such as a one-paragraph summary, is probably not a derivative work, but as the summary gets longer and fuller, it starts to approach an "abridgment or condensation". One test is if the summery could reasonably replace the original, at least for some consumers. But there is no clear cut place to draw the line. By the way, If something is a derivative work, it is infringing provided only that the original is in copyright and the creator of the derivative did not have permission from, the copyright holder on the original. Fair use may prevent an adverse judgement, but is still an infringement. As the question referred to fair use, a strictly US legal concept, I am assuming US law here. |
Is a mental health crisis defined anywhere in the Mental Health Acts? Does the state of mental health crisis have any statutory definition provided by the Mental Health Act 1983 or any other piece of legislation in the UK? | No The term "mental health crisis" is often used colloquially but it has no legal definition that I can find. In fact, the word "crisis" does not appear at all in: Mental Health Act 1959, the Mental Health Act 1983, the Mental Capacity Act 2005, or the Mental Health (Discrimination) Act 2013. The 1983 Act, being the primary legislation in this area, uses "mental disorder" which it defines at section 1 as: ...any disorder or disability of the mind | I fear that it may mostly be defined by common sense and context, rather than any particular statute. I've certainly not been able to find anything quite as explicit as, for example: An Act of Parliament is an Act passed by the Parliament of Canada and definitely not in any way an Act of a provincial legislature. Nevertheless, if you'll bear with me while I slog through a sea of clauses that all imply the above, then the best places to look for usage and definition are the Constitution Acts, 1867 and 1982, as they form (the basis/bulk of) the Canadian Constitution. I've also (credit to Zizou212) included some definitions from the Canadian Criminal Code. Looking at the Constitution Act 1982 (as amended, via the Canadian justice department's website) and taking the crudest possible approach (i.e. looking for instances of "Act of") there is, in the main body of the text, only one reference to Acts of Parliament, or to Acts of the provincial legislatures, namely in the notwithstanding clause (section 33 of the Charter of Rights and Freedoms): Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Not, I fear, not a full answer to your question, but it's worth noting that a distinction is drawn between "Parliament" and "the legislature of a province". For context, section 32, directly above, reads, This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament [...]; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. We're getting closer. I would argue (though IANAL) that from these two sections alone it's pretty clear that Acts of Parliament are Acts passed by the Parliament of Canada ("This Charter applies [...] to the Parliament and government of Canada") while Acts of "the legislature" of each province are Acts passed by the legislature of that province ("This Charter applies [...] to the legislature and government of each province"). Going back to the original question, I think it's pretty clear that "Parliament" – with a capital P – is (fairly) explicitly the Parliament of Canada. Note that it's the only body of the 4 mentioned there that gets a capital letter, and I imagine that it's because it's the only one referred to by its proper name. Whereas "the legislature and government of each province" is, presumably, just a common sense descriptor and a stand-in for the proper names of those governments and legislatures – it would be tedious to say "the Legislative Assembly of Ontario, and the National Assembly of Quebec, and [...]" – while "the government of Canada" is, I assume, not capitalised because it's also just a descriptor (the 'proper' name being Her Majesty's Government) but I'm descending now entirely into the realms of wildest speculation, as the Constitution Act 1867 is perfectly happy to use the phrase "Government of Canada" (though those were, seemingly, more capital-heavy times). Furthermore, as Zizouz212 pointed out, the Criminal Code of Canada contains an interpretation section: In this Act, Act includes (a) an Act of Parliament, (b) an Act of the legislature of the former Province of Canada, (c) an Act of the legislature of a province, and (d) an Act or ordinance of the legislature of a province, territory or place in force at the time that province, territory or place became a province of Canada; Again, the mention of "Parliament" alongside – and distinct from – provincial legislatures, makes fairly clear that it's the Parliament of Canada. Going back to the typesetter's nightmare that is the 1867 Act, we can eke out a few more puzzle pieces in the definitions: In the Constitution Act, 1867, Part IV: There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons [...] The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada Part V: There shall be a Legislature for Ontario [...] There shall be a Legislature for Quebec [...] the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall [...] continue as it exists at the Union Part VI: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces [...] In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated Between those three Acts, I'm hoping there are enough bits of context to make clear that Parliament only ever refers to the Parliament of Canada, and not to the provincial legislatures. If, however, you want one more bit of evidence, I can offer the pre-amble to the Canada Act, 1982 the Constitution Act's slightly older, British twin. This was the law that finally patriated the Canadian Constitution, passing (at the British Parliament in Westminster) an Act that defined how Canada could amend its own Constitution, and renouncing any power for the British Parliament to do the same. In that text, (emphasis mine) there are, by necessity, two Parliaments discussed and accordingly it's always made very clear which one is being talked about: An Act to give effect to a request by the Senate and House of Commons of Canada Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that Purpose. Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: The Constitution Act, 1982 set out in schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come unto force as provided in that Act. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. ...ergo, in the main body Constitution Acts etc., "Parliament" was presumably felt to be clear enough. | The starting point of any analysis has to begin with asking what the scope of the Act's application is i.e. what acts fall under its remit and what does not. The question is whether Parliament intended the Act to apply to ANY alteration to the structure, or only a certain class of acts. Clearly it is not the former. With the latter then in mind, statements like that you pointed out merely acknowledge that the Party Wall Act does not cover every single conceivable alteration to a shared structure, as that statement has to be viewed in its entire context. You have left out the second half of the statement that stipulates the core principle of the Act, which is that the Act only imposes the req to serve notice only if, generally, the alteration would cause much structural change or damage. The de minimis threshold can be inferred from the list of activities covered under section 2. Notice that the general character of the listed activities envisage acts which are atypical (in the sense of just drilling holes etc.). This can also be inferred from Parliament's intent in its drafting of the Act as a whole. Also, it might just be common sense. | The primary reason for involuntary commitment is that a person poses a threat to themselves or others. This is usually intentionally broad, but can be taken to mean suicidal, delusional or homicidal tendencies, or other personality disorders that make a person a threat. There are usually provisions for holding a person for a limited period of time in emergency situations - for example, if they have recently attempted to commit suicide. Each State will have different standards required to have a person involuntarily committed beyond this emergency period. However, in general, if a person is a danger to themselves or others unable to provide for themselves, and will continue to be without assistance, then they will meet the criteria for involuntary commitment. This chart has some elaborated and detailed information, state-by-state. | 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. | Like a lot of Scottish criminal law, there's no specific legislation, but it is illegal through common law. This was also true in the rest of the UK until the 1800s, when statutes were passed with the aim of making abortion law clearer (generally forbidding it). This didn't extend to Scotland leaving much of its abortion law unclear. The 24 weeks limit that the Scotsman article references is from Section 1 of the Abortion Act 1967 (as amended). This act did apply to Scotland. The act specifies conditions under which abortion within the first 24 weeks is legal, and that it is always legal when there is grave risk to the woman's health. When the circumstances of the pregnancy fall outside the provisions of the act, the existing Scottish common law prevails. For further information, this UN document provides a good summary of abortion law in the UK. | First, the clearly redundant phrase is “applicable laws” - these apply to everything. Second, some acts, particularly consumer protection or sale of goods acts imply provisions into a contract, create obligations that sit beside the contract or create equitable remedies. Many of these can be limited or excluded but this needs to be done explicitly. Third, in legal writing, clarity is preferred to brevity - nice if you can get both but if not, be clear rather than brief. Fourth, the contract is not the document. The document is a record of the “meeting of the minds” that formed the contract. In the event of a dispute, it may be useful to know that particular laws were specifically considered by the parties. Fifth, in legal writing, just as all writing, some people are better than others. | When the Act was originally passed it didn't say Secretary of State, it said "Lord Chancellor". So depending on when the Act came into force fully, the current wording may be moot. The text of the Act was modified by The Secretary of State for Constitutional Affairs Order 2003 to make the Secretary of State for Consitutional Affairs responsible. That office was discontinued in 2007, and the post of Secretary of State for Justice created. Not being specific in the 2003 Order allows the Prime Minister to reorganise government departments without needing to modify legislation to track the changes. Secretary of State is defined in the Interpretation Act 1978: “Secretary of State” means one of Her Majesty’s Principal Secretaries of State. So, legally, when the text of an Act isn't specific, the power isn't vested in the relevant Secretary of State but can be exercised by any of them. |
Under what circumstances may one be brought to a safe place by police under the Mental Health Act? Are they completely distinct from those in which one may be "sectioned"? | There are two safeguarding provisions under the Mental Health Act 1983 empowering the police to remove a person to a "place of safety", defined by section 135(6) to mean: residential accommodation provided by a local social services authority under Part 1 of the Care Act 2014 or Part 4 of the Social Services and Well-being (Wales) Act 2014, a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place.... The first provision is a warrant under section 135: (1)If it appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder— (a)has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b)being unable to care for himself, is living alone in any such place, the justice may issue a warrant authorising any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care. (1A)If the premises specified in the warrant are a place of safety, the constable executing the warrant may, instead of removing the person to another place of safety, keep the person at those premises for the purpose mentioned in subsection (1). And the second provision is the non-warranted power under section 136 when urgent action is required: (1)If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons— (a)remove the person to a place of safety within the meaning of section 135, or (b)if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety. Although complementary, these provisions are entirely seperate and distinct from being "sectioned", which is a colloquialism referring to the admission in to hospital under the Mental Health Act 1983 someone, when: under section 2(2): (a)he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b)he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons Or... under section 3(2): (a)he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) [repealed] (c)it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and (d)appropriate medical treatment is available for him. Or... under section 4(2) (2)An emergency application may be made either by an approved mental health professional or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above. And... section 5 establishes that: (1)An application for the admission of a patient to a hospital may be made under this Part of this Act notwithstanding that the patient is already an in-patient in that hospital... | I can't find any specific laws or cases in the United Kingdom. In Australia, bag searches must be consensual - shopkeepers and even security staff have no power to search your person or belongings. It is for this reason that you will often be asked by security staff to open your bag, and move belongings around inside that may obstruct their view. If they attempt to force you to surrender your bags for search by physical force or by intimidation, you may be entitled to bring a claim for the tort of assault and/or battery. You need only prove that these occurred, without actual loss or damage. In any case, they do not have the power to arrest or detain you unless they believe you have committed a crime, and in those circumstances, only reasonable force may be used. You are under no obligation to remain in the store. If they detain you against your will and you are later found not to have shoplifted, you may be entitled to bring a claim for the tort of false imprisonment, which is, again, actionable per se (you need not actually show damages) and serves to vindicate a person's right to liberty. | This is an objective test When a law requires “worry” (or any other state of mind), it is usually not the state of mind of the particular person but of a reasonable person in the same circumstances. The law does not ask “Were you worried?”, it asks “Would a reasonable person in your situation have been worried?” The fact that you have cynophobia is irrelevant if a reasonable person in your circumstances would not have it. Now, if this occurred at a facility for cynophobia treatment then the circumstances change from a reasonable person taken from the general population to a reasonable person who is attending such a facility; in those circumstances the reasonable person would be someone suffering from cynophobia. By the way, this test (worry or fear of harm) is essentially the same as the criteria of assault between humans. | I cannot recall an example where a breach of such guidance in-and-of-itself is an offence: it's when the underlying legislation is contravened that one is committed. Note that the cited article say this: this guidance is of a general nature. Employers should consider the specific conditions of each individual place of work and comply with all applicable legislation and regulations, including the Health and Safety at Work etc. Act 1974. This guidance does not supersede existing legislation or regulations across the UK More broadly, and away from the NHS, the relationship between guidance and statute was examined in The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd & Ors [2020] EWHC 2448 (Comm) where adherence to social distancing measures impacted on safe working practices on building sites, causing delays and an increase in costs. The court determined that: It follows that government advice or recommendations, whether before or after either set of Regulations came into effect, cannot have imposed or ordered a denial of access or a hindrance in access, however strongly worded the advice or recommendations were, since they did not have the force of law. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. | Section 8 of the Housing Act 1988 provides that (2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court. Section 7 of the same Act also provides that (1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act; [...] | Despite comments in the Reddit thread you linked, I doubt it's the law in any US state, but it would be matter of policy in any state and in many other countries as well. It's not the emergency medical personnel's job, whether EMTs, paramedics or firefighters, to risk their lives giving emergency aid while a dangerous armed criminal is potentially in the area running around free. Instead they will wait for the police to let them know the area is clear and safe for them to do their job. It's easy to say that since the neighbours were giving aid, the EMTs should have been able to as well, but the EMTs wouldn't have seen the person armed with the knife leave the house and wouldn't have known that neighbours weren't themselves the ones who stabbed the victim. The neighbours also probably didn't fully appreciate the risk they were taking, that the "perp" could come back into the house at anytime. The EMTs on other hand would've heard plenty of horror stories about what has happened to EMTs that haven't waited for police to clear the scene. In other words, this could have happened in any US state, Canada, and in many other countries. |
Legality of battle advice to non American military Is it legal to directly advise or become advisor to a military in a war in which America is neutral? Would the act itself be punishable by loss of citizenship? | 18 USC 960 provides a disincentive against such actions. Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both Also see 18 USC 959, covering enlistment. "At peace" is not statutorily defined, so it is not obvious whether the US is "at peace" with Ethiopia (Tigray war) or Russia (various offenses). A formal state of war has not existed between the US and another nation for 70 years. | At the time of annexation of country X someone would have to decide the status of the countries citizens: If all citizens of X are now citizens of the USA, and whether they are legally citizens from the date of annexation or since they were citizens of X, and if they are considered residents in the USA since the day they became residents of X, and if they are retrospectively "born in the USA" if they were born in X. And other things, like whether non-citizen legal residents of X are now non-citizen legal residents of the USA. That has to be decided for many reasons, and the answer to your question follows naturally from this. Maybe you could check on a history site if anyone knows how this worked with Hawaii. | International law is always subordinate to domestic law. In the Westphalian world we live in, all power rests with each and every Sovereign nation. International law is a creation of those nations and only has force where the affected nation acquiesces to it. For example, the US and Russia have refused to sign up to the International Criminal Court so that court has no jurisdiction in their territory or over their citizens. North Korea has refused to sign the Berne convention so there is no protection of foreign copyright there. Similarly, a nation, having entered a treaty, can revoke that treaty. There would be consequences but these would be geo-political, not legal. Of course nations can and do behave hypocritically - insisting that others follow the law they ignore. | To my mind, one of the major goals of the customary laws of war is to try to limit the overall harm caused by a war, especially harm caused to parties other than the military forces of the nations who are actually fighting each other. Obvious examples are prohibitions on attacking civilians, destroying civilian property and infrastructure, neglecting civilian public health, harming prisoners who are incapable of fighting, and so on. I wouldn't say these are about "fairness" or any other such abstract ethical principle; they are simply pragmatic. All other things equal, the world is better off if fewer civilians end up dead. And so just as the laws try to avoid collateral damage to individuals who are not fighting (civilians, prisoners, injured troops, etc), they likewise try to avoid collateral damage to nations who are not fighting (neutrals). Combat under a false flag carries a risk of harm to the nation whose flag is impersonated, as the belligerents may get the wrong idea about who is attacking them. Here are a couple of scenarios that could occur if false flag combat were considered acceptable: Potsylvania is at war with Grand Fenwick, while Freedonia remains neutral in the conflict. The Potsylvanian ship Fearless sights the Fenwickian ship Goose, and as a ruse, the Fearless runs up a Freedonian flag. The Goose, knowing that Freedonia is neutral, assumes the Fearless is harmless and lets it approach. When within range, the Fearless fires at the Goose, while still flying the Freedonian flag. The Goose reports back to its government that they have been attacked by a Freedonian vessel. The Fenwickian government considers this a hostile act, declares war on Freedonia, and launches an immediate retaliatory invasion of Freedonian territory. Now Freedonia has been brought into the war despite no party actually having anything against them. This is not desirable. Same scenario, but instead of raising a Freedonian flag, the Fearless runs up a Fenwickian flag. The Goose knows the flag must be fake, as no genuine Fenwickian vessel would attack them, but they don't know what nation the Fearless actually does belong to. They faintly hear the captain of the Fearless shouting orders in Potsylvanian, but he has a Freedonian accent and they think he's speaking in Freedonian. They report to their government that a Freedonian vessel has attacked them, and Grand Fenwick again declares war on Freedonia. Note that using a false flag when not attacking doesn't carry the same risks, which is why it is not included in the prohibition. Suppose that the Fearless doesn't plan to attack the Goose, but simply wants to avoid being attacked so they can get away. If their ruse of flying a Freedonian flag is successful, then the Goose simply thinks they saw a neutral Freedonian vessel going about its business, and Grand Fenwick does not get the idea that Freedonia is doing anything aggressive. And if it's unsuccessful, then the Goose must have figured out that the Fearless is not Freedonian at all, but instead Potsylvanian, and so likewise Freedonia does not come under suspicion. | Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help. | Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water. | The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does. | 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. |
Can a political party falsely inform its opponent's voters that their voter registrations have been cancelled? Location: Michigan, United States Let's say we have two major political parties - let's call them YellowParty and PurpleParty. YellowParty obtains a list of reliable PurpleParty voters and sets out to falsely inform these voters that their voter registrations have been cancelled. YellowParty sets up text banks, phone banks, and canvasses for its volunteers. YellowParty volunteers send text messages such as - for example - "ATTENTION: Your voter registration has been cancelled. Do not attempt to vote." YellowParty volunteers also make phone calls sharing similar messages. They also knock on the voters' doors (canvassing) with similar messages. YellowParty volunteers never threaten voters, impersonate law enforcement or government officials, or claim that they are from the Secretary of State's office or other government entity. Setting aside the efficacy of YellowParty's program*, let's consider its legality. Would this program violate Michigan state law and/or US federal law? Additionally, if this program was not run by YellowParty itself, but instead outsourced to a political action committee (PAC), would that change its legal status? *The efficacy of YellowParty's program is another matter. Many voters would be rightly skeptical of the messages. They may know that messages from the Secretary of State's office come via official mail. Other voters would simply check their voter registration status and confirm that they are still registered. However, as is the case with any false advertisement (political or otherwise), some voters will believe it. | The conduct described would be a felony. Two men where just convicted of state crimes this week for very similar conduct in Ohio. Jacob Wohl and Jack Burkman pleaded guilty to felony telecommunications fraud yesterday. According to Cleveland.com, the pair "placed thousands of robocalls with false information to largely minority and Democratic voters in Cleveland in the months before the November 2020 election." They face up to a year in state prison. (Source) Michigan state law also criminalizes this conduct, which also violates federal law. Other legal consequences that they face as a result of their conduct according to the same source include the following civil and criminal cases: The men have been sued in federal court in New York City and face a $5.1 million fine levied by the Federal Communications Commission. Wohl and Burkman are appealing criminal charges filed against them in Detroit stemming from a similar bogus robocall scheme targeting Black voters. As this blurb notes, Michigan itself is in the process of prosecuting these men criminally for part of the same pattern of conduct. While it isn't inconceivable that these particular offenders may have some valid grounds for an appeal in the particular Michigan case that they are appealing (e.g. due to irregularities in their particular prosecutions), the validity of the statutes criminalizing this conduct is not seriously subject to question. The First Amendment protects a great deal of intentionally false politically motivated speech about policy and political ideas or more generally why one should vote in a particular way. But, the First Amendment does not protect a large scale organized campaign outright intentional lies about the eligibility to vote of particular voters. This distinction is explored, for example, in a 2018 law review article on political lies and the First Amendment, citing, e.g., Burson v. Freeman, 504 U.S. 191, 210 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983); Eu v. S.F. Cty. Democratic Ctr. Comm., 489 U.S. 214, 228 (1989) (“The State’s second justification for the ban on party endorsements and statements of opposition is that it is necessary to protect primary voters from confusion and undue influence. Certainly the State has a legitimate interest in fostering an informed electorate.”); Tashjian v. Republican Party of Conn., 479 U.S. 208, 220 (1986); Jenness v. Fortson, 403 U.S. 431, 442 (1970) (describing the state interest in “avoiding confusion, deception, and even frustration of the democratic process at the general election”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); and Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997). Based upon these cases, taken as a whole, the author of the law review article concludes that: In sum, many intentional lies aimed at undermining election administration are already unconstitutional under the Fourteenth Amendment, and if told with discriminatory partisan motives, also violate the First Amendment. But what about intentional lies told by private actors, along the lines of the examples provided above (poll workers, campaign volunteers, and the like)? While such lies might be thought to be less coercive than government lies, they also pose a serious threat to democracy. Although private individuals must be guaranteed ample freedom to speak on matters of public concern, I believe intentional lies meant to undermine the right to vote may be regulated. The Supreme Court, albeit in another context, has relaxed First Amendment rights when weighed against the right to vote. Judicial deference is given to “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Time and again, the Court, in evaluating various election administration issues, has affirmed a government interest in avoiding electoral confusion. If one can prove that someone else orchestrated or conspired in the conduct, such as a political party, it and the party officials involved can have legal responsibility for this conduct as well. One of the darlings of federal prosecutors, the mail and wire fraud statute, for example (the elements of which are set forth here by the U.S. Justice Department) would probably also apply to this fact pattern. This source cites some of the following authorities and recited their holding as follows: United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) ("Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme."). The remedy that is not available, however, as a general rule, is to invalidate the election that was swayed by the illegal conduct. | It depends on the rules of the particular betting market and the laws under which it operates. Assuming that the bet itself is legal, it is not uncommon that participants in the contest are not allowed to bet, not because they distort the market, but because they can influence the outcome. Consider if instead of betting to win, Mr Trump bet on himself to lose and then do something which would reduce his chances (hard to imaging what he could do that he hasn't done but anyway). | This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link. Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe. | 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. | If the government withholds information that is pertinent to the credibility of a witness is that cause for a mistrial? Only if the error is not harmless under the standard applicable to evaluating harmless error in criminal cases (there is a voluminous case law on that point). Basically, it means that a new trial may be held and a conviction vacated on a charge against a particular defendant if there is a reasonable possibility that the withheld evidence, when considered in light of the total picture of evidence presented at trial, might have changed the outcome on guilt or innocence. Does whether the government knowingly or unknowingly withheld this information influence whether a mistrial will be granted? Not really. Knowledge is imputed. If someone in the prosecution team including the police knows, then it is known to the entire team for Brady purposes. If no one knew that it had the information (e.g. a key exculpatory document in possession of the prosecution was misfiled in one of dozens of bankers boxes of documents that it seized in a search and no one reviewed those particular boxes knowing to look for a document like that one or attuned to its potential significance, since it wasn't supposed to be in the place where it was filed), then it hasn't been withheld in the Brady sense unless someone specifically asked for the information in question with enough specificity that it could have been located if they looked at what they already had. The knowledge that must be disclosed is what the prosecutor's office or the police the prosecutor's office is working with knows. So, if a beat cop hides exculpatory evidence from the prosecutor's office, that is a Brady violation, but if the cops do a sloppy investigation that fails to reveal exculpatory evidence that is out there to be found, it isn't a Brady violation. Likewise, if a cop in another department halfway across the state knows something that impacts the credibility of a witness and the prosecutor is totally unaware of the existence of that information as are all the cops working on the case, then that isn't a Brady violation. What If It Isn't A Brady Violation? Exculpatory evidence discovered after the trial that isn't a Brady violation not to disclose may still be grounds for a new trial based upon newly discovered evidence in a motion for post-trial relief. But, the standard to get the court to grant a new trial based upon newly discovered evidence that was not withheld in a Brady violation is much more stringent than the mere harmless error standard. Instead: With a single exception, criminal defendants in the United States seeking a new trial based on newly discovered evidence are required to establish only that the new evidence makes it more likely than not that, in a new trial, they would be acquitted. Ohio requires clear and convincing evidence rather than a mere preponderance. There's a lot of case law on what constitutes newly discovered evidence which is "new, material evidence that was unavailable at the time of the original trial[.]" If evidence was available, but not used at trial, it can't be presented in a motion for new trial based upon newly discovered evidence. Often this means that it can't be considered even if the salience of the evidence previously available is only clear later in the light of other evidence that is genuinely newly discovered, or the defense attorney's failure to use that evidence in the first trial was negligent to a level constituting legal malpractice. | This is wire fraud and punishable by up to 20 years in prison. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. It is not relevant that the victims of this fraud are people who support a cause that the US government opposes. Nor is it relevant what your friend chooses to do with the ill-gotten money. It is still just as illegal. Whether your friend would be prosecuted would be at the discretion of federal prosecutors, and political motivations could come into play. That is beyond the scope of Law.SE to address. What is certain is that he could be prosecuted. Giving information to the FBI probably won't help, as from your description, the victims of this fraud aren't doing anything illegal. "Donating money to support Russia", while vague, does not sound like it violates any of the current sanctions. | 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. | "CAM CONTR/ACC 2>CONT" refers to F.S. 106.08(7)(B), under which Artiles is charged with "making or receiving two or more campaign contributions over or in excess of the limits," as well as engaging in a conspiracy to do so. "ELECTION CODE/FALS" refers to F.S. 104.011(1), under which Artiles is charged with "swearing or affirming falsely to any oath or affirmation, or willfully procuring another person to swear or affirm falsely to an oath or affirmation, in connection with or arising out of voting or elections" "VOTER REG/FLS INFO" refers to F.S. 104.011(1), under which Artiles is charged with aiding and abetting another to "submit any false voter registration information." More information about the factual basis for the charges is available in the arrest warrant here. |
Court decides that Rob must pay Alice. Is she obliged to take the payment? Reading this article where a crime victim rejected a $200 payment that the court had ordered the offender to pay her made me think: what happens now? Is she obliged to take it? If she doesn't provide her bank account number, would the offender be entitled to find it out and make the payment anyway? If he comes by and drops two $100 bills in front of her but yet she doesn't pick those up, would that be considered that he has paid? | Fines and reparation are paid to the court not directly to victims/complainants: The offender pays the court and the court will send payment to [the recipient] | Of course it doesn't work. You haven't discovered an end-around to property ownership I gave someone a car and want it back (they refuse) You no longer own this car. It is now titled in their name. Your interest in the car is now exactly zero whether or not they paid for it. I use a shell company to buy my own debt Okay. This has nothing to do with the car. You're now out of the cash it took you to set up this new entity. How are you doing this? I assume it means paying off your creditors with money you already have. You will also have to come up with some type of bogus documents that explain to the future court why this was even done. If you have the money, why do you have debt? My shell company sues me for conveying the car to conceal it from creditors Um, Ok. Now you're also out filing fees. Let's assume you know how to do this without paying an attorney to do it for you. I settle Makes sense, since you're suing yourself. The shell company now gets a court order to seize the car Seize the car how? This is a stretch. A judgement would be against you for the value of the car. You can't settle a lawsuit using assets you do not own. A court won't order something repossessed because of an unrelated squirrelly lawsuit. An exception would be a bankruptcy court that rules the item was sold or disposed of outside the court's orders. I would expect an astute court to hit you with contempt or sanctions for trying to use it to further your interests with some sort of end-around to property ownership. Expect more fees for this use of the court's time. The shell seizes the car No. Now I have the car back No. | To me this seems analogous to failing to report a bank error in your favour, which amounts to theft in england-and-wales. I wrote an answer about that here. See that answer for the details but briefly there are five elements to establish under section 1(1) the Theft Act 1968: Dishonesty (section 2) Appropriation (section 3) Property (section 4) Belonging to another (section 5) Intention to permenantly deprive (section 6) As pointed out in the comments, there is a separate offence of abstraction of electricty in section 13 which only has the following elements: dishonesty, use of electricity, and lack of due authority. The courts have also held that electricity cannot be considered "property" for the purposes of the Theft Act (Low v Blease [1975] 1 WLUK 325). Arguably this offence is not commited here as you had due authority (permission from the supplier) to consume the electricity, however I will have a look later to see if I can find some case law on this point and edit it in if I find anything. With that said, "property" includes choses in action (section 4(1)). Choses in action are intangible property which can only be recovered by enforcing a right rather than by taking possession. In the case of a bank error, the resulting bank balance is a chose in action and the crime of theft is committed on that basis. In your scenario, the right to be paid for electricity you consume is a chose in action belonging to the supplier. Although I'm not aware of any case law specifically on this point, it seems to me that depriving the supplier from its right to be paid could satisfy the requirement of appropriation of property. The other elements of theft, as in the case of bank errors, are easily established here. Note that you won't be saved by "if and when the company does discover its error, I have no problem with paying the arrears". This is because of section 6(1) of the Act which states: A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. Even if you eventually pay for the electrity, your intention was not to do so if they didn't notice. Note also that it is not necessary that there is a contractual requirement to notify the supplier of their mistake. Such a requirement can arise under common law (e.g. A-G's Reference (No 1 of 1983) [1984] 3 All ER 369, elaborated in my other answer). You didn't specify which part of the UK and this answer may not be applicable in Scotland or Northern Ireland. | I assume this is "Managed Payment to Landlord" (MPTL) for the tenant's Universal Credit and/or Discretionary Housing Payment, as opposed to for "Housing Benefit" per se, since most people are now on UC instead of HB. But in any case the period of imprisonment is long enough to affect Bob's eligibility. Under the Universal Credit Regulations 2013, Schedule 3, Bob is no longer occupying the property since their absence is expected to be for more than six months; in fact, they lose UC entirely and are meant to reapply when they get out. If this is Housing Benefit then the entitlement ends for being expected to be in prison for 13 weeks or more; see the Housing Benefit Regulations 2006, regulation 7. That's a generic rule for absence, whereas there's a 52-week allowance for pre-trial custody, and some variations for release on probation. DHP top-ups from the local authority follow the same rules. In any event, 2.5 years, even taking into account the anticipated release at the halfway point, is more than any of those thresholds. The claimant is meant to report changes of this kind, but since Alice are receiving the money directly, she is also responsible for informing the government of any relevant changes. See guidance at 10.2, Whilst a MPTL is in place the landlord must notify the department of any changes which a landlord can be reasonably expected to know which might affect the claimant’s entitlement to Universal Credit and the amount awarded. For example, the claimant changes address. When a claimant changes address the MPTL APA will cease from the end of the assessment period before the claimant changed address. If your tenant moves home and you need to end a MPTL, please contact the service centre immediately on 0800 328 5644. As noted below, and following the Social Security Administration Act 1992, sections 71 and 75, If the MPTL is overpaid due to a change that has not been reported by either the claimant or the landlord, the landlord may be asked to repay the overpaid benefit. Universal Credit payments are made every calendar month and take account of changes during that month. It may be that Bob has already done their side of things but the system hasn't caught up yet. In any case, Alice is not entitled to continuing payments and the government has various means to get the money back. Sections 111A and 112 of the 1992 Act (which applies to UC as well) make it a criminal offence for Alice to fail to notify the government about a change of circumstances that affects her right to receive payments. (Simplifying the statutory language a little - Alice is "the recipient" in the context of the full text and Bob is "the claimant", and there are various other conditions about your state of knowledge and intention.) This is not to say that it would necessarily be pursued as a criminal matter, but that possibility exists in principle. | You need, at least, to let the person receive 2 reminders which have to name a reasonable period (after the first exceeds, you can send the second) and if the last deadline exceeds, you have the possibility of escalating further. Although often repeated, this is not correct which makes most of your argument moot. By German law (specifically § 286 BGB) these are the exact conditions for a default of payments: (1)If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice. Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice. (2)There is no need for a warning notice if a period of time according to the calendar has been specified, performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar, the obligor seriously and definitively refuses performance, for special reasons, weighing the interests of both parties, the immediate commencement of default is justified. (3)The obligor of a claim for payment is in default at the latest if he does not perform within thirty days after the due date and receipt of an invoice or equivalent statement of payment; this applies to an obligor who is a consumer only if these consequences are specifically referred to in the invoice or statement of payment. If the time at which the invoice or payment statement is received by the obligor is uncertain, an obligor who is not a consumer is in default at the latest thirty days after the due date and receipt of the consideration. (4)The obligor is not in default for as long as performance is not made as the result of a circumstance for which he is not responsible. Depending on what was contractually agreed on the default happened even before the first warning. For example that is the case if a specific payment due date was agreed to. Even if a warning would be required it is only one and you can see that no requirements on the specific wording or form on that warning is given. I don't know how you assume an "official reminder" should look like. According to the law a specific and explicit demand to fulfill an obligation is enough. Also, the warning does not need to contain a specific date. If it doesn't the default is effective immediately. | 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. | If there has been no trial establishing Bob's guilt, the bank does not know that it was Bob who did rob the bank. Even if the bank has Bob on the security video feed, claiming that, "As my name is Bob, I will shoot anyone who does not follow my instructions", and Bob left behind his driver's licence at the heist, the bank does not know that it was Bob. The bank could sue Bob in a civil action in order to get the money back. It would have to follow some procedures to notify Bob of the lawsuit and, if he did not appear, it would win by default. If Bob were to appear, he could make his case about why the bank should not be entitled to that money ("It was not me" / "I only took $1,000" / whatever). After the trial had happened, the bank still could not take the money right away. Maybe Bob would offer some other assets worth $50,000 to pay the bank. After it had become evident that Bob was unwilling or unable to comply with the payments, then the bank could ask the court to seize Bob's assets. The court would decide which assets could be seized, would order to have them seized, and then would provide them to the bank. That does not mean that Bob would be free to use his $100,000 during this time. Before the trial is over, the bank could request the judge to freeze Bob's account, as a way of ensuring that he does not withdraw the money from it. The judge would evaluate the likelihood of Bob losing the trial and refusing to honour it (and whatever Bob's lawyer's objections to this are) and decide on the issue. But that would only affect Bob's ability to use the money, not his ownership. | As a matter of contract law it would not be possible to enforce a requirement to pay legal fees without agreement. You could easily see how this would be problematic: one could just draft letters to hundreds or thousands of people and require them to pay the costs of composing the letter. My understanding is that this is common practice in the United States (see speculative invoicing). However, people are generally free to pay whatever they want to anyone they want. The other side is free to pay the legal costs, they just probably won't. In some common law jurisdictions, the concept of a Calderbank offer may be another reason to write a letter such as this; the settlement offer can be relied upon in later proceedings as an indication as to the costs that would be appropriate to award to the winning party, should the offeree unnecessarily prolong legal proceedings |
Can you still be sued for copyright infringement if you comply with a cease and desist notice? Can a copyright holder sue an infringer without first sending a cease and desist notice? If they do send a notice and the infringer complies, can they still sue? | A cease and desist letter is not binding or mandatory (for copyright infringement, and in most other circumstances). You are not required to send such a letter, and even if you do, any vague suggestion that compliance guarantees that the future plaintiff will not sue is non-binding. Such a letter simply warns the recipient of possible consequences of continuing the action. The closest connection to an enforceable cease and desist letter in the case of copyright infringement is that under DMCA, a plaintiff may send a certain kind of cease and desist letter to an internet service provider, and if they comply (etc.) the provider cannot be sued for contributory infringement. | The actions that constitute patent infringement do not depend upon whether or not the infringer is a nonprofit or not. Disgorgement of profits is one possible remedy for patent infringement, and if the entity made less profits than a for profit company might have under similar circumstances, from the infringement, that particular remedy would be likely to be smaller. But, this would not preclude other remedies such as a reasonable royalty or profits lost by the patent holder due to reduced sales, or injunctive relief. | Your title and your question are totally different. If someone pirates a book, makes printed copies, and sells them for profit, that's the point where it switches from plain copyright infringement to being criminal copyright infringement. Which means jail instead of paying damages is possible. If you buy one of these printed copies, not knowing that they have been created illegally, and not being willfully ignorant that the printed copies were created illegal, then you didn't commit copyright infringement yourself. Since you are asking the question, it's obvious that you now know that there was copyright infringement, and buying any more copies would be encouraging copyright infringement with no excuses for you. You can be sued for damages. It is unlikely to happen since suing takes likely more effort than getting any damages from you is worth. The correct thing to do is ask the seller for your money back and destroy the copies. If they don't refund your money you can inform the copyright holder. | You can report it to the publisher(s) Protection of copyright is a matter for the individual rights holder: some (I’m looking at you Disney) are vigilant, thorough and draconian in protecting their rights, others don’t care at all. Unless you are the rights holder it’s none of your business. In much the same way that the guy charging your neighbour for 4 hours gardening but being long gone in 2 isn’t. If you like your neighbour or feel duty bound to do something, you tell them and then leave it to them what they do with it. This is not a matter for the authorities as it doesn’t rise to the level of criminal copyright infringement. Just like the gardener above, this isn’t a crime. | I've found Google's filtering based on licence to not be very reliable, at least not reliable enough to trust from a practical legal perspective. Using a photo that you don't own the copyright to is a risk. You may be infringing copyright by doing so. The owner may eventually ask you to stop, or they may sue you for damages. Further, some copyright infringement is criminal 17 USC 506. In my opinion, it would be unwise to use a work commercially that you don't affirmatively know you have permission to use. | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. | First, I don't know what "Sir is" means - I assume it is a typo of "sue us" and answer on that basis. Also, you don't tell us where you are and local law differs - I will assume US law. They can't sue you successfully - that's not how the "Online Copyright Infringement Liability Limitation Act" works. The way it works is: You give the "online service provider" (YouTube) a notice of the claimed infringement that complies with section 512. YouTube must expeditiously remove or disable access to the allegedly infringing material and take reasonable steps to promptly notify the alleged infringer of the action. The alleged infringer then has the right to object to the takedown. If they do, you have 14 days to bring a lawsuit in the district court alleging breach of copyright: If you don't then YouTube will restore the material - essentially you have given up your claim that the material infringes your copyright, If you do then the court will decide if the material does or does not breach copyright. The alleged infringer can raise a fair use defense if they like and they may or may not be right. If you win, you get damages, if you lose, you pay damages. In practice, you and the alleged infringer may opt for an out of court settlement instead. | Whoever "derived" the illegal derivative work most likely has copyright in his derivations, unless they are not worth copyright protections. Say I take the Harry Potter books and add a few chapters and try to sell it - that's copyright infringement of course, but I have the copyright on these additional chapters. However, I don't have the right to allow you to copy the derived work. And even if you have the right to copy the original work, you don't have the right to copy the derived work because it is a different work. I could extract my changes, and allow you to take them and do with them what you like. You could then create an illegally derived work yourself. I couldn't sue you, but the original copyright holder could. To the comments: One, a work and a derivative of the work are not the same, so even if you have the right to make a copy of a work, that doesn’t give you any right whatsoever to copy a derivative work - they are not the same work. Two, the copyright holder has the exclusive right to control copying and the creation of derivative works. If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement. |
Is a response to a N5B section 21 accelerated claim required to be given on the dedicated form N11B? Alice has received an accelerated section 21 claim from the court on form N5B, which legally is invalid. There exists a long and quite involved form intended for use in answering N5B accelerated claims, namely form N11B. Alice instead submits her defence to the claim on a simple handwritten and signed letter indicating her case number, and stating the reason why the claim is properly invalid and her desire to plead this in a hearing. What happens with this letter when it is received by the court, as it is not on the intended form, and 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? | 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). | There is no opinion from the Ninth Circuit. I just checked PACER, and there is a docketed order dated May 18, 2016: Filed order (STEPHEN REINHARDT, MARY H. MURGUIA and JOHN B. OWENS) We have reviewed appellant’s opening brief, appellees’ motion for summary affirmance and appellant’s opposition thereto. We conclude that the questions raised in this appeal are so insubstantial as not to require further argument. Accordingly, we grant appellee’s motion for summary affirmance. See United States v. Hooton, 693 F.2d 857 (9th Cir.1982) (per curiam) (summary affirmance appropriate where the result is clear from the face of record); see Mullis v. United States Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388, 1394 (9th Cir. 1987) (judges are immune from civil liability for damages and for declaratory relief for their judicial acts). AFFIRMED. [9981929] (WL) [Entered: 05/18/2016 02:48 PM] I downloaded Jaffe's Ninth Circuit brief and it's a pretty dull work of a crank. I use the RECAP Mozilla add-on, so the Ninth Circuit docket and brief should show up on RECAP soon. Go to https://www.courtlistener.com/ and in "Advanced Search", search on docket no. 15-56328. Based on past experience it should show up in a day or two. But that's the Ninth Circuit brief, not the SCOTUS one you're looking for; unfortunately, the U.S. Supreme Court is the one US court that is not searchable via PACER. You're limited to the docket, opinions and orders that the Court publishes on its site. For more legitimate cases, briefs can often be found on either SCOTUSBlog or the ABA's briefs page, but not in this case. | Yes it is kind of possible what country would the legal action need to originate from? Would one file in the US and note the foreign defendant or would one file, as a foreigner, in the home country of the defendant? You can go either way. It is not obtaining the judgment that is the biggest trouble here, but enforcing it. You will need: A UK mailing address. Services like ScanMyPost will suffice. Some money to pay the court fees. Time, tenacity and patience to follow through the procedure and fill all necessary forms. Be lucky in that the defendant actually has something to pay the debt with. There are two stages: Obtain a court judgment in your favour. Unless the defendant pays you, enforce the judgment. Obtaining court judgment in the UK In the UK, the "small claims court" functions are executed by HM Courts & Tribunals Service. The specific service is called "Claim for money" which can be filed online via their old or new system. So, basically, you file the online form, pay the fee by credit card and wait for defendant's response. If they do not respond, you ask the court to make a judgment (in my case it took 10 weeks from filing claim to getting judgment). If the defendant responds and defends themselves, expect much longer wait and uncertain outcome. Enforcement So, you and the defendant have both received court judgment saying that they must pay you. But they are not paying. There is a range of options you can choose from: County Court Warrant of Control (claims from £50 to £5,000). Court bailiff will go to the defendant's address and try to seize goods that can be easily sold. High Court Writ of Control (claims from £600). Attachment of earnings order (you ask the court to order the defendant's employer to deduct his earnings in your favour). Third-party debt order (a.k.a. "Garnishee Order") — if you know the defendant's bank account details. Read about potential pitfalls here. Charging order: you will only get paid if the defendant sells their land. Bankrupt the defendant (big court fees!). Alternatively, you could always hire a UK lawyer but then you would probably not need this answer. | 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. | 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. | Your ability to assert your Fifth Amendment right against self-incrimination is not limited to cases where you are on trial or have been accused of a crime. Your ability to assert that right is also not an absolute bar against being ordered to testify: if you are given immunity, you can be forced to testify. Alice cannot hold Bob in contempt – only the judge can. Bob can explain to the judge why a simple truthful "yes" or "no" answer is not possible, if he knows how to do that (does he understand the notion of a false presupposition, or unclarity?). He could for example assert truthfully that he does not understand the question (pointing to the distinction between "Charlie's body falling on the vase, causing it to fall and break", and "Charlie acting with apparent intent to break the vase", since it's not patently obvious that the former scenario constitutes "breaking the vase"). However (changing the scenario a bit), he has to understand that if the question is "Did Charlie shoot Delilah?" and the fact is that Ethan forced Charlie to shoot Delilah, saying "No" based on a theory of blame is not reasonably interpreted as truthful testimony. Taking the 5th, without setting forth your basis (not understanding the question) runs the risk that the prosecution will grant immunity from prosecution, and therefore you don't get to avoid answering the question. Immunity covers various things except that it does not cover prosecution for perjurious testimony. See US v. Apfelbaum, 445 U.S. 115: the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Immunity is conferred under the control of some applicable statutory law, such as 18 USC 6002 which says that no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. | what reasoning would the court use to evaluate the competing claims? Absent a verifiable contract, the dispute would require assessment of the extrinsic evidence and/or of other aspects reflecting the parties' credibility. Those types of factors would help for discerning whose position is meritorious. You are right in that Bella's co-signing of the loan is likely to render her hypothetical allegation of gift not credible. Bella's history of defaulting on her debts as well as her failure to keep up with insurance & tags are examples of prior act evidence. As such, these might be inadmissible for proving that she entered the contract with Abe. However, they are admissible both for proving Bella's pattern of missing her commitments and possibly for detecting inconsistencies in Bella's allegations (thereby weakening Bella's credibility). Unless Bella is able to point greater inconsistencies or weaknesses in Abe's credibility, a competent and honest court (where available) would rule in favor of Abe. | 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. |
Getting guardianship over a parent It is my understanding that just because an older person does things that are not wise, does not give the right of an adult child to impose guardianship on them. It is my understanding that if they are a danger to themselves or others than a guardian can be imposed. If a mother has only one adult child but she believes that she has two adult children (without any facts to support this belief) and then she complains to the other adult child she cannot find the missing son, then is that sufficient to get a court to appoint a guardian? Assume that she does this over and over again for a long time. Would that be sufficient for a court to impose a guardian? | Would that be sufficient for a court to impose a guardian? Maybe, maybe not, it depends whether the procedures at N.J. Ct. R. 4:86 are followed and complied with, especially Rule 4:86-2(b)(2) which includes a requirement for: Affidavits or certifications of two physicians having qualifications set forth in N.J.S.A. 30:4-27.2t, or the affidavit or certification of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2, in such form as promulgated by the Administrative Director of the Courts. Pursuant to N.J.S.A. 3B:12-24.1(d) [...] To support the complaint, each affiant shall state: [...] (F) the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition [...] | There is no requirement that a will, or a trust created by a will, be "fair". The will could have left $500,000 in trust for one set of siblings, and $5,000 to another set. It could specifically exclude one beneficiary from some of the benefits, or specify an unequal division. That is all the choice of the testator. As described in the question, the trust does seem likely to give greater benefits to one set of children than to their cousins. Unless there are grounds to upset the will, that is just how it is. However, the wide "absolute" discretion granted to the trustee might allow the trustee to modify this outcome, but the trustee is not allowed to simply rewrite the trust. How much the payments can be varied will depend on the exact terms of the trust. It does sound as if this trust was not worded as carefully as it might be, since it does not specify a ration when the trust is to be split. The designated relative can decline to serve as trustee, then any specified alternate would serve, or if there is none, or none who will serve, the court would appoint a trustee. | tl;dr Spouse before adult child. Patient’s designated surrogate, and court appointed guardian, before both. Assuming your mom does not have an advanced directive or has not designated a proxy, then her husband would come before you. He can ask whoever he wants and in fact he should get the information he can to determine what she would want. The standard is what the decision maker believes the patient would want, not necessarily what the decision maker wants. For example, if the patient has for as long as anyone can remember said repeatedly “I’m not dying hooked up to machines- when the time comes, let me go.” And the next of kin is of the “try whatever is possible to try” mindset, they should still go with what they believe the patient wants. This can be very hard in real life. In Florida, the decision to withhold (e.g. DNR) or withdraw must be with evidence that that is what the patient would want or is in her best interests. You may recall this coming up in the Terry Schiavo case- husband (who was also court appointed guardian) takes precedence over parents, but parents challenged his decision in court. Florida law laws out the order: 765.401 The proxy.— (1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection; (b) The patient’s spouse; (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient; (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or (g) A close friend of the patient. (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider’s bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient’s care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. (2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. (3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest. | Late to the party, but I'll answer anyways. In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent: Quoting Title 45 § 164.510 : (i) Obtains the individual's agreement; (ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or (iii) Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure. HHS does discuss disclosure to family members in their FAQ : A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation. | Do I have to pay child support if we are just dating and not married? We are not planning on having a child, but what if by some odd chance she gets pregnant? Does it depend on where I live? Like Toronto? The Modern Rule In Most Developed Countries It does depend upon where you live. No jurisdiction of which I am aware has ever distinguished between a planned child and an unplanned pregnancy in making a child support award. The vast majority of countries that have a category of obligation called "child support" apply it without regard to whether the parents are married. This would include all jurisdictions in Canada and the United States. But, in those jurisdictions, liability for child support in the case of an unmarried couple requires a mother seeking child support from a father, to establish the father's paternity by any of a variety of means, within the time allowed by law. Given the availability of cheap and highly reliable DNA tests to establish paternity, this step is now almost trivial and often waived by fathers who simply admit paternity instead when paternity seems clear. In contrast, paternity is presumed rather than something that has to be proved in cases involving a married couple. There is an exception to this general rule in most jurisdictions that have child support at all. This is because the husband of a married woman who has a child is presumed to be the father. Therefore, a man who is the biological father of the married woman's child is only obligated to pay child support if the father's paternity is established within the time allowed by law by the husband, the mother of the child, or a third-party on behalf of the child with standing to do so. Also, in most jurisdictions that have a concept of child support payments, a termination of parental rights (generally for abuse or neglect, but also in connection with a legal adoption by someone else) also terminates obligations to pay child support payments that arise after parental rights are terminated, although this rule is not universal. Generally that exception would not apply in the fact pattern that you describe. Historical and Comparative Context Historically, the concept of child support was unknown, illegitimate children and their mothers had no rights with respect to their fathers (and fathers had no rights with respect to their illegitimate children in most circumstances), and only married people were entitled to post-divorce support from an ex-spouse that was known as alimony and alimony served to provide support to both the ex-spouse and their children. The harshness of this historical rule was mitigated somewhat by the concept of common law marriage that had the practical effect of declaring an unmarried man who caused an unmarried woman to become pregnant to be declared husband and wife despite not having actually having gone through a marriage ceremony in many cases. At that time, there was an incentive for the man to re-characterize the nature of the relationship retroactively, because if the woman was not a prostitute, it would often be a crime or tort for the man to have had sex with the unmarried woman, enforceable by the state or by her father or guardian. But, if the couple were deemed to have been common law married, then all of these sanctions could be avoided. At this time, in areas where the state was not powerful enough to enforce these kinds of sanctions for premarital sex giving rise to a pregnancy, social pressure and sometimes even a literal "shotgun" marriage would be used to force the father to marry to mother. Prior to the 19th century in Western predominantly Christian countries, the only way to get a divorce was by special legislation in which the legislature passed a law specifically ending a particular couple's marriage. In the 19th century, bit by bit, Western countries started to allow judicially decreed divorces under a general statute on a proof of fault basis, with alimony awarded to the not at fault spouse under a breach of contract damages styled analysis that did not involve a separate child support component. Bit by bit in various Western jurisdictions during the 20th century, child support began to be recognized as a separate obligation from alimony and property division in a divorce, as partnership theories of family law, and parent-child relationship based theories of family law, began to replace the contract based theories of family law in earlier divorce actions. Non-marital relationship entitlements to child support also arose around the same time. Many U.S. states have both civil and criminal penalties for failing to provide financial support to your child. Japan only recognized child support as a separate type of relief in family law in the late 20th century (multiple decades after World War II), and has never had post-dissolution of marriage alimony after a divorce, although it has had temporary support not clearly distinguished between alimony and child support, during the pendency of divorce proceedings (which tend to be much shorter than in the U.S. and Canada). The primary relief to a spouse upon a divorce in Japan historically was property division and complete allocation of each child to one parent or the other, with no child support or alimony post-decree, until these late 20th century reforms allowing for limited child support payments (which are still rarely actually received even when ordered by a court) were adopted. The analysis in countries where the parents of the child are subject to Islamic rules of family law are beyond my competence, but quite different. Unlike Western jurisdictions, Islam has recognized non-legislative divorce since its inception in the early 600s CE as did prior pagan communities in places where Islam arose. One of the main reasons that child support and alimony were rare or non-existent at the time in almost all countries was that the legal systems and economic systems in existence at the time made intangible monetary obligations to pay child support in regular installments over a long period of time, and to enforce custody arrangements, was effectively impossible for former spouses to enforce in all but a very small fraction of cases. | This person is appointed by the court to look after the child's interests recognizing that the child's interests may be different from those of the parents. As @phoog notes in the comments: the attorney ad litem is not your lawyer. The question suggests that you might not understand this (you mention "our" attorney ad litem). The job of the attorney ad litem is to represent your daughter's interests, which might not align with yours. This is why you need your own lawyer. The attorney ad litem might be skeptical of you and your submissions to the court; that's her job. It doesn't necessarily mean that she is biased against you. If her skepticism is well founded, an attempt to have her replaced may work against you. (FYI, most jurisdictions call this person a "guardian ad litem" or GAL, but Arkansas uses atypical terminology.) Our attorney ad litem appointed for our 2 year old daughter is extremely biased against me. This is not a reason to remove the person appointed. It is their job to distrust parents and provide an independent opinion to the court. There could be grounds for removing a guardian ad litem (e.g. a personal relationship with one of the parties prior to the litigation), but nothing in this question suggests that any relevant facts are present. You would be much better served trying to figure out what causes the guardian ad litem to distrust you and to find a way to show that person that their distrust of you is ill-founded. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | Under the Dutch Civil Code article 1:245, "All minor children are subject to authority". Article 1:247 says that "Parental authority comprises the duty and right of the parent to care for and raise his minor child". This basically means that parents have the right to exercise authority over their children (until age 18). Art. 1:249 says that: A minor child must observe the rights and powers that are granted to his parent or guardian in connection with the exercise of authority and he must take into account the interests of the other members of the family of which he forms a part. There are some exceptions, under Art. 1:246, people who cannot exercise authority over a minor: ...minors, adults who are placed under guardianship and persons whose mental abilities are so disturbed that they are unable to exercise such authority, unless the disturbance is temporary. As for the latter, that is a determination that would have to be made by the court. Death and divorce of parents add complications. There is also subsection 1.14.2.2a, about emancipation of an underage mother, where a mother 16 or older can request emancipation ...to care for and raise her child under the right to exercise authority over it and then The Juvenile Court may award the request only if it thinks this is in the best interests of the mother and her child. If another person was charged with exercising authority over the child, then the emancipation of the underage mother has the result that she as of then shall exercise this authority exclusively. Under §1.14.4, the court can also order custodial control of a minor If the moral or mental developments of a minor or his health are seriously endangered and other measures to avert this danger have failed But such control is given to a Foundation under Art. 1(f) of the Youth Care Act (not an SO). Under Art. 1:266 Provided that this is not contradictory to the interests of the children, the District Court may remove a parent from the right to exercise authority over one or more of his children on the ground that this parent is unfit or unable to comply with his duty to care for and raise his children. Art 1:269 is more specific about grounds for depriving parental authority. Insofar as they have apparently denied your request under §1.14.4, that is about as far as one can go. |
Can you be banned from a public theater for arguing with Supervisor? Movie tickets were purchased for a Halloween movie rated R including an adult ticket for a chaperone. The adult did not stay with high school students. An employee makes it their mission to remove high school students without an adult present. They ask a police officer working at the theater to remove the 16-year-old students and in doing so, he uses physical force to push the student out. Their parent gets a call that the 16 yr old was physically pushed out and gets upset. The parent questions the police officer about assault and was in turn asked to leave the theater. The parent then called the local police to file a report and was told that the parent was banned from the theater. Is that even possible? It is a public place, how does that even work? For questioning a police officer who was working at the theater why force was used? | I’m guessing you have seen a sign in a business that read - “Management reserves the right to refuse service to anyone”. At least in the US, they do not need a reason as long as the reason isn’t unlawful discrimination. They can decide not to serve you. | Fun one! First on the question of whether it matters if the agreement is written, I don't imagine it would make a difference in most of the US. We only require written contracts for agreements that meet certain requirements, those include contracts over a certain dollar amount, contracts involving the sale of land and contracts that cannot be completed within the year. Depending on the facts of your hypo, the writing requirement may be in play, but either way, it doesn't really make the situation more or less interesting; it's not a unique issue to this sort of contract. Second, the baseline assumption is that people can form legally binding contracts. The question is, whether something forbids the sort of contract you have in mind. I can think of a few things: It would be reasonably challenging to define what conduct is forbidden by the agreement. But that is merely a challenge not a road block. You could easily come up with a laundry list of forbidden acts to accomplish your result. Two people cannot contract to force the behavior of a third person, barring special circumstance. But again this isn't important since it's just a matter of drafting. In other words the contract probably would not say Juliet cannot go to the movies with Romeo, rather it would say Romeo cannot go the movies with Juliet. Even drafted in the less ideal way, he operative concept is whether the father could enforce a breach. So, the contract COULD be worded to say "If Juliet attends a movie while Romeo is present, Romeo must pay the father $xx dollars." Most importantly a party cannot form a contract that violates public policy. This is sometimes referred to "legality of objects", as in the object/goal of the contract must be legal. Contracts for prostitution, or the sale of a child (i.e. certain adoption contracts), or illegal products, would likely trip over this category. Here however, I can't readily think of a public policy basis to challenge the contract. Surely (some) states have stated a public policy favoring marriage, but it would likely be a challenge to contend the contract to not date (or not marry) was void because of such a policy. I can't think of any reason that the father couldn't enforce this sort of agreement. Finally, even if the contract was not enforceable, it's highly likely that Romeo could not simply take the money and breach. There are basis to demand return of the money even if no enforceable agreement exists. I am not your lawyer. Seek counsel from a lawyer in your area before taking any action. This answer is provided without research and for purely academic reasons. I have no special knowledge of this area of law. | This is controlled by state law (there is also a federal murder statutes but the federal government doesn't dictate defenses for state law). Here is Washington's. RCW 9A.16.020 says when use of force is lawful, and there are different "public officer" vs. "person" related provisions. Generally, public officers may use force (1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction; but persons (other than those assisting an officer) may only use force (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; Additionally, RCW 9A.16.040 is a long section specifically about officers, the most germane parts of which are that use of deadly force is justifiable (a) When a public officer applies deadly force in obedience to the judgment of a competent court; or (b) When necessarily used by a peace officer meeting the good faith standard of this section to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty; or (c) When necessarily used by a peace officer meeting the good faith standard of this section or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony; RCW 9A.16.050 has more limited circumstances when homicide is justifiable by others (not in self-defense): (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is In other words, the box for police officers is bigger: they can use deadly force to do their job, your plumber cannot. RCW 9A.16.040 is not a general license to kill: the rest of the section details the conditions under which one can consider such use of force to be lawful. The officer must have "probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others". If that is so, "deadly force may also be used if necessary to prevent escape from the officer". Also, as usual, the fact-finders do not make that judgment post hoc, the officer at the scene does and he "shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section". In enacting this law (in case the courts wondered, years later, the legislature declared The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200 [since recodified], 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers There do not appear to be statutory defenses for federal murder statutes, instead this results from common law interpretation, implemented in federal rules of criminal procedure (discussed here w.r.t. defenses) and jury instructions in the various circuits. | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. | It is not obvious that is it illegal in Washington state. Everett WA has local ordinances against "lewd conduct" (there are versions of this at the state level and in most municipalities). Having sex and masturbation are included in the class of "lewd acts", and are also included in "sexual conduct". An activity is "obscene" if three things are true. First, the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest and when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. I think having sex or masturbating could pass these two tests. The third condition is that the act explicitly depicts or describes patently offensive representations or descriptions of... [sex, masturbation, or excretion] The prohibition is more narrow: A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. If lewd conduct were completely illegal, you could not excrete or have sex withing the city limits. Now we have to turn to the definition of "public place": an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window Focusing not on the probable intent but on the words, it is primarily defined as "an area generally visible to public view". Your house qua building is probably generally visible to public view, as is a public toilet or hotel. The inside of your bedroom is probably not generally visible to public view, nor is the inside of a toilet stall. While the building is probably a public place, a closed stall within the building does not meet the definition (nor does a hotel room). It might however qualify under the clause "or under circumstances where such act is likely to be observed by any member of the public". The statute does not give a definition of "observe", but under ordinary language interpretation, observation may be seeing or hearing. Silent sex, masturbation or defecation might not qualify as being public. Obviously, excretion in a stall of a public bathroom cannot be a lewd act, presumably because the average person does not generally consider ordinary excretion as appealing to the prurient interest: but there could be contexts where it does. Another avenue for prosecution is the Indecent Exposure state law which is when one intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. It is totally non-obvious that sex or masturbation in a toilet stall is "open". There is a slippery slope regarding quiet sex or masturbation w.r.t. knowing that the conduct is likely to cause reasonable affront or alarm. Because the contexts where sex and masturbation are not clearly spelled out by statutory law, the matter would depend on how courts had interpreted previous cases. There have been arrests in Washington of people having bathroom sex, but I don't know if anyone has ever or recently-enough been convicted for having quiet sex out of view in a toilet stall, or similar place. There is a potentially applicable case, Seattle v. Johnson, 58 Wn. App. 64, which seems to involve public sex, and the conviction was overturned because the complaint was defective, in not including the element "that the defendant must know 'that such conduct is likely to cause reasonable affront or alarm'". It is not clear from the appeal what the act actually was – it probably was for public nudity. There is also an decision by the state appeal court division 3 (not publicly available) in Spokane v. Ismail which, in connection with a charge of public urination declares that "A toilet stall is not a public place. The center of Riverfront Park during the lunch hour is a public place", in connection with an ordinance just like the Everett one against public lewd acts. | Asking as such is hardly ever illegal. Any stranger can ask you to pick up their kids from school, like you always can tell them where to go. What I guess you are actually asking is whether the PI can require you to do it. No they probably cannot: it would have nothing to do with the matter of your contract or nature of your professional relationship with them. However, if they are in the position of power, they will have discretion in making decisions that will affect you. Whereas you legally can tell them where to get off, it might be good idea to attempt some interpersonal workplace tactics first. | The fire department is entirely within its rights, which are the same as any other property owner. The fact that property is owned by a governmental body does not mean that members of the public can't be excluded that property. Some governmental property is public, but lots of it is private, and this would usually include most parts of fire department property. As long as you have not been denied any access to a public road by this fence, there is nothing improper about it. Anyone can walk through their parking lot, park their car there, meet friends, whatever, This is almost surely inaccurate. The fire department does not have to allow members of the public to have any access to their property and probably would demand that most of the uses you describe stop if they interfered in any way with the performance of its duties. | You don't say who is telling you that you need to do these things, and it does matter. Educational institutions are required to maintain a discrimination-free environment, so if a student makes inappropriate remarks to another student, they have to address the matter (if they ignore it, saying "Boys will be boys", they can get sued). They will have previously spelled out procedures for addressing such accusations, which probably include giving a good talking-to to the guilty party, and maybe some harsher sanction like suspension. The school district might then have in mind a parent-teacher conference, with the underlying threat being to turn the matter over to the police: did the letter come from the school district? A minor can commit a crime, such as assault or threatening: in Oklahoma, this includes Ok. Stat §21-1172, which makes it a crime to send a message that is obscene, lewd, lascivious, filthy, or indecent, and a first violation of the law is a misdemeanor. For an adult, the penalty can be a year in prison and $500 fine, but that is unlikely for a minor. There may be a hearing in Juvenile Court with some disposition, and if the charges are proven then the court has wide latitude in meting out punishment. Did the letter come from the juvenile court system? The Oklahome law regarding children and juveniles is here. When the Office of Juvenile Affairs engages in "the intake process", they are investigating the case to make a recommendation to the DA. "Intake" is defined as a mandatory, preadjudicatory interview of the juvenile and, if available, the parents, legal guardian, or other custodian of the juvenile, which is performed by a duly authorized individual to determine whether a juvenile comes within the purview of the Oklahoma Juvenile Code, whether nonadjudicatory alternatives are available and appropriate, and if the filing of a petition is necessary Since "intake" is juvenile justice jargon, I assume this is a legal proceeding, not a parent-teacher conference. An actual criminal charge might result from the hearing, which is brought about by a referral. Because detention is a real possibility, consulting an attorney is wise. Whether or not it is a good idea to have the attorney present for the proceeding is something only your attorney can say (in his professional judgment). There is really no way to know in advance what they already know. |
Convictions for not doing age verification check for selling alcohol The following questions are about selling alcohol in the United Kingdom. Has anyone ever been convicted by a court for the only reason they did not do an age verification check? What evidence would be accepted in a court to prove that someone looks under 18 years old? | england-and-wales It's not a criminal offence to fail to do an age verification check. It is a criminal offence to sell alcohol to children (people under 18 years old). It is a defence that either the seller took all reasonable steps to establish the buyer's age or nobody could reasonably have suspected from the buyer's appearance that they were under 18. (sale of alcohol to children s146 Licensing Act 2003) It is mandatory (i.e. a requirement of licensing) for all licensed premises and those with a club premises certificate to have an age verification policy (The Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014). At minimum this requires 'the responsible person' (the person selling alcohol) to request identification (with photograph, date of birth, and a holographic mark or an ultraviolet feature) from individuals who appear to be younger than 18 years old. The Home Office has produced guidance including a 'model policy'. | There are a couple of indications that a bouncer may not confiscate an ID. This policy document adopting licensing policies to Require licensees with fake ID violations to temporarily or permanently hire on-site law enforcement or certified security guards who are properly trained to check IDs during regular or peak hours to deter the use of fake IDs and give gatekeepers the opportunity to pass suspected fakes to an officer or guard for a second opinion and potential confiscation. Where appropriate, jurisdictions could empower the gatekeeper to confiscate fake IDs so they are not returned to the underage drinker and sent back into circulation. To ensure compliance with legal issues (e.g., property rights, bailment issues), arrange for the on-call or on-site presence of local law enforcement. Local bar and restaurant associations, especially those in concentrated entertainment zones, can join together to share the expense of law enforcement resources. That implies that the bouncer does not already have that authority, and also indicates that the confiscation should be performed by the police. This bouncer training manual says that Even though you may consider the ID to be fake, it is not considered the server's property. Therefore servers and sellers should not confiscate IDs they suspect to be fake. Rather... follow up with a call to the police to verify suspected false IDs. However, a jurisdiction may grant servers that power, as in the case of Colorado. Washington doesn't do that, so bouncers would need to call the police (not that they always do, since passing a fake ID is somewhere between a misdemeanor and a felony). The general principle is that you may not confiscate another person's property, but the police can seize property if it is reasonable to do so. A state may pass a law authorizing a licensee to do likewise (though it does raise questions about the bouncer's understanding of "reasonable cause to believe"). The Colorado statute is restricted to licensee and their employees, and does not apply to "anyone who suspects an ID", nor does it allow civilian confiscation of other property such as an automobile that is suspected of being stolen. | First of all, the only real answer to "Why doesn't the law require this or that?" is "Because the legislature hasn't passed such a law." In the US, Congress or a state legislature could, if they chose to, pass such a law. I see nothing unconstitutional about it. And, it really isn't that hard to do to confirm whether someone is an adult, (at least in the U.S. and with IDs). Actually, it is quite hard to confirm a person's real age and identity over the internet, if you assume that the person is willing to lie, and has access to a credit card and ID of an adult, which many teens can obtain if they wish. The usual means of validating age, say for entry into a bar, involve physical inspection of an ID, and comparison of it with the person by a trusted checker. Not easy over the net. | So far as I am aware, all jurisdictions provide some kind of defence to the offence of possessing child pornography (or, for that matter, other illegal items like drugs and weapons) for legal purposes. This is necessary at least for police and others involved in the criminal justice system – if not, it would be difficult to seize the material and admit it in evidence if the defendant pleads not guilty. In the United Kingdom, it is a defence to prove that you possessed the material for a ‘legitimate reason,’ which is not defined. Note that this is a legal burden, meaning that the defendant must affirmatively prove the existence of a legitimate reason on the balance of probabilities, rather than merely raising reasonable doubt. See the Crown Prosecution Service’s guidance on Indecent and Prohibited Images of Children, under the ‘Statutory Defences’ section: The defence is made out if the defendant proves that he had a legitimate reason for the conduct in question. This is a legal rather than an evidential burden (R v Collier [2005] 1 Cr. App. R. 9). “Legitimate reason” is not defined in either Act. In Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248 it was held that it is a pure question of fact in each case. In cases where it was maintained that the conduct was part of legitimate research, the central question will be whether the defendant was essentially a person with an unhealthy interest in indecent images acting under the pretence of undertaking research or, on the other hand, was a genuine researcher who had no alternative but to have such unpleasant material in his possession. The judgment continued to say that the courts “are plainly entitled to bring a measure of scepticism to bear upon such an enquiry; they should not too readily accept that the defence is made out.” Relevant statutory provisions The ‘legitimate reason’ defence is set out in s 1(4)(a) of the Protection of Children Act 1978 and s 160(2)(a) of the Criminal Justice Act 1988. The relevant provision depends on which Act the offence was charged under; the CPS guidance has a section on ‘Which Offence Should be Charged’ for more on this. In response to the comment below, s 63 of the Criminal Justice and Immigration Act 2008 creates a separate offence of possession of extreme pornographic images. Like the child pornography offences, there is a ‘legitimate reason’ defence – see s 65(2)(a) of the Act. Commentary is available in the CPS guidance on Possession of Extreme Pornographic Images. | There is no general duty to carry your identity with you when inside the UK, nor to identify yourself to any official. Many UK citizens have no photographic proof of identity at all. (My parents did not for many years, until they obtained fresh passports.) I am confused where you could be stopped by immigration officers. If you appear at a UK Border without your passport, it is a real headache, but immigration can find your record on the computer and will, if you satisfy them you are a UK citizen, eventually admit you. (They have no power to deny entry to a British Citizen, and must be satisfied you are not a British citizen to deny you entry.) For clarity, in respect of some comments, I am not advising that anyone should do this, but I am saying in the worse case scenario if somehow you end up without documents you can still be looked up in the computer, and your identity can be checked at the UK Border without a passport. In general you are not required to identify yourself to a police officer, unless you are arrested. http://www.findlaw.co.uk/law/criminal/your_rights/500109.html If I am stopped and searched, do I have to give my name and address? Although the police will likely ask for your name and address, you are not required to give it unless the police arrest you or are reporting you for an offence. There are a small number of occasions when you may be required (by law) to identify yourself when you are simply going about your private business. If you are driving a vehicle the police may stop you and require you to identify yourself. If you do not have your driving licence, you may produce it at court at a later date; in the mean time the police can check your status by computer. http://www.legislation.gov.uk/ukpga/1988/52/part/VII/crossheading/powers-of-constables-and-other-authorised-persons/enacted?view=plain If you are travelling domestically inside the UK by air, the police can stop you and require photographic identification at or after the security check point under Schedule 7 of the Terrorism Act 2000. (http://www.legislation.gov.uk/ukpga/2000/11/schedule/7?view=plain) However, I travel within Great Britain by air several times a month and usually do not bring anything more than a credit card and a change of clothes, and I have never had any problems. Most airlines will "advise" you to bring photographic ID. If however you do travel between Great Britain and Northern Ireland, immigration staff are often interested in your status then. It is wise to have photographic ID on such a journey. | I'm not sure a case of harassment could be made out (it would depend on the circumstances in which you purportedly did those things or threatened her, except for touching her. Sexual assault The Sexual Offences Act 2003 defines sexual assault as: (1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. To your questions: What is the law on a 16 year-old doing the things listed above with a 14 year-old? Same as the above, except what would happen if it was made out that there was not consent? For sexual assault, it is presumed that if the person is between the ages of 13 and 16, they do not have the capacity to consent. That is - if there is no proof of consent, you are guilty of the offence, if the requisite mens rea - intent - to touch them can be proved. For everything else - it might amount to harassment but that is probably a stretch, I don't see the elements being made out. However, there are certain limits to what people can consent to - you can't consent to someone murdering you in most jurisdictions, for example. ... what would be the best way to go about disproving (in a court scenario) that I did all of these things? You do not have to disprove that you did these acts - it is the job of the prosecution to adduce evidence beyond reasonable doubt that you have done so. You can present evidence that satisfies an evidentiary burden that you did not do these acts, such as not being able to do so (by being in another place), or not intending to do the act. However, you would need to prove that you had consent and believed she was 16 or over to stand a reasonable chance of escaping conviction for the above crime, if prosecuted. As Martin has said - you need to get a lawyer for the right answer here. | Gaining UK citizenship at birth would not count, the law stipulates "after having attained the age of 18 years", so it is explicitly ruled out. (Also, gaining UK citizenship at birth involves no formal declaration.) The scout promise would not count. It doesn't involve swearing allegiance to the Queen, only promising to "do your duty to the Queen"; and an American could argue they have no duty to the Queen. (Also, you might well not have repeated it after 18.) On the face of it, the Oath of Allegiance for the OTC would count - it looks pretty much exactly what the law-makers had in mind. On the other hand, the oath is almost exactly the same as that taken by Members of Parliament, and Boris Johnson took it first in 2001 - but didn't renounce his American citizenship until 2017. (Perhaps it wasn't until 2017 that he finally drew the American authorities attention to the fact he had taken the oath.) | One answer is that you should say "yes", because it is a federal felony (5 years prison term) to say "no", because it is untrue, and you know it is untrue. This assumes that the question simply asks "Have you ever been convicted or arrested; please explain", with no qualifiers like "as an adult". If you are absolutely positive that the record was sealed, an alternative answer is "no", based on a law like RCW 13.50.260(6)(a), which say you can legally "act as if it didn't happen": If the court enters a written order sealing the juvenile court record pursuant to this section, it shall, subject to RCW 13.50.050(13), order sealed the official juvenile court record, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. California has a similar law. The problem here is that this is state law, so a valid defense for a state charge of lying, but you need to comply with federal law, and states cannot tell the FBI what to do. It is variously rumoured that the FBI does not report sealed records, but it is unwise to count on rumours, and even if it is general discretionary policy for them to delete information about sealed records when reported from the state, it is not guaranteed that the policy is absolutely always followed. You can request an Identity History Summary Check from the FBI. So the safest path is to get an informed opinion, tailored to your facts, from your attorney. |
What is a recordable offence and can you refuse to give your DNA and fingerprints to the police? What is the essence of a recordable offence and what happens if you decline consent to give your DNA and fingerprints in the station? What provisions define the notion of a recordable offence? What are the implications of something being a recordable offence versus not being one and what is the purpose of certain offences being deemed recordable ones? | What provisions define the notion of a recordable offence? A Recordable Offence is one that falls within the scope of the National Police Records (Recordable Offences) Regulations 2000 (as amended 2003 to 2016) that: provide for the recording in national police records of convictions, cautions, reprimands, and warnings for the offences specified in the Schedule and for any offence which is punishable with imprisonment in the case of an adult. [note, the schedule is far too long to repoduce here] Or, in other words, one where... ...the police are required to keep a record. Generally speaking, these are crimes for which an individual could be sentenced to a term of imprisonment or they have otherwise been made recordable by statute. The term also includes a number of non-imprisonable offences for example begging and illegal taxi touting. The police are not able to take or retain the biometric information of an individual who is arrested for an offence which is not recordable. [Source: ACRO Criminal Records Office] What are the implications of something being a recordable offence versus not being one and what is the purpose of certain offences being deemed recordable ones? The police can take fingerprints and non-intimate DNA samples (say from plucked head hair or a mouth swab) from someone arrested for a recordable offence without their consent, as per section 61 Police and Criminal Evidence Act 1984 for fingerprints: (3) The fingerprints of a person detained at a police station may be taken without the appropriate consent if— (a) he is detained in consequence of his arrest for a recordable offence; and (b) he has not had his fingerprints taken in the course of the investigation of the offence by the police. And section 63 for DNA samples: (2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied. (2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence. (2C) The second is that— (a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or (b) he has had such a sample taken but it proved insufficient. section 65(1) provides these definitions: [...] "fingerprints”, in relation to any person, means a record (in any form and produced by any method) of the skin pattern and other physical characteristics or features of— (a) any of that person’s fingers; or (b) either of his palms; “intimate sample” means— (a) a sample of blood, semen or any other tissue fluid, urine or pubic hair; (b) a dental impression; (c) a swab taken from any part of a person's genitals (including pubic hair) or from a person's body orifice other than the mouth; [...] “non-intimate sample” means— (a) a sample of hair other than pubic hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part of a person's body other than a part from which a swab taken would be an intimate sample; (d) saliva; (e) a skin impression; [...] What happens if you decline consent to give your DNA and fingerprints in the station? If one is at the station under arrest for a recordable offence, then section 117 allows a constable to use reasonable force if the suspect refuses to co-operate: Where any provision of this Act— (a) confers a power on a constable; 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. | Because you are on their premises and they get to decide what people can or can't do while on their property. This has nothing to do with if recording is legal or not, it has to do with basic property rights and trespass. Let's assume that recording is perfectly legal: so is eating ice cream. However, if its my shop, I can require that you do not make recordings just as I can require that you do not eat ice cream. If I make this requirement known you have three options: you can comply, you can leave or you can stay and do the thing I have prohibited. The first two are legal, the last one isn't; its trespass which is both a tort for which I can sue you and a crime for which you can be arrested and prosecuted. | england-and-wales The length of time a suspect is held in police custody before being released is unrelated to the police's power (and duty) to sieze potential evidence for further examination or to require e.g. the surrender of a passport as a condition of pre-charge bail (along with the requirement not to apply for international travel documents or tickets etc). If the suspect is assessed to be a flight risk, under section 50A(2)(a) Police and Criminal Evidence Act 1984 (PACE) they can retain a passport if they see... the need to secure that the person surrenders to custody The retention of property, such as a phone, is allowed under section 22 PACE: (1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances. (2) Without prejudice to the generality of subsection (1) above— (a) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below— (i) for use as evidence at a trial for an offence; or (ii) for forensic examination or for investigation in connection with an offence; and (b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence. (3) [...] (4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose. [...] | Yes, a person can be charged with the murder of person or persons unknown The reason that police are really keen to identify the victim include (in no particular order): It will probably clear up a missing persons case; So they can inform the next-of-kin; Being able to place a named person who loved and was loved before a jury rather than nameless corpse increases the chance of conviction - all else being equal. | 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. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | Generally, no Police cannot enter private property subject to a number of exemptions: they have a search warrant, or when in close pursuit of someone the police believe has committed, or attempted to commit, a serious crime, or to sort out a disturbance, or if they hear cries for help or of distress, or to enforce an arrest warrant, or if invited in freely by the occupant, or under various statutes which give the police powers of entry (not necessarily by force) into a number of different kinds of premises. | The legal question here is whether police have an enforceable power to enjoin a person from visiting a particular person or from entering a particular jurisdiction (especially the one where they have police powers). The obligation to obey police orders generally ends at matters regarding arrest, traffic orders, or crowd control. Freedom of travel is a fundamental constitutional right, along with freedom of association. That does not mean that you can go absolutely anywhere you want and do anything you want with whoever you want, but it does mean that any restriction have to be encoded in law, and such laws have to pass strict scrutiny. Any enforceable legal restrictions would have to emanate from the courts. |
Legality of copyright material from Z Library I've read in multiple places that distributing copyright material that you do not own is illegal. Therefore, uploading to Z library is considered illegal. However, on the point of downloading material without the intent of distributing, I have seen multiple view points. Some people stating that because the user who downloaded it does not re-distribute it there is no illegal activity or at least it is a gray area, as Z library operates under principle of "information wants to be free". While others stating it is all completely illegal. The two scenarios I'm aiming to clear up, in terms of legality, are: An individual downloads from Z library an eBook that he does not own the copyright to and uses it for personal purposes and does not redistribute or sell it. An individual downloads from Z library an eBook that he does not own the copyright to and uses it for commercial purposes within a company, but does not distribute it outside of the company. Are these plain illegal? Are you able to download and use these books if you do not upload them elsewhere? | Copyright reserves to the copyright owner the exclusive right to reproduce the work (Copyright Act, s. 3; 17 U.S. Code § 106). Downloading a copyrighted work is a reproduction of that work and would be an infringement unless excepted (e.g. you have been given a licence, your download is fair dealing or fair use, etc.). Canada lists downloading as an example of infringment. And the United States says: Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution You say: "uploading to Z library is considered illegal." This implies the content on Z library is generally protected by copyright and not licenced for distribution via Z library, but that is a factual question. | 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. | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | Making a profit does not make the act illegal: it is illegal without there being any profit. The act of copying without permission is what makes the act illegal. Profit might maybe enter into the matter if you are talking about the "fair use" defense, since certain kinds of works can be partially copied for certain purposes. You could quote a few lines from a novel in a review, for instance. The judgment of whether a given act of copying without permission is allowed under fair use is complex and involves a balancing act. Profit becomes relevant in that a non-profit use favors fair use and a for-profit use disfavors it. Wholesale copying of works of art as you describe is illegal (is infringement). However... "illegal" is a pretty broad concept. If you infringe on my intellectual property, you almost certainly will not suffer any consequences unless I sue you. Taking "illegal" to mean "in violation of the law", infringing copyright is illegal because it violates the law, but I have to make a federal case out of your infringement – I have to sue you. As it happens, it can also be a crime to infringe copyright, and in that case, the government and not the copyright holder pursues the matter. If a person knowingly infringes copyright, he might be prosecuted, thus the Megaupload case which in the US is realized in the indictment US v. Dotcom. Moreover, profit motive is a required element for criminal infringement. (Also note that you don't have to actually make a profit for the profit element to be present). You cannot sue a person unless they have harmed you, so if you know that Smith copied Jones' work you can't sue Smith for harming Jones. (This is what they call "standing"). You might sue Smith, but not for infringement itself. If they sold you an illegal infringing copy, then you could sue. Or, their infringement could diminish the value of your legal copy. This website gives a multi-nation overview of criminal copyright infringement laws. | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). | It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say "these things are illegal". For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law. | There are three questions relevant to this issue: Who owned the copyright in the first place? Was the copyright transferred? If not, was a license given to the site to use the content? In general, under most countries' laws, the person who creates an original work owns the copyright. The person with the copyright has the right to copy and distribute the work, and the right to prevent others from doing so. In some cases, such as where a work is created as a "work for hire" by certain employees under certain circumstances, the initial copyright is held by a third party. You will need a lawyer familiar with your jurisdiction and your circumstances to determine if this is the case. Finally, even if you own the copyright, you can license others to use your content. This may be in an express written document, or it may be an implied license--implied, for instance, by the act of posting it on their blog. The existence and scope of such a license is, again, something that will have to be determined based on your country's specific laws and your specific situation. The bottom line is: if you submitted articles to that blog, you can't complain that they posted them. Depending on the license in effect, you might be able to get them taken down, or you might not. You need a lawyer, not the internet, to tell you what your rights are in this very specific case. | It doesn't work like that! If the code is not properly licensed, you can not acquire a license for it. If you don't have a license, you can not use it. Usage without a license is copyright infringement and not allowed: the copyright is with the author, and only the author may make derivates or copies or allow them to be made by licensing it. You do not gain copyright by fixing a licensing error - in fact, you commit copyright infringement if you do not have a license, and providing wrong copyright management information is illegal under 17 USC 1202 |
When does a judge decide to address issues outside the scope of a specific case? In a 2012 case, Associate Chief Justice of the Court of Queen’s Bench (now King's Bench) of Alberta, J.D. Rooke, wrote a decision which ran to 176 pages and contained what was essentially a thesis on Sovereign Citizens and similar persons who use pseudo-legal arguments to attempt to achieve their ends in court. The case of Meads v Meads has become fairly famous and somewhat influential, which seems to have been what the judge was hoping for. However, on what basis did the judge decide to stray beyond the matter immediately before him (a divorce dispute)? The Meads decision categorised several different (albeit related) types of vexatious litigant. Surely Meads himself was just one type, so the others were not relevant in the immediate context of the case. In terms of court procedure, it seems to me that J.D. Rooke probably should have written a much shorter decision, relevant only to the facts immediately before him, and published the rest as an article in a law journal. Is there any reasonable constraint on how much a judge can or should write in a decision? How common is it for judges to sneak essays into their rulings? Given that this was a civil case between two private citizens, using the opportunity to address the nation, as it were, seems out of place. | These decisions are inherently individual. The judge in this case explained the reasons why he thought it would be helpful to set out the full context of organized pseudo-legal commercial arguments. Meads v. Meads, 2012 ABQB 571: [2] Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid. What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. [3] ... One of the purposes of these Reasons is, through this litigant, to uncover, expose, collate, and publish the tactics employed by the OPCA community, as a part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada. I will respond on a point-by-point basis to the broad spectrum of OPCA schemes, concepts, and arguments advanced in this action by Mr. Meads. [5] The Meads case illustrates many characteristic features of OPCA materials, in court conduct, and litigation strategies. These Reasons will, therefore, explain my June 8, 2012 decision and provide analysis and reasoning that is available for reference and application to other similar proceedings. [6] Naturally, my conclusions are important for these parties. However, they also are intended to assist others, who have been taken in/duped by gurus, to realize that these practices are entirely ineffective; to empower opposing parties and their counsel to take action; and as a warning to gurus that the Court will not tolerate their misconduct. One of the roles of a judge in the common-law legal system is to guide the development of the law. By describing this collection of vexatious tactics, the judge was hoping to allow future courts to simplify court responses to these tactics in future cases. While the reasons in Meads were written prior to the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7, it is consistent with the Supreme Court's direction to create an environment that promotes timely access to justice. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. By helping other judges efficiently understand and dispose of pseudo-legal commercial arguments, the reasons in Meads further the goals of access to justice. This implication was recongized in Jarvis v. Morlog, 2016 ONSC 4476: In my view, precious judicial time should be spent on resolving real matters. Simply taking judicial time to respond seriously to OPCA claims gives the claimants a measure of success in advancing their improper purposes. Associate Chief Justice Rooke spent more than enough of his very valuable time creating a textbook of abusive OPCA practices in Meads v. Meads. In my view, not another moment of judicial resources or party expense should be invested on OPCA claims. The legacy of Meads is examined by Donald J. Netolitzky, "After the Hammer: Six Years of Meads v. Meads" (2019). He argues that the judge was successful in this goal. He also agrees with you that this decision is "exceptional": in the breadth of its investigation and its choice of audience (at times speaking "directly to those who use and promote OPCA concepts"). He notes that Meads has been accepted in subsequent jurisprudence as a "critical resource" in Canada and around the world. While one might expect that the material in Meads would have been the more appropriate role of an academic article, Netolitzky observes that "[i]n Canada, legal academia has paid essentially no attention to pseudolaw, both before and after Meads." Perhaps had there been a helpful body of academic literature, Meads would have been unnecessary. Netolitzky argues that the reasons in Meads reflected "trial court expertise." These matters tend not to end up in courts of appeal. He also agrees with your analogy to an academic article, calling this a "review judgment" (like a "review article"). He says that Meads "atypical content" was needed to "fill a gap in legal literature" and that it was sufficiently connected with the materials and arguments put forward in the case. "Without that context, Meads is a bizarre, inexplicable actor, a caricature of vexatious litigation." | Judges and justices can file lawsuits like anyone else, but ordinarily the judges who are colleagues of the judge or justice would recuse themselves and it would be assigned to another venue at trial (in the case of a trial court judge), and on appeal would be assigned to judges who don't have a personal relationship with the judge (possibly sitting by assignment from another appellate jurisdiction or by senior judges who weren't on the bench when this judge was on the bench). A U.S. Supreme Court justice's suit would not be considered recusal worth by an unfamiliar lower court judge who is only theoretically in the jurisdiction of the justice and no suit by a U.S. Supreme Court justice has ever been deemed cert worthy. If it did reach the U.S. Supreme Court, the Justice would be expected to, but not required in any enforceable way, to recuse from hearing the case. | There isn't to the best of my knowledge, any single document that tells courts to follow precedant or when and how to do so. Each State, and the Federal government, has a set of court rules of procedure. These will indicate, among many other things, the form that should be used in citing previous cases, but that is about form, not content -- about how to cite a case, not about when a court should or should not cite one. Some precedents are what are called persuasive. These are from other court systems: say a different state, or even another country. These also include rulings from other courts at the same level, say from a different district, or even from lower courts. Other precedents are binding. These are from a superior court to the one where the case is cited. In a state's lower court, rulings of that state's supream court are binding. In Federal district courts, rulings of the Court of Appeals for the same Circuit, and of the US Supreme Court are binding. In Federal appeals courts, rulings of the US Supreme Court are binding. They are also binding in state courts on matters where the US constitution is involved, or where Federal law supersedes state law. Prior rulings of the same court are strongly persuasive, but not strictly binding -- a court can overrule its own precedents when it thinks the law or justice requires this, although most courts are reluctant to do so. Or more often it can distinguish a previous ruling, saying, in effect: "that previous ruling is still valid, but this is a different case in such and such a specific way, so the result is different". Students in law school spend a good deal of time learning how precedents are cited, and how they should be used, learning what sorts of things are controlled by precedents, and how to find the precedents that apply to a particular case. When they become lawyers and then judges, they taken this body of learning with them, and use it in writing decisions, and opinions that explain those decisions. New law from the legislature can reverse previous court decisions, except in the case of decisions interpreting the constitution (federal or state). Amendments can change the constitution. Judges must adapt to such changes in the law. To a significant extent our system of precedent is a matter of tradition, going back largely to the common-law courts of England, although it has been modified by specific legislation in many ways, as well as by more recent court decision and practice. It is passed on in law schools, in legal apprenticeships of various kinds, and in individual court decisions. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. | NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory. | The custom is that the person who brings the case is named first. This will be the plaintiff in a civil case. But when the plaintiff wins, and the defendant appeals, the case in the appeals court may have that person (often referred to in older cases as the "defendant appellant") named first. More recent practice is to keep the name of the case the same. But it used to be considered a separate case with a separate name in some jurisdictions. In any event, this is merely a custom, and not a law. The court has discretion to name cases as it chooses in its judgements, and if a court chooses for whatever reason to follows a practice that differs from the usual one, that is the name of that particular case. Without a full citation or a link, so that the actual opinion could be consulted, three is no way to know what reason, if any, there was for the order of parties in the particular case mentioned in the question. A quick Google search did not turn up the case. | Yes It's not uncommon. In fact I am aware of at least one case where the trial judge referred it to appeal before he made his decision on the basis that whichever way he decided the law was so unsettled that grounds for appeal would occur. In that case the court of appeal called up the trial judge to sit on the 3 judge appeal a) because he knew the case and b) because you don't get to not make a decision because it's hard sonny-jim. |
What happens to you if you use code from StackOverflow but it turns out to be copyright protected? Code posted on StackOverflow is under a CC license but if someone were to post proprietary, copyrighted code that you use in your own project unknowingly, could the copyright holder come after you with a cease-and-desist order? What would be your options at that point? | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | I don't see how. Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.) In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.) Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy. A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate: The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym. There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in? On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants. Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations. | You may have issues if you take their content wholesale. Even if they freely distribute them, they still retain copyright. As such, they absolutely can claim copyright. Whether they will or not is another question. Your best bet around this is Fair Use doctrine. You can take a part of their work (e.g: a single question) and do your video based on how you work out your answer, with your video mainly focusing on the 'working out' part (thus satisfying the 'educational purposes' part) | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | If you develop a program yourself and it wasn't a work made for hire, then the program is yours to do with as you please. You hold the copyright to it. Many developers choose existing licencing arrangements or they can choose to create a license on their own, or using an attorney. And sometimes they choose to release their programs into the public domain. If you release it into the public domain, you are essentially giving up your copyright. The IDE (Integrated Development Environment) you used to develop your program does not dictate what licenses you can use. There are some existing licenses that others use (which you are free to use or NOT to use) give varying protections to you regarding what you are allowing others to do; right of others to copy, right of others to modify, right of others to distribute, rights to sub-licence, and so on. One of the licensing schemes is the GNU General Public License (GPL). But there are many others, too many to list here. | If it is open source code, then usually the requirement is that you produce the source code for the software that you release. Exactly for the software that you release. For example if you took open source software X, and added feature Y, and distributed the combined software outside your company, anyone can request the source code for X including Y. Handing them the source code for X only wouldn't meet the open source requirements. Now all this is not illegal, but it means the copyright holder of X could sue you for copyright infringement. They will do that if they have enough reasons to do so. So let's say you are continuously developing your software and occasional hand out your compiled software. Say you built versions 100, 101, 102, 103, 104 of the software, you gave versions 100 and 103 to customers, and anyone asking for the source code is given the source code for the latest, slightly improved version 104. The copyright holder of X might sue you but: 1. They wouldn't know you are doing this. 2. A judge might side with you and decide that newer, improved source code is good enough (I don't know this, but it seems not unreasonable). 3. The copyright holder might decide that they don't want to sue you for this because you are close enough to meeting the requirements. | It seems that you don’t understand what parody is. If you do understand, please explain how it’s even possible to parody computer code. What you can do with “open source” code depends on the licence the copyright holder(s) release it under. For some very permissive licences you can do what you suggest, for most, you can’t. |
Copying HTML: copyright violation? (I'm reposting this from workplace S.E. where I was advised to ask here; apologies in advance for any inconvenience) tl;dr: in the USA, is copying the HTML code from a site (any site whose code is presumably copyrighted) and storing it, for a limited or unlimited amount of time a violation of copyright? Are there prior lawsuits related to this? I'm mostly interested in the particular case where the copy is not reproduced, but kept private. I've recently learned that this is indeed the case. This came as a huge surprise to me since: [First of all] most browsers retain a copy of the HTML (for the period of the visit or much longer, if caching is enabled) Proxy servers often keep cached copies of these files Web archives (like Google's) not only copy all assets of a site it find to keep historical versions of these pages but also make available to the general public these historical copies. Programs that scrape external sites often have in their repositories copies of (likely copyrighted) HTML for testing purposes Number (4) is the one that directly affects the company I work for, since we do web analysis and therefore write programs that visit other sites. For example, we make extensive use of vcrpy library to record external accesses and test our code against these "frozen" HTMLs. Also, specifically in our case, we don't really copy the entirety of any site, since we are only concerned with a subset of its pages, but from what I've been informed, that doesn't seem to qualify as "fair use", such as quoting a passage of a book (where, in a sense, the book would be analogous to the entire site with all its public assets). We don't even copy assets like CSS files or images, so we can't reproduce the actual content in full. After I was told that such copies are likely unlawful, we are not only being limited to explore more robust testing methodologies (which would likely make use of a large amount of HTML copied from the web in a local storage) but the current use of vcrpy library has become something that demanded analysis (as it's not clear if our use of it is unlawful). | You are clearly seeking legal advice. Answers on this site come from anonymous people on the internet and are not legal advice. You should not act based on information from this site. I am unaware of any lawsuit where one would be sued for merely storing and reading HTML for personal use. Downloading a webpage is probably not a copyright violation. Most things you create, including HTML source code, are protected by copyright and copyright includes the exclusive right to choose who can read what you created. I couldn't find any actual reference to this but I would hazard a guess that displaying an HTML webpage online is implicitly allowing others to read that code. I believe this guess is correct because all modern web browsers have the capability to view source that nobody considers illegal and browsers also include the capability to save webpages to disk. These browsers are made by companies with large legal departments, I doubt Internet Explorer would include this function if using it was a copyright violation. Here begins speculation: However, your expanded question says that not only you wish to read the HTML code but you also wish to process it, extract information from it and use what you learn this way. This could, I think, be prevented by the copyright holder. Still, what you are describing is commonly done in the world. Services such as Google, Bing or the Wayback Machine go far beyond what you are doing. In theory, I can see this as being a copyright violation but again, the fact that these big companies - without any kind of contract with the website owners - keep doing it is big evidence in favor of legality of storing webpages. You should be careful about how you use the stored data, though. For example, computer programs often have a stipulation in EULA that prevents you from reverse engineering the code. I could see that the use of some websites could be protected in such manner. Further (not authoritative) internet pages on this topic: https://stackoverflow.com/q/22819287/1580088 https://answers.yahoo.com/question/index?qid=20120621055815AAvJPvN | 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. | Quoting content may or may not constitute copyright infringement, depending on the various factors that go into the fair use defense. Short quotes which are made for the purpose of discussion, research and commentary and not for copy would be squarely in the domain of "fair use" under US law. That means that the copyright owner would not succeed in suing you for quoting them: under the statutory mechanism for recognizing his right to his intellectual product, there is a limit on how much control he can exert over your behavior (since the two of you have not worked out some kind of agreement -- copyright law creates rights even when there is no contract). As for Facebook, you have a contract with them, embodied in the terms of service. You have been given permission to access material that they host (permission is required, under copyright law), and their permission is conditional. It says "you may access stuff on our platform only as long as you do X": if that includes a clause "don't be nasty", then that limits your right to speak freely and be as nasty as you'd like. If it says "don't quote even a little", that means you cannot quote even a little, even when you would have the statutory right to quote a little (or, to be nasty). Fair use would mean that you can't be sued for copyright infringement of the stuff that you quoted a little of. You can, however, be expelled from Facebook. You probably cannot be sued for "accessing Facebook without permission". There is a federal law against unauthorized access of computer networks, and there was a failed attempt to construe violation of a TOS as "unauthorized access" – it isn't. But accessing Facebook necessarily involves copying (that's how computers work), and there is no "fair use" defense whereby everybody has a fair use right to access Facebook. Theoretically you could be sued for copyright infringement, for accessing Facebook's intellectual property without permission. Also, Facebook can rescind your permission to access their content (see this case), and once you have been banned, it is a crime to further access their network. This assumes that there is no overriding limit on contracts that would nullify a no-quoting condition. There is no such limit on contracts in the US, so such a contract would be enforceable. There is also nothing illegal (unenforceable) about a TOS which prohibits automated methods of access. | If you change a single character, that's clearly a partial copy. Copyright protection has a limited extent, however. The protected work must be original and not obvious. For example, there are only so many ways to write a function that computes the average of two numbers, so the copyright owner of one body of code cannot claim infringement by the author of a second body of code simply because they both have a function float Average(float a, float b) { return (a + b) / 2; } A surefire way to avoid infringing copyright is to specify the function of the code and then have someone who has never seen the code write it from scratch. This is sometimes called clean-room engineering. Otherwise, there is no way to answer your question definitively. If you create a modified copy of the code (a "derived work" in copyright terminology), there is no strict formula available to evaluate the extent of the infringement. It comes down to a case-specific analysis of the facts by a judge. Depending on the jurisdiction, which you have not specified, there may be specific laws or judicial precedent that guide the judge, but the determination will still require a specific analysis of the facts. For example, if the alleged infringer raises these arguments, the judge would have to determine how obvious the code is, or whether the copyright claimant even owns the copyright to the code. | Evaluating a potential copyright violation is very fact-intensive, so we don't have enough information to answer the question. Making a copy is generally going to be a copyright violation, but there's still going to be a lot of breathing room under the fair use doctrine. Again, we'd need more details to provide a useful answer, but you may be able to analyze the question yourself using the following information. Analysis of fair-use defenses looks at four questions, and the answers to the questions can tip the scales in favor of or against a finding of fair use: Does your kind of copying affect the market for the original? To what extent can your copy fulfill the demand for the original? What if there were widespread copying of the kind you're considering? The more potential there is for the copies to replace the original, the less likely it is to be fair use. This is the most important factor in the analysis. Why did you make the copy? If you made the copy for purposes of news reporting, criticism, or commentary, it's more likely to be fair use. If you made a copy just so you could watch again later whenever you feel like it, that's may still be fair use, but it is somewhat less likely. If you made a copy so you could sell it for profit, that's almost certainly not fair use. How much did you copy? Did you copy the whole thing, or did you copy only as much as you needed to achieve your purpose under Question 2? If you copy "too much" -- both in the raw amount and as a fraction of the whole work -- it's less likely to be fair use. What did you copy? Such works can be copyrighted but are not part of the Highly creative works, such as poems, music, and movies, are at the "core" of copyright principles. A fair use analysis will be more stringent in these cases than when copying a purely factual work, such as a phone book, biography, or list of statistics. This is the least important factor in the analysis. So take all of those and imagine the answer to each on a spectrum. If you see things generally tipping in the direction of fair use, that's a good indication that you're going to be safe. If you see things tipping in the other direction, you may want to reconsider. Again, these can be notoriously tricky questions. If you're dealing with a real situation, you should consult an attorney to get an answer specific to your situation. | 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. | 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. | 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. |
In the US, what can't you do as a law student if you haven't passed the bar or finished your law degree? What can law students (or a lay person) not do, if they haven't passed the state bar/bar exam or finished a law degree? Is the bar exam like a certification program in engineering? Or is there more to it? | Passing the bar exam allows one to get a license to practice law. It is to some extent like a certification exam. It is in all US states a crime to practice law without a license. Exactly how "practice law" is defined varies a bit, but holding yourself out as a lawyer, opening a law office, or taking money for representing people in court is petty much always included. Other related things are often included also. Even if one has passed law school and thus earned a law degree, it is a crime to practice law without a license, and one cannot obtain a license without passing the bar exam. In some states it is possible, but hard, to pass the bar without a law degree, in some a degree is required. so the main thing a law student cannot (legally) do that one who has passed the bar exam can is practice law. Legal Sources I found this definition of the practice of law on an official Maryland web page: The “practice of law” is defined in the Maryland Code as follows: (1) “Practice law” means to engage in any of the following activities: (1) (i) giving legal advice; (1) (ii) representing another person before a unit of the state > (1) > > > (1) (iii) performing any other service that the Court of Appeals defines as practicing law. (2) “Practice law” includes: (2) (i) advising in the administration of probate of estates of decedents in an orphans court of the state; (2) (ii) preparing an instrument that affects title to real estate; (2) (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (2) (iv) giving advice about a case that is or may be filed in a court Md. Code Ann. Bus. Occ. & Prof. § 10-101(h). The Court of Appeals has interpreted the practice of law to include “utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 (1989). In addition, meeting with potential clients may constitute the practice of law. Id. at 666. The practice of law is “ ‘a term of art connoting much more than merely working with legally related matters.’” Attorney Grievance Commission v. Shaw, 354 Md. 636, 649 (1999) (citations omitted). “ ‘Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.” Id. Therefore, the Court of Appeals ruled that a bar applicant who had served as a hearing examiner for the Maryland Department of Employment & Training was not engaged in the practice of law, and therefore not eligible to take the attorney’s examination. In re Application of Mark W., 303 Md. 1, 4-6 (1985). “The hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.” In re Application of R.G.S., 312 Md. 626, 632 (1988). Also relevant is RULE 19-305.5. UNAUTHORIZED PRACTICE OF LAW; Law Students Under Supervision Some comment mentioned assistance in pro bono work by law students. I found Maryland Rule of Professional Conduct 19-220 - Legal Assistance by Law Students which provides in pertinant part, omitting the definitions of terms: (b) Eligibility. A law student enrolled in a clinical program or externship is eligible to engage in the practice of law as provided in this Rule if the student: (b) (1) is enrolled in a law school; (b) (2) has read and is familiar with the Maryland Attorneys' Rules of Professional Conduct and the relevant Maryland Rules of Procedure; and (b) (3) has been certified in accordance with section (c) of this Rule. (c) ... The certification shall state that the student is in good academic standing and has successfully completed legal studies in the law school amounting to the equivalent of at least one-third of the total credit hours required to complete the law school program. ... (d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Court of Special Appeals, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship. This page about the Univeristy of Maryland School of Law's public Servie program describes the program as: "one of the region’s largest public interest law firms" and states: Working alongside faculty, students provide 75,000 hours of free legal service annually to Maryland citizens in need[.] This is obviously a widely recognized and approved activity. | Doing nothing is legally safer than doing something, but you're not without hope if you pull the lever. Although you'll likely have committed murder or at least manslaughter, case law is littered with lenience in exigent circumstances, even where convictions have been affirmed. Because this is a philosophical problem, there are plenty of opinions from that perspective, but not so many from a legal standpoint. Let's assume that you're an innocent bystander, (not an employee of the railway company or the train company, etc) and have no duty to act. If you do nothing, then it is unlikely that you would be charged with a crime - you had no duty to fulfill, and therefore not negligent. There's little doubt that not pulling the lever is the safer option. More interesting is when you choose to pull the lever - then it's probable that you would have charges of murder, or at least manslaughter, brought against you by the state. What defenses does the law offer? Let's assume that you are aware that pulling the lever will kill a person. The primary defence is a legal principle of necessity: where your criminal actions are not protected or excluded by some other statute or principle, the fact that you were obliged to take this action in order to prevent some greater harm may safeguard you from penalties. There are certain elements of necessity: That you did not create the danger that caused you to commit the crime; That you ceased the criminal activity as soon as practicably possible; That you had no reasonable alternative; and The harm that you prevented was greater than the harm that you caused. I see such a defense only possibly falling over on (4), where the prevented and caused harm, in the case of human lives, are inherently very subjective. Unfortunately, each state has different rulings regarding the threshold for evidence of this defense. One of the most famous cases where necessity was attempted as a defense to murder, with remarkable parallels to this hypothetical, is that of R v Dudley and Stephens: A crew of four found themselves on a lifeboat at sea with no food and no water, and with no prospect of rescue. One of them was a child (Parker) and was nearing death and unconscious. Two of them (Dudley and Stephens), after some discussion over drawing lots, decided that the child would be killed before his natural death, in order that his blood be better preserved for drinking. The last crew member, Brooks, was silent on the matter. After killing Parker, Dudley, Stephens and Brooks fed on Parker's body. During the trial, the matter of necessity as a defense to murder was considered. The judges found that there was no common law defence of necessity to murder, and Dudley and Stephens were sentenced to death with a recommendation for mercy. The Home Secretary commuted their sentences to six months' imprisonment. This case concerns essentially the choice you're making in the trolley problem: either the four crew members were going to die, or one of them would definitely die and the others might live. It's easy to say that they should have just waited, but they didn't have the benefit of hindsight. It's also a great example of a situation where although the law says one thing, it doesn't align with our morals and ethics, and while it's a UK case, I would wager that almost every lawyer in common law countries would have heard about it. | Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word. | Is there a bright line / contours as to what constitutes practicing law? For the most part, no. There are some activities that clearly constitute the practice of law almost everywhere (e.g. representing someone in a court proceeding), and there are some activities that clearly do not constitute the practice of law almost anywhere (e.g. preparing your own tax return based upon your interpretation of the tax laws). There are many activities that are in gray areas and the definition varies from state to state. For example, analyzing deeds to determine who is in title to real estate on a commercial basis is considered the practice of law in New York State, but not in Colorado. What are the elements ('litmus tests') to recognize practicing law As applicable to the example in the question (there are an infinite number of possible situations so a full treatment is too broad), evaluating the law for purposes of guiding your own actions is generally not considered the practice of law. An individual can represent themselves in any court proceeding to which they are a party (although usually they can't represent entities that they own) without practicing law. Similarly, the Community Association Manager has to make one decision or another, and the law (outside of court proceedings) rarely requires that one hire a lawyer simply to make a decision that you are required to make in the course of your job. Consulting a lawyer increases the odds that the CAM will make the right decision, but interpreting the law as it applies to what you personally are required to do in carrying out your job responsibilities will very rarely constitute the practice of law. On the other hand, if someone who was a former Community Association Manager held himself out as a "consultant" for current Community Association Managers, and in the course of that consultant work told Community Association Managers what the law required them to do, this would very likely be the practice of law, because it applies legal knowledge to particular facts for someone other than yourself. The term "attorney" in its broadest definition means someone who takes action on behalf of another, and if someone is doing something on behalf of another, and it involves legal knowledge or a legal dispute, usually this will be found to constitute the practice of law. | 1. You need to read and utilize law textbooks, the MOST UPDATED editione. Try to access a library of a university that has a law faculty. Failing that, try a local library — but local libraries may not stock (pricey) law textbooks, or their most updated edns. I scanned Jonathan Herring, Criminal Law Text Cases Materials (2020 9 edn), beneath for you. But the NEWEST edn is 2022, 10 edn, as at May 23 2022. Herring updates his book every 2 years. Two other leading textbooks are Smith, Hogan, and Ormerod's Criminal Law (2021 16 edn), and Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law (2020 13 edn). 2. Look up the Act of Parliament in the Table of Legislation. See scan beneath. 3. Finally, you shall find the cases expatiated in the body, and cited in the footnotes! See scan beneath. | With this in mind, would a non-lawyer practicing law for oneself (acting pro se) be able to have a paralegal prepare legal documents so long as the aforementioned non-lawyer oversees the work and accepts responsibility for it? No. Critically, many things that paralegals (who are not themselves members of a licensed profession) are allowed to do under the supervision of an attorney, are not things that they are permitted to do independently. In the case of the question, the paralegal is engaged in the unauthorized practice of law if doing anything more than taking dictation and formatting documents (case law often refers to merely taking dictation as "acting as a scrivener", which is not the practice of law). Unauthorized practice of law is a question of state law and varies somewhat, but the outcome in this particular fact pattern would be pretty consistent. For example, the Colorado Attorney Supreme Court has an FAQ that states: The Colorado Supreme Court has defined the “practice of law” as “act[ing] in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting [another] in connection with these rights and duties.”1 The Court’s words make clear that providing legal advice to another person constitutes the practice of law, as does the selection and drafting of legal documents for use by another person.2 A nonlawyer’s exercise of legal discretion on behalf of another’s legal interest is prohibited because of potential harm to the public.3 Thus, a non-lawyer generally cannot: Provide legal advice to another person; Select legal documents on behalf of another person; Draft legal documents on behalf of another person; Interpret the law as it may apply to another person’s situation; Represent another person in any legal transaction or matter; Prepare another person’s case for trial. 1 People v. Shell, 148 P.3d 162, 167 (Colo. 2006); Denver Bar Ass'n v. Pub. Util. Comm'n, 391 P.2d 467, 471 (Colo. 1964). 2 See C.R.C.P. 202.2(2); See also Shell, 148 P.3d at 167; Denver Bar Ass'n, 391 P.2d at 471 (holding that "there is no wholly satisfactory definition as to what constitutes the practice of law; it is not easy to give an all-inclusive definition....). 3 People v. Adams, 243 P.3d 256, 265 (Colo. 2010) (citing Perkins v. CTX Mortgage Co., 969 P.2d 93, 102 (Wash. 1999)). See also, e.g., Baron v. Karmin Paralegal Services, __ N.J. Super. __ (2019). The Appellate Division in Karmin found that Karmin prepared legal documents for plaintiff, which is clearly the practice of law. Id. at 13–14 (citing Cape May Cty. Bar Ass’n v. Ludlum, 45 N.J. 121, 124 (1965)). | Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law. This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions. | 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. |
Can a victim of theft retroactively give the stolen item to the thief? If Joe steals Alice's widget, but Alice for some reason doesn't want Joe to be convicted and is okay with him having her widget, can she retroactively give him permission? Does this prevent him from being prosecuted? | Yes, but that doesn't make the theft not theft At the time of the crime, Joe committed theft. The state can prosecute Joe for that theft. Alice's subsequent gift does not change this although it would prevent her from suing for recovery. As a practical matter, if Alice was willing to lie and say that the gift preceded the theft or she had given permission for the item to be taken, this would almost surely create reasonable doubt in any prosecution. However, on a pure "these are the facts" basis, the theft is a theft. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | Yes, it's illegal new-south-wales s118 of the Crimes Act says: Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. QED | There's a good answer in this thread by Trap_Door_Spiders Assuming the car was really stolen, not "stolen" in the sense my friend borrowed it and never gave it back, you could absolutely recover the car. The reason you could, is because you can't steal your own property. Theft is very specifically the taking of ANOTHER's property. Here the property and the title to it has remained with you, because it was stolen. A thief never gets title in stolen property--it's called a void title. A void title is no rights at all as compared to a voidable title which has no rights against the true owner, unless you are subsequent transferee for value without notice (Bona Fide Purchaser). Now we can even take this slightly further. Imagine our thief stole your car and now sold it to Hapless John and all the remaining facts are the same, can you still take the car? Yes, because title in property tracks from the seller of the property. You can only over transfer as good a title as you have in the property. So thief has a void title. When he sold Hapless John the car he transferred a void title, which is no interest at all. So when you see the car and take it back, Hapless John calls the police and reports it stolen too. As long as you could demonstrate it was stolen first, that's the end of the issue. Hapless John has to go find the thief and get his money from thief. Now obviously this all assumes you see the car on say a street or whatever. If you saw it saw it in a driveway, you could end up being charged with trespass unless your state privileges the recovery of stolen property by peaceable means. You still wouldn't be liable for theft, because of the void title, but you can get the other charges. All that said, you are better off having the police come and assist you. If you are even slightly wrong you get hit with the full force of the consequences. It's better just to have a police officer come and assist from a criminal liability stand point. | Do criminals really "have no recourse" if their ill-gotten property is stolen by a third party? Basically yes. At sentencing, they can argue that restitution or fines should be limited because the money was in turn stolen from them and they don't have it. For example, I once had a client who was the sole heir to the estate of someone who had a substantial amount of illegal drugs in their possession at the time of the decedent's death (worth perhaps $100,000 USD), but the illegal drugs were stolen after the death of the decedent by someone known to my client. There was no legal way for my client to gain possession that stolen property or its worth. | This is related to Can a store sell merchandise I've left in the store? The phone in question has been mislaid and anyone who finds it has a duty to deliver it to the owner of the bench for safekeeping pending the true owner's return: if the owner does not return within a reasonable time the phone becomes the property of the bench owner (e.g. the city that owns the park). However, the specific question here is: Where the owner has returned within a reasonable time but the possessor of the phone is now clearly attempting to steal it. Most jurisdictions recognise that a person is entitled to use reasonable force to defend their life or property. For example, the law in Australia1, is generally case law for which the authority is the High Court's decision in Zecevic v DPP (1987) 162 CLR 645: The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide. So, you are entitled to do "what you believe upon reasonable grounds that it was necessary to do" to defend your property. This would include using physical force to stop their flight and return your property to your possession: it would not include force that posed real and foreseeable risk of inflicting death or grievous bodily harm upon them. In addition, because you have reasonable grounds to believe that they have committed a crime, you are allowed to arrest them and deliver them to lawful custody (i.e. a police officer). Naturally, if you do not have reasonable grounds them you have just kidnapped them. The consequences if you do injure them is that you can be charged with a crime (battery, grievous bodily harm, manslaughter, murder etc.) and/or be sued for damages (medical bills, lost wages etc.) in both cases you could use self-defence as a defence. The difference between self-defence and vigilante justice is one is legal and the other isn't | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. |
Are commercially published British fashion plates from early 1800s in Britain in public domain in USA? I'm designing a deck of card that will incorporate many British fashion plates from roughly 1790 to 1825. The magazines in which they were published have gone out of business long ago. I am working with digital reproductions that I find online. They seem to be plain reproductions, unaltered in any way. I can find U.S. copyright law, but nothing about using antique mass-market images created in Britain. Nor any information about U.S.-British mutual copyright agreements that focus on commercial images. Thank you. | Copyright always is global When you make a new work, you gain copyright everywhere the Berne convention on copyright was signed, to the degree that country provides. That's in all but about 10 countries, among them Iran, Kongo and Somalia. Now, the runtime of copyright is determined by two things: either the death of the author, in case it is with a natural person, or the publication of the company. Public Domain? The plates Your plates are well over 120 years old and were most likely company-made. As a result, we have to look back... So let's see... oh, actually it's easy: they were published before 1927. That means they are automatically public domain. Even if they were unpublished, and without known author, they're out of copyright: they were created before 1902, so they are automatically in Public Domain. Photographies of Plates? A photograph of the plates creates its own copyright, akin to a translation of a text. However, it is more narrow. Depending on the artistic choices of the photographs, and who made the digital copy, copyright might or might not apply. If copyright applies, then only in the artistic choices of the photographer, e.g. specific lighting or how the pieces are mounted, a text belonging to the picture... Anything that adds to the original work has its own copyright. As a reasonably safe example: the library of Congress and its employees would not hold copyright in a digital copy, as they are US government actors. Those copies are Public Domain. It looks entirely different in museums: the MET catalog is copyrighted, despite the items in it being at times thousands of years old. Those pictures are contextualized in the catalog of the collection with notes and such. The MET has a copyright on the collection and its texts. But... as long as the photos are just mere reproductions with no artistic input no new copyright was created. | I emailed the Bureau of Alcohol, Tobacco and Firearms in the USA asking this and received the reply: "There is nothing to prevent you from marketing antiques in the UK while present in the US." I also contacted a relevant US attorney and received: "There’s nothing in your question which would implicate Colorado or US law. If you're a UK citizen, and the sale is happening in the UK while you're in the US, then the US has anything to do with it. So as long as the UK doesn’t have any problem with it, the US will not." So I would conclude this question fairly answered. | Under US copyright law, all works are protected by copyright except for US Government works. The concept of "public domain" is not legally well-defined, and is used colloquially to refer to government works, works whose protection has expired, works available to all, and works not copyrightable (such as scientific laws or old software). Under older copyright law, releasing a work without the copyright symbol effectively put the work in the public domain. One can simply say "I dedicate this work to the public domain", and that is typically taken to be enough. CC0 purports to do this (using more words). However, as far as I can tell, author rights under European law are so strong that it is simply impossible. Releasing works into the public law has to be consistent with other aspects of the law. If you grant an perpetual exclusive right to copy and distribute to a publisher, their right does not go away on your death (a right which they would not have with a real public domain work). A problem is that an author who makes such a dedication (a bare license) could revoke the license and reassert their copyright. They could be estopped from making that argument. As property, your heirs would inherit the copyright and could (try to) revoke the license. Presumably the courts would not allow them to pursue ostensive infringers. Nevertheless, your plan is neither trivial nor bullet-proof. | This would be considered a derivative work, which is not peritted without permission. Copyright duration varies by country but is at least the lifetime of the author plus 50 years. In France, it is 70 so Giraud's work becomes public domain in 2082. The second piece is public domain and therefore fine. | But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection. However, if a person gained access to a digital library or collection subject to a TOS agreement which includes "no commercial use" terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages. | First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status. US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office. Works Created on or after January 1, 1978 For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective. Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.) The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court. I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use. | The code is copyrighted. You are not given any permission to use or copy any part of it, nor to create a derivative work based on it. There is no way for you to "make the copyright null". The code was copyrighted in 2005, and the copyright will not expire until 70 years after the death of the author, under US law. The period would vary in some other countries, but in no country that I know of will it expire in the next few years. That the author is dead, or the publisher out of business, does not change this legally. Someone, probably the author's heir, or perhaps whoever bought the remains of the publisher's business, will own the copyright. However, the ideas and programming techniques shown and discussed in the book are not protected, and you may use them freely to write programs, commercial or non-commercial. You need not even acknowledge the book as a source of ideas, although to do so would be nice. Of course, since the author is dead and the publisher not active, if you were to infringe the copyright by copying code from thsi book, there is a reasonable chance that no one would notice, but if someone did notice, the current owner of the copyright could sue you for infringement, and could perhaps win sizable damages. It would be safer to write your own original code using only the general ideas from the book. In future, do not ever assume that you can just take someone else's code (or other creative work, such as a book) and reuse it without permission, unless it is in the public domain, for example because it was published before 1923. | 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. |
What can happen if you violate a cease and desist letter? Are there any legal consequences for violating a cease and desist letter? I was sent a cease and desist letter from my university for annoying administration with a particular issue, and this letter asks me to direct all communication to their gen. counsel's office. My question is: how serious is this letter? Can they really take legal action against me if I contact anyone at the university, even regarding something unrelated to the original issue? Edited to remove personal details | A cease and desist letter is basically a formal way of them saying, "stop what you are doing, and please don't do it again." It is not proof of tortious conduct by you, nor is it proof of illegal conduct by you. It does not open up an avenue for the university to sue you, nor does it open up an avenue for the university to have you committed to a mental institution. Your behaviour after receiving such a letter does matter however. What is most likely their next step should you continue emailing members of the university, is to apply for an injunction. It is possible that should the injunction be granted, you may be liable to pay fees. Breaching an injunction can have serious consequences, including jail. I would recommend against writing a letter apologizing. You are doing the very thing they asked you not to do. If you do feel in inclined to apologize, you should write the letter to the general counsel and ask them to forward it along. They probably won't. Obviously you have to be quite careful with the content of the letter. You are almost certainly within your rights to continue to email their general counsel. In addition, they almost certainly cannot stop you from communicating with the state agency responsible for the university. | A party to a civil suit in a US court generally has wide latitude on discovery. If it is not completely implausible that one of those text messages might contain something helpful to the other side, then they might well be able to demand and obtain them. This would be true even if Jan has no plans to use any of them. If Jane thinks that there is something in some of those messages which should not be disclosed, she could, normally with the advice of hr lawyer, file a motion to limit discovery in some way. Whether there is good grounds for such a motion will depend on very specific details of the facts, and is beyond the scope of an answer at this forum. It is true that Jane is only required to produce the messages if the judge in the case has in fact ordered this. It would be highly unethical for Jane's lawyer Arnold to lie to here about this. If he did so and got caught, it might cost him his license to practice law, plus additional penalties. If Jane seriously suspects that he is outright lying to her, and colluding with the opposing party, she needs to take steps to confirm or disprove this, or if she can do neither, to obtain a different lawyer. | Rather than saying "for Project®" which might fairly be interpreted to indicate an affiliation with Microsoft, you ought to say something like "intended to be compatible with Project® (not affiliated with or endorsed by Microsoft)." can you imagine a worse scenario than Microsoft sending a Cease and Desist notice? In that case, I can imagine re-branding to "MYBRAND for E-Mail" as the logo/name and a textual reference to "The [MyBrand for E-Mail] Add-In for Microsoft® Outlook®.". What is the worst case scenario? You could be sued by Microsoft for trademark infringement under the Lanham Act and if you lost, forced to change your product name and to destroy all existing inventory, forced to disgorge all profits you have ever made from selling your product ever, forced to pay their attorneys' fees and costs (which won't be cheap) in addition to your own legal team, have your products seized and destroyed when imported by customs agents follow an ex parte court hearing (i.e. one you had no notice of) secretly brought by Microsoft, and forced to pay punitive damages equal to double the profits you made in addition to the profits themselves. You might not even be able to discharge the judgment against you by going bankrupt and the punitive damages would probably not be tax deductible. Microsoft has every right to do this even if you fully comply with their cease and desist letter. A criminal trademark prosecution would be unlikely in this fact pattern. | 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. | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." | 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. | You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them. If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars. In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint. There doesn't seem to be a defamation issue here because you are not stating anything that isn't true. Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it. Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you. | IMHO, your questions reflect several misunderstandings of how the process works. So, with your permission, I will avoid directly answering your questions and instead focus on suggestions how to best help you plot a path forward. Your counterparty has the burden of proof. If your counterparty forged your signature on a contract, then they must prove you signed it or they can not enforce it. In order to enforce the contract, they will need to sue you civilly. Then you can introduce evidence of their forgery at that time. Inform your counterparty you did not sign the contract. Then act accordingly. If your counterparty forged your signature on an extension contract then you should inform them immediately after it has come to your attention. Advise them you have no intention of complying with a contract you never signed. And that if they try to enforce the forged agreement, you will defend yourself "vigorously." Never threaten criminal charges to advance your position in a civil case. This behavior is a crime in itself. It's called extortion. If you want to pursue criminal charges at some point then do it without relating it to the civil case. The police are not your only means of pursuing criminal charges. You can also schedule a meeting with your District Attorney, State's Attorney (whatever that position is called in your state) or your state's Attorney General. In other words, you might want to approach the government's attorney responsible for prosecuting crimes in your jurisdiction. Forget about involving the police. They have given you their position on the matter. Approach the DA or AG office instead. If the DA/AG decides to use the police, she we will make that decision then inform the police how she needs to use their services. Police are wary of being used as leverage in civil disputes. That's probably the reason for their policy decision regardless of whether it's technically justified by the law or not. Your counterparty can't "fix" anything. If they claim you signed a document you did not, they will have to produce that document with your signature on it. This will presumably be your Exhibit A evidence they forged it. Disclaimer: I am a lay person and not an attorney. This writing is no substitute for proper legal advice. If you need help with a specific legal situation please hire an attorney and do not rely on anything I have written here. |
Are shell scripts considered binaries for licensing purposes? There are a number of licenses that contain the term "binary distribution". For example, https://github.com/boostorg/beast/blob/develop/LICENSE_1_0.txt: A simple permissive license only requiring preservation of copyright and license notices for source (and not binary) distribution. What does this term precisely mean? Specifically, can I use shell scripts (e.g., https://github.com/boostorg/beast/blob/develop/tools/build-and-test.sh) without preservation of copyright notice? Do bash scripts count as both source and binary files? Or does "binary" mean only something produced by the equally vague term "compiler"? | Do bash scripts count as both source and binary files? No. Absent a definition of binary file or of shell script in the license, the commonplace meaning of the terms will apply. Under the commonplace meaning of binary file and of shell script, the latter counts as source, not as binaries. In the license at issue, the language "machine-executable object code generated by a source language processor" reinforces the argument that shell scripts are not binaries. That is because all commands, keywords, and symbols/signs in a shell script are directly provided by a human and without the need for a processor to convert that code to something else. Even if the script also contained binary code, as in the case of a shellcode (example, for a buffer overflow exploit), the presence of that shellcode does not change the fact that it is embedded in a script to which the previous paragraph applies. | You seem to assume that copyrights require paperwork such as registration. This is wrong, copyright is automatic. And it prevents the downloader from making the sort of change that you suggest. In fact, it prevents the downloader from using your template at all. The only reason the downloader can use that template is because you've granted him a specific license to ignore some copyright rules, but the default remains. And you did not grant the right to alter the template to free users. | Pseudo-code written down somewhere is protected by copyright, even if the article containing it doesn't say anything about the pseudo-code contained in it (i.e. doesn't mention "this too is copyrighted"). For example, let us assume that the following isn't actual compileable / executable code in some extant programming language: procedure bubbleSort( A : list of sortable items ) n = length(A) repeat swapped = false for i = 1 to n-1 inclusive do /* if this pair is out of order */ if A[i-1] > A[i] then /* swap them and remember something changed */ swap( A[i-1], A[i] ) swapped = true end if end for until not swapped end procedure It does nevertheless constitute an expression of an abstract algorithm. If it can be copied and pasted, it is an expression. If you run this through a filter to create executable code in some language, you will have created a derivative work (and possibly one with no copyright protection, if the conversion is totally automatic). If you read the lines and say "Ah, I know what that would be in Pascal", that has the modicum of creativity required to make your conversion protected, but you've still infringed the underlying work. On the other hand, a logical flow chart, which is a picture of the abstract idea of what to do, is copyright-protected only as a graphic object. If you look at it and it inspires you to write pseudo-code or actual code, you are not copying the flow chart. | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | Without a license, you have no right to copy or distribute someone else's work. Suppose you copy or distribute against the terms of the license. Either you didn't agree to the license, and therefore had no right to do as you did; or you did agree and still violated the terms of the license anyway. By the law of the excluded middle (accepted or not accepted), you infringed either way. | You're allowed to make backups of copyrighted software, as long as you are authorized to use the software, the backups are not distributed, and they are destroyed when/if you are no longer authorized to use the software. 17 USC §117(a): (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) ...(not very helpful)...or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. The law is usually used to justify copies of the installation media, but it would be unconscionable to cut your rights off there and make backups illegal for machines containing copyrighted software. After all, with such an interpretation, no Windows machine could be backed up since Windows is copyrighted. | While the Commons Clause is not an Open Source license, the BSD license allows you to do this. To be clear, you cannot change the license of other people's code. You can however add your own code and license it under whatever terms you want. The resulting code then consists of your modifications, under whatever license you want parts of the original code, under BSD-3-clause Since you are a license-taker for the BSD-3-clause material, you must still comply with its license such as providing any recipients with the copyright + license notice. When people receive the software with your modifications, they must comply with both your chosen license terms for your modifications, and with the BSD-3-clause license for the other parts. For example, you can use the Commons Clause to prevent certain competing uses of the software as a whole. But since you will presumably provide the source code of the software, other people are free to use the BSD-3-clause code under the terms of that license, ignoring your restrictions. If you provide binaries then the resulting binary would not be covered by the BSD-3-clause license, but you would still have to provide the copyright and license notice for the original code as a kind of attribution. |
I've left the United States, what happens if I don't pay rent? I'm not a US citizen. I have a rental contract for a shared student accommodation (en suite room). Due to unforeseen personal circumstances, I had to leave the US. Of course, I understand that I am legally obliged to honor the contract. However, now my circumstances have changed and I cannot afford to, now that I am no longer in the country. Could people please advise me on what may happen in the following scenarios: I refuse to pay, and stay in my country (somewhere in Europe) I refuse to pay, but return to the US in the future: on a student visa on a work visa (H1-B) as a tourist on an ESTA | 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. | You do have a contract - you agreed to pay them for services, that creates a contract. If they have failed to provide the service that you paid for, the onus is on you to prove that. Getting a bank to make a chargeback when services have been provided in return for the payment is likely unlawful notwithstanding that you are not satisfied with the service they provided. They can sue you in either Bulgaria or the USA and a judgement in one countries court will likely be enforceable in the other. In addition, if you have committed a crime in Bulgaria then the Bulgarian police may investigate and may issue a warrant for your arrest and seek your extradition from wherever you happen to be. | If the stranger was aware of the reward offer at the time of the return you have a legally binding contract - you made an offer to the world, money for return of the phone, and they accepted it by returning it. If they were ignorant of your offer and returned the phone then there is no contract and you do not have to pay: albeit at the cost of being a jerk. Of course, if they obtained your phone unlawfully (e.g. by stealing it) the contract is void. | You are responsible vis-a-vis the landlord. If the obligations are not current, then the landlord has a right to terminate the primary lease, and your sublease is derivative of the primary lease, so you would be evicted. You, in turn, would have a right to sue the tenant of the original lease from whom you subleased, for any funds you had to expend to bring the lease current due to charged preceding your lease term. | You did not specify a country or the specific contracts that might rule your condominium. At least in some jurisdictions indeed the repair cost of private portions cannot be shared. Moreover, you may not be required to pay some costs for common portions if you refuse to do so and won't make use of them. Do I have to sue them to fix this issue? A lengthy law-suit is too costly for me. If I refuse to pay $2k and only pay 1.2k, will I be facing any legal troubles? You will probably manage to continue paying just 1.2k, and have them have to sue you if they want to collect that supposedly owned money from you. However, there might be some requirements about providing notification of your refusal in a certain way or before some time elapses. I would recommend you to consult a local lawyer, it will be well-spent money. Plus, that refusal is actually sent by your lawyer (rather than just telling you how/what to say), should make your "law-understanding neighbor" think twice about going forward with their attempt of having you pay for it. | 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. | This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best. | It depends How good is your (legal) English? For example, do you know the legal difference between "will", "shall" and "must"? Or, the difference between "employee", "subcontractor" and "worker"? Or the difference between "bankruptcy", "insolvency" and an "act of bankruptcy"? Contingency What are you going to put in your dispute resolution clause? Do you prefer mediation, arbitration or litigation? Will it be a one size fits all or will it be escalating? What happens if one of you dies? Or emigrates? Or divorces? Or is convicted of a crime? A financial crime? A violent crime? A sexual crime? Or what if such is just alleged but not proven? What happens if the company ceases to exist? Or is sued? Or is acquired by someone else? Or by one of you? Who is responsible for insuring the subject matter of the contract (if anyone)? To what value? If the person who should doesn't can the other person effect the insurance and claim the premium as a debt due and payable? Not all of these will be relevant to your contract. Familiarity How familiar are you with this sort of contract? Is this something you do all the time or is this a one off? For example, I am happy to enter a construction contract without legal advice because that's my business and has been for many years - I know my risks and how to manage them, inside and outside the contract. However, when I set up shareholder's agreements, wills and business continuation insurance with my partners, we went to a lawyer. What is your relationship with the other person i.e. how much do you know and trust them? Stakes If the contract is not very important (which is something that varies with the participants, for some people a million dollar contract is not important for others a $5 one is), so that if, by screwing up, you are OK if you lose everything you've staked then write it yourself. Alternatively, if the contract is vitally important to you and your heirs and assignees unto the 6th generation, I'd get a lawyer to write it - its pretty cheap insurance. How long the contract lasts will be a factor in this - a contract that exposes you to risk for 3 months is different than one that does so for 25 years. Basically, its a risk reward calculation. TL;DR Contracts only matter when relationships break down. If you reach for the contract then you can expect that the other party will be playing for keeps and that contract is your only defense against the worst they can do. If you are happy with your skills in mitigating against a cashed-up opponent who wants to see you go down no matter the cost then draft it yourself. |
Does paying damages waive my right to sue? I recently moved out of an apartment. The landlord has failed to give me a list of the actual costs mentioned here in state law which should make them liable for triple the deposit in damages. I see that as a separate actionable issue though, including here in case context is important. The landlord is claiming damages in excess of my security deposit, some of which I contest. However, the lease has a provision making me liable for legal costs if they sue me and win. Can I protect my downside by paying the damages and then suing them for the return of that money, rather than daring them to sue me? Or does paying the damages imply that I accept them and torpedo my case for recovery? | There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts. | With that much potentially at stake, you might want to discuss this with a lawyer. many lawyers will do an initial consultation for free or a low charge. However, you could simply write a letter saying that you do not agree that you owe the money and that you dispute the charge. You may give any reasons why you think you are not liable. It might be a good idea to add that there may be other reasons as well, so you do not foreclose any possible legal arguments that you may learn of later. Send the letter by certified mail, return receipt, and keep a copy with a note of the date that you sent it. It is not a bad idea to get the certified mail form first and include the certified item number as part of the inside address in the letter. Keep the copy, and keep the receipt with it when you get it. It is not a bad idea to send a copy by email, noting that it is a copy of a certified letter. This will put a record of the date and time it was sent in the email service provider's records. Normally it is up to the person who claims another owes money to file suit. If your former landlord takes no action, you need do nothing. However it is a good idea to check your credit reports and see if this was reported as a bad debt. if it is, you can file a statement of dispute with the credit bureaus. If there is any further correspondence on the matter, be sure it is in writing, and that you keep a copy. If you are called on the telephone about it, send a prompt followup letter summarizing the conversation, and particularly any statements made by the other party, and any agreements reached. Keep a copy, and send a copy by email as well as by postal mail. It should probably start something like "In our telephone conversation on {date} about {topic} you stated ..." If you are sued you will need to consider whether to retain a lawyer to represent you. | The landlady is trying it on. The purpose of a deposit is to protect the landlord from being left out of pocket by: damage to the property rent arrears Reasonable wear and tear does not constitute damage. It seems unlikely that the stiff tap is as a result of damage. The hob is not so clear cut: the landlady could argue that it was damaged, albeit by accident, and the cost of repair taken from your deposit. If she insists that the only remedy is to replace the hob, she should make an appropriate deduction to reflect the fact that it is several years old and will be replaced by one that is new (thereby gaining her some value). It would be reasonable for you to expect to see the written report from the gas inspector who has condemned the whole hob in that case. But I find it hard to believe that: the plastic knob cannot be replaced doing so would make the hob unsafe, if the knob can be removed for cleaning it's my understanding that if the hob is indeed broken, I only have to pay what it was worth at the moment before it was broken. Your liability is to return her to the position she would have been in had the damage not occurred. If that means replacing a removable plastic part instead of the whole hob, that would be a reasonable remedy. | You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK. | No An LLC that didn’t exist at the time of the act or omission that caused the loss being sued over is not a valid defendant. They would sue you personally and all of your assets, including the LLC, would be available to the creditor. | The one answerable question regards the legality of taking the damages out of the security deposit. Consulting the Ohio landlord-tenant law, the tenant has various obligations including to Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner ... Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes The citation should indicate the specific violation, but dumping trash in the street is a health violation. The act that says that if the tenant violates his obligation, the landlord may recover any actual damages that result from the violation together with reasonable attorney's fees. Causing a landlord to be saddled with a fine is actual damage. It would be pointless to contest the fine with the city, unless you are alleging that some vandal drove by and dumped trash in the road near your apartment. (Even then, unless you already reported supposed illegal dumping to the sheriff, it is unlikely that you wouldn't be held responsible). | Nope. Say I sue you successfully, and the court delivers a judgement that awards $1000 in damages. It is not the responsibility of the small claims court to ensure that the judgement is fulfilled. In fact, the debtor (person who lost) can outright refuse to pay the creditor (or the person who won). They are not in violation of any law at this point. However, the creditor can ask the court for options on enforcing their judgement, and these can include, but are not limited to: Garnishing wages Providing a court order Seizure of assets (through court sheriff, don't use this yourself or you end up getting into criminal matters) and others to enforce the judgement. The debtor isn't liable for refusing, unless when they are in violation of a court order. Violating a court order is a criminal matter, and the debtor could possibly be found guilty of contempt of court. Oh, and the case wouldn't move on to a higher court. Cases go to a higher court when an appeal is made, generally when there has been an error in enforcing the law. You also need to be provided leave to make an appeal. | You sound like a lot of my dispute resolution clients on their first visit You seem upset, maybe even angry and you feel that you are being victimised and harassed and that the person you are in dispute with is an amoral scumbag with no integrity. I sympathise with your feelings and understand that this sort of thing is stressful and causes emotional turmoil. However, how you feel has very little to do with what the objective facts are. This is what I read: You agreed to pay 1/3 of the bills, You have been happy to let your roommate handle this, You have trusted your roommate to do this honestly, You have been paying what she asked when she asked for it, Your circumstances changed, You did not advise your roommate that this would make it difficult for the existing arrangement to continue, She continued doing what she had always done, You stopped doing what you had always done, Your roommate has been left out of pocket and probably is under financial pressure herself, She kept asking for the money, You saw this as unnecessary harassment, You showed that you no longer trusted her integrity and judgement, She reacted the way most people do to being indirectly called a liar and a thief, Things spiralled out of control. Put your outrage on the shelf and feel sorry for yourself when it's not happening on my time (unless you are paying me, in which case I'm more than happy to listen to all your troubles at $420/hour + GST). Yes, she can take you to court. She will almost certainly prove that you owe her whatever you owe her for the utilities. I think it's extremely unlikely that she has been dishonest about this (although anything is possible). You may be able to make an arrangement to pay through the court which means that she will get a pittance per week from now until forever. This won't make things better. You have to deal with the fact that, right now, you share a home with someone where your relationship has broken down and you will have to continue to live with that person. At least until one of you can move out. Take a deep breath. Work out how you are going to make the relationship at least tolerable. I suggest you start by apologising. |
How many people must be on the board of directors of a U.S. nonprofit organization? Non-legally-savvy individual in Pennsylvania (PA) in the U.S. here. I've been learning a little about nonprofit corporations recently, and have had trouble finding a definitive answer to the question: How many people must be on the board of directors of a U.S. nonprofit organization? I understand this is ill-defined and state dependent; to be more precise, I'm most interested in finding out: What is the minimum number of distinct people that are required to be on the board of directors at the time of filing of incorporation documents for a PA nonprofit corporation? What is the minimum number of distinct people that are required to be on the board of directors by the IRS at the time of a nonprofit corps. 501(c)(3) application (in order to possibly be granted status)? I'm mainly interested in the minimum number of people, so if e.g. three "titles" or "positions" are required on the board in PA, but they can all be filled by one person, I am trying to ask the question whose answer would be 1 in that case. I'm interested in the answers to these questions, but only insofar as those answers can be justified by: Official documentation or guidance from the IRS or PA government State or federal laws or Relevant cases that might motivate a suggested de facto answer. For context, I've tried to search for the answer to these questions, and mostly found via google a slew of articles, blog posts and tutorials written by independent non-government sources, and from those sources I've found a few different answers, even among the reputable-looking sources. I'm looking for evidence that can make one confident that a particular answer is correct, if such an answer exists. The closest I have come is finding official-ish looking sources that mention the issue, but don't stipulate an exact requirement. For example This handbook from the PA attorney general's office: https://www.attorneygeneral.gov/wp-content/uploads/2018/02/nonprofitbooklet.pdf says In order to avoid the appearance of impropriety, it is best not to give one individual too much control over the corporation. [...] A corporation may have as many officers with as many different titles as it deems necessary. which suggests an nonprofit corp. with one board member might come under scrutiny or be frowned upon. However, it's unclear to me what relation this document has to the actual law, aside from of course reflecting the opinions of one individual who is involved with upholding it in practice. This document: https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=15&div=0&chpt=57 seems to reference part of PA state law (but maybe I've been duped and this is just some person's website...), and Subchapter C Section 5723. seems to explicitly discuss my question. It states: The board of directors of a nonprofit corporation shall consist of one or more members. The number of directors shall be fixed by or in the manner provided in the bylaws. If not so fixed, the number of directors shall be the same as that stated in the articles or three if no number is so stated. Which seems to suggest 1 director may form a perfectly valid board for a PA nonprofit corporation. I have not found the official documentation or guidance for any relevant IRS regulations pertaining to 501(c)(3) status, only third parties claiming various things about what that guidance is. Any help on these questions would be much appreciated! | The law related to the internal organization of corporations is a matter of state law. You cite the correct authority: The board of directors of a nonprofit corporation shall consist of one or more members. The number of directors shall be fixed by or in the manner provided in the bylaws. If not so fixed, the number of directors shall be the same as that stated in the articles or three if no number is so stated. 15 Pa. Stat. and Consol. Stat. Ann. § 5723 (West). The statement of the state attorney general is merely a suggestion. Although, in an entity with audited financial statements the audited financial reports must disclose that the organization lacks "adequate internal financial controls". But, non-profit entities such as charitable trusts or "corporations sole" (such as most legally distinct entities in the Roman Catholic Church) have only a single person with full control over everything that a Board of Directors does. The IRS likewise does not impose a minimum number of directors for a 501(c)(3) organization, or for any other kind of corporation. Nothing in the relevant statue requires that it have more than one, and many non-profits (e.g. probably a majority of churches) have only one director. | They can't simply keep the money; that's against the law. But in a situation like this, it's easy to get lost in the bureaucracy. The company may be in violation of different laws, re: For Your Information | United States Department of Labor, so you can try pointing this out in another email or letter. The threat of the Feds or other enforcement agency looking into the matter may make something happen. Or, try this: find the CEO (or a similarly high-ranked executive) on LinkedIn; many have open messaging in interest of good PR. Message/email them and carefully (and nicely) explain the situation. (A CEO will likely have an assistant monitoring their LinkedIn account. But, there are many stories of Steve Jobs, Bill Gates and Jeff Bezos personally responding to emails.) Someone will make it happen and the employees who have not been helpful will be in hot water. | As is often the case, the answer is "it depends." In this case, it depends on: 1) When the condo was organized. Washington law says that all condo associations organized after July 1, 1990, "shall be organized as a profit or nonprofit corporation." Since incorporation is a legal requirement for these condos, the Board must file for incorporation, regardless of whether members approve. NOTE: Washington law does not impose any penalty on condo associations that do not incorporate. https://app.leg.wa.gov/RCW/default.aspx?cite=64.34.300 2) What your By-laws say. As I recall, before July 1, 1990, Washington law did not require condo associations to incorporate. If I am right, the Association does not have to file for incorporation. Whether the Board has to get approval from the members before filing for incorporation depends on your Association's By-laws. The By-laws tell who has the power to make which decisions. 3) It may be worth it for you to talk to an attorney who specializes in condo law about your condo association. Washington law imposes many requirements on HOAs, and many HOAs ignore these requirements. An attorney can give you practical advice about bringing your condo into compliance with these requirements. | "Legal requirement" can and in this case simply means "it's what is required in order for us to be reasonably able to offer you this service", noting that it would be unreasonable for such a dangerous business to operate, when one moron slipping and suing them could put them out of business. It's a little surprising that you've never had to sign a waiver before, but there are quite a number of similar waivers out there, such as REI (Seattle), The Edge (Vt), Croc Center (Coeur d'Alene), YMCA (MI) and U. Nebraska. They all have in common the requirement of a signature (indicating that you've waived your right to sue them), birth date, date of signature. This is the bare minimum that's required to have a valid waiver, and more info would be better (to uniquely identify the customer out of the 1000 John Smith's in the state and 500,000 in the US). If you break yourself and try to sue, they will trot out the waiver to put an end to the suit. Name, address, phone number and birth date do a long ways towards proving that the person who signed the waiver is indeed you. | The private organizations, in difference to international organizations (the organizations, members thereof are the countries) or the countries are not subjects of international law. They are also not a subject of criminal laws, so they technically can't break the law. The people can. If the actions of such organizations will break some laws, the people staying behind that organization will be made responsible. Either it will be single individuals, or the whole organization might be declared criminal (such as mafia or a gang) and there everyone, including stakeholders or casual employees/contractors might be subjects to interrogation, arrest and sentence. As for the problem you describe, when the organization made something illegal under one jurisdiction, and the stakeholders are sitting in other country, where such actions are not illegal, they might only partially be safe. They might be arrested not only in the country where the legal actions are taken, but also in third countries, that have extradition agreements with that country. | In an extreme hypothetical situation: at a meeting where there is a quorum present, there are 50 members qualified to vote in attendance. An issue comes up for a vote, and 45 people abstain, 3 vote yes, 2 vote no. Would this pass 3 to 2, or is there some overriding part of "majority present and voting" that I am just not understanding? The measure would pass 3-2. The words mean what they say. Quorum requirements prevent the small number of people voting from being unfair. | Someone has pulled a sample motion of this type off of PACER (the public access Internet portal to civil filings in federal court). The example is more formal and structured than a lot of state court motion practice would be, however (e.g. few state court's require or encourage motions with a table of contents and a table of authorities). This example is 36 pages long, and many states don't even allow motions to run for more than 10-15 pages without leave of the court to do so in advance. There is a New Jersey federal court example here which is also on the formal and fussy side (although, in part, because the motion isn't just an arbitration motion and is also raising several additional unrelated issues which if omitted would cut it in half). See also one here. Another example, from a California state court, is closer to the mark for a typical state court filing. A court that handles residential landlord-tenant matters is probably even more "casual" and probably expects motions to get to the point more quickly. The core content is probably solid, although it would have to be customized to reference the state law statutory and procedural rules rather than the federal rules of civil procedure, and to analyze and set forth the facts of your case rather than those of some random person whose pleading is linked. This would also have to be adopted to state court practice standard, which typically uses different formatting for captions, signature blocks, whether or not line numbering is required, etc., and is often subject to other requirements. Some require that a certificate of service be filed as a separate document, while others routinely incorporate it in the main document. Many state courts require that a proposed order be submitted with a motion as a matter of state or local court rules, a few states require a cover sheet to be filed with motions, many states require you to confer with the other side in the case and to recite their position opposing or supporting the motion, or something in between, before filing it, and some courts require you to notify them once the deadline for a response has passed, regarding whether an opposition has been filed to the motion's request for relief or not. Similarly, some states courts require that motions be "verified" (i.e. have their allegations confirmed under oath) or supported by an affidavit setting forth the factual matters alleged in them. New York State structures a lot of motions as "orders to show cause" in which the court preliminarily reviews the relief requested and issues an order telling the other side that it will do something if they don't file an objection showing good cause for the court not to rule in that way by a given day, which must be formally delivered (i.e. "served") upon the other side by a deadline. I don't know if New Jersey local motion practice is similar. Many court systems also charge a "new case" filing fee for motions to compel arbitration that does not apply to other kinds of motions. Ideally, you'd want to review some motions (about pretty much anything) to get a feel for how this is usually done in New Jersey. | Anyone who is an employee as defined in the federal Fair Labor Standards Act of 1938 (FLSA), 29 USC 201 et seq.(or parallel state minimum wage laws) and is not within the scope of an exemption to the minimum wage law, must be paid minimum wage. The relevant question is whether or not the person is an employee who is not exempt from the minimum wage requirement as defined in the FLSA. The question is a mixed issue of fact and law in which the characterization given to the relationship by the company and the person doing the work is one factor, but not the only or the controlling factor, in determining employee status. The exact nature of the work governs whether the FLSA's minimum wage requirement applies or not. For example, "employee" is defined for puroses of the FLSA at 29 USC 203(e) to exclude "any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family" and certain kinds of volunteers. Piecework pay is allows under certain limited circumstances by 29 USC 207(g) when the usual result is that reasonable workers earn the minimum wage. Tipped employees (which is a form of revenue sharing) also receive special treatment. Most of the exemptions are found at 29 USC 213. Most relevant to your question is 29 USC 213(a)(1) which includes an exception for an "outside saleman" who is paid on a straight commission basis, and 29 USC 213(a)(5) and (a)(6) which contain exclusions for certain farming and fishing occupations. Straight commission compensation without regard to the minimum wage is generally not permitted with regard to an employee who is an "inside salesman" (e.g. someone who works at a retail store in a mall or at a phone bank for a telemarketing company), or for anyone other than an outside saleman in non-agricultural jobs. Independent contractor status generally depends upon the degree of control that the company has over the manner in which the work is performed, the assignability of the contract to do the work, and the extent to which the worker does work for many different companies on a contract basis while complying with employment related laws for the contactor's own employees (e.g. worker's compensation). The working for many different companies on a contract basis prong of the test is frequently controlling in practice. Six of the main factors considered by the Labor Department in determining independent contractor status are discussed in Fact Sheet #13. A true independent contractor may be paid on a revenue sharing basis without regard to minimum wage, although in practice, if this results in the independent contractor earning less than minimum wage, there will be strict scrutiny of the practice. Typical independent contractor arrangements that would be allowed would include an attorney working on a contingent fee basis, or an independent broker or realtor working on a straight commission bais. More often than not, a true independent contractor is someone you couldn't even imagine being an employee subject to minimum wage laws of the company in light of the overall relationship and often this will involve a business to business contract, rather than a business to a non-professional individual contract with only personal services involved. There are some safe harbor provisions that if met can insure independent contract status, but it is very common for someone who legally is an employee to be misclassified as an independent contractor in an attempt (often futile if the matter is pressed by regulatory or tax officials) to avoid compliance with laws incident to the employment relationship. |
What laws govern obtaining receipts for construction work carried out 16 years ago? In 2006, I had a mason perform work on a house I own in County Meath. I spent 12,000 euros but never got a receipt. Now, 16 years later, can I demand a receipt as I am selling and need the receipt for tax purposses? | There is no law (that I can find) that requires the mason to keep records, and therefore require them to be produced, for work carried out that long ago. I have not been able to locate the applicable legislation for 2006 but, on the (near certain) assumption that it was either the same as now or has been superceded, businesses only need to keep records for 6 years according to the Revenue's section entitled Keeping records: If you run a business, you must keep certain records for tax purposes. Your records can be used to confirm information contained in your tax returns and they should clearly show the accounting process. If your accounts are prepared by an agent or accountant, they may keep your records on your behalf. However, you are ultimately responsible for your record keeping. If you are in a partnership, the precedent partner is responsible for keeping records. You must keep the original of these documents for six years. This retention period is mirrored for limited companies at section 285 Companies Act 2014: An accounting record required to be kept by section 281 or information or a return referred to in section 283 (2) shall be preserved by the company concerned for a period of at least 6 years after the end of the financial year containing the latest date to which the record, information or return relates. That said, there's no harm in asking. | What does undertake means in the following context? A priori it means to perform [the contract], to do the construction work. There is no indication in that paragraph that all consents are required prior to starting the work. Can company start the work without party wall consent, because the customer has been responsible but did not obtain it? This depends on the technicalities of the construction profession as well as the project schedule. To a person with no construction background and no context of the project it is unclear whether the building company even needs to start with/nearby that wall. If consent is unavailable by the time the company reasonably needs it (for instance, because thereby it was "compelled" to reschedule or because an inspector fined the company for not providing proof of consent), the clause entitles the company to recover from you that loss. | Is there any sort of implied expiration date for a contractor's completion for medium size contractor jobs (< $10k)? Absent a provable deadline, the question would be whether the delay is reasonable (or habitual) under the circumstances. The contractor's presumption that he can do whatever he wants regarding unspecified aspects of a contract is inaccurate. Those matters can still be decided on the basis of contract law and/or under principles of equity. See also the Restatement (Second) of Contracts, which is frequently cited by U.S. courts, at §235(2) and §243 regarding non-performance of a contract. Will my verbal complete-by date hold up in lieu of any written complete-by date? It depends on each party's credibility. Proving that he essentially ignored your follow-up requests will make it harder for him to credibly refute your assertion about the verbal deadline. In case none of your follow-up efforts (or none of his responses) are in writing or if he denies that you repeatedly called him, you might want to subpoena his phone service provider --if the matter goes to court-- and file as evidence the resulting production of records. | If the property has been transferred to HUD in a reverse mortgage foreclosure, the family has no authority to sign anything and the country records are simply not up to date (it is not unusual for county real estate records to be one to six weeks behind being up to date based upon how busy the recording office is and how many staff they have, often they are further behind in the summer and around Christmas when employees tend to take vacations). HUD can sign the easement, and so can any successor owner. Whether they will or not is another question. Even if the foreclosure were not quite complete, any action taken by the family after the foreclosure was commenced would be invalidated once the foreclosure was completed. | As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation. | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | It depends on the jurisdiction (naturally). The answer for Washington is "No, not exactly". RCW 9a.83.030 states that "The attorney general or county prosecuting attorney may file a civil action for the forfeiture of proceeds". The police can seize real property, but must file a lis pendens regarding the property. The bar that has to be cleared for forfeiture is "probable cause". The Institute for Justice has an extensive analysis of civil forfeiture, especially with a state by state summary (they aren't positionally neutral on forfeiture, but they are legally respectable). Then after a inevitable judgment (90 days if the judgment is sooner), the property is transferred. Notice is to be "served within fifteen days after the seizure on the owner of the property seized and the person in charge thereof and any person who has a known right or interest therein, including a community property interest", so they would notify Bob (assuming they know Bob is the real owner). Or, if Bob learns of the seizure that "If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right". It is possible that Bob's property could be taken (nothing prevents it), especially if Bob's hands are unclean. | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. |
Would a Trump-nominated Supreme Court justice be expected to recuse themselves from a Trump case? As of Oct 21, 2022, the January 6 Committee has issued a subpoena to former president Trump, setting up the potential for a case against Trump to end up in front of the Supreme Court. I spent awhile trying to find precedent on what would happen were a Trump-nominated justice to be faced with a case against their nominator, but unsurprisingly the strangeness of the situation seems to surpass my ability to spend endless amounts of time searching the internet, and my lawyer friends don't seem to know either. Would it be considered a conflict of interest for a Supreme Court justice nominated by Trump to hear a case against Trump, and would said justice be expected to recuse themselves? | No, That Would not be treated as a Conflict of Interest There is precedent. The four Justices appointed by President Nixon did not recuse themselves on cases involving Nixon, including subpoenas to turn over White House tapes recording conversations involving Nixon and his close advisors. Indeed it was a decision against him in such a case that apparently was the final thing that caused Nixon to resign. It is worth noting that there is no binding law or rule of practice specifying when a Justice must recuse, which is different than the rule for all other Federal judges. Congress could pass a law imposing a mandatory code of ethics on the Justices, but has not done so. | Vice President Aaron Burr was indicted in his last year as Vice President in both New Jersey and New York. The crime was killing Alexander Hamilton in an (illegal) duel. His solution? Simply don't go to those states. Eventually the charges were dropped on technical reasons. But it was nevertheless clear that no one considered it a particular problem for a sitting Vice President to be indicted in multiple states at a time, or even just one. This bit of history is even mentioned in the revised DOJ opinion referred to in Putvi's answer. Ultimately that opinion decides that the comparison between a Vice President and President is apples-to-oranges nonsense—their relative levels of power, importance, and constitutional stature are radically different—, and no substantive inferences could be made from a VP's indictability to the President's. Of course, this DOJ opinion is just the opinion of DOJ lawyers. It is not a court opinion, nor otherwise binding. It does strike me as well-written and logically strong, but it is wholly untested in a court of law (SCOTUS or otherwise). It is simply their advice on what the best course of action the DOJ can take is, given their particular function and powers within the US government and overall constitution. The main conclusion being that those functions and powers are inadequate for the DOJ to decide if it is constitutionally sound to indict a sitting President (that's a job for the judiciary), and so simply advises that they avoid that powder keg and never do so. The opinions actually do specifically hold that it might be constitutional in the right situations; they simply conclude they cannot and should not be the ones deciding if a particular case qualifies or not. For a more definitive answer, you may have to wait for various court cases against President Trump and his administration to make their way through the system. In several of them the President's/White House's lawyers have argued for absolute immunity on all criminal matters, state or federal. The judges have, to date, seemed disinclined to agree; many seem straight-up shocked that this is being seriously proposed to them. But those cases are still in progress, so we can at best make random guesses at what the actual opinions will be, and it is even harder to know what will happen on the almost-certain appeals up to the Supreme Court. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). | Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? Yes. if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Yes. Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump? Judge Mercan could probably choose either option if he found that the original charges were not supported by the law. There is law regarding how this decision is made but I personally don't know that area of law well. One of the reason that I am unfamiliar with it is that it is exceedingly rare for a judge to conclude that the prosecutor's charges are not supported by the law. I would be very surprised if that judge reached that conclusion in this case, in particular, because both federal election law violations and state and federal tax law violations are implicated by the indictment. The DA no doubt legally researched this issue exhaustively before presenting the charges to the grand jury and has made out a prima facie case for a felony under the applicable New York State law. If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed? Whether a jury is presented with a lesser included offense charge at the request of the defense, is partially a matter of the prosecution's election to make that option available or not, and partially a matter of the judge's decision on how to handle it. The body of law involved in how this decision is handled on a case by case basis is quite involved. Most of the case law involves homicide cases, assault cases, and property crime cases where there are charges with are identical except for aggravating factors for the most serious charges. But, lesser charges generally aren't presented if based upon the evidence presented at trial, either the more serious charge is established or no charge is proven. For example, if the defendant presents an alibi defense, and a witness whose credibility is disputed places the defendant at the scene intentionally committing a crime, a lesser included offense charge would not be appropriate. But, if the defendant admits hitting a pedestrian and causing the pedestrian's death, but claims that the pedestrian was at fault in the accident for jay walking, while the prosecution alleges that the pedestrian was intentionally struck as part of a mafia hit, multiple lesser included offenses would probably be charged involving different levels of intent of premeditated intent/aggravated circumstances killing (first degree murder), to a knowing killing (second degree murder), to a reckless killing (manslaughter), to a criminally negligent homicide or vehicular homicide charge. Typically, the decision on this point would not be made until all evidence was received and the judge in a hearing away from the jury but in the presence of the prosecutors and defense counsel crafted jury instructions based upon the evidence presented at trial and the arguments raised by counsel at trial. | The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.") | Sure Obama can sue Trump for defamation. Libel is a civil offense and committing libel is not a part of Trump's role as president. Regarding official acts, the President is immune. But not for personal acts. See Is the US President immune from civil lawsuits? But a libel action would be difficult to win; they're both public figures, which makes the defamation threshold higher: Public officials and figures have a harder time proving defamation. The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the above elements of defamation and they must also prove that the defendant acted with "actual malice." Defamation Law Made Simple | Nolo.com The "actual malice" part is interesting: In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court .... acknowledged that in public discussions -- especially about public figures like politicians -- mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice." "Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth -- for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it. (same link above) Could malice be proved? Was Trump reckless with the truth? Could be. But would Obama sue? What's the cost/benefit analysis to him and his legacy, politically and personally? Trump was taking a political or personal risk - or he's being stupid - with such accusations, since he may feel invulnerable. He has sued and been sued and settled many times: see Legal affairs of Donald Trump I think both would not want to be in court; because once in court, they (and their lawyers) both have subpoena power and both would have to answer nearly any question put to them about their public (and possibly private; but not official) lives. Trump has interestingly enough talked about "opening up the libel laws" so he can more easily sue people. But if he did that, it cuts both ways: he would be easier to take to court. See Can Libel Laws Be Changed Under Trump? In my opinion, Obama is much better off ignoring Trump and letting the FBI, DOJ, Congress and the Intel Community do their jobs - have the facts fall where they may - and and not become a right-wing talk radio subject for the rest of his life, as well as risk being deposed himself in court. Edit 3/21/17: From a timely piece in The New Yorker: http://www.newyorker.com/news/news-desk/how-the-first-amendment-applies-to-trumps-presidency While it is unlikely that former President Barack Obama would sue Trump for libel, he very likely has a strong case. The First Amendment scholar Geoffrey Stone wrote in the Chicago Sun-Times http://chicago.suntimes.com/opinion/opinion-trump-could-lose-lawsuit-for-libeling-obama/ that “there seems no doubt that Trump’s statement was false, defamatory, and at the very least made with reckless disregard for the truth.” That is the test for damaging the reputation of a public figure or official: Trump either made his assertions with knowledge of their falsity or with disregard of a high degree of probability that they were false. Obama, Stone is confident, could prove that Trump made his false charge, as the Supreme Court defined the standard, with “actual malice.” | I don't know how that would end, but states' AGs have take action against Trump personally in other matters, and that's bubbling through the courts; latest news I found on something like that on quick search (May 15): A lawsuit accusing President Donald Trump of illegally profiting off the presidency through his luxury Washington hotel was revived Thursday by a divided federal appeals court. [...] Maryland Attorney General Brian Frosh and District Attorney General Karl Racine — both Democrats — said they hoped Thursday's ruling from the 4th U.S. Circuit Court of Appeals in Richmond would jumpstart efforts by the two jurisdictions to obtain financial records showing how much state and foreign governments have paid the Trump Organization to stay at the hotel and hold events there. More than three dozen subpoenas issued to various government agencies were put on hold while Trump's appeal was pending. The lawsuit was filed almost three years ago. U.S. District Judge Peter Messitte refused to dismiss it, but his ruling was overturned in July by a three-judge panel of the 4th Circuit. The judges found that Maryland and the District of Columbia lacked standing to pursue their claims against the president. But on Thursday, the panel's ruling was overturned by the full court of 15 judges. In a 9-6 ruling, the court found that the three-judge panel overstepped its authority when it ordered Messitte to dismiss the lawsuit. "We recognize that the President is no ordinary petitioner, and we accord him great deference as the head of the Executive branch. But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the President seeks," Judge Diana Gribbon Motz wrote for the majority in rejecting Trump's request to dismiss the lawsuit. All nine of the judges in the majority were nominated by Democratic presidents. The six judges who disagreed — all nominated by Republican presidents, including three by Trump — wrote a scathing dissenting opinion, saying the lawsuit should be thrown out. "The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future Presidents and for an ascendant judicial supervisory role over Presidential action," Judge J. Harvie Wilkinson III wrote. DOJ spokeswoman Brianna Herlihy said the department is disappointed in the ruling. Etc. | Mrs. X is under investigation for an alleged crime (say, embezzling from her employer). Prosecutors have obtained a search warrant and seized her computer. X's attorney files a motion arguing against the validity of the computer search, and a court date is selected for a hearing before a judge. At that hearing, the prosecutor requests that the courtroom be closed to the public Search warrants Search warrants are generally issued ex parte (i.e. without an adversarial hearing) and are routinely kept secret until they have been carried out. Targets of search warrants are often, but hardly always, the subject of criminal investigations. Search warrants can only be issued upon a showing a probable cause to believe that the search will reveal evidence pertinent to a crime that has been committed. If a search warrant is issued wrongfully, the remedies are a motion to suppress illegally obtained evidence, and/or a civil lawsuit for money damages, after the search has been completed. Conceivably, a search warrant target could argue that the affidavit providing a basis for the search should continue to be kept under seal, but, unless this was necessary for a grand jury investigation to continue in secrecy, this request would usually be denied. Subpoenas A subpoena does not require a showing of probable cause to issue and can be contested before documents are turned over pursuant to it by the person to whom it is directed (and sometimes other people as well), but a subpoena is rarely issued to an actual target of a criminal investigation. A prosecutor can usually maintain secrecy by conducting an investigation through a grand jury which has subpoena power. Protecting the privacy of a subpoena target would not be a valid reason for closing the courtroom. But a prosecutor's desire to not tip off other subjects of the grand jury investigation, which a public hearing on quashing a grand jury subpoena might do, would be a basis for a valid request from the prosecutor to close the hearing to the public. Have any of X's rights been violated? No. There is a constitutional right of the public and the press to attend court hearings in most circumstances. There is no constitutional right to not have your reputation tarnished by criminal prosecutors in the course of a criminal investigation. Also, generally speaking, prosecutors have absolute immunity from liability for any conduct they commit in the course of a courtroom process. Did she have any right to not have her name tarnished before enough evidence was gathered to even charge her with a crime? No. Similar arguments were soundly rejected by an appellate court panel, for example, in the classified documents criminal investigation of former President Trump. |
Does an NDA cover "non-compete" needs? My business might be getting acquired and I was wondering if a standard Non-Disclosure Agreement (NDA) is enough to enforce "Non-Compete". In our NDA, "trade secrets" are mentioned, but what's stopping them from taking the ideas and competing or buying one of my competitors and using my 'trade secrets'? If NDA doesn't cover this, what would? The state I live in doesn't seem to enforce "non-compete" agreements. | A Non-Disclosure Agreement (NDA) prevents a person who agrees to it from repeating certain information to anyone else. This will often include trade secrets and other confidential information. The exact terms vary widely. An NDA does not usually prohibit an ex-employee from competing with his or her former employer. For that a non-compete agreement is needed. That is usually a separate agreement. There are several reasons for this, but an important one is that an NDA is often of relatively long duration, while a non-compete agreement is usually strictly limited in duration and geographic scope. Thus combining the two functions into a single agreement causes problems and is not often done. Non-compete agreements are strictly regulated in many jurisdictions, and the permitted scope and extent varies widely. A non-compete agreement that attempts to go further than local law permits may be held totally unenforceable. Thus it is wise to research what terms local law does permit, and often to consult a lawyer experienced in such agreements. Even without a non-compete, the Uniform Trade Secrets Act prevent a person from making improper use of trade secrets, and can punish anyone who does so. Information that was designated as confidential, and was properly identified and protected as a trade secret, cannot be used by a person who had access to it only under conditions of confidence. However, general knowledge and skill in a field is not a trade secret. | Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records. In england-and-wales the applicable rules are found in Part 31 of the Civil Procedure Rules. For example: Standard disclosure 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Specific disclosure (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. Party's control 31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Right of inspection 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. Inspection and copying 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. And, in case there's any doubt that this applies to electronic records: Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded; | Good question. A trade mark simply protects the company's exclusive right to use it to identify their goods and services. (R) means that the trade mark has been registered, TM means that, while not registered, the company is claiming a trade mark. Trade marks do not have to be registered to be enforceable. You are certainly not infringing their trade mark by what you are doing and you are not laying claim to the trade mark, so there is no requirement to use the symbols. Best practice is to use the symbols and identify who they belong to: "Intel and Core are trade marks of xyz". | Would a marketplace for trading receipts be legally allowed to operate? Yes, or at least I think so, since it is highly doubtful that any legislation outlaws receipts trading. Unlike other documents, there is no commonplace notion that receipts are secret, non-transferable, or even private. For it to be actionable, the marketplace would have to engage in, or openly promote, practices which are "more unequivocally" illicit. The possibility that some people might pursue receipts for tax fraud, enjoyment of unearned rights, or other illegitimate purposes does not imply that trading of receipts in and of itself is unlawful. For instance, a person might come up with a bizarre --but nonetheless plausible-- hobby of collecting receipts with certain sequences of figures. | A noncompete clause is a section of a contract whereby one party agrees not to compete with another party. These agreements are usually (always) limited as to time, geography, and scope. In other words, if you had a dog-walking business in your neighborhood you might like to hire someone to help walk some dogs. You'd like this person to agree not to compete with you. You charge people $10 per walk and you pay this person $5 per walk so you want to stop them from walking your customers' dogs for $7. In order to get the $5 per walk from you, your employees agree to not go into the dog walking business in your neighborhood for one year. Cat-sitting? Fine. Walking dogs in other neighborhoods? Fine. Walking dogs in your neighborhood 12 months and one day after they stop working for you? Fine. The reason for the limitations is that judges throw out agreements which are too restrictive. You could not require that a person agree to never walk a dog ever again. You could not stop a person from from walking a dog anywhere in the world. You could not stop a person from working any job for any of your customers. The laws about restrictiveness are unique to each state so that's why people recommend that you talk to a lawyer. Judges honor the work you've done to build a customer base and will allow you to protect it, but they're not going to let you keep your people from ever working in the same business again. The non compete describes the limits of the protection. You need to make sure that the code that others create for you in your employment is yours. It's always a good idea to get the specifics in writing just in case something wacky happens where it looks like someone other than you might own work created while working on one of your projects. The water gets pretty muddy when people are working on their own time with their own tools, it could be very easy for them to argue that they created a thing for their own use and provided it to you for your limited use but that they otherwise own it. This is not a noncompete. It's an ownership clause, aka an IP clause. | is contract text itself subject to copyright? What are my options? It largely depends on the originality of your contract. C & J Management Corp. v. Anderson, 707 F.Supp.2d 858, 862 (2009) points to multiple references against preclusion of "a copyrightable interest in a contract". But you would need to prove that your competitor copied "original elements" of your contract including "a minimum degree of creativity and originality required to support a valid copyright". See Donald v. Uarco Business Forms, 478 F.2d 764, 766 (1973). Your post provides no information that would help identifying or ruling out this issue in your matter. Without realizing, you might have paid dearly for boilerplate language that your lawyer copied from somewhere else. Indeed, there is so much regurgitation and copy/pasting in the legal "profession" (judges included, as is notorious in judicial opinions they release and in the similarities --verbatim-- among the procedure law of many, many U.S. jurisdictions). That regurgitation is not bad in and of itself, though, since what matters is the expeditious administration of justice and the protection of your rights, rather than obtaining creative expressions authored by some lawyer. You might end up wasting valuable energy and money if you went after the competitor for something like this without first assessing the extent of originality in your contract. Focus instead on the much more detrimental fact that your competitor "plays dirty in general". | Arizona recognizes non-compete agreements. Taser Intern., Inc. v. Ward, 231 P.3d 921 (2010) reflects the relevance of the existence non-compete agreement. However, the mere existence of a non-compete clause does not guarantee it will be judicially enforced or recognized. The not-binding opinion Treeline Design Group, Inc. v. Gonshorowski reflects an instance where a covenant not to compete for two years [after termination of employment] is unreasonable and unenforceable. In line with the other answer, the Treeline decision states that determining the reasonableness of a covenant not to compete is a fact-intensive inquiry For additional Arizona cases related to non-compete agreements, search for non-compete at leagle.com. | 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. |
What kind of civil action is created by the Texas Heartbeat Act? Section 171.208 of the Texas Heartbeat Act of 2021 allows "[a]ny person, other than an officer or employee of a state or local governmental entity in this state" to "bring a civil action against any person" performing or aiding and abetting an unlawful abortion. Putting aside the massive controversy surrounding this law (sometimes derisively called the "Texas Bounty Hunter Law"), I got to wondering what kind of civil cause of action is actually created here. This obviously isn't a breach of contract, since the plaintiff obviously need not have any prior contract with the defendant. It also wouldn't seem to be a tort, since there is no general duty of care not to participate in an abortion. Even assuming, arguendo, that this statute creates a duty of care not to participate in an abortion and owed to almost everyone else in the state, the vast majority of potential plaintiffs are either not going to be harmed by any particular abortion or will experience only a de minimis harm. Without legally cognizable harm done to the plaintiff, no tort action will typically lie even if a duty of care is breached. Another possibility I considered was that an equitable remedy is being created, but equity is designed around achieving fairness and giving someone a windfall because someone hundreds of miles away that they don't know drove someone they also don't know to an abortion clinic they had not previously heard of does not achieve any sort of equity. What kind of civil action is created by the Texas Heartbeat Act? Is it an action in breach of contract? Is it a tort action? An equitable remedy? If it is none of these, what kind of action is it and are there other examples of this kind of action elsewhere, either in Texas law or in any other Common Law jurisdiction? | 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. | Your understanding of the bill is correct. Legislation takes effect 90 days after sine die adjournment unless there is an emergency or enactment clause. If a relevant provision of the law is struck down as unconstitutional, any suit dependent on the provision would be dismissed. Residency is not relevant, what is relevant is being subject to Arkansas jurisdiction, meaning "being in Arkansas". A non-resident traveling to Arkansas could not have a forbidden procedure in Arkansas, and an Arkansas resident can have a procedure allowed elsewhere if they are elsewhere. A spouse would not be able to get an injunction if, for instance, the wife traveled to Washington state for the procedure, because Arkansas courts have no jurisdiction over Washington state. The law imposes a restriction on what physicians in Arkansas can do, and the woman receiving the abortion is not subject to liability. | 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. | There is a Defense of "Necessity" which would apply in such cases, even if the law had no intent element.. This essentially allows as a defense to an accusation of crime that the actions were essential to prevent harm. Dee, for example Justia's page on The Criminal Defense of Necessity. There it is said: The defense of necessity may apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening. In such circumstances, our legal system typically excuses the individual’s criminal act because it was justified, or finds that no criminal act has occurred. Although necessity may seem like a defense that would be commonly invoked by defendants seeking to avoid criminal charges, its application is limited by several important requirements: The defendant must reasonably have believed that there was an actual and specific threat that required immediate action The defendant must have had no realistic alternative to completing the criminal act The harm caused by the criminal act must not be greater than the harm avoided The defendant did not himself contribute to or cause the threat Only if all of these requirements are met, will the defense of necessity be applicable. It is also important to note that in some jurisdictions, necessity is never a defense to the killing of another individual, no matter what threat they may present. The Justia page goes on to describe the elements of the defense in detail. See also The Wikipedia artifcel which makes many of the same points. Necessity is a broader defense than the intent or willfulness requirements of particular laws, because it applied even when the law does nor contain such an element. However, it has its own strict limits, described above. The exact scope of this defense differs in different jurisdictions. | UPDATE: There is now a definitive answer. There Is No Binding Judicial Precedent Adjudicating The Key Standing Issues Raised That Are Factually Squarely On Point This is a novel argument. To my knowledge, this is the first time that any state has ever sought judicial relief arising from another state's election administration, so it is a case of first impression not directly governed by a factually similar precedent. Thus, rather than being governed by a precedent that resolved the exact standing question presented, we must result to more general principles. Because it is a novel argument, it is impossible to be completely sure how it will be resolved. General Considerations In Standing Law The General Rule Standing requirements require that there be a particularized actual injury to a legally recognized interest of the person suing. Standing is a subcomponent of subject matter jurisdiction. Standing is one of the things that must be present for a court to have subject matter jurisdiction. Standing is evaluated with reference to the merits. It exists if there is a recognized legal theory which, if proven, there has been a particularized injury to the person bringing the claim. Most standing cases involve legal claims for relief that it is clear that someone validly has and the question is whether this particular person can assert them. But a minority of standing cases involve the question of whether there is a recognized legal claim of the type asserted at all. No one has standing to assert a non-justiciable claim (i.e. a claim beyond the jurisdiction of all courts), or a claim for relief for which the courts do not legally recognize a remedy (e.g. a claim for not being chosen by a particular person to marry). As a result, standing can overlap with the argument that someone has failed to state a claim upon which relief can be granted. Generalized Grievances Don't Impart Standing Even if the law is perfectly clear that a law has been violated, that doesn't necessarily mean that anyone has standing to seek a remedy from a court for that violation of the law. To the extent that one has merely a generalized grievance shared in common with everyone (e.g. an interest in a correct outcome of a Presidential election, or a desire to have the government follow the law) that would not ordinarily suffice to establish standing. Texas does not have an interest in the outcome of a Pennsylvania or Georgia Presidential election that is any different from the interest of a citizen of Texas or me, a citizen of Colorado. But citizens of a state other than the one in which the election was conducted who aren't candidates in that election clearly don't have standing to challenge the outcome of an election in another state. If the Texas argument for standing is accepted, any voter in any state would have standing the contest the election results of every other state in every Presidential election (although not in the original jurisdiction of the U.S. Supreme Court). The Argument For Standing Offered By Texas And Its Flaws The Texas Argument For Standing The Complaint argues for standing as follows in paragraph 18: In a presidential election, “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson, 460 U.S. at 795. The constitutional failures of Defendant States injure Plaintiff States because “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, Plaintiff State is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors. The Bush v. Gore Precedent Doesn't Establish Standing Here But Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II) relied upon in the Complaint is not on point. Indeed, Reynolds v. Sims (which established a one man, one vote principle for state and local legislative redistricting) expressly recognized that the federal constitution would be illegal if a parallel system like the electoral college or U.S. Senate were enacted at the state level, but declined to hold that the 14th Amendment invalidated this portion of the U.S. Constitution (in part, because a valid constitutional amendments can't alter the equal representation of a U.S. state in the U.S. Senate without its consent). Bush v. Gore likewise was an intrastate election dispute alleging that the equal protection rights of voters in one part of a state were abridged by the voters in another part of the state having different election rules applied to them in a lawsuit between two candidates in the race who clearly did have standing (although not original jurisdiction standing in the U.S. Supreme Court, which is limited with other exceptions inapplicable here, to lawsuits between two states). The Claim That Texas Has A Legally Cognizable And Justiciable Interest In The Overall Result Of A Presidential Election Is Unprecedented And Dubious The Complaint's assertion that in a presidential election, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States, citing Anderson, is also problematic. First of all isn't technically true. The United States has 51 elections for Presidential electors, it doesn't have a "Presidential election" of ordinary voters. Perhaps an elector has standing to assert vote dilution, but an elector voting in that election, or a candidate, but they are not U.S. states and as a result, they can't bring lawsuits in the U.S. Supreme Court's constitutional original jurisdiction. In the same way, Texas can't sue Florida alleging that a U.S. Senate or U.S. House election in Florida was conducted incorrectly, because every U.S. Senate or U.S. House election impacts which party has a majority in that house of Congress. Instead, the Constitution, recognizing that the courts offered no national judicial election remedy to people outside a state with a disputed election, created a legislative one by vesting resolution of disputed Congressional elections in Congress, rather than the Courts. Hundreds of disputed Congressional elections have been adjudicated that way. Indeed, the only case of a genuinely disputed Presidential election outcome, the election of 1876, which is the closest precedent, is one in which Congress, rather than the Courts resolved the dispute regarding the overall Presidential election result based upon allegations of irregularities in a particular state. One of the leading U.S. Supreme Court bar members concurs with this analysis: Texas has no legal right to claim that officials elsewhere didn't follow the rules set by their own legislatures. The United States doesn't have a national election for president. It has a series of state elections, and one state has no legal standing to challenge how another state conducts its elections any more than Texas could challenge how Georgia elects its senators, legal experts said. "This case is hopeless. Texas has no right to bring a lawsuit over election procedures in other states," said SCOTUSblog publisher Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court. Second of all, it is irrelevant. Anderson didn't authorize one state to sue another state over its administration of an election. Even if the outcome of elections in other states have a de facto impact on other states, this doesn't mean that Texas has a legally cognizable interest in how another state selects its electors which is reserved to the legislature of the other state under the constitution. There are no precedents for one state having a legally recognized interest in the outcome of another state's election. It did not participate in the election as a voter or an administrator of that election or as a candidate. It doesn't even cast a vote for President in any case, the electors that it elected do that. The votes of the Texas electors are not diluted by the existence of electors in other states beyond the status quo expectation with no wrongdoing. Texas gets the same number of electoral votes relative to the total number of votes cast, regardless of who the electors of four other states cast their votes supporting. There is no allegation that another state got too many electoral votes. In contrast, Texas might have standing to sue if it was allocated just 12 electoral votes, when, the census results showed that it was actually entitled to 38 electoral votes. Being denied the right to cast the full number of electoral votes that Texas gets to cast probably is an actual injury and does not hinge on how another state administers its election of its Presidential electors. Links to the briefs filed by each of the four defendant states found here further detail the standing analysis in addition to other arguments. For example, Michigan summarizes its standing argument as follows: Texas lacks standing to bring its Electors Clause claim where its asserted injury is nothing more than a generalized grievance that the Clause was violated. The standing section in the Georgia brief explains that: Texas lacks Article III standing to pursue its claims. Texas alleges two types of injuries—a direct injury to the State and a supposed injury to its Electors, whom Texas seeks to represent in a parens patriae capacity. Neither is cognizable. A. Texas argues that it has suffered a direct injury because “the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate.” Mot. for TRO 14–15 (emphasis in original); see also id. at 15 (arguing that a “Plaintiff State suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election”). Under governing precedent, that is not an injury in fact. A State—like any plaintiff—has standing only if it alleges an injury that is actual or imminent, concrete, and particularized. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560); see also id. (injury in fact is the “[f]irst and foremost” of the standing elements) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)). But Texas has no cognizable interest specific to Texas in how the Vice President votes. Texas’s interest is in its own representation in the Senate; Georgia has not impaired that interest. Texas still has two Senators, and those Senators may represent Texas’s interests however they choose. Even by its own logic, Texas has suffered no injury. In any event, Texas’s speculation that the Vice President may one day cast a tie-breaking vote is not a cognizable injury. . . . Indeed, certain Vice Presidents—Mr. Biden, for example—never cast a tie-breaking vote during their tenure. Texas’s alleged injury is not the type of imminent, concrete, or particularized injury that Article III demands. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013) (a “threatened injury must be certainly impending to constitute injury in fact” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))); id. (standing theory that “relies on a highly attenuated chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly impending”). Texas’s alleged injury is also not cognizable because it is a generalized grievance—the kind of injury “that is ‘plainly undifferentiated and common to all members of the public.’” Lance v. Coffman, 549 U.S. 437, 440– 41 (2007) (quoting United States v. Richardson, 418 U.S. 166, 176–77 (1974)); id. (The only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.”); see also Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018) (the alleged injury must be “distinct from a ‘generally available grievance about government’” (quoting Lance, 549 U.S. at 439)). The injuries that Texas alleges on behalf of its citizens are injuries that would be common to not only every citizen of Texas, but also every citizen of every state. Cf. Lance, 549 U.S. at 440 (“To have standing . . . a plaintiff must have more than a general interest common to all members of the public.” (quoting Ex parte Levitt, 302 U.S. 633, 633 (1962))). And in all events, by Texas’s logic any State would have standing to pursue the alleged claims because every State purportedly “suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election” (Mot. for TRO 15). So Texas’s injury is specific neither to its citizens nor to Texas as a State. An injury unique to no one is not an injury in fact. Texas cites no case supporting its assertion that it has suffered an injury in fact. Texas cites Massachusetts v. Envtl. Prot. Agency for the proposition that “states seeking to protect their sovereign interests are ‘entitled to special solicitude in our standing analysis’” (Mot. for TRO 15 (citing 549 U.S. 497, 520 (2007)), but Texas strips that language of its context. The Court there explained that Massachusetts was entitled to “special solicitude” in the standing analysis because a State has a quasi-sovereign interest in “preserv[ing] its sovereign territory” and because Congress had afforded “a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Massachusetts, 549 U.S. at 519–20; see also Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 182 (D.C. Cir. 2019) (explaining context of the Court’s reasoning). Neither thing is true here. In any case, Massachusetts involved a State’s loss of coastal property from rising sea levels, which is nothing like Texas’s alleged injury (a speculative tie-breaking vote by the Vice President). Texas has not alleged a direct injury in fact. B. Nor does Texas have standing to raise claims for its electors in a parens patriae capacity (cf. Mot. for TRO 15). A State may sue parens patriae only if it proves that it has Article III standing (see, e.g., Bernhardt, 923 F.3d at 178), which Texas hasn’t done. But even if it had, Texas would lack parens patriae standing because that concept applies only when a State seeks to vindicate the interests of more than a discrete and identifiable subset of its citizens (most often in the health and welfare contexts). See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (“[M]ore must be alleged than injury to an identifiable group of individual residents . . .”); Pennsylvania v. New Jersey, 426 U.S. at 665 (a State may not sue parens patriae when it is “merely litigating as a volunteer the personal claims of its citizens”). Here, Texas purports to represent the interests of only thirty-eight people (its Electors). But Texas’s problems run even deeper. This Court has explained that “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Alfred L. Snapp & Son, 458 U.S. at 607; see also Bernhardt, 923 F.3d at 178 (same). That is not the case here. Under our federalist system, Texas could never “address through its sovereign lawmaking powers” how another State elects its Electors. Texas lacks parens patriae standing. C. Texas also lacks standing because it asserts the rights of third parties. A plaintiff generally “cannot rest his claim to relief on the legal rights or interests of third parties” unless the plaintiff establishes (1) a “close” relationship with the third party and (2) a “hindrance” preventing the third party from asserting her own rights. Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). Otherwise, the plaintiff fails to present a “particularized” injury. See Spokeo, 136 S. Ct. at 1548; see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”). . . . The Eleventh Amendment bars Texas citizens from bringing such claims against Georgia in federal court, so Texas cannot circumvent that bar when asserting such individual rights in a parens patria capacity. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 465 (1945) (“By reason of the Eleventh Amendment the derivative or attenuated injuries of that sort are not enough for standing. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 708 (2013) (“It is, however, a ‘fundamental restriction on our authority’ that ‘[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.’” (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). The Pennsylvania opposition brief's section on standing explains that: Article III, Section 2 of the United States Constitution limits the jurisdiction of the federal courts to resolving “cases” and “controversies.” U.S. CONST. art. III, § 2; Raines v. Byrd, 521 U.S. 811, 818 (1997). That same jurisdictional limitation applies to actions sought to be commenced in the Court’s original jurisdiction. Maryland v. Louisiana, 451 U.S. 725, 735-36 (1981). To establish standing, the demanding party must establish a “triad of injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998). More specifically, that the plaintiff has suffered injury to a legally protected interest, which injury is “fairly traceable to the challenged action and redressable by a favorable ruling.” AIRC, 576 U.S. at 800; see also Maryland, 451 U.S. at 736. This Court has “always insisted on strict compliance with this jurisdictional standing requirement.” Raines, 521 U.S. at 819. For invocation of the Court’s original jurisdiction, this burden is even greater: “[t]he threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.” People of the State of N.Y. v. New Jersey, 256 U.S. 296, 309 (1921). Texas fails to carry this heavy burden. First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the “invasion of a legally protected interest”; that the injury is both “concrete and particularized”; and that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania’s Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause.8 Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly’s constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly. See Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S.Ct. 1945, 1953 (2019) (noting the “mismatch between the body seeking to litigate [the Virginia House of Delegates] and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority [the General Assembly]”). Second, Texas’s claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas’s allegations of violations of Pennsylvania law has been rejected by state and federal courts. Third, Texas fares no better in relying on parens patriae for standing. It is settled law that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania, 426 U.S. at 665. The state, thus, must “articulate an interest apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982). In other words, “the State must be more than a nominal party.” Ibid. That, however, is exactly what Texas is here. Texas seeks to “assert parens patriae standing for [its] citizens who are Presidential Electors.” Motion at 15. Even if, as Texas claims, the presidential electors its citizens have selected suffered a purported injury akin to the personal injury allegedly sustained by the 20-legislator bloc in Coleman v. Miller, 307 U.S. 433, 438 (1939), which they did not, that does not somehow metastasize into a claim by the state rather than those presidential electors. The 20-person bloc of legislatures in Coleman sued in their own right without the involvement of the State of Kansas. Ibid. Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best. 8 In its motion, Texas disclaims a “voting-rights injury as a State” based on either the Equal Protection or Due Process Clauses. Motion at 14. Rather, Texas claims that its legally protected interest arises from “the structure of the Constitution” creating a federalist system of government. Ibid. As discussed infra, to the extent Texas relies on the Equal Protection and Due Process Clauses, those “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. Wisconsin's standing arguments are as follows: At a minimum, to invoke this Court’s original jurisdiction, Texas must demonstrate that it has “suffered a wrong through the action of the other State.” Maryland v. Louisiana, 451 U.S. 725, 735–36 (1981). But Texas is unable to allege that Wisconsin itself did anything to directly injure Texas’s sovereign interests. Instead, Texas advances a far more attenuated theory of injury—that the other States’ supposed violations of their elections laws “debased the votes of citizens” in Texas. Mot. for P/I at 3. This speculative logic is not nearly enough to carry Texas’s burden to prove, by “clear and convincing evidence,” a “threatened invasion of [its] rights” “of serious magnitude,” New York, 256 U.S. at 309. Indeed, Texas’s allegations fall far short of what would be required by Article III in any federal case—that is, a showing that a plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It is well settled under the Court’s original jurisdiction cases that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976). Apart from attempting to rely on the “personal claims of its citizens” as electors or voters, Texas struggles to identify any traditional sovereign injury to support its claim under the Electors Clause. Instead, Texas proposes that this Court recognize a new “form of voting-rights injury”—an injury premised on the denial of “‘equal suffrage in the Senate’” somehow caused by the election of the Vice President. Mot. for Prelim. Inj. at 14 (quoting U.S.Const. art. V, cl. 3). Texas makes no freestanding constitutional claim to this effect. In any event, this argument makes no sense. Texas does not (and cannot) argue that it now has fewer Senators than any other state. By definition, therefore, it maintains “equal suffrage in the Senate.” Texas’s attempt to garner standing for its claims under the Equal Protection and Due Process Clauses fares no better. These “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. If Texas’s theory of injury were accepted, it would be too easy to reframe virtually any election or voting rights dispute as implicating injuries to a States and thereby invoke this Court’s original jurisdiction. New York or California could sue Texas or Alabama in this Court over their felon-disenfranchisement policies. . . . . This case does not satisfy the direct-injury requirement. Texas speculates that Wisconsin’s facilitation of mail-in voting during the pandemic may have increased the likelihood that third parties would engage in instances of voter fraud in Wisconsin. Texas does not offer a shred of evidence that any such fraud occurred. And Texas does not allege that Wisconsin directed or authorized any individual to engage in voter fraud. Nor would any such allegation be plausible. In any event, this Court long made clear that its original jurisdiction does not extend to “political disputes between states arising out of [the alleged] maladministration of state laws by officials to the injury of citizens of another state.” Stephen M. Shapiro, et al, Supreme Court Practice 10-6 (11th ed. 2019); see Louisiana v. Texas, 176 U.S. 1, 15 (1900)) (“Jurisdiction over controversies of that sort does not embrace the determination of political questions, and, where no controversy exists between states, it is not for this Court to restrain the governor of a state in the discharge of his executive functions in a matter lawfully confided to his discretion and judgment.”). It is hard to imagine a case that more clearly runs afoul of that principle than a dispute over the outcome of the presidential election, premised on the alleged maladministration of state election law. The Existence Of A Legally Cognizable Interest Needs To Be Evaluated In The Context Of The U.S. Constitution As A Whole The question of first impression concerning whether a state has a legally cognizable interest in the administration of an election in another state needs to be evaluated in the context of the U.S. Constitution as a whole. The Constitution says a fair amount about election administration and disputed elections that in context disfavors the notion that one state has a legally cognizable interest in how another state administers an election administration. All federal elections in the United States (outside the District of Columbia) are administered by the states and by the local governments and agencies created by the states. State election laws must conform to federal requirements, and candidates participating in elections or voters in that state have standing in many cases to litigate whether those state and federal laws were conformed to by state election administrators. Each election of electors is separate and prior to 1852, Presidential elections weren't even held on the same day even though the Congress had the authority to mandate a single Presidential election date. The process of determining a total outcome of the election by aggregating state electoral college votes is vested in Congress by the constitution, not in the judicial branch, and so there can be no legally cognizable interest in this non-justiciable issue. Therefore, not only does Texas lack standing to bring this suit on the theory asserted that Texas is injured by an aggregation of electoral votes including votes allegedly made by improperly certified electors. No one has standing to do so in any court of law. | In the US, it depends on why you are doing this, and how you go about performing the operation. There are approved devices and procedures, and there is the other stuff. In an emergency that is life-threatening or threatens severe debilitation, it is permitted for a physician to try an extreme measure – if the state has a "Right to Try" law. Otherwise, a review and official approval by the relevant IRB is required. The devices are regulated by the FDA, but the FDA does not regulate the practice of medicine, so the feds don't have a say in whether a procedure is allowed. Nevertheless, use of unapproved devices can be taken to be evidence of failing to meet the required standard of care, in the case of a malpractice suit or punitive action by the state regulatory board. There is no specific law prohibiting removing lots of organs and replacing them with prostheses, though arguable what happened was that the brain was removed (it's not that a replacement shell was built around the person). Ordinarily, intentionally "killing" a person is illegal (except in case of sanctioned execution or self-defense). There is zero case law that would tell us whether removing a brain from a body "kills" the person. Most likely, there would be a prosecution for unlawfully causing a death, and either the legislature would tune up the law w.r.t. the definition of "causing death", or the courts would do so. | The court clerk was right. A judge is not supposed to interact with a party (at least not in the absence of the adversary) except during court hearings for which the adversary was notified and given an opportunity to attend. Also, there is no need for you to prove the mere fact that you went to court. That in itself is either inconsequential or palpable from the hearing transcripts. When you file in court papers such as a motion or a response to a motion, you may --and should-- bring an extra copy for the clerk to stamp it. That a clerk does with no objections. The stamp reflects the date on which you file your document(s). That stamp incidentally evidences that you or someone on your behalf went to court but, again, that sole fact is inconsequential. There is no such thing as "motion to appeal". A litigant may initiate an appeal, or appellate process, once the judge has decided a case in its entirety or in part. If the ruling to be appealed does not close the case, the upper court might refuse to review the issue(s) appealed until the whole case has been decided (that refusal is known as denial of the appellant's leave to appeal). Your description nowhere indicates that the judge has already made any rulings or that there have been any hearings on your matter. Your mention of prior motions suggests that you should gain acquaintance with the Texas Rules of Civil Procedure and of Appellate Procedure. Those rules cover several aspects of litigation, including motion practice, the allowed methods of service, and the requirements to file an appeal in upper courts. | If the younger person starts a civil suit against the older person for statutory rape, can the older person countersue for "actual" rape? There is no civil action counterpart to statutory rape. Is there any way that the older person can use the "actual" rape as a defense in either a civil or criminal charge? Statutory rape does not give the person who is defined as a victim of statutory rape to bring a civil action for money damages against the adult with whom that individual had sex. Sometimes there might be a civil action for breach of a fiduciary or confidential relationship, or intentional infliction of emotional distress/outrageous conduct. But that would be the exception, rather than the rule, and the civil action tort would not be a strict liability offense. While statutory rape is sometimes a "strict liability crime" in the sense that actual subjective consent is not a defense, and reasonable mistake of age is not a defense, a prosecution for statutory rape still requires proof of a voluntary act by the defendant charged with the offense. The claim that someone did not voluntarily have sex with the underaged person and instead was forced to engage in sex with the underaged person without their consent would be a valid defense to the crime. This is because it would prevent the prosecutor from proving that the defendant committed the voluntary act element of the crime beyond a reasonable doubt. This kind of defense could also be conceptualized as the affirmative defense of duress which would still apply to this offense. My understanding is that if the older person has been convicted criminally for statutory rape, that would bar that person from prevailing in a civil suit for "actual" rape. Would this be true[?] One could bring a civil action for assault and battery in connection with a rape not implied in law by virtue of age (i.e. what you mean when you say "actual" rape). A criminal conviction for statutory rape (for which all appeals have been exhausted) would probably be a valid defense to such a civil action pursuant to the doctrine of collateral estoppel (i.e. because a binding determination of the same issue with the same or stronger burden of proof was finally resolved on the merits in another case involving the same people). This is only true, however, because the lack of voluntary act defense would have been available in the criminal case for statutory rape. has such a sequence of events actually happened anywhere in the United States? Probably. The United States has had states with statutory rape laws for many, many decades and many hundreds of millions of people, if not billions of people, have lived in that time period. So, almost anything that could happen with respect to a widely enacted law involving activities that are possible for ordinary people to engage in has probably happened. This said, however, I've never heard of a legal case with this fact pattern in the news media or in reported case law (although admittedly, this isn't my area of practice). The more common case which does come up from time to time is a case of brother-sister incest where there is dispute over who should be charged (usually, but not always, the older sibling, and in rare instances, both are charged). Historically, in the overwhelming majority of cases where statutory rape charges could easily be proven, they are not brought by prosecutors. Sometimes this is because that is what the victim wants. Historically, victims have frequently wanted this outcome, either out of hope for an ongoing relationship with the adult, or doesn't want to relive a traumatic event, or out of the well founded believe of the victim that the case would do more to harm her reputation and well being than it would to suitably punish the adult (and keep in mind that statutory rape is often a misdemeanor offense which might be punished fairly lightly at sentencing depending upon the judge). Sometimes this is because the prosecutor sees keeping the perpetrator employed and able to pay child support when a pregnancy results as a preferable options. Sometimes this is because proving that sexual intercourse happened with someone beyond a reasonable doubt in cases that did not result in pregnancy, when the only witnesses are the alleged defendant and the allege child victim whose credibility may be questioned, was very difficult prior to DNA evidence, widespread use of rape kits, and cheap, ubiquitous video and photography use. Furthermore, factually, it is exceedingly uncommon for young minor girls to rape adult men, and until quite recently, the statutory rape laws applied only to female victims. Even now, with gender neutral statutory rape laws being the norm, prosecutors are much less likely prosecute an alleged statutory rape involving a male victim than a female victim. Finally, many prosecutors feel morally justified in invoking their authority to press statutory rape charges only when they believe that there was a non-consensual sexual act committed against the victim which happened even if it was hard to prove and are reluctant to bring such charges if the prosecutor believes under the circumstances that the act was consensual in fact, even if legally the defendant is still legally guilty in those circumstances. Generally speaking, attitudes towards this have grown more harsh towards men who have sex with young minors in recent years, but historically, this was a pretty important factor. |
Boostrap licensing I try to understand thoses licenses' differences. If I build a website that allows users to browse and book a city trip, would the Standard License be enough ? I've read it a dozen times and I feel like its incoherent from a paragraph to another. Examples of Standard License Use: A marketing site for a paid application (where the Theme and it’s components are used only on the marketing pages) The Full Standard License - Basics You are licensed to use the Item to create one End Product for yourself or for one client (a “single application”), and the End Product can be distributed for Free. Make unlimited copies of the single End Product as long as the End Product is distributed for free You cannot sell the End Product except to one client. | While I agree that the license required for your use case isn't particularly obvious to me, the page you have linked to includes the following paragraph: Need help picking your license? Just shoot us an email at [email protected] and we’ll help you decide which license makes sense for your needs! So in this case, my recommendation would be to get in touch as described, that way you will know for sure that you are properly licensed. | Copyright and patents are two very very different things. Copyrighting a standard means the wording of the standard can not be copied without the copyright holders permission. It does not protect the ideas expressed in the document, just the way those ideas are expressed. IEEE standards, for example, are copyrighted by the IEEE and therefore you can't make a copy of the Ethernet specification, you need to buy it from them. That has nothing to do with implementing an Ethernet device. To implement something described in a technical specification might or might not require one or more patent licenses. The authors of the standard may not even be aware that something they require for the standard has already been invented and patented by someone else. Many standard bodies do impose a requirement on participants in the standard's creation that they offer licenses to any patents they own that are needed to implement the standard on a fair and equal basis to all. It is called FRAND - the acronym for fair, reasonable and non-discriminatory licensing. | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | I see no reason to doubt your conclusion; since it's not allowed by the license it's forbidden by copyright. As you figured it, you gain the right to use these tools by obtaining one of those 3 Visual Studio licenses. A Visual Studio Code license is free, so it makes business sense that it doesn't include a license for Microsoft C++ Build Tools. I.e. you can't claim it's an "obvious oversight", as there's a justifiable business reason. | You are free to sell or not to sell to whoever you like (unless it is illegal discrimination, like not selling to white Christians), but it doesn't make a difference, because anyone who buys the software from you can legally sell it on to anyone they want. So you cannot control who ends up owning the software. If I want the software and you don't sell it to me, and I still want it, I'll just ask a friend to buy it and give them the money. Other people would just get a pirated copy if you refuse to sell to them (and would have very little bad conscience since they offered you cash and you refused to take it). You can put terms into a license, and in the USA this is binding. The customer may not agree with the license, and in that case they have the right to get a refund for the software. In the EU, I don't think a license is binding, so you'd have to sign a legally binding contract with the buyer. Apart from all that, you have very little chance to find out if the software is used against your wishes and to do anything about it. | It depends on what you are selling to the enterprises. You could be selling just a licence to use the program, and retain all the rights on the source code. You could be selling the rights to the source code. For #1, the source code is yours and you can do what it pleases with it1. In fact many programs offer both an open-source licence (which usually forces the user to make its changes to the code publicly available) and a commercial one (which allows the user to keep the modifications of the source code for themselves). For #2, the source code is no longer yours so it is not up to you to decide what to do with it. 1I am assuming no other agreements imposing limits on those; for example that none of your contracts to your customers have a clause forbidding you from making the code available to the public. | You also retain the right to license the work to others. Therefore you can sell similar rights to MusicBook and anyone else, as long as you do not grant an exclusive license (you have already licensed another party to distribute). They do not gain the right to sub-license your work. If you had executed a copyright transfer, you would have no rights to the work whatsoever (leaving out moral rights for jurisdictions that have them and where they are absolute). | A licence is your permission for others to use the work within the specific terms of the licence. You never license yourself, you license someone else or someone else license you. If you are the sole right holder of a work and you do not assign or transfer your copyright interests to others, you retain all rights regarding the work. Licensing your work under a CC licence does not make it impossible for yourself to use it commercially in the past, present or future. Of course, permissive licences like CC-BY might decrease the commercial value of your work since anyone else could reuse your work freely with minimum restrictions. But that does not prevent you legally from use your own work for commercial purposes. The exact choice depends on your wish on other aspects of using your work. For example, CC-BY-NC would require the licensee (essentially, anyone else not having another overriding agreement with you) to attribute/give you credits in order to use it non-commercially only, but they may remix and adapt your work as they wish as long as they credit you and the purpose is non commericial. You may also add an ShareAlike (SA) requirement where if the licensee creates an derivative work based on your work, they must license their derivative work using CC-BY-NC-SA as well. The last kind, CC-BY-NC-ND (NoDerivatives), would not only require credit when the licensee uses your work, but also prevent them from creating derivative works from your work. |
Is it legal to sell extra patties only with a full burger but not alone? A menu lists burgers for £12 and additional "doubling up" patties for £3.50. Suppose one wants to only prefer a pattie by itself for £3.50 but not a burger. Is it fair for restaurants to restrict one's food choices in this way under fair contract terms provisions? | england-and-wales Yes it is legal. There is no law prohibiting such behaviour. A restaurant menu invites people to ask for items on the menu. People are free to make other offers too, e.g. "no cheese" or "will you add an egg?" or "will you accept £10 for the burger, it's all I have?" The customer is free to make an offer and the restauranteur is free to accept or refuse the offer. "No I don't want to sell you a burger patty on its own for £3." Unfair contract terms seem irrelevant because there is no contract at the stage when the customer asks the restauranteur for a food item. | The store is, as far as i can see, not using the trademarked image to sell their cake. Your family does not intend to sell anything at all. This photo, from the description, could not reasonably be confused with an official image from the trademark holder. (all of this is based on your description, of course). Therefore, the trademark holder probably won't sue for trademark infringement, even if they somehow heard of this event, and if they did sue, they would quite likely lose. You would be making a copy of a presumably copyrighted image. You might have an active defense, but that is very hard to be sure of in advance. (Note that "fair use" is a very specifically US legal concept, and would not apply in the UK. The roughly comparable concept is "fair dealing" but that is more restrictive, and follows somewhat different rules.) In any case, it is possible that the rights holder would sue, and if the situation were a bit different (the was only one person pictured, making the shirt with the protected image very prominent, for example) there might be a larger chance of such a suit being successful. No business is going to want a bakery department manager deciding whether a particular use of a particular image does or does not infringe IP rights, and whether it does or does not expose the business to significant risk. Just to get an opinion from their lawyer on whether this image infringes would probably cost them several times the price of the cake with image printing. The store has no doubt written its guidelines to err well on the side of caution, because one suit, even if they won, would cost far more than the profits of many cakes, and if they lost, could have a very negative effect on their bottom line indeed. The store is entitled to restrict what business it does to keep itself safe from lawsuits. It is going to keep well on the cautious side, in all likelihood, and so it should. I fear you will have to find a store with a different policy, or use a different picture. | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | Some jurisdictions provide for statutory warranties on fitness and merchantability of goods. The effect of these exclusion clauses will vary between jurisdictions, so I will briefly examine two different effects of law with respect to supply of goods. For the United States, certain warranties are implied in the sale of a product, provided for in the Uniform Commercial Code § 2-314, (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchantwith respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promise or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. The Uniform Commercial Code § 2-315 states that: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. This means that the warranties in § 2-314 will generally apply to products that are sold, unless excluded as per § 2-316 UCC § 2-316 (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Licenses that specifically exclude implied warranty are sanctioned by the UCC, and therefore would be considered in the United States. UCC §2-106 defines a sale as passing of title from the seller to the buyer for a price. States may have additional laws that may affect the interpretation of the UCC. For example, Ark.Code Ann. § 4–1–201(32): (29) "Purchase" means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property. However, Neuhoff v. Marvin Lumber and Cedar Co., 370 F.3d 197 (1st Cir.2004) held that windows provided free of charge to replace defective windows did not come with implied warranty. However, not all jurisdictions allow the exclusion of implied warranty. For instance, consider Australian Consumer Law. (Part 3-2, Division 1): 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision. 67 Conflict of laws If: (a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or (b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division: (i) the provisions of the law of a country other than Australia; (ii) the provisions of the law of a State or a Territory; the provisions of this Division apply in relation to the supply under the contract despite that term. What the above sections mean : (54) there are implied statutory warranties (64) that cannot be excluded by contract, (67) and applies even if the proper law of a contract is not Australia. It is important to note that these do not depend on the existence of a contract (see 54(1)); gifts are covered, though I am unaware of any case law on this. In addition, title (s51) and non-infringement ("undisturbed possession") (s52) must be guaranteed by the supplier and cannot be excluded. In addition, the mere existence of this statement, purporting to limit or remove guarantees that cannot be limited or excluded, puts the supplier in breach of s29 as they are making a "false or misleading statement in connection with the supply, possible supply or promotion of goods or services". This is a criminal or civil offence and can be punished by fines of up to $1.1 million for a body corporate and $220,000 for a person other than a body corporate plus injunctions, damages, compensatory orders and other remedies. However, a simple "To the extent permitted by law ..." at the start would make this legal. So, does it have an effect? Sometimes. But not always. And at least in the United States, there are specific requirements if you want to exclude implied/statutory warranty. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. | A substantial part of the value of the goods and services provided by tech companies is in intangibles. For example, this analysis suggests that approximately 1/3 of the price of an iPhone is in materials and labour and the rest is in the patents, copyrights and brand value that the names "Apple" and "iPhone" provide. If these intangibles are owned by, say, Aplle (Ireland) then Apple (USA) will have to pay them to use them - whatever amount those two companies agree on will reduce Apple (USA)'s profit and raise Apple (Ireland)'s profit - the tax rates in each of these countries is not the same. Now, tax law says that such transfers have to be at fair market value. So, what is the fair market value of all the IP needed to build an iPhone? Or the value of the names "Apple" and "iPhone"? You don't know, I don't know, Apple doesn't know and the tax authorities don't know. Whatever figure they pick is defensible as "fair market value" because there isn't actually a market - fair or otherwise. Resteraunts can do this too - McDonald's (Australia) pays a licence fee to use the name "McDonalds" but this is the only intangible McDonalds have - there is no patent on how to make a hamburger - so the scope for them to take advantge of this is less than for tech companies. | 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. | You would not be liable for a fine (If you think about it, how can you be - Australia does not have jurisdiction over you as you are in New Zealand, and you have broken no NZ law - Further, you declared the item to customs so even in Australia you could not be held liable) Looking at it another way, if you had gotten on a plane with it, declared it to customs on the arrival card, they would have simply asked to see it and made a decision whether to let it in or not - they would not fine you. Customs may or may not confiscate it (ie they may let it through). I've not sent a parcel to Australia, but I have imported seeds into NZ - I made a number of calls and emails to ensure I got the process right - expected to pay quite a lot of money to do it - in the end they just came straight to me - MAF did not even examine the parcel. Being that NZ and AU are pretty similar in terms of legislation (ie both the food standards are the same) - its probably actually Ok to send it anyway - in fact the Imported Food Control At 1992 - which I believe is applicable - specifically exempts many foods imported from New Zealand from the act. The last paragraph of this AU government web page states "The only New Zealand foods that are subject to the IFIS at the border are those classified as risk foods. Equivalence determination of food safety systems covering dairy products was reached in 2007 and seafood, uncooked pigmeat, chicken meat, coconut, pepper, paprika, peanuts and pistachios were aligned in 2011. This enabled these products to be brought under the TTMRA and removed the requirement for border inspection for these products." |
Why are injuctions being taken out against climate change protest groups? In the UK over the past couple of years, there have been spates of climate protest groups (Extinction Rebellion, Just Stop Oil, etc), causing public nuisance, including: Gluing themselves to road surfaces to block them Scaling bridges to block roads Gluing themselves to/climbing on top of tube (metro) trains to disrupt the service Last year, there was much discussion about injunctions being taken out against the groups to prevent such behaviour. I am confused as to why this is required. As I understand it, all of the activities mentioned above are already criminal offences (blocking a highway, trespass with intention of blocking a highway, criminal damage, etc). I also believe (perhaps incorrectly), that inciting somebody else to commit a crime (e.g. the organisers of one of these groups encouraging their members to behave like this) is also illegal. What is the purpose of injunctions, given that much of this behaviour is illegal under existing legislation? | england-and-wales I think the main reason is that in specific prosecutions such behaviour may not be found to constitute any of those criminal offences. While on the face of it the behaviour is illegal, the court is also obliged to take into account the rights to freedom of expression, of assembly and association, in the Human Rights Act 1998. But a court's injunction sets out in black and white the restrictions on behaviour after considering the human rights aspects of the case, and breach of the order is a contempt of court (not a criminal offence as such, but punishable by imprisonment and/or a fine). Such injunctions are an additional tool for trying to mitigate or deter the behavior to which you refer and in a sense they are more convenient than criminal prosecutions. Some considerations and more detail in no particular order: Standard of proof differences You mention relevant criminal offences. These necessarily have the criminal 'standard of proof'. The trier of fact (the jury at jury trial; the magistrate or judge at non-jury trial), having considered all the relevant evidence, must be sure the defendant is guilty. However, the entity seeking an injunction (the claimant) does not need to meet that standard of proof to obtain an injunction that includes restrictions on behaviour. They need only persuade the court there is a real and imminent risk of a civil wrong for which they merit relief, or that there is a serious issue to be tried at a later date for which they merit relief until the conclusion of that trial. Criminal prosecution delays For the past two years to the time of writing this answer, circumstances have been such that if there were a criminal trial (which is by no means guaranteed), it may be scheduled months, perhaps even a year or two, in the future. But the claimant (and the wider public) may want relief 'now' and the defendant(s) might be free to continue their behaviour in the meanwhile, the defendant might not be held in custody pending trial. Due to delays, some defendants have been in custody for several months pending trial and this isn't satisfactory either, particularly if they are innocent: "everyone is entitled to a fair and public hearing within a reasonable time" (article 6 Human Rights Act 1998). The behaviour may not be found to constitute a criminal offence In this context, the law providing for the criminal offence must be read 'compatibly' with the human rights legislation - the qualified rights to freedom of expression, to assembly and association. Meaning, is this criminal justice system reponse to that behaviour provided for in law, necessary and proportionate, in pursuit of a legitimate aim, protecting the rights and freedoms of others, and were there no alternative and less restrictive responses? Now, some of those elements are a definite yes (e.g. trespass to or obstruction of the highway are provided for in law), others may be arguable. But in any case, the police, prosecution and the court (if it gets that far) must consider those things, must do that weighing up - it is not explicitly provided for in the legislation that creates those criminal offences. The courts have not found every protest on a highway to constitute a trespass to (Director of Public Prosecutions v. Jones and Another) or obstruction of a highway (Director of Public Prosecutions (Respondent) v Ziegler and others (Appellants)). On the other hand, when these claimants seek an injunction the court does that weighing up and may consider alternative, less restrictive approaches (the claimant submits a wishlist, the defendant or court may push back). The court will say "Yes, this is in pursuit of a legitimate aim and necessary to protect the rights and freedoms of the claimant and the wider public, however X is disproportionate, Y is proportionate, the defendants may go in area A but not area B, this time period is disproportionate, that time period is proportionate," and so on. So the claimant and the police are now armed with that injunction, the claimant will publish it, defendants are aware of its contents and fellow protesters ought to be made aware of it. It's there in black-and-white what is restricted and anyone breaching the injunction could be found guilty of contempt of court (punishable by up to two years in prison and/or unlimited fine or asset seizure; must be proved to the criminal standard). Example judgments about injunctions including lists of restrictions Here are some examples from the context that include different kinds of restrictions by court order and the court's weighing up of the competing interests of the claimants, the defendants and the wider public. Shell UK Oil Products Ltd v Persons Unknown [2022] EWHC 1215 (QB) (20 May 2022) The claimant sought (and succeeded) to maintain an injunction that was granted on an emergency basis, its restrictions set out at para 20, conclusion at para 70. National Highways Ltd v Heyatawin [2021] EWHC 3078 (QB) - see para 7 for restrictions, the court found some protesters breached the so-called M25 Order and the court ordered their immediate imprisonment (para 66). National Highways Ltd v Persons unknown (blocking traffic) [2021] EWHC 3081 (QB) (17 November 2021) - the reasons for the decision to not set aside the ex parte interim injunction made by Linden J on 25 October 2021, some restrictions at para 4. High Speed Two (HS2) Ltd & Anor v Four Categories of Persons Unknown & Ors [2022] EWHC 2360 (KB) (20 September 2022) - restrictions at para 188. | The UK has particularly strong (indirect) restrictions on self defense. Askthe.police.uk appears to be an official police agency. As a police agency, they can only give their version of what the law is, but they could be mistaken. They say "The only fully legal self defence product at the moment is a rape alarm". This by itself does not mean that pepper spray and the like are definitively illegal: There are other self defence products which claim to be legal (e.g. non toxic sprays), however, until a test case is brought before the court, we cannot confirm their legality or endorse them. If you purchase one you must be aware that if you are stopped by the police and have it in your possession there is always a possibility that you will be arrested and detained until the product, it's contents and legality can be verified. One can infer that they somewhat disapprove of pepper spray: There are products which squirt a relatively safe, brightly coloured dye (as opposed to a pepper spray). A properly designed product of this nature, used in the way it is intended, should not be able to cause an injury. The underlying theory seems to be that the dye will frighten the assailant so it might be useful. Nevertheless, they do not fully endorse spray dye: However, be aware that even a seemingly safe product, deliberately aimed and sprayed in someone's eyes, would become an offensive weapon because it would be used in a way that was intended to cause injury. This underscores the point that "intent" determines the criminal nature of the act. If you accidentally spray a dye into someone's eyes, that probably would not make the thing an offensive weapon. Moreover, if at the moment of defending yourself with dye you intentionally spray it into someone eyes, that does not make it an offensive weapon (see below on per se offensive weapons). The difference between pepper spray and dye lies in the outcome that you expect, that pepper spray will cause actual and non-trivial physical discomfort, and it's foreseeability (the point of having pepper spray is to injure). The police are not making any definitive "rulings" (only a court can make a ruling), and they warn The above advice is given in good faith, you must make your own decision and this website cannot be held responsible for the consequences of the possession, use or misuse of any self defence product. Possession of other weapons (mostly knives, also weapons for beating people) is more clearly illegal, due to numerous acts enacted by Parliament over the years. The gov't. prosecutor offers useful details on their (current) policies and the underlying laws. The underlying authority for these restrictions seems to be the Prevention of Crime Act, 1953, which outlaws having an offensive weapon in a public place, and an offense weapon is simply defined as any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him A brick or an egg could be an "offensive weapon", if a person intends to use it to cause injury. It is more difficult to see how an egg could cause injury, but actual injury is not required under the law, only intent to injure. It is thus a bit surprising that the police would be so bold as to say that a "rape alarm" is fully legal, but this may refer to a specific thing, the "Personal Guardian", which silently notifies the police, and is not a loud whistle (which could injure a person). Intent being crucial to the determination of "offensive weapon" status, CPS points out that where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question whether he had it with him as an offensive weapon within section 1(1) of the Prevention of Crime Act 1953. If you use a chain or stick offensively, that does not establish that you had it with you as an offensive weapon. You crucially had to previously intend to use it as an offensive weapon: as they say: Having an article innocently will be converted into having the article guiltily if an intent to use the article offensively is formed before the actual occasion to use violence has arisen. There are a number of per se offensive weapons: those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22745) and case law decisions. (Archbold 24-116). The Criminal Justice Act (1988) (Offensive Weapons) (Amendment) Order 2008 came into force on 6th April 2008 with the effect that a sword with a curved blade of 50cm or more (samurai sword), has been added to the schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 but sticks and chains would not be included. Spices are not likely to be shown to have a per se purpose of causing injury to others; but carrying pepper powder with the intent of throwing it in someone's eyes (for whatever reason) and thus injuring them fits the definition of "offensive weapon". Pepper spray even more clearly fits that definition (you don't use pepper spray in curry), and has resulted in arrests. In fact, the Firearms Act 1968 (S5) (b) specifically makes it illegal to possess any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing | In my opinion, the news report is mischaracterizing the situation, either because the person who provided the information was confused or sloppy, or because the reporter was confused (it is impossible to tell on its face). Probable cause to arrest can, and often does, arise from an oral statement of a witness to a police officer, even if a witness refuses to back their oral statement to a police officer with a written one. And, in the narrow and strict sense, a complaint is a court document, usually signed by a prosecutor, commencing criminal legal proceedings against a criminal defendant (in lieu of an indictment, or pending the issuance of an indictment). A complaint in this narrow and strict sense would not usually be signed by an ordinary citizen witness to a crime. Sometimes, however, the word "complaint" is used in a broader, non-technical sense to refer either to any report made to police complaining about misconduct by someone, or in a different technical sense to refer to a written and signed report made by a witness to the police. It is likely that what really happened is that after receiving an oral report that the individual had threatened people, none of the witnesses who provided this oral report was willing to sign a document summarizing their oral report of being threatened for the police (perhaps out of fear of retaliation by the accused person, or out of a desire not to harm the accused person's long term future prospects). Then, the police department, as a matter of department policy (rather than any requirement imposed by law), declined to pursue a criminal case based upon the threats, when no one was willing to publicly and in writing commit to their oral reports, because they would need a testifying witness in a later court case. | It is done to prevent or at least provide a defence against a latter argument based on Estoppel; which at the risk of trivialising something that is very complex means that if you indicate to someone that you will or won't do something and they act on that indication then they may have a claim if you don't do what you indicated. When lawyers say this they are usually outlining a client's possible future actions so estoppel is in play. If they include this they are specifically saying "... But we might not do that." | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | In the United States, many jurisdictions have criminal offenses outlawing behavior that may include what you're describing here. In Ohio, for instance, disorderly conduct (R.C. 2917.11) includes "insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response." In Indiana, there's the offense of provocation (IC 35-42-2-3), which is even broader and includes "recklessly, knowingly, or intentionally [engaging] in conduct that is likely to provoke a reasonable person to commit battery." It looks like this has been interpreted to include even actions that don't directly involve the provoked person, such as kissing another man's wife. Beyond the criminal offense, there are also jurisdictions that will permit a civil suit for damages resulting from the criminal act. There are also states where this could constitute intentional interference with business relations or intentional interference with an employment contract. In any of those cases, your co-workers could be looking at damages for lost wages, loss of reputation, etc. | I know that in many countries, including the US, the UK, and most, perhaps all, of Europe, it is common for houses to be sold while still under construction, so no such legal prohibition exists (or at least is enforced) in any of those countries. I have never heard of any country which has a general law against such a practice, but I cannot be sure for all countri8es in the world. There are other was to "prevent contractor delays and/or construction malformations and even constructions deformations". Many counties have building codes, which make improper building techniques unlawful. In some countries failure to adhere to proper professional standards in such matters is unlawful, and it is usual for the purchase of an unfinished building to involve a contract, in which performance standards and dates are spelled out. Failure to adhere to such requirements would give the purchaser grounds for a lawsuit for damages. | The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. |
Legal/jurisprudential term to refer to any evidence that can be interpreted either way Some time back, I had read a specific phrase used to refer to situations where some "evidence" can be interpreted either way. For example: Person A dies in a hospital and a syringe is found close to the body. Argument 1: Person A was killed by a doctor/nurse. Argument 2: Person A committed suicide via injection/drug overdose. Other arguments can be made, but the gist here is: due to the ambiguity of this "evidence" it can be argued for the innocence of Person A just as well as it can be argued for Person A having harmed their self. Q: Is there such a phrase in jurisprudential or legal thought? If I remember correctly, Avicenna, when discussing logic, had used a specific phrase for such instances. But hoping there will be equivalent phrases in English speaking word too? | Is there such a phrase in jurisprudential or legal thought? In those instances it is common to say that the evidence is inconclusive. Accordingly, it is unavailing because that evidence does not prove the party's allegation. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. | 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). | Courts look to primary authority first, and then to secondary authority if ambiguity remains. Primary Authority providing definition for the legal use of a word would be previous case opinions that give meaning to a word in a given context, how the word is actually defined in the statutes for the state, or, in the case of federal law, the federal statutes or Code of Federal Regulations. Within primary sources, you also consider whether a prior definition is binding on the court (i.e., the court has to follow it) or whether it is merely persuasive authority (that the court can choose to follow, but is not required to follow based on precedent – sometimes call Stare Decisis). Primary authority is binding on a court if the definition comes from a higher court in the direct appellate chain of the deciding court, it is persuasive otherwise. Secondary Authority is everything else. For example, Black's Law Dictionary, Whigmore on Evidence, or any other legal treatise would also be a secondary source. (All secondary authority is persuasive authority.) Courts, in absence of either, will look to how a word is commonly used in the context in which it is applied. All seek to give the proper meaning to a word or phrase in light of how it is being used. | The concept of "innocent until proven guilty" is inherent in our constitutional protections for due process. As far as I know, the Supreme Court first formally recognized it as a rule in Coffin v. United States, 156 U.S. 432, 458-59 (1895): Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. The key phrase -- for purposes of your question -- is "sufficient evidence." At a criminal trial, sufficient evidence consists of proof beyond a reasonable doubt on “all the essential elements of guilt” In re Winship, 397 U.S. 358, 361 (1970). But if the government wants to lock up a defendant pending trial, the question is not whether the defendant is guilty of the charged crime, but rather whether he poses a danger to the community and can be trusted to appear for trial. 18 U.S. Code § 3142(e)(1). And on those questions, he retains the presumption of innocence, but the government's burden of proof when arguing otherwise is substantially lower. The courts recognize both the potential of fleeing from the court and the prevention of additional crimes as legitimate bases for pretrial detention. In cases like Avenatti's, where the government is seeking pretrial detention because the defendant is a danger to the community, it needs to prove by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community." 18 U.S. Code § 3142(f)(2). However, if the government is seeking to hold the defendant because it does not believe he will appear for trial, it need only prove its case on that question by a preponderance of the evidence. United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986) (“For detention to be proper, the government had to prove by a preponderance of the evidence that no conditions of release would reasonably assure Martir's attendance at trial.”). As a side note, I'd agree with some of the answers that in practice, the bond system is regularly abused to the point that its underlying principles become unrecognizable. My answer is meant only to address the actual legal rules your question implicates. | Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of "Murder for hire" which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible. | Congratulations, intrepid legal enthusiast or learner! What you'll need A legal dictionary, especially if you're just getting started. If you don't own one, you can try Black's Law Dictionary A little bit of patience and time. Or maybe a lot, depending on the particular case and the particular question you're trying to answer. Maybe a normal dictionary, too. Again, if you don't own one, there's plenty online. Onelook is a dictionary search engine, so it'll search a lot of dictionaries at the same time. Okay, I've got those things, now what? Alright, there's a few things you should know. Firstly, decisions of superior courts are binding only on those inferior courts within the same hierarchy. This means that you can appeal to a higher court so long as it has appellate jurisdiction. Generally, a state (meaning a country) will have a supreme or highest court, with appellate jurisdiction over all other courts - in Australia, this is the High Court of Australia, in the United States, this is the Supreme Court of the United States, and in the United Kingdom, this is the Supreme Court of the United Kingdom. Secondly, decisions of a court are generally binding only on the matter in dispute. For example, if in a case, the matter of whether the police owe a duty of care to citizens in detecting crime, a comment on whether the police had correctly parked their vehicle is not binding - it is called obiter dictum (plural obiter dicta). What we're looking for in a judgement is the ratio decidendi (plural rationes decidendi), which is the reason for the decision. This is what is binding, and would be considered in future decisions. The problem? It's not always easy to tell the ratio from the obiter. Finally, often, the only way to know whether our interpretation of a case is right is to see whether it is applied in a future case, or overruled. Examples, examples! Sure. Let's try something easy to start with. Do product manufacturers owe a duty of care to their customers? Yes. The decision in Donoghue v Stevenson [1932] UKHL 100 found that product manufacturers - in this case, a ginger beer manufacturer - have a duty of care to ensure their products are safe for use or consumption. Lord Atkin said: The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Okay, so the answer to this question is yes. How do I verify it? Get the source of the judgement. Without this, you're going to be relying on hearsay. The next best thing is a subsequent judgement that applies the one you're looking for, because if the judgement says what it's supposed to, it'll be mentioned in the subsequent judgement. I've found this one. Decide whether the matter in dispute is actually being decided. In our case, it is. But if I was quoting this from a judgement on whether product manufacturers have an obligation to transfer title for goods supplied on a credit agreement, it wouldn't be binding. Find the quote. If you've been given a quote. Otherwise, grab a cup of tea or coffee and get ready to read. A lot. If you can't find something that says, or means, what it's supposed to, it's probably not accurate. Make sure the judgement hasn't been overruled This is tricky, unless the judgement database you're using has a way of searching it. Most do. In any case, it's much like trying to prove a negative. In fact, it's exactly that. But always check whether the judgement has been overturned on appeal. Make sure the judgement hasn't been obsoleted by statute Again, this is tricky. It's proving a negative, again. And trying to find statute might be an answer for another time. Is that it? Pretty much, I think. These are at least the main points. There's a whole laundry list of things you shouldn't do with judgements, but they're more about reasoning than legal principles. It's a skill you can really only develop by using, and I'm constantly practising myself. Many discussions about cases are precisely about what their effect is. Yes, the decisions and orders are usually pretty clear-cut - for example, the decision is that the manufacturer has a duty of care, and the orders are for damages and costs to be paid. But what it means beyond that can be murky. Luckily for us, judges have become better at writing their judgements so that others can understand. Also, for more important cases, where the entire country, or world, is watching, others will interpret it for you - consider Obergefell v Hodges, for example. Not everyone can be trusted, but everyone, taken together, is a much more trustworthy source than just one person. In the end, there's not a mathematical formula for determining what judgements mean. There's some interpretation involved, some judgement. There's not always going to be one judgement that's enough to prove your matter. I'm struggling to end this post neatly so I'll just finish it with a cliff- | Focusing on the part of the question where you say But my question relates to "evidence." That is, does "admissible evidence" have to be of the same or different standard in a civil versus criminal case there can be (are) some differences in admissibility between civil and criminal cases. Looking at the Federal Rules of Evidence, FRE 412, one cannot introduce "evidence offered to prove that a victim engaged in other sexual behavior; or evidence offered to prove a victim’s sexual predisposition", but distinct criminal vs. civil exceptions exist. For criminal cases, The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. but in civil cases, In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. Also, under FRE 601, Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. which introduces an asymmetry between the two kinds of cases. There are also standards of admissibility that only apply to criminal cases and not civil ones (FRE 413, FRE 414) or only in civil cases (FRE 415) |
Is there a situation where someone can be sanctioned without trial? Given a person commits an obvious infraction1 of a law B and this law has a sentence established by a legal statute that does not consider jury consultations possible, is there some legal framework to be sanctioned without trial? 1Say confessing to the infraction or getting caught in the act. | In the US, if a person enters a guilty plea, a judge may proceed to convict and sentence the accused without any form of trial. In the case of minor offenses with possible penalties of less than six months in jail, there is no US constitutional right to a jury trial. and the accused may be convicted and sentenced after a bench trial with no jury. In the case of infractions that are not criminal, such as many traffic offenses, a judge or magistrate may make a judgment and impose a penalty after a brief and often informal hearing. In some non-US jurisdictions, there is no right to a jury trial even in serious cases. In most such jurisdictions some form of due process and some hearing or trial is required for conviction. However, in various authoritarian regimes, people may be "convicted" of "crimes" without anything like a trial before an independent tribunal. In short, this depends on the nature of the case, and the laws of the jurisdiction involved. | Yes The normal remedy for not receiving a fair trial or due process is the declaration of a mistrial. A mistrial legally never happened so it is up to the prosecution to decide if they want a retrial. Unless the appellant can demonstrate that no reasonable jury would have convicted on the evidence (which seems unlikely verging on impossible), the appeal will not acquit the accused. | In the US, people are not put in jail because they are "known for" committing a crime. Several things must happen, and at each stage there are ways for the process to be halted. Law enforcement must gather evidence that a crime has been committed by a particular person. There ids no duty to investigate every possible crime, so this will depend on the policy of the particular LE organization, and what evidence any investigation finds. If no investigation is made, no evidence will be found. A prosecutor (state or Federal) must decide to bring charges. There is no duty for a prosecutor to bring charges in every case where evidence is brought forward by law enforcement. A prosecutor is supposed to devote the limited resources of his or her office where it seems likely to do the most public good. Cases which probably cannot be won should not be brought. Moreover, most prosecutors are reluctant to bring cases which seem likely to do them political harm. The Prosecutor must formally bring the defendant(s) before a court to hear and respond to the charges (arraignment). At this stage the judge can dismiss the charges, but that almost never happens. The prosecutor must establish that there is probable cause to bring a case to trial. This can be done via a grand jury proceeding resulting in an indictment, an "information", a probable cause hearing, or a preliminary hearing, depending on the jurisdiction and the type of crime. For minor crimes, the prosecutor's sworn statement may be enough. There must be a trial, before a judge or a jury. If the defendant is found guilty, s/he will be sentenced under the appropriate law, which may include jail or prison time. There are various other stages to the process, but those are the major go/no-go steps in a US criminal proceeding. So it is possible in any given case that law enforcement has not tried to find evidence, or has tried but failed, or that a prosecutor has chosen not to bring charges. As to why any of that might have happened, it depends on the particular situation and its circumstances. There are always costs of time, effort, and money to pursue any particular case. If cops are looking for evidence of a celebrity's drug use, they are not looking for evidence in an embezzlement or murder case. If an assistant prosecutor is tying such a case, s/he is not trying some other case. Officials have wide discretion in how to allocate resources in such matters. | It isn't worth litigating a $60 fine for a non-moving violation that isn't likely to recur. You have a less than 50-50 chance of prevailing (something that is almost always true when you are appealing the decision of a judicial officer in a context like this one), you have no real long term harms as you would in the case of "points" for a moving violation, and you are even less likely to get costs of litigation or attorneys' fees if you prevail, so not having to pay a $60 fine would be a pyrrhic victory from an economic perspective. Even if it is free (and it probably isn't) it would easily take many hours to litigate that isn't worth you time. Any lawyer who would take the case would be cheating you because they would only leave you worse off than you are to start with due to their fees. | It is an unquestioned pre-American axiom, expressed in Latin as actus reus non facit reum nisi mens sit rea ("the act is not culpable unless the mind is guilty") which has been part of the Anglo-American legal system since at least the 17th century. It is thus presupposed in all criminal proceedings. It's not that a person only commits a crime with free will, it's that it is not deemed to be a crime if there is no free will. A person can be held at gunpoint and required to commit a criminal act: the person does indeed have free will to choose to be killed rather than commit the act, but the act is legally excused since dying is never held to be the only acceptable alternative to committing an otherwise-criminal act. | 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. | united-states Perjury only applies to someone who actually does testify and is untruthful. A person who refuses to testify at all, when ordered to do so by a subpoena, is committing contempt of court. It is possible, in principle, for the court to order them jailed indefinitely until they do testify (civil contempt). It is also possible for them to be prosecuted criminally afterward (criminal contempt). | There is a Defense of "Necessity" which would apply in such cases, even if the law had no intent element.. This essentially allows as a defense to an accusation of crime that the actions were essential to prevent harm. Dee, for example Justia's page on The Criminal Defense of Necessity. There it is said: The defense of necessity may apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening. In such circumstances, our legal system typically excuses the individual’s criminal act because it was justified, or finds that no criminal act has occurred. Although necessity may seem like a defense that would be commonly invoked by defendants seeking to avoid criminal charges, its application is limited by several important requirements: The defendant must reasonably have believed that there was an actual and specific threat that required immediate action The defendant must have had no realistic alternative to completing the criminal act The harm caused by the criminal act must not be greater than the harm avoided The defendant did not himself contribute to or cause the threat Only if all of these requirements are met, will the defense of necessity be applicable. It is also important to note that in some jurisdictions, necessity is never a defense to the killing of another individual, no matter what threat they may present. The Justia page goes on to describe the elements of the defense in detail. See also The Wikipedia artifcel which makes many of the same points. Necessity is a broader defense than the intent or willfulness requirements of particular laws, because it applied even when the law does nor contain such an element. However, it has its own strict limits, described above. The exact scope of this defense differs in different jurisdictions. |
Can a witness be ignorant about a question asked to him in court? Is it acceptable for a witness to give an answer to a question posed to him/her in court as I dont know or I'm uncertain? This is not a refusal to testify it is just a lack of knowledge. Does the justice system allow for the option that a witness simply does not know the answer to a question? Maybe it served no real purpose for parties to inquire about a topic that a witness is uncertain about. What could happen if a witness is asked about the shoes a robber was wearing? The witness says I looked the robber in the eyes I did notice his shoes and his credibility as witness being questioned because how could you not look at the shoes? | In addition to David's answer - it's more than acceptable for a witness to say that they don't know the answer; it's a requirement of their oath / affirmation to say "I don't know" if they are telling: ...the truth, the whole truth, and nothingbut the truth.. | 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. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | 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. | The first step is to be able to identify the presupposition, which is a claim that must be assumed to be true for the question to make sense. For instance, "Is the present king of France bald?" assumes that there is a present king of France, and that in fact is false. Such a blatant example is hard to miss (if you speak English), but a less obvious presupposition can be found in the question "When did you arrive at your subjective conclusion about the accused". Regardless of the time, answering the question accepts that the conclusion is subjective (not a god thing for an expert witness to be saying). If you want to study linguistic semantics, there are a number of ways to identify presuppositions: to keep it on topic for LSE, I'll just summarize it by saying you have to acquire the analytic skills for identifying presuppositions. The technical tests are probably not useful to a panicked witness being cross-examined. The Wiki on presupposition might be useful, for example pay attention to the negation test ("My car exploded" and "My car didn't explode" both presuppose that I have a car). If you can identify the presupposition, you can simply answer "I have never beat my wife", or "My conclusion was based on objective scientific tests", and ignore the literal question that was asked. They can still rephrase and ask an unloaded version of the question. If you are forced to limit responses to yes and no, you may need to address the judge to explain why you can't just say "yes" or "no", or blurt out the explanation before you are instructed to stop talking (the judge would probably allow the explanation if it's obvious that you're addressing a presupposition problem). | No That is nothing but fiction. Assuming that this is in the US, the police would (probably, there are some exceptions) have had to deliver the well-known "Miranda" warnings, that the suspect has the right to silence, the right to consult a lawyer, and the right to have a free lawyer if unable to afford one, and that statements may be used against the subject. If, after those warnings, the suspect chooses to confess, or to make a statement, that confession or statement would be fully admissible, even if the suspect did not have a lawyer present, unless there was some other reason for the statement to be excluded. No such reason is mentioned in the question. It is simply not the case in the US that a confession is excluded just because no lawyer was present, nor is that the law anywhere that I know of. If the police failed to give the warnings when they were required, then any statements or confessions would be excluded. The decision in Miranda v. Arizona, 384 U.S. 436 (1966) says: law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Footnote 4] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. That tells you exactly what the police are forbidden to do. Nowhere does it say that a lawyer must be present. Indeed it says the opposite: The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. That means that s/he can confess after being warned, and such confession would be admissible, provided that s/he knew and understood those rights. | In the UK this is just called "an appeal for the suspect to come forward." The UK police are not allowed to lie or mislead as suggested in the OP, and any reduction in punishment is in the hands of the courts when passing sentence (unlike some other jurisdictions, I believe). | Misstating the truth is not perjury Perjury is deliberately lying under oath to gain a material advantage. For the situation you describe: You might be wrong and they actually do live where they say they do they might be wring and they genuinely think they live where they say they do, being wrong is not perjury it’s unlikely to administrate info in the form actually carries the penalty of perjury, it probably isn’t testimony unless it will positively and substantially affect the outcome of the case in their favour, it isn’t material You lack standing to interfere in the case in any event If this were brought to the attention of the court the most likely outcome would that it would just be corrected. |
Why do some laws make saying "Heil Hitler" illegal when other laws allow freedom of political speach? In the German Federal Republic is illegal to say "Heil Hitler" which is basically a restriction of laws relating to one's freedom of opinion, freedom of speach and political freedom. Why does the German Federal Republic have these seemingly contradictory laws? | Any country is their own sovereign There is no international law that demands any state to allow anyone free speech of all kinds. Remember that your rights end where the rights of others [incl. society] begin. And in Germany, the right of the society is defined as being not subjected to the symbols of illegal organizations, especially ones that try to violate the liberal democratic basic order Also, Germany is not alone in banning the sentence or the accompanying gesture. They are also illegal to various degrees in Austria, Switzerland, Slovakia, The Czech Republic, and Sweden. It also can be illegal in the US, if disturbing the peace. The sentence is an identifier for a banned organization The sentence is certainly illegal if spoken to express certain things. However, it is legal to be used for example in art (films) and is commonly found in lecture material, as one example of how the nazi party identified. But how? People are often confused, but the rule is actually somewhat easy: If you display any symbol of a banned, unconstitutional organisation (under § 86a StGB) like any of the logos of the Nazi Party and spiritual successors (those with a red bar: banned!) or even the PKK, then you are acting in an illegal manner. And unless you have an exception to claim, the determination can be done entirely on a factual basis by looking at the circumstances. Indeed, the mens rea requirement is so minimal (because the law is written in a way that there is none needed!), that posting photos of a swastika tattoo can get you convicted for jailtime Exceptions However, I mentioned exceptions. Those are in § 86a StGB(3), pointing to $ 86(3)&(4) [eng]: (3) Die Absätze 1 und 2 gelten nicht, wenn die Handlung der staatsbürgerlichen Aufklärung, der Abwehr verfassungswidriger Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der Lehre, der Berichterstattung über Vorgänge des Zeitgeschehens oder der Geschichte oder ähnlichen Zwecken dient. (4) Ist die Schuld gering, so kann das Gericht von einer Bestrafung nach dieser Vorschrift absehen. (3) Subsection (1) [and (2)] does not apply if the propaganda material or the act serves civic information, to prevent unconstitutional activities, to promote the arts or science, research or teaching, reporting about current or historical events, or similar purposes. (4) If the degree of guilt is minor, the court may dispense with imposing a penalty under this provision. That is why we have swastikas in German school books, as those tell about the horrors of nazi germany. That is why the logos can be found in research material and history books analyzing the use of the symbols in different countries. That's why the news outlet filming the demo where people yell Heil Hitler show that footage without precautions (unlike those that fly the banned symbol!) That is why you can have the film Inglorious Bastards with all its Swastikas and people yelling Heil Hitler, but its advertisement material was specifically altered to not show those. However, until August 2018, computer games were not accepted as arts. This is why the German versions of Wolfenstein that did get a german release before had been altered to remove Swastikas and voice lines. But the "Sozialadäquanzklausel" had been applied to computer games in August 2018, and the games got (after some other hoops) re-released in their international version on 22nd November 2019. How come some ideologies are banned?! Germany's equivalent of a constitution is the Grundgesetz (Basic Law). Its first 20 articles (not paragraphs or sections!) prescribe the rights of any person. The very first and most important one is, and the very first sentence of it makes clear what the very guiding principle of all other laws has to be (emphasis mine) before any of the other basic rights are enumerated. Art. 1: Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt. Art. 1: (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. This is the most absolute right anyone can have. There is no provision in any way that would allow (or make it possible!) to strip or reduce the human dignity and every human being, living and dead, has it. Violations of human dignity have been used quite often to repeal laws, such as several incarceration methods or when cuts to the social security system would prevent someone to live a life that would be without dignity. Human Dignity is the measure that can be used to cut all other rights. In fact, it is explicitly the foundational principle of all german laws, that rights are not granted beyond where other rights start and that nobody has any rights when it comes to harming the constitutional order derived from the Grundgesetz (emphasis mine): Art. 2: (1) Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt. (1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Now, where comes freedom of speech? Only in Article 5, and it is absolutely not absolute but has defined limits (emphasis mine): Art 5:(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu äußern und zu verbreiten und sich aus allgemein zugänglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet. Eine Zensur findet nicht start. (2) Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der Jugend und in dem Recht der persönlichen Ehre. (3) Kunst und Wissenschaft, Forschung und Lehre sind frei. Die Freiheit der Lehre entbindet nicht von der Treue zur Verfassung. Art 5: (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. Parties and organisations that can't abide by the other rules of law because of their ideology will get banned based on that. In the case of the nazi ideology, it's quite simple: The core idea of Rassenlehre and its believe in Untermenschen is so deeply dehumanizing that there can't ever be a way to get that in line with the very first (as well as 2nd and 3rd) Article of the Grundgesetz. Or to quote the words of Amon: Nazi ideology denies dignity to some humans, goes against the liberal-democratic order, and therefore cannot enjoy the usual protections. Rule of law is still maintained because restrictions to the freedom of expression are codified in law, and violators will get a fair trial. You see, you simply don't even have an absolute right to disseminate your ramblings, because the Basic law itself points to the general laws that ban the dissemination of certain materials. This is how § 86 StGB can ban any propaganda material for organizations and § 86a StGB subsequently bans their symbols, including gestures and slogans. | The law is really bad at protecting whistleblowers From my understanding of US law, this is not unauthorised access to a computer: the reporter made a legitimate request to a remote computer, that computer provided data,the reporter accessed the supplied data on their own computer. However, pointing out the failures of people in power is fraught even if it is not illegal. It is certainly within the Governor’s power to authorise an investigation of the reporter. On the face of the law, it seems reasonable to suspect that what was done might be a violation so there is nothing legally wrong with initiating an investigation. I suspect that such a broad interpretation of the law would fall foul of the First Amendment which may partly explain why it wasn’t prosecuted: the government doesn’t want to find out. Similarly they can issue press releases, which, due to the First Amendment, don’t have to be true, just not defamatory. Saying it’s a possible violation is true and not defamatory. Saying the reporter was an evil person who is only doing this for political purposes is a statement of opinion and not defamatory. It’s a fact of the world that people with power can use that power in ways that are malicious, unethical, and unfair but not necessarily illegal. | The fact that something is illegal does not imply that it is illegal to post pictures of it happening. In general, under U.S. law, free speech protects almost all forms of communications subject to a handful of narrow exceptions and this is not one of them. There are many legitimate reasons one might want to post video of a fight (e.g. to identify crime perpetrators for purposes of prosecuting them), but no legitimate purpose is legally necessary. Surely as a platform Reddit cant hide against it being a platform of free speech in this case? They most definitely can. Reddit is also not responsible for user posted content under Section 230 of the Communication Decency Act, even if it were illegal for the person posting it to post the content | Lying is protected in the United States You can make films (or write books etc.) denying the Holocaust, or stating that UFOs are alien spacecraft, or that one race/ethnicity/gender is smarter/stronger/better than another without fear of government sanction. Further, the Supreme Court has consistently ruled that hate speech is protected in the United States - if you want to advocate that the members of [group] should be sterilized/deported/euthanased/violently murdered etc., feel free. What isn't protected is: "advocacy of the use of force" when it is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action". Broadly, "kill all [blanks]" is OK, "kill these [blanks] now" isn't. This also means that inciting a suicide is illegal, some types of false statements of fact, counterfeiting is not protected speech, obscenity/indecency, child pornography, fighting words, threatening the President, speech owned by others (i.e. copyrights and trademarks), commercial speech (e.g. false advertising). There are also limitations that the government may impose when it is acting in specific roles. For example, as an employer, the government can restrict the speech of its employees in ways that it can't for general citizens. Private individuals and organisations can sanction or ostracize you however they want. Holocaust denial is reasonably common among white supremacists and other anti-Semitic groups and they produce films and literature on the subject. The United States Holocaust Memorial Museum devotes this web page to it. Of course, while it's legal to make these things in the United States, distribution of them in Portugal is against Portuguese law. | No this is not a violation of discrimination law as there is no official language (de jure) in the United States at the Federal Level even though English, as the most common language is considered the National Language (de facto). Language is not a Federally recognized basis of discrimination for private business (your local state may require it though). Compared to Canada, where all services must be in English or French to comply with their Official Languages being English and French. It could be argued that, given America's very liberal Freedom of Speech laws, that requiring catering to a specific language by law could be challenged as a violation of your First Amendment Rights (after all, if you have freedom of speech, then you should have freedom of speech that others do not understand). Since there is nothing stopping an English Speaking American from learning the language you wish to do business in, nor is it confined to any race or religion (I, as a predominotly European descent, am perfectly capable of learning Arabic... or Japanese... or Navajo...). Where the confusion comes from is that in the United States, courts will often provide a linguistic interpreter for those who are not native English Speakers (even if they are conversational, given how technical legal terms can be, it may people who speak English as a Second Language will avail themselves of this service for the sake of making sure the nuance is properly translated). | It may very well be illegal, depending on the laws of the country. Most people have the right to enter their own country (except for practical problems, like not being able to prove you have the right) because you list your passport and/or other ID). But it may be illegal to enter outside official border crossings, for example. Or illegal to enter without having the entry registered. Or soon, it might be illegal to enter the U.K. while avoiding quarantine, whether you are British or not. But it wouldn’t be the fact that you entering that’s illegal, it would be how you did it. If you are the Dutch owner of a Ferrari then entering the Netherlands on the A40 from Germany at 170mph is very, very illegal :-) | The only applicable law is the local trespassing law. If he wants, the proprietor can demand that the patron leave, and if the patron does not leave, he can be arrested for trespassing. It uncontroversial that the First Amendment protects racist declarations. | Note that, criminals are not allowed to apply for a German citizenship, so I don't know whether the German government would consider being a deserter as a being criminal. First of all, they would deny a criminal German citizenry, but that goes only for crimes, that are also illegal in Germany (Sec. 12a § 2 Nationality Act, § 12a Abs. 2 StAG). Were you - for instance - convicted for muder you couldn't become a German citizen. Desertion in that sense however is not a criminal offence in Germany, so you're good. Regarding double citizenship, Sec. 12 § 1 2nd sentence no. 2 Nationality Act (§ 12 Abs. 1 S. 2 Nr. 2 StAG) allows you to keep your original citizenship, if the country of origin "regularly refuses to grant release from citizenship", which should be the case here. Therefore, you could become a German citizen according to Sec. 10 Nationality Act (§ 10 StAG). |
Can disjunction elimination be used to convict someone of a crime without knowing which crime they committed? Three different crimes are committed (for simplicity; the same type of crime, just distinct counts) by three different people. Someone is arrested based on evidence that proves they committed one of the crimes, but without being able to prove which one. Could they be convicted for committing a crime? Edit: an alternative that I thought of later: someone is found somewhere where they can legally be, but in a situation where the only way they could have gotten there would involve trespassing through one of several properties owned by different people. (Tagged as US, but any other jurisdiction would also be of interest.) | Under U.S. law the prosecution must prove that the defendant committed a particular crime beyond a reasonable doubt. So, it is not sufficient to prove that someone committed one of three crimes without proving which one it was. an alternative that I thought of later: someone is found somewhere where they can legally be, but in a situation where the only way they could have gotten there would involve trespassing through one of several properties owned by different people. Since the crime of trespassing requires the prosecution merely to show that someone was on the property of another without legal authorization to do so, it might be possible to prove this crime beyond a reasonable doubt without showing precisely which property was crossed, although I wouldn't be surprised if there was a split of authority among U.S. states on this question. | It is possible that someone is convicted. Destruction of evidence an constitute circumstantial evidence that a crime was committed, and other evidence, such as testimony, could pin the crime to one of the four possible suspects. A jury has broad discretion to assess the weight of the evidence. | Does failure to present a charge to a grand jury leave that charge open for future indictment? Yes. Indeed, even if the charge is presented to a grand jury and it declines to indict, exactly the same charge that one grand jury declined to indict upon can be presented to a future grand jury and produce a valid indictment. I understand that normally when a Grand Jury declines to indict for an alleged crime, prosecutors may not present it again to a future Grand Jury. (I believe this rule is statutory, not constitutional.) While I won't rule out the possibility that such a statute exists, I am aware of no state where that is the case. A charge upon which is grand jury declines to indict is often not presented to a future grand jury as a matter of prosecutorial discretion or prosecutor's office policy, but generally this is not a mandatory rule. One reason that it is not a mandatory rule is that there is no practical way that a defendant could enforce the rule if it was a mandatory rule. Grand jury proceedings are secret (at least until an indictment is produced and then only as pertinent to the defendant indicted on the charges producing an indictment). Generally, even the judges in the court calling a grand jury have no access to its proceedings until it issues an indictment, and then has only slightly more latitude to review its proceedings than a defendant in the case. | An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction. | According to Matthew Bohrer (Assistant State's Attorney, licensed in three jurisdictions) and others, the offense of resisting arrest can stand alone. Expert attorney Dwayne B. says the same thing here. | Yes to attempted murder and conspiracy to murder. No to murder Although the particular example you raise looks like entrapment and law enforcement can’t do that in the United States. Putting that aside, factual impossibility is not a defense in common law jurisdictions. Conspiracy to murder someone who can’t actually be murdered (because they are already dead or, as here, don’t actually exist) is still a crime. Legal impossibility, however, is a defense. Something is legally impossible where it is impossible to meet one of the elements that define the crime. Most crimes require that something physical be done, for example, murder requires the perpetrator to kill the victim (among other things), so you can't commit murder on a dead or non-existent victim. However, crimes in the nature of "Conspiracy to X" or "Attempted X" often only rely upon intention even if it is impossible to do the thing intended. To illustrate the difference: if it’s illegal to smuggle cocaine across the border and I, being an idiot, get caught smuggling what I think is cocaine but is actually table salt, I’m guilty of attempted drug smuggling. This is factual impossibility but a legal possibility. I'm not guilty of drug smuggling because that crime requires that I actually smuggle drugs. This is both a factual and legal impossibility. if, however, the day before I do it, the law against cocaine is repealed, then whether I smuggle table salt or actual cocaine, I’m not guilty of either crime even if I think it’s still a crime. This is legal impossibility. | The jury ultimately decides if a person is guilty or not. Jury nullification is when the person is clearly guilty or innocent, but for some odd reason the jury (who knows the person is guilty/innocent) gives the "wrong verdict" An example of this in the UK was when a guy was being charged with a spy crime years after his crime happened (I cant remember the case), the jury essentially thought that so much time has passed that it was silly to convict him, so gave a non guilty verdict. There are cases for and against jury nullification. In my personal belief I think in certain cases, such as if edward snowden would be charged, I would find him non guilty as a matter of what is right to ky conscience, regardless of the fact that he clearly did something illegal | 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. |
Is natural law a type of common law? Is natural law a type of common law? | No, Natural law is not a type or subset of Common Law Natural Law is derived from what some person thinks is a logical and obvious rule, or what some person thinks is God's Law. There are many versions and varieties of natural law, and there is no wide agreement on what it does or does not specify. Common law is derived from the judgements of the Royal Courts in England (later Great Britain, still later the UK) roughly during the period 1250-1850. (After that it continued to develop as case law, but major changes were usually statutory, although not always as a comment by Martin Bonner points out.) It started with a rough distillation of then widespread customary law, ultimately traceable to Germanic and Norman traditional law. Supposedly, common law had been in force "since the memory of man runs not to the contrary" and judges did not create it but merely "discovered" it. Common law was then expanded and altered over the centuries by the decisions of judges of the common-law courts in individual cases, primarily the court of the King's Bench, the court of the Exchequer, and the court of Common Pleas. It also included some rules derived from statutes, particularly early ones, such as those of King Henry II. Later statutes could and did alter the rules of common law. Technically such altered rules became "statutory law" not strictly part of the common law, but where they dealt with matters handled by the common-law courts, they were often considered to be part of the common law in an informal sense, as they were laws taught to the lawyers (barristers) who practiced in the common-law courts. Common law was distinguished from several other kinds of law: Local customary law: the law used in local courts, particularly Hundred courts and Shire courts, but also the courts of local lords. This law varied from place to place, and was largely derived from "ancient local custom" supplemented by Royal and noble charters. Church law: the law used in church courts, which had jurisdiction over wills and land owned by the church, laws on Sunday observance and several other things, as well as the discipline of priests and other clerics. Admiralty law the law of ships and seagoing matters. It covered salvage, disposition of captured enemy ships and cargo (prize law), maritime insurance, mutinies and crimes aboard ships, and other nautical matters. In the seventeenth century Lord Justice Coke fought to reduce its jurisdiction in favor of common-law courts. Justice Story, of the US Marshall Court (1800-1835), fought to reverse Coke's changes on this point in US law. Law Merchant: law specifically for cases between merchants. It dealt with specifically commercial issues, and was eventually merged into the common law. Piepowder law: Special law for the dealings of foot peddlers. (The name comes from a Norman French term meaning "dusty feet".) It also was eventually merged into the common law. Prerogative law: law derived from the direct authority of the King, particularly as exercised by the Court of the Star Chamber. It was widely regarded as tyrannical and was largely abolished by the English Civil War and its aftermath. Feudal law: Law dealing with the holding and inheritance of land under feudal tenure (largely knight's service, but other kinds too) and with other aspects of feudal rights, privileges, and obligations. It slowly became largely obsolete as less and less land was so held. Equity: Law developed by the Lords Chancellor of England (later Great Britain), intended to modify injustice worked by inflexible parts of the Common Law, but eventually becoming rather stiff itself. It was merged into the common law at different times in the US and the UK, but generally during the 1800s. The modern remedy of injunction is derived from equity. Statute Law Law directly derived from acts of the legislature -- Acts of Parliament in England/Great Britain/the UK. Civil Law: Law largely in force in Europe, partly derived from Roman law or Roman legal concepts, mixed with various local customary laws, and later much influenced by the Napoleonic Code. Modern EU law is considered a part of Civil Law. Civil law varies between different countries, and is at least as large and complex a subject as common law. It is also a subject I know less about. International Law: Law derived from treaties and other intentional agreements, and the traditional customs of dealing between countries (mostly in Europe). None of the above are "natural law" although in some cases natural law concepts influenced legislators and judges. There is some conceptual similarity between natural law and early common law, in that both looked to a supposedly pre-existing but unwritten law But natural law generally attempted to apply over-arching, top-down logical or theological rules, while common law was built up from low-level, decisions on individual cases, and then derived rules from these individual decisions. A version of natural law concepts, derived from Enlightenment philosophers, particularly Locke, influenced the drafters of the Constitution. (See Gary Wills, Explaining America; See also the Wikipedia article on Natural Law, linked above). But that was quite different in style and content from recent versions of natural law, which are usually aimed at imposing theological rules and abolishing secular rights which would hinder this process. (See How acceptable (mainstream/marginal) is the discussion about replacing the human rights with the natural law and to delete human rights chapters? and the link in the question for examples.) Moreover, different authors who advocate natural law do not agree on what that law is or should be. The above is only a very brief summery. Anyone interested should read more widely. I recommend The Law of the Land: The Evolution of Our Legal System by Charles Rembar (1980) e-book version by Open Road Media. It is a history of law written by a once-prominent practicing US lawyer, intended for those who are neither historians nor lawyers. In my view it is particularly well-written. There are, however, quite a few books available on the history of the common law. | You're thinking of legalism. It can have different meanings -- especially in Chinese legal/philosophical history -- but is the best match to the concept you're describing. | The author of a text or essay may cite in whatever order s/he thinks best. It m,ay be that a basic text gives a better and clearer overview than any actual case, and so is worth citing first. It is true that actual case law is often more authoritative than a statute, and cases and statutes are normally more authoritative than any text or essay, but there is no rule binding on an author to cite in any particular order, although citing the actual law first may be the common practice. When writing a brief or a court decision there may be standards of citation that are enforced. | Both Napoleonic and Germanic law are subdivisions of Civil Law and both are inheritors of late empire Roman Law plus ecclesiastical law and traditional law. The main differences between them are their route from the Roman Empire to the modern world. Napoleonic law was codified in 1804 under Napoleon I, unsurprisingly; and drew together the feudal laws of France. Germanic law came through the various Germanic tribes and was codified at various times and in various places. Do these historical distinctions matter? Probably not; they are both code based laws so you must know the code for the particular jurisdiction. However, knowing the origin of the code, while it may not help you draft a contract, will allow you to understand the mode of thought and jurisprudence behind the laws. In a way, it is like the difference between understanding languages and understanding linguistics. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! | Unless there is a law or regulation against it, it is legal. However in a big government it can be practically impossible to determine whether something is legal. For example, nobody even knows how many criminal statutes have been promulgated by the U.S. federal government. And that's nothing compared to the volume of executive regulation and judicial case-law that determines whether something is illegal. I.e., in practice determining that something is legal is a bit like proving a negative. Furthermore, if you look long enough some argue that you can probably find some law under which almost any action could be considered illegal. Note also that even if it is not against the law, it could be proscribed by contract (read your Terms and Conditions!), and breach of contract is in general – but with an astonishing number of exceptions! – illegal. | If you say something twice, eventually they’ll be in conflict Law codes are vast. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere. My first boss taught me that. The fired was engineering rather than law but the principle is the same. | 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. |
When does an officer's discretion end, and where does an officer's duty begin? User6726's answer to this question seemed to imply that an officer's discretion was endless; that no matter what the situation, they could always decide not to intervene. That seems highly unlikely to me; surely if an on-duty, not undercover cop saw for example a stash of illegal weapons in the open trunk of a car, with the criminal sleeping inside it, they would be obligated to act? My suspicion is this: there isn't really a point where they're no longer allowed to use discretion. More likely, I think they always possess discretion and duty at the same time; they have a duty to stop crime to the best of their power, and they have the discretion to decide whether they're capable of stopping the crime at that point with more benefit than loss. No matter the situation, they technically possess the right to deem the situation too something to not intervene; their duty lies in making that judgement earnestly. Which is where the practical line between discretion and duty comes in: as said, I think they probably exist at the same time, but certain situations are of a nature that it becomes clear beyond a reasonable doubt that the officer did not exercise their discretion earnestly. In these cases, they would face reprecussions not because they used a discretion that they didn't have, but rather because they clearly violated their duty to use that discretion earnestly. In the kinds of situations where e.g. a criminal is aiming a gun at someone, a cop may decide to not intervene due to their tactical/psychological/whatever judgement of the situation/criminal telling them that intervention would be more likely to cause more harm, and thus I expect a lot of violent situations to fall on the discretion side of this line. So, then the questions arise: Does such a line exist, and if so, what does (if anything) the law say about it? How is this line evaluated in practice? I'm interested in the US jurisdiction. Someone mentioned that this depends extremely on the particulars of the situation. I'm more looking for an overview of the categories of situations that are usually treated as an "officer's discretion rules" versus the categories of situations where this isn't the case. To aid in this, I'd like answers containing constructed scenarios (like my example of the criminal sleeping in his gun-loaded car) where discretion practically doesn't rule (practically doesn't rule in the sense I described above), and constructed scenarios where discretion definitely rules, and lastly, the constructed scenarios where it very much falls in a gray area that needs to be scrutinized due to a high contingency on the particular detials. Of course, the constructed scenarios could be replaced with real-life cases. | There is an important distinction between moral duty and legal obligation. Even if an officer should arrest a person, given some moral standard, they are not legally obligated to do so. A test for legal obligation is whether an choice results in a negative legal outcome – is the officer sued or criminally penalized for acting or not acting? Unsurprisingly, the answer to the legal question is highly dependent on jurisdiction. I only consider US jurisdiction here (which incidently is not a single coherent jurisdiction, it is a phylum of jurisdictions), though some aspects of the answer extend to other countries. The clearest cases are obligations to not act in a certain way – prohibitions. Police may not beat a suspect in order to obtain information. Period, end of story, no discretion. There is a putative bright line that police cannot cross, namely violating an individual's rights, and that constitutes a major exception to the doctrine of police immunity. If X is a clearly established right, police cannot violate that right and if they do, they can be sued or even prosecuted. Sometimes courts "discover" a particular right in a certain case, so the individual (plaintiff in a civil case) may be vindicated but the officer will not be subject to legal sanctions, since LEOs are not held to be appellate court justices who can divine the future discover of a legal right. 18 USC 242 statutorily describes certain circumstances where a choice is criminally proscribed, and 42 USC 1983 allows for civil suits. This pertains to things that an officer does, saying what an officer does not legally have the discretion to perform an act. Now setting aside proscriptions where "you may not...", the doctrine of sovereign immunity prohibits civil or criminal actions against the government (including LEOs) unless a specific exception has been carved out. I recommend this (open access) journal issue on Discretion in Law Enforcement. There do exist statutory obligations to act imposed on LEOs, for example see this AG legal opinion from Florida, stating that A law enforcement officer, including a police officer, has a legal duty to provide aid to ill, injured, and distressed persons who are not in police custody during an emergency whether the law enforcement officer is on-duty or acting in a law enforcement capacity off-duty. A famous case regarding (non)liability for police inaction is Castle Rock v. Gonzales. In this case, police declined to enforce a Temporary restraining order (TRO) against plaintiff's estranged husband (who then murdered the children). The Supreme Court observes that the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors” and also noted the lack of express statutory obligation to enforce that law. In Everton v. Willard, the Florida Supreme Court addressed the question of whether discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability and they do hold that the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit, regardless of whether the decision is made by the officer on the street, by his sergeant, lieutenant or captain, or by the sheriff or chief of police There have been disagreements on sovereign immunity, for example Huhn v. Dixie Insurance Co., 453 So. 2d 70, which held that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done (the relevant action was not arresting a person for DUI). As employees of the government, LEOs are subject to the over-arching rules of their employer. They may be ordered by their superiors to refrain from arresting a law-breaker during a riot, on the grounds that doing so will exacerbate a tense situation. The police department might be sued for such a decision, but it is unlikely that the government will be held liable for an essentially political decision. Likewise, enforcement of "no public camping" laws is highly variable, and the courts will most likely not sanction a city for not arresting homeless people who are camping on public property in violation of the law. | Brief detentions and reasonable suspicion You can be briefly detained by police if they have reasonable suspicion that you committed a crime. Terry v. Ohio, 392 U.S. 1 (1968) What reasonable suspicion "means" can only be fully understood by reference to subsequent case law (which I will expand this answer to do), but as a basis, the court said in Terry that: the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion This standard has been reiterated as recently as in Heien v. North Carolina 574 U. S. ____ (2014), where they say "All parties agree that to justify this type of seizure [a traffic stop, in the case of Heien], officers need only reasonable suspicion — that is, a particularized and objective basis for suspecting the particular person stopped of breaking the law" (internal quotation marks omitted). The reasonable suspicion standard was also used recently in Navarette v. California 572 U. S. ____ (2014). They reiterated that reasonable suspicion is dependent upon both the content of information possessed by police and its degree of reliability, quoting Alabama v. White, 496 U. S. 325, 330 (1990). A mere "hunch" does not create reasonable suspicion, but the level of suspicion required by the reasonable suspicion standard is "obviously less than is necessary for probable cause". Arrests and probable cause To be arrested, police require probable cause. Brinegar v. United States, 338 U.S. 160 (1949) In more detail, probable cause exists (from Brinegar v. U.S.): where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed Also: The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice. As in the case of reasonable suspicion, the probable cause analysis is case-by-case and fact-intensive, so to understand the contours of probable cause will require reference to much subsequent case law. In Beck v. Ohio, 379 U.S. 89 (1964) the question before the court was entirely "whether or not the record in the case before us can support a finding of probable cause for the petitioner's arrest". In that case, it turned out that the information they had received about the arrestee was not sufficient for probable cause, but regardless, the test the court applied was whether the police had probable cause for the arrest. Notes While I am confident in the correctness of this answer, what each of these standards means will take hours of work to flesh out, which I plan to do. The courts have repeatedly reiterated and referred to these decisions/standards, but the analysis is very fact-intensive and is done case-by-case. Also, I realize the presentation is a little scattershot, as I'm first just looking to include relevant cases and statements the court has made about these standards, but I'll re-make it into a coherent story every once in a while. | As I understand it: Battery is the act of intentionally touching or applying force to another person such that the person suffers harm or offense. More or less. Q1: What is the correct verbiage to communicate to an enforcement office that you want to press assault charges against a suspect that has physically struck a victim? Assume you witnessed the battery. Normally called making a complaint or report. Q2: What obligation do officers have once a victim has indicated they have been assaulted and the victim seeks to press charges? They are required to record the complaint and use their discretion to decide if and how they will investigate. Q3: Under what, if any, circumstances are officers required to arrest a battery suspect? In general, they aren’t. Police have wide discretion in which complaints to investigate and how to do so. In some jurisdictions there are some crimes which must be investigated by law - child abuse and domestic violence are the typical ones. Otherwise it is a matter of administrative policy, capability and resources as well as individual discretion. Similar discretion exists around prosecution. Does an arrest require that the victim suffer visible physical injury? No | Was Derek Chauvin protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)? No. Derek Chauvin, the police officer whose affirmative physical acts caused the death of George Floyd is not protected by this precedent. Castle Rock v. Gonzales holds that the police do not have a duty to enforce the law that may be enforced by a private party in a civil action. Police instead have broad discretion regarding whether they will or will not take action to enforce a law. But, when a police officer does take action affirmatively, this case does not apply. Instead, the question then, is whether the affirmative use of force by the officer was justified by the applicable substantive criminal law. If Chauvin had not touched Floyd at all, would Chauvin be protected by Castle Rock v. Gonzales? Meaning no attempt at arrest, no confrontation, nothing. Just let Floyd leave with his cigarettes. Yes. (A much more complicated analysis applied if a fellow officer did what he did and he stood back and did nothing, but that is beyond the scope of this question as I understand it and would call for a separate question.) Given the apparent huge disparity in the risk-reward calculation of a police officer taking action versus just sitting in the car, why don't all police just sit in their car all day? Police officers who do that are routinely fired and given bad recommendation by their superiors when applying for a new law enforcement position. Law enforcement supervisors routinely punish police officers for inaction construing that as being a "coward" but are much less likely to punish a police officer for being unlawfully overzealous without strong pressure from civilians in the relevant government agency or local government. Empirically, sitting in their car all day is not how police act. They are much more likely to be overzealous than to be docile. This said, there is some statistical evidence that has been construed to show that following the announcement of the Chauvin prosecution and related protests before and after that was done, that police took a less active role in policing that led to higher crime. | You are asking a different question The title to the earlier question -- "Do the police have a civil duty to do their job" -- is slightly misleading. The question is not whether the policy have an abstract "civil" duty to enforce the law, but whether they have a specific "constitutional" duty to do so. If they do have such a specific duty, then, as they OP says, they could "be sued for not doing their job." As ohwilleke explains thoroughly, the answer to this question is "no." The Supreme Court has consistently held there is no constitutional right to police enforcement of the law. In particular, the SCt has held that police aren't violating the 14th Amendment when they don't "do their job." According to the Court, someone who is hurt when the police don't enforce the law, is not deprived of "life, liberty or property without due process of law." This in turn means that the people who are hurt can't sue the police under §1983, which allows people to sue state or local officials who violate their constitutional rights. As you point out, the Nevada statute clearly requires officers to make an arrest in some cases. However, this requirement is not absolute; the statute also creates an exception to the requirement: a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has...committed a battery upon his or her spouse.. The statute goes on to explicitly exempt the officer and her department from liability if she decides not to make an arrest: Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section. Thus, the statute sends mixed signals to police officers. On the one hand, it requires them to make arrests in some domestic violence cases; on the other hand, it says they are not liable if they ignore this requirement. Taken together, the Nevada statute and the SCt's decisions mean people who are hurt if police don't make an arrest under 171.137 cannot sue the police under either state or federal law. | england-and-wales Initially, one should comply with the officer's instructions as he has the power under statutory Stop & Search powers to detain someone for the purpose of the search (discussed here). Failure to do so may be an offence. If, subsequently, one considers the search and detention was unlawful, the first port of call is to lodge a complaint with the relevant police force who - depending on the circumstances - may escalate the complaint to the Independent Office for Police Conduct IOPC. You can complain directly to the police/other organisation (see ‘Who can I complain about?’ below for a list of the other organisations) or via the IOPC. If you complain via the IOPC, your complaint will be sent direct to the organisation involved. They will assess your complaint and contact you about how it will be handled. The IOPC will not be involved with this initial assessment of your complaint. If the complaint is found to be valid, then any offence committed by not complying with the office would (in all probability) be overturned on appeal. As well as any compensation awarded by the court, the Chief Constable may consider making an ex gratia payment (mentioned here). Note that there is no obligation to do anything if the interaction falls within the Stop & Account provisions. | In California (as in all states) there is a justifiable homicide defense which might be used in such a situation. For the force to be justified, you have to reasonably believe you are in danger of being harmed, that you need to use force to avoid the harm, and you may only use the minimum force necessary to eliminate the threat. It then is a matter for the jury to decide whether those principles were followed in your particular instance. The reason why it's hard to predict the outcome is that it depends on a subjective evaluation by the jury, as to whether the shooter had a reasonable fear and whether lesser force was a viable option. The jury's decision is guided by instructions to the jury (#506, #506) which focus on relevant distinctions. The jury will be told that "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be", and that you have to reasonably believe there is "imminent danger of great bodily injury". My evaluation is that that does not describe the scenario in the question. There is some possibility of future harm... but not imminent harm. People v. Ceballos (1974) 12 Cal.3d 470" states that "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime" and "Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery", and that could support application of a justifiable homicide defense in a bank robbery. But in the present instance, the bank is being robbed and the shooter is a by-stander. Despite all of the bank robberies in California, there is no relevant case from which one could draw an analogy. | The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not – unless you hand them the keys without protesting – and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf |
Can a person be found guilty based purely on statistical evidence? Imagine that there is a home care worker Alice who takes care of some great number of outpatients. Some significant proportion of them have reported thefts, although none of them suspect Alice. Since her patients are elderly and not particularly alert, they're not very useful as witnesses and in no single situation is there definitive proof that it is she that stole from them. For the sake of this hypothetical, let's say that thefts in general are common in this area, but that Alice's patients are far more likely to be stolen from than others. So for each individual crime there is reasonable doubt as to Alice's guilt, but the totality of the cases are such that it is extremely unlikely that she didn't commit at least several acts of theft (although we cannot say for certain which ones). Is there a name for situations like these? And if it's not too broad of a question: how are they handled? | Is there a name for situations like these? Yes: Circumstantial evidence. In R v Xu, Justice Katz explains how it works: [163] In a circumstantial case, the Court must look to the combined effect of a number of independent items of evidence when considering each charge. While each separate piece of evidence must be assessed as part of the inquiry, the ultimate verdict on each charge will turn on an assessment of all items of evidence viewed in combination. The underlying principle is that the probative value of a number of items of evidence is greater in combination than the sum of the parts. The analogy that is often drawn is that of a rope. Any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so. The logic that underpins a circumstantial case is that the defendant is either guilty or is the victim of an implausible, unlikely series of coincidences. [164] When assessing the evidence in a circumstantial case, it is not sufficient to evaluate each separate strand of evidence in isolation and then stop. Having considered each strand of evidence separately, it is necessary for the decision-maker to then stand back and assess the cumulative effect of all of the different strands of evidence. Consideration of the onus and standard of proof only occurs at the second stage of the process. The individual strands of evidence do not have to be proved beyond reasonable doubt. The onus and standard of proof only comes into play once the combined weight of all of the strands of evidence is being considered. If Alice is the only care worker for the patients who have reported theft, the cumulative effect of the totality of the individual strands of evidence could well be enough to prove guilt beyond reasonable doubt (whereas none of the strands alone could be sufficient). But if there are other care workers who could do that, the probability of guilt slashes down proportionally, so no real prospect for Alice to be convicted. | Truth is a defense to defamation Bob must prove the truth of his statement if Rob sues - there is a reverse onus for this defense. Because this is a civil trial the burden is balance of probabilities. Provided Bob can prove Rob stole his bike he will win. A conviction for doing so is pretty good (but not necessarily conclusive) evidence. Absent that, Bob would need other evidence. Of course, if Bob has said that Rob was convicted of stealing the bike, he’s going to lose. | Yes and No See Katz v. United States, 389 U.S. 347, 351 (1967): What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The glass has clearly been "knowingly exposed" and if that glass was, on the normal methods of examination by the officer (sight, smell etc.), evidence of a crime then it would be able to be used as evidence. However, any DNA on that glass is not "knowingly exposed" - finding the DNA requires a laboratory, specialised equipment and trained technicians. | 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. | england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: "Infinite" indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2. | This is, in effect a defense of mistaken identity, and an assertion that the person on trial is not in fact the person who committed the crime. It is not legally significantly different from a case where the defendant claims that a witness has identified the wrong person. Exactly how the defense would be conducted would depend on what evidence establishes that "Herschel Greenbaum" committed the crime, and what evidence establishes (or disproves) that the defendant on trial is that same Herschel Greenbaum. The purpose of a trial is to establish or fail to establish the guilt of the person actually on trial, normally the person present in the courtroom. (trials do not establish innocence in the US). "The defendant" is the person actually on trial, even if an incorrect name has been used in bringing the charge. In such a case people would need to be careful about evidence that applies to a person named "Herschel Greenbaum" but might not apply to the defendant actually on trial. | The life sentences were based on counts 2 and 4, distribution of narcotics by means of the internet and continuing criminal enterprise. In reviewing the sentencing hearing, all of the evidence indicates that the sentence was based on the nature of his acts, and not anything he did after his arrest. There is no way to know if prosecutors would have been amenable to a plea bargain. | Intent is an element of the offense of murder. If the prosecution can't prove the required level of intent for murder, the defendant may still be convicted of a "lesser included offense" like Manslaughter or perhaps Criminally Negligent Homicide, or even an offense that doesn't require an actual death like Aggravated Assault or an offense that doesn't require proof of an injury like Deadly Conduct. If the defendant is claiming that the intent was not voluntary because of some hypnotic effect then that is basically an insanity plea. Defendants found not guilty by reason of insanity face an indefinite commitment to a mental hospital, which can amount to decades of involuntary hospitalization. To learn more about this situation, read about the case of John Hinckley Jr. I personally doubt any jury would actually believe a hypnosis defense, especially without a woo-woo jury foreman, some outstanding work by the defense attorney, and a team of expert witnesses that includes an unrelated hypnotist and a psychologist who didn't believe in hypnosis until examining the defendant in this case... so a Mulder and a Scully. |
Why are there no laws rewarding people It might sound like a stupid question, but I am not a legal expert. The positive laws prohibit certain acts and punish those who perform the acts. However, do the laws always prohibit and punish? And why there are no laws about rewarding people who perform certain acts that were deemed good. | There are plenty of laws that reward people These include: Literal rewards - payment for information leading to an arrest/conviction. Welfare systems - the government is literally paying money in accordance with the law. Tax breaks - for example, for R&D. Government grants. Rebates - anything from health insurance premiums to child care subsidies. | This doesn't seem to be a standard phrase; all relevant Google hits lead back to Breyer's quote. So we just have to infer the meaning from the definitions of the words and the context. You might be confused by the use of "merit" since it is often used to refer to the good qualities of someone or something. But more generally it can refer to either good or bad qualities. See e.g. definition 6 at https://www.wordreference.com/definition/merit: "something that is deserved, whether good or bad." So I would read this sentence as: Try listing all the crimes that there are, ordered by how much they deserve to be punished. | 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. | Yes. A person may not be punished for action taken in good faith reliance upon assurances from an appropriate authority that he will not be punished for those actins as a matter of U.S. Constitutional law. See, e.g., U.S. v. Laub, 385 U.S. 475 (1967), Cox v. Louisiana, 379 U.S. 559 (1965) and Raley v. Ohio, 360 U.S. 423 (1959). | Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts. | 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. | Nope. Even if we were to accept this definition of law as some written decree, and I'm unsure that's the case1, there are civilisations with written law that predate the Ten Commandments. Babylonian Law (c.1800 BC) predates the Ten Commandments. Also, the Code of Ur-Nammu predates even that (c.2050 BC). 1. Most definitions of law don't require that it be written, but rather that it is some system of rules that govern the behaviour of some group of people. | I haven't reviewed the filings, but I can tell you that it's perfectly routine for lawyers to describe the other side's position as "plainly without merit," with no regard for the actual merits. The lawyer's job is to make his client look good, in court and in public; the existence of this question shows that he's doing a good job at least on the latter half of that equation. But in truth, it's such a generic thing to say that no lawyer who hears it will actually think it means anything. In all likelihood, the filing is like most others, in that it makes a good case on some points and a bad case on others, and the opposing lawyer's job is to argue that all of them are bad. In the rarer case that a filing is actually "plainly without merit," courts can and sometimes do impose penalties under Rule 11, which allows for sanctions against parties and attorneys who make factual assertions that are not supported by reality or arguments that are not supported by the law. |
Which public holidays apply to remote workers? I am working remotely for a company in Germany from Germany. The company is in one state and my place of work is my home in another state. In Germany, we have different mandatory holidays in some states. This is the case with my employer. Currently, there is a discussion, if I have to work when there is a public holiday in my state. In my opinion and based on the sources I have found I must not work on public holidays of the state where my place of work is. Per my contract, my place of work is my home. I have found one source, that says the following: Maßgeblich für die Feiertage sind weder der Sitz des Arbeitgebers noch der Wohnsitz des Arbeitnehmenden, sondern die tatsächlichen und rechtlichen Verhältnisse am Arbeitsort. Which translates roughly to: Neither the employer's registered office nor the employee's place of residence is decisive for public holidays, but the actual and legal circumstances at the place of work. I have tried to find a confirmation for this statement in the actual laws, but I did only find one example where something like this is mentioned: Erste Durchführungsbestimmung zur Verordnung über die Einführung gesetzlicher Feiertage § 2 : Für die Arbeitnehmer gilt als Feiertag der für das Territorium festgelegte Feiertag, in dem der Beschäftigungsbetrieb seinen Sitz hat oder in dem sich der mit den Arbeitnehmern vereinbarte Arbeitsort befindet. Which translates to this: For employees, a public holiday shall be the holiday established for the territory in which the employment enterprise has its registered office or in which the place of work agreed with the employees is located. What is confusing me here is the 'or' in this law. I am uncertain how to understand the or in this sentence. In my opinion, it could be either one of those: It's the where the office sits or where you work from, depending on someone's choice or terms in the contract between employer & employee It's where the office sits if you work from that location, or your actual place of work in case it differs from the office location Additionally, my contract states that the public holidays at the location of my office are to be used. But depending on the interpretation of that 'or' this clause could be invalid or the first source I've linked could be wrong. This is something that has to be discussed with a lawyer, though. This question is more about the interpretation of wording in German laws, I guess. | Where your office is, is your designated workspace. You get the public holidays wherever your official office address is. If you live and work in Hessia, then you get the 11 public holidays there. If you live in Hessia but work right over the border in Bavaria, you get 14 public holidays, even if you live in Hessia. Now, where do you work in case of remote work? That depends on what your official work address is. Do you connect remotely to an office in Bavaria where you are located on paper or do you have no such office? If you have an office you work at officially, then that is your agreed-upon, designated workplace, and in our example, if that's in Bavaria you get the 14 public holidays. If you don't are designated to work in an office in Bavaria and may log in remotely there, then your agreed-upon, designated workplace is your home address, and if that is in Hessia, you get the 11 public holidays there. Where your company's central is... Now, let's assume the company is seated in Brandenburg, which has 12 public holidays. That doesn't matter at all: the Feieratagsrecht of the place you work (officially) dictates your public holidays. So either the laws of your designated location apply: either Hessia's 11 public holidays if your home is the designated workplace, or Bavaria's 14 if the office you connect to is the designated workplace but you remote-connect to it. It would by the way matter if you are designated to be in a location for that exact day: you could be designated to work in a location that has no public holiday on that day, then you don't get that day. However, the Brandenburg company can decide to say "You get our extra holidays in addition. Have fun with the extra free day" - that'd be extra in the contract, not the legal requirement. | You probably would not be "obligated" to do anything. However your employer also would not be "obligated" to continue employment. If you agreed to something verbally, that is a contract. Verbal contracts can be difficult to enforce, but in this case the employer does not need to enforce it but rather take the easier solution of terminating your employment. | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. | 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. | Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true. The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (appendix 15): In short, you are not teaching in 2022/2023 and you have not submitted the required outline of your research or other engagement. I am very sorry that we cannot establish that you will be doing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall semester, your pay will be reduced to zero and you will be placed on unpaid personal leave. Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work. In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended. An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful. | Can a district rescind an offer of employment? Yes. Any contractural offer can be withdrawn so long as it has not been accepted. You did not accept it, so the withdrawal is legal. Can they hire someone who is not qualified ... That depends on the particular law that mandates the qualification. As a general principle, anyone is allowed to work at anything unless there is a law that says “you cant do job X unless you have qualification/licence/accreditation/whatever Y.” So you need to actually read that law. Some allow a grace period for a person to do X while they get Y and some are outright prohibitions. And there are some things that people think require a specific qualification because everybody has one but there is actually no legal requirement. For example, I’m a qualified arbitrator, adjudicator and mediator. I need the qualification to work as the first one in australia and I it to work as the second in queensland but not new-south-wales but I don’t need it anywhere to work as the last one - most mediators have qualifications but they are not legally required. I am not a qualified lawyer because I don’t need to be to work as any of the above and, indeed, merely being a lawyer does not allow you to work as an arbitrator. … and rescind my offer of employment? The eligibility of the person they chose to hire has no bearing on their decision not to hire you. If they have hired an unqualified person then that is for the relevant regulator to deal with and has nothing to do with you. Are they not obligated to hire the most qualified applicant? No they are not. Employers have the discretion to choose the applicant they consider the “best”. And they can assess how your better qualifications weigh up against someone else’s past history with the organisation. Provided they do not consider things that they are not permitted to consider under discrimination law and that the process is not corrupt, they can weight the various factors how they wish. However, if an employer has stated that they will weight various applications is a specific way, then they have to do that. | The GDPR roughly applies in the following scenarios: Art 3(1): you have an establishment in Europe Art 3(2): you do not have an european establishment, but Art 3(2)(a): offer goods or services to persons in Europe Art 3(2)(b): monitor the behaviour of people who are in Europe (where Europe means EU/EEA/UK as appropriate). Art 3(1) does not seem to apply for you. Art 3(2)(a) does not apply, since you're not actively targeting people in Europe. At the point in time where you are offering the app to users, those users are in the US. Art 3(2)(b) could apply if you collect some kind of tracking data, in particular (but not limited to) location data. But if you temporarily shut down collection of new data for personalisation while the user is in Europe, that's probably going to be reasonably safe. It might not be necessary to disable ad personalisation if that personalisation is based on data collected outside of Europe. In practice, unless your app is specifically targeted at travellers, no one will care about what your app does outside of the US. For detailed guidelines on the territorial scope of the GDPR, consider reading EDPB guidelines 3/2018 (PDF). The document contains some relevant examples, but since it's official guidance they won't explicitly say that GDPR won't apply in a scenario like yours. The closest is Example 8: An Australian company offers a mobile news and video content service, based on users’ preferences and interest. Users can receive daily or weekly updates. The service is offered exclusively to users located in Australia, who must provide an Australian phone number when subscribing. An Australian subscriber of the service travels to Germany on holiday and continues using the service. Although the Australian subscriber will be using the service while in the EU, the service is not ‘targeting’ individuals in the Union, but targets only individuals in Australia, and so the processing of personal data by the Australian company does not fall within the scope of the GDPR. Also relevant is Example 10, which says that app downloads in the EU might not be subject to GDPR: A U.S. citizen is travelling through Europe during his holidays. While in Europe, he downloads and uses a news app that is offered by a U.S. company. The app is exclusively directed at the U.S. market, evident by the app terms of use and the indication of US Dollar as the sole currency available for payment. The collection of the U.S. tourist's personal data via the app by the U.S. company is not subject to the GDPR. |
Is it lawful to offer smaller portions only to children below a certain age, by calling it a "children's menu"? Suppose that one is ordering from a restaurant that offers full portions for £11 or half-sized portions on a section of the menu designated as for kids for £6. But suppose that one is over the designated age threshold, yet only has £7 in their account, or is simply not so hungry and doesn't want to be wasteful or carry home leftovers. Is it lawful for the restaurant to make a section of their published menu unavailable to one simply because of their age? | Is it lawful to offer smaller portions only to children below a certain age..? Yes Part 3 of the Equality Act 2010 covers "Services and Public Functions" and at section 29 states: Provision of services, etc. (1)A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. This is the only definition of "service-provider" in the Act, but the Equality and Human Rights Commission confirms a restaurant falls with the scope of Part 3: Equality law applies to any business that provides goods, facilities or services to members of the public. This includes a wide range of different businesses and services. These include: [...] restaurants [...] However all that is moot (but posted here for context) as Part 3 of the Act opens with caveats at section 28 which establishes that: (1)This Part does not apply to the protected characteristic of— (a)age, so far as relating to persons who have not attained the age of 18; [...] | No. There are plenty of Quebecois laws covering what you must have water for (food prep, bathrooms, etc) and that if you are using the water in any fashion that it might come in contact with a human mouth (i.e. food preparation, etc) it must be drinking water (as defined in the document I linked), but no such laws requiring free distribution of drinking water on request by restaurants. It's worth noting, I suppose, that tap water must be provided by restaurants in their bathrooms for the washing of hands and that said water must be of drinking water quality, but they are not required to offer it in a glass, free of charge. Anecdotally, I will also note that there are laws in several other Canadian jurisdictions that DO require free drinking water on request, but those laws also do not stipulate the glass must be provided for free. | No When I go into my grocery store, I can use the lettuce if I pay for it. The grocer does not explicitly state that I can't use the lettuce if I don't pay for it but that doesn't mean I can. Replace "lettuce" with "software" (or any other property you don't own) and you have the same situation. | 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. | Your lawyer friend is misguided Casual conversation and writing are not subject to any maxims of interpretation - the words mean what the speaker/writer says and what the listener/reader understands and these may be different things. In a conversation about restaurants, there is no implication that the places not mentioned are not restaurants or don't exist. Even if I were to write a published magazine article called "The 10 best restaurants in the world", there is no implication that no other restaurant can possibly be better than those 10. This applies even in business settings. For example, this is the Petbarn logo: It has images of dogs, fish, cats, and birds. By your friend's argument, it would be unlawful for them to sell products for the care of pet snakes or lizards since they aren't on the sign? Or, for that matter, to operate from a building that is not a "barn"? Finally, your friend is wrong even in legal interpretation. There are many ways of contract and legislative interpretation that are or have been in use in every jurisdiction. "Expressio Unius Est Exclusio Alterius" is one maxim of interpretation but it may be in conflict with others. For example, if a regulation on aircraft listed various types of aircraft but didn't mention helicopters but nevertheless had an entire section devoted to rotor maintenance the "Rule against surplusage" would require that helicopters be included. In any event, modern courts tend to take a more holistic view to interpretation and the use of individual maxims is optional. | The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web. | I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA): This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases. | 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. |
Response time for reasonable accommodation An employee of a state government agency in the US submits a request for reasonable accommodation for a condition diagnosed by an LPC. After one month, the employee contacts the agency (in particular the attorney at the agency that handles personnel matters) and asks for an update. The attorney responds that they're still working on it. Three months have now passed since the original request. The request it to work at home full-time, which the employee has been doing since the start of Covid. EDIT: https://www.justice.gov/usao/reasonable-accommodation-policy-and-procedure Disposition and Provision of Accommodation A final decision and provision of the accommodation should be made within 30 business days of the request, barring extenuating circumstances. Where an accommodation can be provided in less than the maximum time frame, failure to provide an accommodation in a prompt manner may result in a violation of the Rehabilitation Act. How much time is the agency allowed? | The agency is allowed a reasonable time to implement the request, given the nature of the request and surrounding circumstances. Superficially, it would seem that the request is to continue working at home as has been the case for a couple of years, so the agency would not seem to have to change anything in order to implement the request, and unnecessary delays would be a violation of ADA. There is no fixed time requirement for evaluating and implementing the request. | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | Does it matter whether employer is company or individual? No. Must certain amount of notice be given? Yes - the notice period maybe specified in the contract but even if it isn't there are statutory notice periods that apply depending on length of employment etc. So if the following criteria are met they are legally classed as an employee they have worked for the employer for at least a month Then certain minimums apply: If they have worked for the employer for: 1 month to 2 years – statutory notice is 1 week 2 to 12 years – statutory notice is 1 week for each full year they have worked 12 years or more – statutory notice is 12 weeks A notice period in the contract (i.e. "contractual notice") can exceed the statutory minimums but it can't reduce them. What other requirements are there that must be followed? This is pretty broad and I don't really want to reproduce everything here but the ACAS page on dismissals covers the basics. Can notice be dispensed if the task is of an urgent nature and employee must be replaced as a matter of urgency? Dismissal without notice is possible in cases of Gross Misconduct but that is about what the employee has done - nothing to do with the urgency of replacing them. However, if both parties agree a notice period can end early: The employee can ask if they can leave before their notice period ends. They should get agreement from their employer in writing. If the employee does not get agreement to leave early they could be in breach of contract. If the employee leaves early, the employer only has to pay them for the time that they’ve worked. If an employer wants them gone immediately they can do that if it's either in the contract but they still have to pay them for the notice period. They can also offer payment in lieu of notice if it's not in the contract but it's then up to the employee if they agree. | Yes I would reach the same conclusion as DaleM, i.e. that the arbitration clause still applies to the dispute in the question, but for a different reason.<1> While the severability principle is indeed a concept in arbitration law, I don't believe that is the relevant doctrine here.<2> Termination Of Employment v. Termination Of An Employment Contract What terminates when a period of employment ends is the employment itself, not the contract of employment. The contract remains effective as to rights and obligations arising during the course of the employment covered by the contract. (This concept would also sometimes be described in terms along the lines of "the right to a remedy for the workplace injury and the right to have disputes related to that resolved in arbitration are vested rights" that are not modified when the contract term of employment ends.) This concept isn't particular to the arbitration obligation. For example, if contract of employment that did not contain an arbitration clause provided that the employee was paid $200 an hour for the first six months and $220 an hour for the second six months of a one year fixed term employment agreement, but the employer failed to adjust paychecks according after the first six months and continued paying the employee at $200 an hour instead (assume to avoid the issue of waiver that this wasn't readily apparent on the face of the paystubs provided to the employee), the employee could bring suit thirteen months after the employee's employment terminated for the $20 an hour not paid as agreed during the last six months of the contract even though the employment period had ended. The contract still remains in force to govern the rights and obligations of the parties arising during the period of employment. Examples Of Termination Of The Contract Itself In contrast, sometimes one contract is replaced, even retroactively, with another contract, in what is called a "novation" of the original contract. This truly does terminate the old contract, so that only the replacement contract remains. So, if, for example, the original employment contract contained an arbitration clause, but this was replaced by a new employment contract without an arbitration clause three months later (in the sample case, before the worker was injured<3>), then the arbitration clause would not apply because the contract, and not just the employment was terminated. Similarly, support that the workplace injury was the second dispute between the employer and employee that had come up. The first was a dispute over the rate of pay received which was resolved by a settlement agreement negotiated by lawyers for the parties before either arbitration or litigation in court was commenced, which expressly terminated all rights, known and unknown, of the parties arising under the contract, and the second was the workplace injury for which the relationship of the injury to work was only discovered later on. In this case, the contract and not just the employment had been expressly terminated, and so the arbitration clause would not apply to the workplace injury dispute (which would be barred by the settlement agreement and which may or may not have had an arbitration clause of its own). End Notes <1> At least assuming that the dispute would have been subject to arbitration if a dispute were litigated while the employee was still employed. There can be circumstances when a workplace injury is not subject to arbitration even if the employer and employee undoubtedly agreed to an arbitration clause that applies to the dispute in question. For example, workplace injuries arising from sexual assault are not subject to arbitration in the United States. See 9 U.S.C. §§ 401-402. <2> The severability principle usually concerns a determination of the enforceability of an arbitration clause in the face of certain kinds of arguments that the entire contract as a whole is voidable. It also does not apply in cases where there is a dispute over whether any contract of any kind was formed in the first place. For example, if someone presented the court with a contract containing an arbitration clause and sought to compel arbitration, and the defense to a motion to compel arbitration was that the defendant had never met or had any connection with or communication with the defendant or anyone related to the alleged contract. <3> The hard case, where the novation takes place after the injury, is complicated by legal doctrines regarding the conditions under which a vested legal right can be waived, which may or may not be met depending upon the circumstances under which the novation was entered into by the parties and presents conceptually distinct legal questions in addition to the legal questions already present in the simple case where the injury takes place after the novation. | First Part OR 324 is quite the right article for this. If the employer doesn't want that you work (because he has nothing to do for you) it's his problem, not yours. He still has to pay if you are there and ready to do work. This is for instance also mentioned in this article. The meaning of this is obvious if having a contract with a fixed number of work hours per day/month/year. Second part Prove that you have a fixed work contract. If the shift plans are made in advance you have a proof that you have a certain number of hours to work (and thus an expected income). If I interpret this here correctly, this is "echte Arbeit auf Abruf" (true work on request), because if your employer wants your work, you have to be there according to the shift plan, as opposed to your employer asking "who is ready to work tonight?". So your employer must pay you the hours agreed on in the shift plan, regardless of whether he has work for you or not (but you must explicitly tell him that you are willing to take work). Third part Can the employer change the shift plan, and to what extent? The employer must announce changes to work hours as soon as possible, and changes on short notice are only acceptable in emergency cases. A reduction in work hours due to not enough work shall not reduce the employee's salary. The business risk is entirely with the employer and he must not shift that responsibility to his employees. (That was common in the late 19th and early 20th century, with all the officially self-employed home workers in the textile industry). Here is a federal court decision that affirms this (BGE 125 III 65 S. 66). | Sort of The 25th Amendment is crystal clear that the VP and a majority of the cabinet can declare in writing to the president pro tem of the Senate and the speaker of the house a presidential inability, whereupon the VP becomes the acting president. The president can then immediately transmit in writing his declaration that there is no inability, and then he resumes his position as president until the VP and majority of cabinet (not necessarily the same members) again declare a disability, within 4 days. If that happens, then Congress decides the matter. There is a 28 day period for a super-majority of Congress to make that decision, plus 48 hours for assembling of Congress is not in session. The problem is that the amendment says that the president resumes his powers unless something happens within 4 days. It does not say that he must wait 4 days to see what the VP response is. If the VP does not counter-respond immediately, then it is possible, but not guaranteed, that the president regains power until the VP reaffirms the disability. This is a question that would have to be decided by SCOTUS. In the presumably short interim, there would be serious constitutional questions as to the legality of the actions of either POTUS or VPOTUS. | In principle, the data subject's right to access involves a copy of all personal data the controller holds on them. There are no time limits by default. Of course, the controller can ask a data subject to clarify their request, e.g. to focus on a particular time frame. There is an implied time limit though: personal data may only be processed/stored for as long as the data is necessary to achieve the purposes for which it was collected. Afterwards, it must be deleted. A controller with good data management will be able to limit their effort by having as short retention periods as possible for their different records. Furthermore, a lot of data is not personal data, or falls out of scope of the GDPR because it is not processed with automated means or forms part of a filing system. For example, if thousands of old invoices were archived in paper form in boxes that are only sorted by year, there might be an argument that this isn't a filing system in the sense of the GDPR and that a DSAR would not have to involve looking through all the archived invoices (compare also Art 11). In your scenario, there is a clear retention period of six years. You are asking for records about how that data might have been used further in the past. To the degree that such data is actually available, that could reasonably be personal data and should be included in a response to a DSAR. E.g. they might have information like this: “File #1234 was included in a data set that was sold to EvilCorp in 2007. The entries in File #1234 that are older than 2014 have been purged, so we do not know which entries were included in the data set. The current name on File #1234 is Dave.” This information about the sale would be personal data because it relates to you, and you are identifiable. Of course, the controller might not be set up to perform this search unless specifically asked. However, more unspecific information might not be personal data. For example: “About 70% of our files were included in a data set that was sold to EvilCorp in 2007. We no longer have records indicating whether your file was included.” Since there is no link between the sale and your personal data, I don't think it would have to be included in a DSAR response. The primary reason why you should be told about sales of personal data is that per Art 15(1)(c), you should be informed about “the recipients or categories of recipient to whom the personal data have been or will be disclosed” in a DSAR response. So when making a data subject access request, it could make sense to explicitly referencing this paragraph. So you would be interested in receiving a copy of your personal data as per Art 15 GDPR, and in particular any available information per Art 15(1)(c) GDPR about the recipients or categories of recipients to whom your personal data has been or may have been disclosed in the past. Quite likely the response will be underwhelming, e.g. by just giving a broad category such as “potential creditors who are contractually obligated to use the data only in accordance with our policies”. Whether such responses are compliant (I don't necessarily think so) will not be clear until there's a good precedent, and that would require that someone sorts this out in court. | she immediately stated that I need to provide 60 days notice She is wrong. See Minnesota statute 504B.135(a). Absent any agreement that supersedes the statute, the landlord cannot unilaterally stretch the notice period to 60 days. Is it legal for a landlord to say my rent is due 5 days earlier than we had verbally agreed? Is it legal for a landlord to do this right after I tell them that I am planning on moving out? No. The lanlord cannot unilaterally alter the implied contract that exists between you two, including the pattern of you paying rent on the 6th of the month. To prove in court that this was indeed the pattern, it suffices to show the receipts your landlord has the statutory obligation to provide to you immediately upon making each one of your payments. See 504B.118. The landlord is just "making sure" you will not recommend her to other prospective tenants. |
Do judges have managers? Typically it seems all us cases have a judge. Theres also a lot of different types of courts. Are all the judges at the same job level? Do they have managers? Who are they? Do they performance metrics they have to meet? What are those metrics? | united-states Sort of. Most particular courts have a chief judge, a position that is paid slightly more than that of a usual judge for a huge additional burden of administrative work managing the court house (e.g. courtroom assignments, policies on implementing case assignments, overseeing the jury system, security measures, hiring court clerk's office and court building staff, reviewing court budgets, deciding whether to close the courthouse for weather or pandemics and the like, etc.). In Colorado, there is a state appointed panel for each court that in connection with an outside private contractor evaluates judges periodically and prepares a report recommending or not recommending their retention in periodic retention elections, and there is a separate appointed panel that investigates allegations of judicial misconduct. In many other states, some or all judges have to run for re-election when their terms end and the voters decide if they should stay in office. Sometimes judges in these states are nominated by the appropriate level of one of the major political parties. In the federal courts, since judges serve for life and there is far less discretion to discipline them, Congress is the main supervisor in the sense of having the power to "fire" a judge. Trial court judge's substantive legal decisions are subject to review by courts with appellate authority over their court on a case by case basis. For courts of general jurisdiction, direct review of their cases on appeal is vested in an intermediate court of appeal in all but a few small states. For courts of limited jurisdiction that handle smaller civil disputes and/or misdemeanor criminal cases, direct appellate review is usually vested in the courts of general jurisdiction above it. In each state, the state judiciary as a whole has at its pinnacle a highest court, usually called the state supreme court, although a few states call it something else. It is the final court of review in the appellate process. It also has the authority to intervene in particular judicial decisions that would not ordinarily be ripe to raise in an ordinary direct appeal (e.g. questions about whether allegedly attorney-client privileged or other privileged evidence must be disclosed), including the authority, in rare cases to order that a judge in a case that was appealed be removed from a case. The federal court system and some larger states vest this authority in intermediate appellate courts as well. State supreme courts also have general administrative authority over the judiciary as a whole. The state supreme court (primarily through the chief justice of the state supreme court) in its administrative capacity handles budget issues, formulates court rules, prepares annual reports on the judicial branch, lobbies for state funding, is responsible for auditing lower court finances, makes IT decisions for the state judiciary as a whole, and makes myriad other policy decisions, although it does not directly supervise judges in the way that a line manager in a government agency would supervise that manager's subordinates. | The exact procedure varies from one district to the next, but generally speaking, it is essentially by lottery. The procedure is typically spelled out in the court's local rules. Jump to page 105 of SDNY's local rules for an example. The lottery system is not entirely random, though. Frequently it is weighted to make it more likely that a case is assigned to a judge from the district's courthouse nearest to the parties, or to make it less likely to be assigned to the chief judge or a judge on senior status. There are then various other rules governing assignments of cases to new judges or visiting judges, but those typically don't happen when a case is originally filed. | If what you show is correct and above-board then you are being sued in superior court. However it sounds unlikely that the plaintiff could have served you with notice of such a lawsuit without you realizing it, so if I were you I would first call the court to see if they do in fact have a case with the docket number listed. Then ask: When and who served the original notice in the case (because if you really didn't get it then whoever said you did majorly screwed up and is probably in trouble) Who the plaintiff's counsel is If the letter was from a real lawyer on the California Bar, and that case really is open in the superior court with you as a defendant, then you really are being sued, and you should either get a lawyer or negotiate a settlement, because if you don't answer and defend then you're just going to have more judgments against you. If any of the above does not check out then whoever sent that letter is in big trouble if you report it to the DA, postal inspector, and (if they are a real lawyer) the Bar. | The origins aren't known exactly, as it turns out. Court dress goes back quite some time. Edward III - living up to the example of Edward I, and his legal improvements - was not the first to mandate that judges wear appropriate attire, but it became established during his reign. Judges of importance wore robes lined with fur and silk. Their attire also included a hood and cowl, as well as a mantle. Colors varied, with violet being the color of choice in the winter green in the summer. In medieval times, the coif, a white cap, was used by monks. Skullcaps (in black) were adopted later on, but wigs became the head covering of choice in the late 17th and early 18th centuries, largely because they became part of the formal clothing worn at the time - not just inside courtrooms. References: Court and Tribunals Judiciary Wigs, Coifs, and Other Idiosyncrasies of English Judicial Attire | 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. | I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand. | united-states The simple answer is the procedures adopted under the Classified Information Procedures Act. Under Personnel Security, they say that: No person appointed by the court or designated for service therein will be given access to any classified information in the custody of the court, unless such person has received the appropriate security clearance and unless access to such information is necessary for the performance of an official function. A security clearance for justices and other Article III judges is not required. The true answer is a bit more involved. Article III judges (essentially meaning life-tenured federal judges) are constitutional officers. Their office and its basic role is laid out by the Constitution. On the other hand, security clearances are an administrative thing under the basically unreviewable control of the executive branch. It’s not appropriate to deny a constitutional officer access to information they need to carry out their constitutional role unless the executive branch agrees that they’re suitable. | There are two important points you need to consider: jurors cannot be challenged (in the US sense), and the judge has wide discretion to handle any problems that arise in his court. If a juror has prior knowledge of the case, or could not be expected to be impartial, the judge (or sometimes the bailiff) will excuse him, and bring in one of the three replacements. If either side's lawyers dislike the look of a juror, they may if the judge allows ask questions to elicit such reasons, and then ask the judge to disqualify (I was on a jury where one of my colleagues was a policeman, and the defence suggested that he could not be impartial; the judge asked some questions and then excused him, and I understand he was never actually empanelled that week). But you are not permitted to select jurors you think will favour you or (equivalently) to ask to dismiss a juror without a factual disqualification; you can't, for example, ask about a juror's politics. Disqualifying a juror is thus rare, and the chance of four jurors having ties to a particular case is so remote as to be not worth worrying about. The second point, and the reason why written authority is hard to find, is that the judge has almost unlimited discretion over any action in his Court that does not infringe statute. There was a case in the newspapers recently where a juror discussed the case he was hearing in the pub, and was therefore dismissed from the jury; the judge consulted prosecution and defence and decided to proceed with eleven jurors rather than start the trial again. This does not mean that 'any trial can be heard with eleven jurors'; it means that in that particular case justice was best served by continuing. There is always the option to request a mistrial (which may or may not be granted) or to say that, a fair trial now being impossible, you intend to appeal on this point; but failing that the judge's decision on any procedural point is binding. |
What is the father of the bride test? I have been watching a Supreme Court hearing, and there are certain things that I don't understand. I have also not been able to find what these things mean on the internet. The Supreme Court hearing is: https://www.supremecourt.uk/watch/uksc-2020-0133/150621-am.html What is meant by "the father and the bride test"? (approx 33min in) | This is an appeal from the decision in A Local Authority v JB [2020] EWCA Civ 735. In the part of the hearing to which you refer, Lord Stephens is asking the appellant’s counsel about the following principle, quoted at [31] of the judgment under appeal: When considering capacity to marry, the question is whether X has capacity to marry, not whether she has capacity to marry Y rather than Z. The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse: Re E (and Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam). In Re E, Munby J said at [91]: The point is suggested by Miss Waddicor's very pertinent rhetorical question: Can it seriously be suggested that the court has the right to vet E's suitors, to decide that X is suitable but that Y is unsuitable, to select who E is to marry? The answer to that question, in my judgment, is that the court quite clearly has no such role. The ‘father of the bride test’ is the proposition rejected here: that the Court of Protection could play the traditional role of the father of the bride, by granting permission to marry a particular person, rather than determining the person’s capacity to marry in a more general sense. | I think the answer is that, despite the wording in the question, this case is simply easier. Note that the Attorney General is listed as the applicant, rather than the appellant. The case is a straightforward action for contempt of court but since the court in question is the Supreme Court, it heard the case itself (although with a different set of judges). | The only one I can find so far relates to a Brazilian citizen getting married abroad, called a: Consular Declaration of Civil Status These are issued by the Consular Authority to: Brazilian citizens who intend to marry before a foreign authority within their jurisdiction. The document is issued in English. Source: gov.br (I have yet to find if a comparable certificate is available in-country, for marriage or otherwise, but none of the official guidance sites I have trawled though mention it) | Alternate explanation: Richard is saying that the witness has no "testimony that would assist in making a determination of guilt or innocence", and therefore should not be allowed to testify. | Most judges went to law school Therefore, my null hypothesis is that they have next to no knowledge of statistics and couldn’t tell a median from a mean on their best, let alone, their average day - mean, median, or mode. Courts turn to experts to fill in the gaps in their knowledge. If they are asking the wrong questions, then it is the expert’s job to, respectfully, tell them so and guide them to the right questions. However, you shouldn’t guess what the right question is. “Excuse me, your honour, the term “statistical significance” can’t be applied to a data set, only to the result of an a priori null-hypothesis tested against that data set.” Feel free to explain p hacking if necessary. Ask the judge to explain, in layman’s term, what they want from you. Feel free to admit that just like you don’t understand their legal jargon, you don’t expect them to understand your statistical jargon; if everyone speaks plain English, you can go and do your statistics thing and they can go and do their law-talking thing. | "Why" someone did something is potentially off-topic, but in regards to your hierarchical image - it lacks provenance so cannot be tested, however according to the official judiciary website: The Master of the Rolls is second in judicial importance to the Lord Chief Justice. | Every state requires at least two witnesses to a will unless it is entirely written in your own handwriting. A lawyer as a witness is fine. A spouse as a witness is not ideal as she would be an interested party if there was a dispute over whether it was executed. It may not be prohibited, but I would never do that in my practice ever. I discontinued a will signing just last week because we only had a lawyer and a spouse and not other witnesses. I would be somewhat concerned. | 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. |
Taking phone from rape victims? I read in a recent news report that victims of rape would no longer be required to surrender their phones to police for a "digital strip search", however the alleged perpetrator would. The victim would instead get to make the decision of whether, or not, to let the police go through their phone. I have seen several news reports, television programmes, and I believe even a Panorama documentary on rape victims feeling it is unfair that the police have demanded their phone to be able to investigate the rape allegation. Although, the television often does mislead... I am curious as to what the Law was (criminal law in England & Wales jurisdiction) during the year 2019. I believe, based on this article, that all victims of rape had to give their phones into the police for analysis, but I might be wrong and am looking for clarification? | According to the Crown Prosecution Service's legal guidance Disclosure – Guidelines on Communications Evidence (26 January 2018), the law is that: Investigating officers are required to pursue all reasonable lines of inquiry, whether to exonerate or implicate suspects … This will often include the obtaining and analysis of communication evidence whether it originates from devices or social media accounts belonging to the complainant or the suspect or, in some cases, to third parties. See also Disclosure – A guide to "reasonable lines of enquiry" and communications evidence (24 July 2018): The examination of mobile devices belonging to the complainant is not a requirement as a matter of course in every case. There will be cases where there is no requirement for the police to take the media devices of a complainant or others at all … Examples of this would include sexual offences committed opportunistically against strangers, or historic allegations where there is considered to be no prospect that the complainant’s phone will retain any material relevant to the period in which the conduct is said to have occurred and/or the complainant through age or other circumstances did not have access to a phone at that time. There is an extensive discussion of the "issues of principle … that frequently arise in present-day police investigations … linked to the privacy concerns of complainants and other witnesses who are asked by the police to share the contents of their mobile telephones" in Bater-James v The Queen [2020] EWCA Crim 790 (23 June 2020), from paragraph 65 onwards. The end-to-end rape review report on findings and actions (June 2021), at paragraphs 93 – 101, cites this decision and commits the Government to ensuring that: No victim is left without a phone for more than 24 hours … and victims are not asked for information unless it is necessary and proportionate in pursuit of a reasonable line of inquiry. The most recent Rape Review progress update (June 2022), at pages 11 – 12, summarises recent reform in this area, including changes to police practice and passage of the Police, Crime, Sentencing and Courts Act 2022. Chapter 3 of Part 2 of that Act introduces new powers to extract information from electronic devices with the user's informed consent. However, as noted at paragraph 22 of the new Code of practice: Extraction of information from electronic devices (17 October 2022), these powers are distinct from existing "coercive or compulsory powers, such as a search warrant, production order or statutory notice." | As the previous reply says, you can't steal something if it was yours already. That's by definition – stealing can only be of something that isn't your possession. However there are three ways you can have a problem despite this, partly referred to in another answer: If there is a law or other legal basis for the other person to have control and keep that object, either for a while or indefinitely. So if your phone is legitimately taken by a police officer, you can't "steal" it but you may still not have the right to take it. But this would be treated as some other crime, not "theft." If you cannot gain legal access it, and would have to commit another kind of crime to get it back. So you can't legally get back money by hacking someone's bank account, or defrauding them, or get back an object by breaking down their front door or using illegal force, or by making unlawful threats and blackmail.On the other hand, if you were invited by them to visit their house (or persuaded them to let you visit) and you found it and took it back while visiting under their consent, or they gave you a lift and while in the car you rummaged in the glove compartment and saw your property there, then the issue of legal consent for access is potentially a non-issue, meaning that taking it back under those conditions (even against their objections when they realised) may well be technically legal in many cases, depending on the exact facts of the case and applicable law. (less likely) If something has happened that means, technically, it isn't yours any more, or never was yours. For example, you accidentally give or throw your valuable phone away in error and someone else legitimately (in law) assumes ownership afterwards, or sign away or renounce something without realising it, or allow someone to use something in a way that gives them some ownership-like rights over it, so that by law you are deemed to have relinquished or waived some/all of your rights as an owner (the other person was honest and didn't defraud you), and you later try to take it back without consent, then in principle you could now be seen as stealing it back.You might also believe something is absolutely yours but in fact legally you don't own it and never did. For example you 'bought' some music or software, or a right to use something under license, and believe you actually own it or that you have a moral right to own it. So, later on, you sell it, dispose of it to someone else, or treat it as yours, when in law, it never was yours to do these things. Technically depending on the situation and exact wording of the law, this might be construed as stealing, in some cases and some jurisdictions. Between these legal limits, there is a grey area where you can get it back in practice despite an illegality. For example if the unlawful access is so minor you are sure it won't be a criminal issue, or you're sure it wouldn't be reported, you might chance it. But that's not a legal issue as much as a personal one. An interesting variant of this applies in English law, although I doubt it has any legal relevance in US law. In English law, "theft" was defined by the Theft Act 1968 as, "A person is guilty of theft if he dishonestly appropriates property belonging to another with intention to permanently deprive the other of it". This meant that a person who could show a court that they did not "intend" to "permanently deprive", or did not act "dishonestly" or "appropriate" the property (treat it as if they were its owner), might in fact have a strong legal defence against a charge of theft. Update from comment below "If you saw it in a shop would you be able to take it and run away?" You wouldn't have to. In almost all cases if something isn't legally yours, you can't legally pass ownership to anyone else, such as a store, whether for money or not, because it wasn't ever yours to pass good (legal) title. So the item is still owned by its original legitimate owner, meaning the exact same legal position still applies as above, if you had discovered it was in someone's house. It could change hands many times (not just once) from thief to fence to store to shopper to friend as a gift, and even so, the same would still apply - it would remain yours in law. If anything it's a bit easier if you saw it in a shop. A shop usually consents to members of the public entering - they don't have to ask normally! - and you might ask to see the item or look closely (if it's locked in the window). You now have it with consent and without any crime. If confident, you can walk out completely legally with your possession. (Tracking down the "rogue" or recovering any money paid for it, is their problem not yours in the eyes of the law). That said, realistically you wouldn't do it that way. This is slipping into personal view rather than law, but this is how I'd do it instead of "grab and run." Assuming a "typical" store and store staff, you would ask them to fetch the manager, and you would explain firmly that you claim this is your stolen property, and therefore not owned by them (nor do they have any rights to make any decisions about it), and you are taking it back. You would offer sight of ID or some means of contact, telling them this is so that they have a means to contact you, if they wish to dispute it via lawyers or police. You would offer to wait for the police if they wish, but maintain that you are not parting with it and they may call the police if they disagree; when they arrive, tell the police exactly the same, and that you have given your ID and waited there, as a mark of good faith, and invite them to come back with you to see where you live or proof of purchase or anything else, if relevant. You would tell the police that if they think you have committed a crime according to the law then they must of course arrest you for it, but if not, you now wish to go. You would meet any police request to give it to the police or store by asserting that it is your property and you would rather not, or by asking if you will be committing a criminal offence (if so which) if you refuse, and refuse if you feel able to do so. Then follow whichever way it goes. You would do these things because they are fair, reasonable, and they mark you out as someone asserting a right, not a thief yourself, and they reduce the odds that you will be taken for a thief, or meet with violence in their efforts to recover it. After all, the storekeeper and police can claim "reasonable belief" for any of their actions afterwards, so it's best that you reduce their likelihood of something nasty. | UPDATE On 24/07/2023, Assistant Commissioner Matt Twist, a senior officer in the Metropolitan Police Service (the "Met"), released a statement giving the police's account of the incident and the "legal basis for her arrest" as requested by the OP. It is quite lengthy but I have resisted editing or redacting it to ensure the whole statement is available to those users (like me) that would rather not follow anonymous links. I have also resisted emboldening any of the text to allow users to make up their own minds without any unconscious bias on my part. Finally, I have left my original answer as is for posterity. The statement in full reads as follows (with the description of what caused the arrest bolded): “It is clear from the video that has been shared online that this incident was distressing for the woman involved and particularly for her child. We understand why it has prompted significant public concern and we want to be transparent about our position and the role of our officers. “Officers from the Met’s Roads and Transport Policing Command were supporting TfL ticket inspectors on a pre-planned operation in Whitehorse Road, Croydon on Friday, 21 July. As buses pulled into the stop, TfL inspectors would check the tickets of those onboard and also those getting off. “Anyone without a valid ticket is required to provide their details to a TfL inspector so a penalty fare can be issued. This is not a policing matter. Officers only become involved where details are not provided or where someone tries to leave when challenged. “The woman involved in this incident was asked to provide her ticket as she got off the bus, but did not do so. She was spoken to by a TfL inspector, then by a PCSO and finally by a police officer. She continued to try to walk away and did not provide her ticket for inspection. “She was arrested on suspicion of fare evasion and was handcuffed. When officers were able to take her ticket from her so that the TfL inspectors could check it, they were able to confirm it was valid. She was immediately de-arrested and her handcuffs were removed. “Throughout the incident, the child was comforted by a PCSO who immediately recognised his distress. Anyone seeing how upset he was would be moved by this, and we regret any impact it may have on him. “We recognise that the use of handcuffs can be a cause of concern, particularly given the context of this incident and the type of offence involved, but when a person is trying to physically leave an incident it is an option officers can consider. All uses of force must be proportionate and necessary in the circumstances. “Ticket inspection operations of this nature are difficult. They place police officers in direct confrontation with frustrated members of the public and could escalate what would otherwise be civil matters to a different level. “This incident raises questions about the extent to which officers are having to intervene in this way when supporting TfL in their operations. We will now work with TfL to ensure that the balance is right between officers tackling the most serious crime on the transport network and supporting their own operations to ensure revenue protection. “An initial review of the officers’ actions did not identify any conduct matters but we will reflect on it carefully, in discussion with communities locally, to urgently identify any opportunities to do things differently. “Given the level of community concern generated we believe it is in the public interest to voluntarily refer the matter to the Independent Office for Police Conduct to review.” ORIGINAL ANSWER YES A breach of the Regulations is a summary offence. As such, a suspect may be arrested if all the relevant conditions at section 24 Police and Criminal Evidence Act 1984 are met. See section 67 Public Passenger Vehicles Act 1981: Penalty for breach of regulations. Subject to section 68(1) of this Act [i.e. reasonable excuse], if a person acts in contravention of, or fails to comply with, any regulations made by the Secretary of State under this Act and contravention thereof, or failure to comply therewith, is not made an offence under any other provision of this Act, he shall for each offence be liable on summary conviction to a fine not exceeding level 2 on the standard scale. And see Paragraph 7 Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990: (2) ... every passenger on a vehicle being used for the carriage of passengers at separate fares shall– (a)declare, if so requested by the driver, inspector or conductor, the journey which he intends to take, is taking or has taken in the vehicle; (b)where the vehicle is being operated by the driver without a conductor– (i)save as provided in (ii) below, immediately on boarding the vehicle, pay the fare for the journey he intends to take to the driver or, where appropriate, by inserting in any fare-collection equipment provided on the vehicle the money or token required to pay that fare; or (ii)if otherwise directed by the driver, an inspector or a notice displayed on the vehicle, shall pay the fare for his journey in accordance with the direction; (c)where the vehicle is being operated by the driver with a conductor, pay the fare for the journey which he intends to take, is taking, or has taken in the vehicle to the conductor immediately on being requested to do so by the conductor or an inspector; (d)accept and retain for the rest of his journey any ticket which is provided on payment of a fare in accordance with sub-paragraph (b) or (c); (e)produce during his journey any ticket which has been issued to him either under sub-paragraph (d) or before he started his journey for inspection by the driver, inspector or conductor on being requested to do so by the driver, inspector or conductor; and (f)as soon as he has completed the journey for which he has a ticket, either– (i)leave the vehicle; or (ii)pay the fare for any further journey which he intends to take on the vehicle. Paragraph 7 covers numerous alternative scenarios and as I have not seen the video, nor know the surrounding circumstances, I have emboldened the more likely alleged breach(es). I will review this if/when more details become available. | I think that there won't be any trouble from Germany, but the US could be a problem if the girl reports the case to authorities. In that case, further details would depend on the state in question. As far as Germany is concerned, there are two sections in the penal code that could be relevant here: § 176 StGB - Sexual abuse of children § 182 StGB - Sexual abuse of juveniles To make things more complicated, we would also have to take into account juvenile penal law and whether Germany would have jurisdiction in the first place. 1) Jurisdiction: I'm not sure whether this case would fall into German jurisdiction under § 3 StGB as the case could be deemed to be committed in the US. However, in that case, Germany could still assume jurisdiction under § 5 item 8 StGB. 2) Since our guy was only 18, it would be at the discretion of the court to decide whether juvenile criminal law or regular criminal law is to be applied. In the former case, the sentence would be lower (if there is a sentence at all). But then we still have to figure out whether our guy broke a law in the first place. So first of all, let's take a look at § 176 StGB: “Section 176 Sexual abuse of children (1) Whoever performs sexual acts on a person under 14 years of age (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years. (2) Whoever causes a child to perform sexual acts on a third person or has a third person perform sexual acts on the child incurs the same penalty. (3) In especially serious cases, the penalty is imprisonment for a term of at least one year. (4) Whoever 1. performs sexual acts in the presence of a child, 2. causes the child to perform sexual acts, unless the act is subject to a penalty under subsection (1) or subsection (2), 3. influences a child by way of material (section 11 (3)) or information and communication technologies a) in order to cause the child to perform sexual acts on or in the presence of the offender or a third person or to have the offender or a third person perform sexual acts on the child or b) in order to commit an offence under section 184b (1) no. 3 or under section 184b (3) or 4. influences a child by showing pornographic images or depictions, by playing pornographic audio recordings, making pornographic content available by way of information and communication technologies or pornographic speech incurs a penalty of imprisonment for a term of between three months and five years. (5) Whoever offers or promises to supply a child for an offence under subsections (1) to (4) or who arranges with another to commit such an offence incurs a penalty of imprisonment for a term of between three months and five years. (6) The attempt is punishable; this does not apply to offences under subsection (4) nos. 3 and 4 and subsection (5).” Since the girl is 15 years old, this section is probably not relevant. However, to know for sure, we would need to know her exact age when contact started. If she was only 13 years and 11 months and contact lasted 1 year and 2 months, then § 176 might be relevant after all. That takes us to § 182. “Section 182 Sexual abuse of juveniles (1) Whoever abuses a person under 18 years of age by taking advantage of a predicament by 1. performing sexual acts on that person or having said person perform sexual acts on them or 2. causing the person to perform sexual acts on a third person or to have sexual acts performed on them by a third person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) A person over 18 years of age who abuses a person under 18 years of age by performing sexual acts on that person or having that person perform sexual acts on them for a consideration incurs the same penalty. (3) A person over 21 years of age who abuses a person under 16 years of age by 1. performing sexual acts on that person or having that person perform sexual acts on them or 2. causing that person to perform sexual acts on a third person or to have a third person perform sexual acts on that person, and thereby exploits the victim’s lack of capacity for sexual self-determination, incurs a penalty of imprisonment for a term not exceeding three years or a fine. (4) The attempt is punishable. (5) In the cases under subsection (3), the offence is prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. (6) In the cases under subsections (1) to (3), the court may dispense with imposing a penalty pursuant to these provisions if, having regard to the conduct of the person against whom the offence was committed, the wrongfulness of the act is minor.” § 182 para. 1 StGB applies only to cases where the offender takes advantage of a predicament. I seriously doubt there's a predicament involved here. § 182 para. 2 StGB only applies for sexual acts for consideration, i. e. when money is being paid. Since apparantly there was no payment involved in this case, no problem here and we can go on to para. 3. § 182 para. 3 StGB only applies to cases where the victim lacks the capacity for self-determination and the offender is at least 21 years old. Neither is the case here. Summary: As far as Germany is concerned, there's no trouble to be expected under § 182 StGB. § 176 StGB might cause problems but only if the girl was under 14 when contact began. (You stated that she's 15. This could mean that she just turned 15 but was 13 years and 11 months when contact began.) As far as German law is concerned, it looks like our guy was overly cautious and there was no need to cut contact. From the US perspective, however, things will probably be different. I'm not familiar with US law but we would probably need to know the state in question. | If they are recording you, you can record them Assuming that recording requires two-party consent (not all places do), when they informed you that the call may be recorded, they gave consent to it being recorded (obviously) and you gave consent by not hanging up. The consent requirement has been met so anyone and everyone can record it. | There's no legal requirement in Canada or US that the police do anything to investigate a crime, so there's no requirement that they do anything specific to investigate a crime. If the police officers are satisfied by the witness accounts, or have some reason to think viewing surveillance recording wouldn't be useful they don't have to, either by law or policy. Note that ordinarily, police won't consider a physical altercation between two grown men a serious enough crime to warrant charges. If there was no serious injury and there wasn't a large discrepancy between the strength of the two men, police will often decline to lay charges even when they believe the evidence would sustain them. In this case the police may have decided it wasn't worth investigating further because it wasn't worth wasting the time of an already overloaded court system. The victim here still has legal options despite the lack action by the police. He can subpoena the video evidence if he wants to bring lawsuit for damages. In Canada, it's possible even to lay your own criminal charges in a private prosecution, although this much more expensive than a civil lawsuit. | Your description of the facts is vague enough that we can't offer an informed judgment, but to remedy this, I will paraphrase your account of the facts (you can decide whether this is what you were trying to say). I was sitting outside of the Sprint store today waiting for my step daughter to come out. While waiting, two police officers walked up to my car and asked me to turn off my vehicle and come inside. When I voluntarily went inside, the store staff said that they called the police because they had had some sort of problems with people applying for service and absconding with the phone to resell on the black market, and they thought that was part of some such criminal plan. Because of that, they refused to give her a phone or service contract. But then they also told us to never come back, threatening arrest for trespassing. I have never been in that store before. Were my rights violated? No, neither by the police nor by the manager. The police, or the store manager, can legally request you to come in for a conversation: what matters most is whether you were forced to come in against your will. By your report, you were not, so your rights were not violated. The police are irrelevant to the remainder of the question. What remains is whether your rights were violated because the manager told you to go away and never come back under pain of prosecution. The store is private property, meaning that the owner has wide latitude to grant or deny permission to enter. If they hate pink hair and your hair is pink, they can legally "ban" you. If they suspect you of involvement in a criminal activity, that can most certainly legally ban you. That does not mean that it was a righteous or justified decision on their part, or a good business choice, but it is their legal right. So, no, your rights were not violated. | Generally... There are important caveats to the general "two-party" consent rule in the State of California; I will attempt to generally describe some of them. "To violate the PC section 632 rule the communication must be "confidential" - this means that recordings taken in places where the other party should have reasonably expected the communication might be overheard or recorded are not covered." (Wilkins v. NBC, Inc. (1999) 71 Cal.App.4th 1066, 1079.) "[A] conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." (Flanagan v. Flanagan, 27 Cal.4th 766, 768 (2002)) Accordingly, if one as a complaining party tries to prove that one had a reasonable expectation of privacy it is not enough that one proves that one reasonably thought it was possible or even probable that the conversation was not overheard, monitored or recorded; one must be able to establish that a reasonable person in the same circumstances as one would objectively, that is based on the sum of factual circumstances, assumed a conversation was confidential. This shows well through the following authorities: "A conversation is deemed “confidential” under § 632 of CIPA only if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan(2002) 27 Cal.4th 766, 768, 774–776; Vera v. O'Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. (See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.) However, where the facts are undisputed, the court may decide the issue as a matter of law. (See Weiner v. ARS Services, Inc. (S.D. Cal. 2012) 2012 WL 3632025 (finding circumstances of call, including its short duration, indicated no expectation of privacy).” An important point is made here: No one assert an objectively reasonable exception if the time to evaluate the circumstances of a conversation or the intention, manner and other factors of the other party to engage in a conversation within an objectively insufficient time. Therefore, the duration, and even more so, the shortness of a conversation can very well be determinative of the reasonableness of a party to complain about their expectation to a part or the entirety (for e.g. in an extremely short exchange) of a conversation. This should come as no surprise: If we ever wondered as to how one may overcome the catch 22 of being accused to have begun recording a conversation if one notifies the other party of the recording just prior to beginning the recording since the notice would not be recorded or being accused for invasion of privacy under California Penal Code § 632 for the part of the conversation recorded just before the lawful indication of the lack of objectively reasonable expectation towards confidentiality in the conversation (for e.g. announcing the fact it is not a confidential call or that it may be recorded), is resolved in this. Again, it is, because the criminal threshold to be met, there must be an objectively reasonable expectation to privacy. If one by act or word calls that into question sufficiently that a reasonable person would not be able to objectively expect that the conversation is private or confidential, it no longer is: It implies that private conversations are the exception, and not the rule although the general perception may differ. This, will now be clear through the definition of confidential communicate in the state, too: “Penal Code § 632(c) defines “confidential communication” as including: any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made . . . in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. To me, through this excerpted quote of the statute, it does appear as to leave an in-between grey area since it does not exclude communications in any other circumstance where circumstances do not reasonably indicate that no party desires it to be confidential, but only in those circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Which indicates toward the general reading of the statute that confidentiality is the rule, and public communications are the exception. However, authority has consistently reenforced the more restrictive approach. Returning to the previous point, due to the above standard test of confidentiality per, among others, Frio that requires a reasonably objective expectation to privacy, it will be clear as to why it is generally sufficient also to announce a call may be recorded or a call may be monitored — this latter announced solely is fairly rare. (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) Since such announcements in themselves call anyone's reasonably objective expectation to privacy into question, that is, an average person at least contemplates the very real possibility of overhearing or monitoring. Also another consequence which may seem obvious at this point is that since it is not really "consent" that is a prerequisite, but a reasonably objective expectation, and though a fairly low bar, it is effectively imposed on the complaining party, and not the party wishing to record therefore "for purposes of section 632, the privacy rights affected are the same regardless of whether a conversation is secretly recorded by a machine or monitored by a human being” (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) since the threshold is reasonably objective expectation to privacy and effectively not presence or absence of consent; however, if consent is express, than there is, clearly, no reasonably objective expectation to privacy. "Two-party consent" not all party consent? This also leads to the hypothetical: What if in a group one asks another if one can record the conversation, and the other answers in the affirmative, and one begins recording: Would that allow for the recording when the other parties to the conversation haven’t answered? My reading of these interpretations would be that if everyone else in the group made heard the question would no longer have an objectively reasonable expectation of privacy furthermore, their consent would also be implied by not objecting and/or proceeding with the communication. So multiple defenses could be used in a case like this — non-confidential communications as well as consent. An even more extreme, and to many, hardly fathomable scenario would be if one party explicitly objects to recording — however, only after an announcement objectively defying any reasonably objective expectations of confidentiality — what would then happen? Recording, absent any reasonable expectation to confidentiality, let alone one such that is objective, without a problem, should be able to be made. An example of this is typical to situations of domestic violence and/or divorce attorneys where they teach a longer disclaimer something along the line: “I will begin recording hence if you continue you will be deemed to have consented to bring recorded” etc., where they typically proceed even against objections. Although this may be much more than what’s minimally required to lawfully record, these disclaimers will probably have a better deterring effect to stop an assault or other aggression than a beep-tone warning that another party may simply disregard. Beep-tone warnings An important, and fairly obscure and unknown consequence of the above espoused interpretations is the so-called beep-tone warnings for recordings or monitoring of calls. In Air Transportation Association of America v. Public Utilities Common of State of California the California Appeal Court for the 9th Circuit found that if "[a] person wishing to listen in on a conversation without violating the regulation can provide notice by using a beep-tone warning device audible to all parties to the conversation[...]". The rationale follows the previously analyses and is based on the following facts: A reasonable person would have an objective expectation that an ordinarily operating telephone or other customary audio-transmitting devices would cause no beep-tone in order to operate hence being made heard a beep-tone should call a reasonable persons expectation to the ordinary and/or customary operation of any such remote communication device to the extent that it could not maintain a reasonably objective expectation to his or her communication. In a fresh, though unpublished opinion in Smith v. LoanMe, Inc. (2021), an Appeal Court did not vitiate this specific interpretation as it would likely have called the rationale behind it into question as well. "Admissibility" of unlawfully obtained audio recordings Generally, due to the "Right to Truth-in-Evidence" provisions of the California Constitution, a previous statute, Pen. Code § 632(d) was repealed and such evidence became admissible for the purposes of combatting perjury though the person creating such record would still face criminal prosecution for the unlawful recording under § 632; however, I'm less versed in this corner of the statute hence it is highly ill-advised. “[E]vidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.” (People vs. Crow (1994) 28 Cal.App.4th 440; Frio vs. Superior Court (1988) 203 Cal.App.3d 1480.) To answer your questions more specifically... If you have a good faith duty as a result of a contractual relationship between yourself and those you wish to record, you could potentially be sued for damages for a breach of the covenant of good faith duty and fair dealing if you somehow manage to lawfully notify the other party, but he could prove that you had a bad faith intention and intentionally chose a manner to mislead them. It does not seem plausible to me how they could prove this, but it certainly is within the realm of possibilities. As you can see: California's ban, as it is similar with probably other states, is not a ban for recording, per se, it is a ban of recording or monitoring of confidential conversations. Therefore, simply allowing someone else to eavesdrop on the conversation would implicate the same criminal consequences absent objective indications that would call the to-be-recorded party's reasonable expectation to privacy as you could probably thought so by now. Conclusion As you can see, many of the caveats to the statute are such that the general public would not know, and if you were to record someone, knowing that simply announcing that a call may be overheard or that someone may hear it who will not be part of the conversation or using a beep-tone warning device audible to all parties may each call the reasonably objective expectation of a to-be-recorded party into question which may be useful. |
Contractor's lender asking contractor's client for money Suppose someone hires a contractor do some work. The client paid all in full, except on the last payment, the contractor asked the client to write it to him instead of company. Two weeks later, the client received a letter from the contractor's lender asking the client for money owed to the contractor, saying that if it was not paid, the client could be double charged. Does the client owe the contractor's lender? | Preface and Caveats The question doesn't specify where this happened. I am providing an outline of the way that most U.S. states would handle this situation, if the fats are as they are much more likely to be and not as claimed in the question probably due to a misunderstanding of the underlying transaction. I identify areas where state laws most often vary and don't describe those areas of the law in detail since that is impossible without knowing where this happens. This is a matter of state law and varies from state to state, although most U.S. states are quite similar until you get to the fine details. Atypical language in the contract between the contractor and the client could also lead to a different conclusion. I don't know how this would be resolved in a non-U.S. jurisdiction. Background: The Structure Of A Typical Construction Loan Financed Construction Project In business and contractual disputes you can only understand the answer if you understand the underlying business transaction, which the question itself doesn't spell out very fully. The fact pattern identified in the question is so unusual that I strongly suspect that there is a misunderstanding of the facts, or an inadvertent misstatement in the language used in the question due to sloppy writing that flows from not appreciating the importance of some key facts. The transaction was almost surely structures more or less as follows (for background, I'm presenting a more general very of this kind of transaction rather than the simple one with no subcontractors or material suppliers involved, because this context helps someone understand why the laws are written the way that they are written.) Usually, the client owns real property, takes out a construction loan from a bank secured by the real estate, and hires a general contractor. The client will usually make some down payment to the general contractor who will take care of paying the subcontractors and material suppliers, and will pay the balance of the amount due to the general contractor through proceeds of the construction loan disbursed by the bank which are drawn as the work is done and payment is earned. Typically, each drawn cycle, which is often monthly for a smaller project and weekly, biweekly or semimonthly in a larger project, materials suppliers and subcontractors submit invoices and lien waivers to the general contractor based upon the work done. If the work is complete, a complete lien waiver is submitted, if he work in only partially finished, a partial lien waiver is submitted. The general contractor substantively reviews the invoices based upon a physical review of the construction site and a review of the subcontract. If there are problems it is rejected and must be resubmitted by the material supplier or subcontractor. If it is approved, the general contractor attaches that invoice as a supporting document to a draw request for the draw cycle summarizing all validly submitted invoices from material suppliers, subcontractors and itself, and also attaching a partial lien waiver from the general contractor. Then, the general contractor submits that draw request to a bank officer handling the construction loan as an agent of the property owner-client, and also a client representative for approval. The bank officer and client representative make a much less probing review of the draw request, looking only for obvious irregularities or suspicious amounts, and if everything is in order, they approve the request. Then, the bank write a check in the draw amount approved to the general contractor. The general contractor then disburses the invoiced amounts to the materials materials suppliers and subcontractors and pays itself the amounts that it has earned. Sometimes, however, the general contractor gets a valid invoice from a material supplier or subcontractor, and receives funds from the client in the form of a downpayment or a loan draw, but doesn't pay the subcontractor or material supplier with those funds. Also, sometimes, the general contractor does work that it is entitled to be paid for or incurs an obligation to a material supplier or subcontractor, but the client doesn't pay or the bank doesn't disburse the funds requested even though the request is valid. When a general contractor, material supplier or subcontractor doesn't get paid for work that is actually done at a particular piece of real estate, the law gives the firm that wasn't paid for its work on that particular piece of real estate what is called a mechanic's lien encumbering that piece of real estate. The details of how a firm with a mechanic's lien gives notice to the world of its rights, the priorities of lien's vis-a-vis each other, and the way that mechanic's liens are enforced varies significantly from state to state. But typically the notice must be given very promptly and not long after notice of non-payment is given, a lawsuit to foreclose on the real estate encumbered by the lien is commenced. An unpaid material supplier or subcontractor, in addition to its lien rights, can also sue the general contractor for breach of contract, and sometimes also for misappropriation of disbursements from the client or the bank. An unpaid general contractor, in addition to its lien rights, can also sue the owner of the property for breach of contract. The Facts In The Question and Analysis The first paragraph of the question tells us what went wrong. The client paid an employee of the general contractor (probably a project manager) instead of the firm the employee worked for (basically embezzling the money by deceiving the client into thinking that the employee was authorized to receive a payment to the employee's firm on its behalf when that wasn't the case), and the firm of the employee who was paid now wants to get paid. This happens and lawsuits usually follows when it does. But exactly what happens next depends upon the facts in the next to paragraphs. The next two paragraphs of the question, however, are probably confused and incorrect. The next two paragraphs say: Two weeks later, the client received a letter from the contractor's lender asking the client for money owed to the contractor, saying that if it was not paid, the client could be double charged. Does the client owe the contractor's lender? What probably actually happened is that the finance office of the contractor submitted a draw request to the bank officer in charge of the client's construction loan with the bank, and also gave a notice of the draw request to the client. The client tells the bank officer not to approve the draw request because the client has already paid the draw request directly to the employee of the contractor (probably the project manager) without the knowledge of the firm the employee worked for. What Happens Next If The Facts Are As I Believe Them To Be? When this happens, the finance officer at the contractor firm talks to the client figures out what happens and then talks to the employee to whom the payment was made. If the employee promptly turns over the funds the the contractor firm, the finance officers at the contractor firm scolds the employee for screwing up the system and the client for making a payment to the wrong person and there is no harm, no foul, and the matter is over. But if the employee who took the client's money doesn't turn over the money which the client can prove to the contractor firm that he paid to the employee, several things are likely to happen. Non-Lawsuit Actions: The client will direct the bank not to pay the draw request. The employee who took the money from the client is fired (no big deal, he was probably long gone). The contractor firm and/or the client will often, but not always, report to the police that the employee embezzled the funds from the client, and if the police find it credible, will issue an arrest warrant. The main reason not to do so is that the facts are uncertain enough that the police and prosecutor don't want to touch it (e.g. the client paid the employee in cash and didn't get a receipt, or the employee when asked says that the payment was made but was a "tip" or was payment for something unrelated), or the client and/or the contractor firm don't want to harm their reputations by making public the fact that there was a theft on this job. Three lawsuits could be brought, although, in practice, these might be consolidated as claims against different parties and cross-claims between defendants, in a lawsuit brought by the contractor, or in some other configuration. The contractor firm sues the employee who took the money for converting money from a client intended for it (probably both as a tort and as a breach of fiduciary duty by an agent of the construction firm). The contractor firm sues the client for breach of contract. The question is about the liability of the client in this second lawsuit. The client might also bring a counterclaim against the contractor for negligent supervision of its employee if the employee did indeed abscond with the money and the facts support that counterclaim. If the client prevailed on that counterclaim, the judgment on the counterclaim for negligent supervision (e.g. if the contractor knew that the employee had a history of doing things like this and didn't warn the client) would be setoff against the breach of contract judgment, rather than being a defense to the breach of contract claim. The client sues the employee for fraud, conversion or theft. What Are The Rights Of The Parties In These Lawsuits? In the second lawsuit, the client has breached the contract. The contract said to pay the firm, the client paid someone else, and so the obligation under the contract was not satisfied. The disputes in the lawsuit between the contracting firm and the client will be over whether the employee had apparent authority to accept the funds as an agent of he contracting firm, over whether the payment that the client says was made to the employee was made at all, and over the purpose of the payment if a payment was made to the employee but the employee claims that it was a "tip" or a payment for something else (e.g. the employee also had a catering side hustle and the employee says it was for catering services). The issue of whether the client made the payment at all may be hard to prove if the payment was made in cash and the employee didn't provide a receipt and will come down to the credibility of the client and employee's testimony at trial. if the payment was made with a check or credit card, bank records will make it an open and shut case on that issue that will probably not be disputed at trial. If the facts reveal that the employee had apparent authority to accept the funds from the client for the contractor firm and that the payment was for work on the project and not something else, then the the payment made by the client to the employee satisfies the client's duty under the contract even if the employee wasn't actually authorized to receive the funds for the contractor firm. So, the client wins and the contractor firm's sole remedy is to sue its employee for misappropriating the client's funds. On the the other hand, if the employee did not have apparent authority to accept the funds from the client, or the payment was for something other than work on the project, or the client fails to prove that the payment was ever made, then the client owes the money to the contracting firm and must pay the contracting firm for the amount due (plus interest, litigation costs and possibly attorneys' fees depending on the terms of the contract). The client may pay that obligation out of separate funds of the client's own, or may authorize a the bank officer to make a draw on the construction loan to pay the amount owed. The construction loan bank of the client wouldn't sue the client or demand payment from the client for the amount that should have been paid to the contractor firm but was instead paid to the employee. It didn't pay money to someone it shouldn't have paid it to unless the client authorized the bank to do so. And, the bank won't pay the contractor without the client/borrower's say so. If the client authorized a draw payment from the construction loan to the employee rather than the contractor firm, the client still owes the bank for what it paid to the employee at the direction of the client (in addition to all other draws on the project), although the client may have a suit against the bank officer for negligence in administering the loan by failing to flag that the payee was wrong (which might lose but isn't a sure loss). The amount owed to the contractor firm proceeds under the analysis set forth above. What If The Facts Are Right? If, improbably, the facts as stating in the question are actually what happened, the client will owe or not owe the contractor money under the same analysis as above. But the client will not have liability to any company that the contractor got a loan from (which would not encumber the client's real estate), since the client has no contractual relationship with the contractor's lender. Post-Script On Double Payment Prevention Laws The question hinges on the unfairness of the client having to possibly pay twice for the same construction work. In some situations, where the general contractor firm is at fault for causing the double payment to happen, the law protects the client from double payment, even though those laws don't apply here. I explain why these laws don't apply below. Basically, the client has to eat the double payment when the double payment occurs because the client screwed up though no fault of the general contractor and the general contractor doesn't benefit from the double payment. Some states have laws designed to prevent property owners, often only residential property owners having work performed on their own residences, from having to double pay for work done in some circumstances. But these laws usually only apply when the client pays the general contractor firm as the client is supposed to, satisfying his contractual obligation, and the general contractor doesn't pay the subcontractor, causing the subcontractor to sue the general contractor for breach of contract and the owner to enforce the subcontractor's mechanic's lien. In those situations, the double payment prevention law eliminates the subcontractor's mechanic's lien rights when the client pays the general contractor in full, and the subcontractor is left only with a lawsuit against the general contractor who didn't pass on the client's or the client's bank's payment to the general contractor for the subcontractor's share of work to the subcontractor. In this case, the double payment laws usually wouldn't apply because the legal issue here is whether the client paid the contractor, or was deceived by the employee into paying someone other than the contractor in an act of conversion/embezzlement/fraud. | Yes The document is called an invoice and the customer has taken the clothing “on account”. Most businesses of any size outside the retail sector operate this way. Remember that you are effectively lending your customer money. What are the terms of this loan? What are you going to do when/if they don’t pay? You need to deal with this either in your sale contract or a separate credit contract. | It would depend on your contract. Clearly, if I was selling timber and you ordered some with the agreement that I'll try to deliver at date X with no extra penalties, it would cost some amount. If we had a contract where I deliver at date X and pay for all your cost if the timber doesn't arrive at that date, then I'll either refuse to take the contract or charge you more. Maybe substantially more. | 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. | 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. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | Offices are normally rented by businesses, so for the tax appraiser, your situation would be quite out of the ordinary. They appear to be stone deaf to the idea that an office may be rented not for business purposes, and so they lump all office renters together. If they do not want to hear you, all you can do is to keep evidence that: You are an employee; You attempted to tell them that you are not liable for the tax because you are not a business — and present that should they ever attempt to prosecute you for tax evasion or similar. Specifically, do: Keep your employment contract, communication with your bosses telling you what to do and records of them paying your taxes; Send a formal letter (not an appeal) to the tax appraiser explaining the situation Should the issue ever be escalated, they will not be able to prove that you were a contractor/business (let alone beyond reasonable doubt), and you will be able to recover costs associated with this headache. | Your framing of the issue is basically wrong. There is an exemption, which varies from state to state, from unsecured creditors (but not creditors that take the goods as collateral) in bankruptcy and in debt collection outside of bankruptcy (not always the same exemption), for tangible personal property owned by the debtor which constitutes the debtor's tools of the trade, but that varies from state to state, is a creature of state statute (and the bankruptcy code), is not universal, and is usually limited in dollar amount. Moreover, the exemption only applies when the tradesman actually owns the tools of his trade which is customary in some professions, but not automatic. It is only the case when the tradesman buys his own tools. There is no generic v. non-generic distinction. In the software field, education and the public domain can always be accessed. But, intellectual property, that can be protected, that is developed for the employer, is usually work for hire and belong to the employer. This default rule is subject to the terms of the agreements between the parties entered into contractually. |
The spectrum of legality I've always envisioned "legality" as a spectrum, with the label of completely illegal at one end, and the label of strictly legal at the other end. In the middle, I see different levels of decriminalization. Below, I will write down the different points I imagine exist on the spectrum, starting at completely illegal, and making my way towards strictly legal. Completely illegal crime. Law enforcement's focus and resources directed away from that kind of crime. The above, in addition to LEOs attaining the discretion to not arrest the criminal, or press charges. LEOs advised/implored not to arrest or press charges against people committing the crime. The act isn't punishable, but the agent is obligated/prohibited to do certain things after being caught. The act isn't punishable, but the agent can be obligated/prohibited to do certain things after being caught. The act isn't punishable, and no actions can be obligated of, or prohibited from, the agent after being caught. The action is strictly legal. Points 5. and 6. can be further subdivided, where the subtypes are different in whether the violation of the obligations and prohibitions are punishable, and/or if the agent can be physically forced to comply with the obligations/prohibitions. I am not sure where those subtypes would lie in relation to each other on a spectrum of legality however. I also want to point out that in cases/jurisdiction where the choice to enforce a law or not is already up to the LEO's discretion, points 2. and 3. are equivalent. However, if a jurisdiction originally does not allow LEO's to use their discretion in relation to arresting/charging a criminal, but then changes policies to allow such, it seems to me a step towards "greater legality". Also, this is a spectrum differentiated by changes in policy and law, not changes in culture. A kind of cultural decriminalization could exist at any of these points, where the police and/or people do not care about the crime at all. Since this kind of decriminalization doesn't necessarily depend on (though of course is influenced by) any of the points on the spectrum, it exists outside of the spectrum. So, my questions are the following: Is my conceptualization correct? Is this a concept established and accepted in jurisprudence, and if so, where and by whom? Are the more points to add? | Part answer to Q1: Is my conceptualization correct? No, insofar that your Points 1 to 4 are all "completely illegal" regardless of how the authorities deal with them, and the rest are not, on the face of it, crimes but presumably civil wrongs (which can be dealt with by, for example, fines or restraint / good behaviour / banning orders etc without one having a "criminal conviction"). Also: if the authorities, for whatever reason, decide against dealing with crime then it hasn't been "decriminalised" - that is the remit of the law makers, not the law enforcers. It's still a crime but with a lower political/ operational etc priority. | Ignorantia juris non excusat You can say I didn't know: it won't keep you out of jail. Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if: you don't know what the law is, you didn't think the law applied to you, you thought what you were doing was in accordance with the law. "Break the law" is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of mens rea or "the guilty mind" has almost universally been done away with. Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage under US law may qualify for this defence. | All laws (federal, state and local) apply to everybody, unless you have diplomatic immunity. That is, unless e.g. the federal government decides as a matter of policy to ignore certain federal laws. California does not have a law generally prohibiting the use of marijuana, though public consumption is illegal, minor consumption is illegal, and possession over 28.5 grams is illegal. So that is one less law to be concerned with violating. The federal law still exists, and has not been repealed for anyone. However, the federal government by policy is not pursuing marijuana cases in legal contexts in those states that have legalized marijuana. The complication for foreign students is that there are also immigration laws whereby you may be deported for a drug offense (that link is full of technical details on immigration and drug laws, worth reading). The immigration laws basically make it easy to penalize a foreigner (for example you might be deemed "inadmissible" so you cannot be re-admitted to the US if you leave; it just depends on what their grounds are for action). For example, "a noncitizen is inadmissible as of the moment that immigration authorities gain substantial and probative 'reason to believe' the noncitizen has ever participated in drug trafficking," which does not mean a conviction. It is reported that in California, DHS officers have treated minor infractions as "convictions," which means to be safe you have to avoid even infractions. It appears (and hire an immigration attorney if you want to test this) that trouble only arises if there is reason to believe you are trafficking, if you are a drug addict or abuser, if you are "convicted" (not necessarily "tried and found guilty," it also includes certain legal maneuverings), or if you admit to drug use (even in the case of home use under doctor's orders, i.e. a California-legal context). This incidentally includes non-use but working for the marijuana industry. It is possible that you could get stopped on the street by a random immigration search, and if you are in possession, then... it is not guaranteed that possession of a small amount of marijuana, when caught by federal authorities, cannot lead to immigration problems. | By definition this is not an intentional crime or tort (i.e. civil wrong for which one can sue). There are several standards of intent (also called mens rea) other than knowledge that one is committing a crime or intent to commit a crime, that are commonly applied to criminal offenses and torts: Strict liability Negligence Gross negligence Willful and wanton conduct Recklessness Extreme indifference Strict liability would be highly unlikely to apply to unintentional encouragement of violence. Usually, in the criminal context, it applies to traffic offenses, like speeding or drunk driving defined by blood alcohol content. Negligence is often a basis for liability in a lawsuit or for other civil remedies (e.g. cause to fire someone from their employment), but is usually only a basis for criminal liability when a death or very severe injury results (e.g. vehicular homicide) or when the circumstances are such that there is a heightened risk involved in an activity (e.g. discharging a firearm, or treatment of a small child in one's custody). Even then, for criminal law purposes, liability is usually only imposed in cases of truly "gross negligence." One could imagine highly stylized fact patterns where gross negligence encouraging violence could give rise to criminal liability (e.g. gross negligence by the commander of a military unit under military justice) but this would be a rare and exceptional situation. Willful and wanton conduct, and recklessness, don't require actual knowledge or specific intent, but do presume disregard for objectively obvious risks. Under the Model Penal Code, this is the default standard of intent that applies when no specific standard is articulated in a statute. Unintentional but reckless conduct encouraging people to be violent might very well give rise to criminal liability. Extreme indifference (also sometimes called deliberate indifference) is an extreme form of recklessness in which one acts with total disregard for the consequences when one clearly knows or should know that serious consequences are almost certain, even if the precise consequences to whom or what are not known. This level of intent is often treated as equivalent to intentional conduct and would often give rise to criminal liability. There are many potentially relevant federal and state statutes that could apply, but this is the general lay of the land regarding unintentional conduct. | Prior to Tennessee v. Garner, 471 U.S. 1 (1985), common law allowed police to use deadly force to effect the arrest of a person suspected of a felony. Even though SCOTUS there held that such a practice violates Fourth Amendment civil rights, I was surprised to find that in some states it is still lawful for police to use deadly force to effect an arrest! Let us examine the most extreme case, which is that the police can legally shoot at you to effect your arrest. As explained here, you are always allowed to resist "excessive force." If you make it to court, these qualifications (e.g., "necessary" and "excessive") are ultimately decided based on what a "reasonable person" would have believed in the situation. So if a cop shoots at you, and you "dodge" the bullet, it is possible for you both to be found not guilty of any crime. I.e., the cop can be found to have acted "reasonably" because he believed you were a violent felon and shooting you was the only way to stop you. And you can be found to have acted "reasonably" because you believed you were being subject to excessive force. While this is an interesting hypothetical, in practice of course by the time a cop is shooting at you you are almost certainly going to be charged with resisting arrest. Or, if the cop fired in self-defense (rather than to effect an arrest) you will be charged with a number of far more serious crimes (starting with felony assault, reckless endangerment, and going on from there...). | The advantages are: police officers, like all enforcement officers, have discretion on how they treat what they perceive to be transgressions of the law they enforce. If you are cooperative and helpful they may exercise that discretion to your benefit, if you are obstructive and difficult they may exercise it to your detriment: this may be the difference between a warning, a ticket and an arrest. one of the things that judges are allowed to take into consideration when sentencing is remorse. While the linked podcast indicates that this is not an easy thing to objectively define, it includes accepting that what you did was wrong and mitigating the harm that was done which would include cooperating with law enforcement. The disadvantages are: you may reveal information that is not known to the officer. This may or may not be admissible evidence but, notwithstanding, it may serve as a basis for further investigations which can discover things you would rather the police officer did not discover. For example Officer: "Do you know why I stopped you?" You: "I assume because of the dead body I have in the boot." | No. The police have no affirmative legally enforceable duty in the U.S., to the general public, or any particular person who invokes their assistance, to take action to enforce the law. The leading case on point is Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (full text here). In this case, despite the urgent requests of the beneficiary of a Colorado domestic violence restraining order and the warning that a violent crime was imminent, the police in the Town of Castle Rock blew the woman off, and did nothing to prevent ex-husband who had illegally abducted her three daughters from murdering them even though they could easily have done so. The conclusion of the majority opinion by Justice Scalia states that (some citations and footnotes omitted): We conclude, therefore, that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband. It is accordingly unnecessary to address the Court of Appeals’ determination that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest. In light of today’s decision . . . the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “ ‘a font of tort law,’” . . . but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law. Despite this concluding statement, there was a very solid argument that the law of the State of Colorado at the time had already been intended to do just that, but was not and would not be given effect. This U.S. Supreme Court case dealt with claims under federal law. There is no affirmative constitutional right to reclaim a stolen car or try to prevent your car from being stolen by a private individual, even if you have a legal right to do so under state law. So, you can't bring a federal civil rights action to enforce a deprivation of that right. The situation is even worse under state law, where police have absolute immunity from liability for all tort claims (i.e. roughly speaking, lawsuits to enforce rights other than contractual rights), unless it comes within a specific exception (of which are there are several) for cases of ordinary negligence such as car accidents when just driving around and not having emergency lights illuminated, or failing to clear ice from a sidewalk on police department property. Their boss may not take kindly to their indifference, but that is a purely discretionary issue for their boss in the context of an employer-employee relationship (often further limited by civil service protections for public employees and/or protections as members of a law enforcement union). The primary exception, not applicable in the example in the question, is that law enforcement officers have certain obligations to protect people who are in law enforcement custody from harm. This obligation is stronger prior to a criminal conviction, and is weaker after someone has been convicted of a crime and is serving a sentence of incarceration for that crime. If you brought a lawsuit of the type described in the question, you would probably lose the case on a motion to dismiss filed swiftly after you filed your lawsuit, and there is a very good chance that you would be compelled to pay the legal fees of the people whom you sued. Comparative Law Footnote Incidentally, while this rule of law is widely shared in countries with "common law" legal systems derived from English law, it is not the case with nearly the same degree of clarity in "civil law" legal systems based upon the civil codes found in Continental Europe such as France, Germany, Spain and Italy. Almost all countries in Latin America, most countries that are not former British colonies in Africa, and most countries in East Asia and Southeast Asia, are civil law countries. In civil law countries there generally are both statutory obligations and human rights law obligations for which the government or government officials can have liability for willfully refusing to enforce criminal laws. But even there it is, as a practical matter, difficult to enforce this obligation and is possible only in the most stark circumstances (such as the one described in the question where there is open defiance of this obligation without any understandable and legitimate contravening reason for failing to act). | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." |
Can there ever be a conflict between law and professional ethics in the practice of law? Tl;dr version. The so-called "ethics/law divide" is often discussed in the context of non-legal professions. Does such a divide exist in the practice of law or is it a contradiction? The ethics of quite a number of professions acknowledge at least a theoretical possibility that breaking the law might be ethically justifiable or even necessary. The classical example is a physician practicing under an oppressive regime who is ordered to perform experimentation on political prisoners or assist in a genocide. Most medical ethicists would agree that the physician has a duty to refuse to participate regardless of whether such refusal results in civil or criminal liability attaching to the physician. An article from the perspective of medical practice is Where the law and the ethics conflict? from the joint AREC, UK Clinical Ethics Network Conference ‘Ethics in Common’. For a discussion of some potential practical examples of ethical/legal conflict and dilemmas in the practice of social work, see the article "When Ethics and the Law Collide" from Social Work Today. At first glance, it seems that these ethical principles would not apply to the practice of law, since lawyers derive their professional competence to practice, even their reason for existence, directly from the law and the courts rather than practicing despite the presence of laws and courts potentially trying to steer them astray from the principles of their professions. That is, physicians, social workers, nurses, physical therapists, clinical psychologists, dentists, teachers, child care workers, etc. walk a fine line every day between upholding the ethical principles of their professions while at the same time remaining subject to the law and its own requirements. They have two "masters", so to speak. Lawyers have no master but the law. Is there any precedent either way (in any jurisdiction or before any court) on whether there can or cannot possibly be an ethical/legal conflict or dilemma with respect to the practice of law? An example of such a conflict might look like: I'm a lawyer admitted to the bar in Ruritania. A new Ruritanian statute (cite) requires all lawyers to affirmatively report to the police all clients "who have made anti-government statements or who are reasonably believed by the lawyer to have participated in an anti-government protest in the past three years" under penalty of imprisonment and fine of the lawyer, but the latest bulletin of the Standing Ethics Committee of the Bar Association of Ruritania asserts that complying with this law is unethical and that lawyers who comply will be disbarred regardless of whether the law is upheld as constitutional or not. What should I do? What can I do? From another perspective, could there be a scenario where legal ethics permit or even require a lawyer to violate constitutional statutes, commit blatant crimes, disobey valid court orders, knowingly remain in contempt of court, disregard prevailing rules of court, insult or threaten a judge, or otherwise get "in trouble" with the law in the name of upholding legal ethics, or is adherence to the law above all else the sine qua non of legal ethics? Bringing everything back to the beginning, do lawyers living and practicing under oppressive regimes have some ethical duty to help themselves or their clients disobey blatantly "wrong" laws? In other words, can the law itself be unethical enough that lawyers are not professionally obligated to follow it? Plenty of extreme or not-so-extreme hypotheticals can be considered. For example, suppose a law is passed banning gay people from receiving legal representation. You (a lawyer) have investigated this law and found no reason for it to be unconstitutional, invalid, or otherwise unenforceable, because the laws in your country just suck that way. Can you justify representing a gay person in violation of this law as your ethical duty as a lawyer who believes that access to counsel for everyone is a fundamental ethic of lawyering, or would such an action be a textbook example of unethical legal practice? Just to be clear, this question is from the perspective of the theory and philosophy of law and legal practice rather than a question about any specific jurisdiction. If this has been formally addressed in any specific legal system or jurisdiction, an answer from the perspective is welcome. For example, "The Supreme Court of Canada specifically ruled on this in 1973, here's what they said....". Also to be clear, this question is about organized professional ethics (e.g. as ruled upon by bar committees and discussed in legal studies journals) rather than personal or religious moral codes. | united-states In General In the U.S., the ethical rules contemplate circumstances in which a valid statute may authorize or require a lawyer to act in a manner contrary to the rules of professional ethics that generally apply to U.S. lawyers. But, the converse is not true. There are no circumstances under which the rules of ethics provide that violating the law is ethical. In particular, the rules of ethics for lawyers state that: A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. A lawyer is required to vigorously represent their client's interests, but this is subject to the requirement that a lawyer not allow his or her services to be used to perpetrate a crime or a fraud. Threats Of Criminal Or Administrative Action The closest the rules of professional ethics come to something similar is the rule (which varies in detail from jurisdiction to jurisdiction that have this rule and is omitted from the ethical rules of some jurisdictions) is the prohibition as a matter of professional ethics, against threatening to bring criminal charges, or to seek ethical or administrative remedies, to gain advantage in a civil lawsuit. Colorado's rule on this issue is here, but this has been dropped from the Model Rules of Professional Conduct that the ABA recommends that all states adopt. Dealing With Misconduct By An Entity Client Another similar situation involves the protocols that a lawyer for a corporation or other entity that believes that the entity is acting or about to act unlawfully must follow. This basically involves trying to get the entity to change its conduct by all available means as opposed to going public as a whistle blower, and often forbids a lawyer from revealing his or her client's misconduct learned about in his or her capacity as an attorney for the entity (in cases involving misconduct not facilitated by the lawyer's own services). Duties That Don't Apply To Lawyers And, there are some duties that apply to the members of the general public, but do not apply to lawyers. No Duty To Report Past Client Crimes For example, there are certain crimes that, in some jurisdictions, there is a duty to report. But a lawyer does not have to report an already completed crime of a client that is disclosed to the lawyer in confidence. But this is really more a matter of the scope of the duty to report than it is of ethical rules authorizing a lawyer to violate the law. No Litigation Related Defamation Liability Another generally applicable law that does not apply to lawyers is the law of defamation in certain circumstances. Statements made by a lawyer in the course of representing a client in litigation or in anticipation of litigation are subject to a litigation privilege from defamation liability, although they could still be sanctioned by the court presiding over the case being litigated, or by the professional ethics authority for the jurisdiction, if the statements that would otherwise be actionable as defamatory violate ethical rules regarding public statements about litigation (also here). This litigation privilege was invented to prevent ordinary lawsuits from triggering satellite litigation in parallel cases over statements made by lawyers in the course of litigation, instead consolidating that authority in two sets of public officials (the presiding judge in the case and the ethics enforcement authority) that are not under the direct control of the litigants. It serves a purpose similar to the rule prohibiting threats to seek criminal or administrative sanctions for the purpose of gaining advantage in a civil case. Not All Violations Of The Law Are Ethical Violations Also, there are violations of the law which are not violations of a lawyer's professional ethics - for example, failing to pay a personal credit card bill, or speeding, or parking illegally. But this is simply because there is not an ethical rule that expressly says "it is unethical to ever violate any law", not because there is an ethical rule that states something along the lines of the means justifies the ends in some circumstances. But it is also the case that some violations of the law by an attorney unrelated to the practice of law itself are still considered ethical violations, for example, if it "reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." (Sometimes this is referred to as the "officer and a gentleman clause" in reference to a Uniform Coded of Military Justice prohibition that is similar in character). Fiduciary Duties To Put A Client Above Oneself Beyond the formal ethical rules for lawyers, lawyers are also fiduciaries for their clients. Fiduciaries are generally required to put their client's interests above their own. So, for example, suppose that a client will lose his claim if a lawsuit is not filed by the statute of limitations, and the lawyer will violate the law by failing to file his tax return on time which is due with no further extensions on the same date as the statute of limitations, and the lawyer has the ability to do one or the other but not both. A lawyer's fiduciary duty to his client would probably require him to file the lawsuit for the client, even though this would mean that the lawyer would necessarily violate tax laws by not filing his own personal tax return on time. But again, that is more like guidance in a trolley problem that arises for no fault of the lawyer's own, and less like a justification for breaking the law. The lawyer's failure to file his taxes on time is not justified or excused by his fiduciary duty to his client, it is simply a matter of choosing to avoid harm to client over avoiding harm to himself or herself when the conflict arises from the lawyer's arguably unethical procrastination (another professional ethical obligation of an attorney is a duty of diligence in work for clients, at least). Situations When The Law Is Unclear Another issue that comes up is that the law is often not perfectly clear. This is why we have lawyers at all. Legal ethics somewhat address the situation in which some official has declared that certain actions are illegal or are required, but the lawyer, on behalf of a client, defies the order because it is believed to be unlawful. There are some circumstances where it is permissible to do this (e.g. an unlawful order from a law enforcement officer), and there are other circumstances where it is not (e.g., an incorrectly decided preliminary injunction entered by a judge. that is being appealed). But in all cases, once the law has been determined as applied to a particular case finally and beyond further opportunities to dispute that decision, a lawyer must comply. For example, the ethical rules for lawyers provide almost universally in the U.S. that a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. | As George White says, it's hard to prove a negative, but in this instance, there's quite a bit of evidence supporting you. First, the ABA has standards for legal commentators but they are very weak. They say pretty much what you would expect, and, they are non-binding: they explicitly say they "not intended" to provide grounds for "professional discipline." Second, there are articles by lawyers indicating there are no state bar standards. Taken together, the weak ABA standards and the articles should give you enough evidence to prove your case in the "court of buddy opinion." The ABA rules on legal commentators were issued in 2013 as part of a Fair Trial and Public Discourse Black Letter. The letter covered public comments on cases by lawyers involved in the case, lawyers not involved (ie, commentators) and judicial and judicial employees. According to the ABA, the standards are: intended to provide a guide to best practices for lawyers who provide public commentary or consult on criminal cases in which they are not personally involved; (Standard 8-1.1(a)(ii)) To explain what it meant by a "guide to best practices," the ABA included the following caveat about the applicability of the standards: While these Standards are intended to provide a basis for the formulation of internal guidelines within lawyers’ offices...they are not intended to serve as the basis in and of themselves for the imposition of professional discipline...(Standard 8-1.1(c)) In other words, the ABA's rules truly are just a guide to best practices. As for the guidance itself, it does not come close to requiring "due-diligence." A lawyer who is serving as a legal commentator should strive to ensure that the lawyer’s commentary enhances the public’s understanding of the criminal matter and of the criminal justice system generally, promotes respect for the judicial system, and does not materially prejudice the fair administration of justice, in the particular case or in general. To that end, a legal commentator should: (i) Have an understanding of the law and facts of the matter so as to be competent to serve as a commentator; (ii) Refrain from providing commentary designed to sensationalize a criminal matter; and... It may be that some states provide more stringent restrictions, but a quick search suggests they don't. Otherwise, there would not be a law review article arguing "The Legal Profession Must Broaden Ethical Standards for Legal Commentators," or an ABA Journal article (from this June) giving advice on becoming a legal commentator without mentioning state bar restrictions. I'm sure if you look, you can find more evidence. | The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to "make a case". The "court of public opinion" may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form. | The most important consideration is whether you're giving advice "as" something special. An example would be claiming to be a medical doctor and advising people to do something clearly harmful such as "take 10 Tylenol and call me next week". In such an extreme case, there could be criminal charges. Less severe would be an accountant giving grossly wrong and incompetent tax advice to a client, in which case the accountant could be civilly liable. (For instance, telling a client "you don't have to declare royalties for textbook sales"). In such cases, a client depends on the professional to give competent advice, and you rely on him to work according to a certain professional standard of care. There is a difference between the standard of care that an ordinary "reasonable person" owes to any other person, and the standard of care owed by a professional in an area. What would be excusable bad advice that I might give on how to build a wall would be inexcusable if given by an engineer. The basic idea is that if you interact with a person (even indirectly, manufacturing something that a 3rd party buys), you have a certain duty to be cautious. If this is just an ordinary-person on ordinary-person interaction, then the parties (both parties) are expected to exhibit the degree of caution that a "reasonable person" would exhibit (attempts to pin down what a "reasonable person" would do have proven impossible, though juries always know subjectively what a reasonable person would do). However, your duty to not give bad advice is offset by the advice-taker's duty to not take bad advice – that is, if a reasonable person would know that taking 10 Tylenol is a bad idea (thus I, as a non-physician might have some duty to not give such stupid advice), then the person who stupidly took 10 Tylenol was contributorily negligent in taking the 10 Tylenol. As far as I can tell, if you do not represent yourself as a member of a technical guild (lawyer, doctor, accountant, many others) giving technical advice in that capacity, and you are not directly contracting with a person (i.e. they hire you to give them advice on how to keep your yard from falling over the cliff), then you can say stuff like "If X, then you should Y", and not have to pay if someone does that Y and they suffer a loss. | What are the ethical rules that limit interaction between civil and criminal proceedings on the same facts? A private lawyer's job is to look out for the client's interests before the public interest in these cases. In many states, a private lawyer is not permitted to threaten to seek a criminal prosecution to gain an advantage in a civil action. A private lawyer, myself included, will often deliberately not pursue criminal charges in order to not impair the ability of a client to collect a judgment. A prosecutor has wide discretion to prosecute or not when the prosecutor is aware of a crime that there is probable cause to believe was committed. A complaint by the victim is not required in the U.S., but most prosecutors consider a victim's wishes. A prosecutor may ethically make prosecution dependent upon making a victim whole. So is this conflict and result just an "unfair" fact of all common-law justice? What is "fair" is beyond the scope of Law.SE which deals in "what is", not in what is "fair". Or are there mechanisms that exist to satisfy the demands of justice despite this conflict? Not really. Just the good judgment of the individual actors in the system given their respective duties and roles. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | 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. |
Do various common law sovereign citizen movement theories have any kernels of basis in fact? Note: I had seen and reviewed the proposed duplicate/precursor question on freemen of the land but if you read my question a little more carefully you will hopefully see that mine seeks to go deeper into the issue than that one for manages to. They have this idea that by claiming to be an agent of a corporate entity representing an individual in which the capacity of a crime might have perhaps been committed, they can get out of personal liability. Presumably these terms like settler, agent, private individuals etc and corporate entities that can absorb liability have a basis in fact. For example, a plumber may operate in the capacity of an LLC to avoid personal civil (though probably not criminal) liability for any mishaps that may happen while on the job. The difference however, being that the LLC must first be formally incorporated, or bureaucratically established, and it must be unambiguously understood from the outset which capacity the person is actually acting in, for example by making it completely clear in the contract what actual legal entity the contract being entered by the consumer is specifically with. The sovereign citizen movement seems to favour a variation of this concept, in which the corporate-person liability shield behind which they seek to hide firstly does not need to be formally incorporated or registered with any sort of bureaucratic entity, secondly need not be unambiguously "donned" to be effective, ie it can be claimed to have been used post-facto, although it is unclear as to what the parameters of liability consequences might be faced by the corporate entity itself, and thirdly has the bonus quality of absorbing criminal liability. They claim that in the tradition of old maritime courts, defendants' names are written in all capital letters, and that this specifically abstracts the maritime corporate trading entity from the private individual who ostensibly cannot be held fully liable for the actions of their crew or ship upon which they may not even be personally aboard. The private individual's legal personality, it is claimed, is denoted by their name with initial capital letters and remaining lower case letters. Does this theory have any basis in current or historical fact? | Does this theory have any basis in current or historical fact? Not really. The sovereign citizen movement uses legal terms, but not correctly, and often confounded with Biblical doctrine, and hones in on stylistic matters that are not legally material now and weren't legally material at any time historically, like capitalization rules (which, actually, were historically wildly inconsistent, see, e.g., an image of the original U.S. Constitution and Declaration of Independence). There was an era from roughly the mid-1800s to the early 1900s when the law was very hung up on the precise wording of deeds (e.g., a deed to "John" rather than to "John and his heirs, successors and assigns" created a life estate rather than transferring full ownership of land), or stating precisely the right things in a legal complaint to have a right to legal relief (when what was required to be stated was discernible only from legal authorities like decades of case law reports or legal treatises). But, while that was an era when technicalities and legal fictions that would seem to a layman to be similar to those of the sovereign citizen movement were important legally, none of the actual technicalities and legal fictions that were historically important in the law are actually utilized by the sovereign citizen movement. Instead, it makes up technicalities and legal fictions that never existed historically, in the service of a defiant, anti-government agenda in which it is easy to impose liability on others but hard to impose liability on adherents of the movement, while the historical technicalities and legal fictions served the opposite role - with a pro-government agenda in which it was hard for non-professionals utilizing red tape filled bureaucracies to impose liability on others but was easiest to do with regard to people who defied authority, like sovereign citizens. Likewise, there has never been any means by which individuals can evade liability for taxes, for criminal conduct, or for civil liability committed by them personally, then or now. The question restates the common misconception that: For example, a plumber may operate in the capacity of an LLC to avoid personal civil (though probably not criminal) liability for any mishaps that may happen while on the job. But, in fact, even with all of the modern limited liability entity formalities complied with, this isn't actually true. One can never have limited liability for work that one personally carries out. Limited liability only protects you from contractual liabilities and from vicarious liability for the acts of your agents and employees. And, doing so still does not insulate you from criminal liability for acts of your agents and employees for the most part due to RICO and solicitation and conspiracy offenses. One can never evade liability in the manner that the sovereign citizen movement suggests, even if one complies with actual legally recognized formalities. | Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction. | It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action. | 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. | That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., "The defendant refused to waive his Sixth Amendment right to a speedy trial." In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this. | Overview The list in this answer is not comprehensive merely listing some of the leading SCOTUS cases on point, but the approach taken, analyzing the way the term is used in a context specific, case by case approach, rather than trying to ascribe a trans-substantive meaning to it in all contexts is, I believe the correct approach. There are 30 SCOTUS cases that use the term discussing perhaps 15-20 treaties and statutes, and hundreds of circuit court cases that do so. It turns out that the term foreign national often paraphrases treaty language that is not identical when there is no ambiguity in the case before the court. The EO language is probably merely the product of sloppy drafting since the statute uses the word "alien". In many contexts where "foreign national" is used to paraphrase the exact treaty language, the term is relevant because it is used in a context where a relationship between the person and their nation is at issue in some respect as in the VCCR below and the Public Vessels Act. So, in those contexts, the term would often exclude "stateless persons". But, there is really no way to know in the absence of context whether dual citizens are or are not intended to be included in the term. The VCCR: Paraphrase One place that the term "foreign national" is used is Article 36 of the Vienna Convention on Consular Relations (VCCR) which gives a foreign national a right to diplomatic assistance in the criminal justice process. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The same section of the same treaty was at issue in Torres v. Mullin, 540 U.S. 1035 (2003). In this context, a stateless person is clearly not a foreign national, as a stateless person has no ambassadors or counsels from the country in which the stateless person is a foreign national to seek recourse. The term "foreign national" also paraphrases the treaty language which actually uses the phrase "nationals of the sending state" (where the "sending state" is the country with diplomats in the territory of the "receiving state") which could in a plain reading include dual citizens. Specifically it says: 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The Trading With the Enemy Act: Paraphrase The term was also used in a case discussing the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, and Executive Order 9095, as amended, which allowed for an "Alien Property Custodian" to seize property of a foreign national (in this case a German) in connection with World War II. See Silesian-American Corp v. Clark, 332 U.S. 469 (1947). It isn't clear, however, that this case has continuing legal validity and relevance. And, the "foreign national" terminology in this case appears to be a paraphrase of the phrase "enemy or ally of enemy" that appears in the underlying text of the authorizing statute. U.S-Mexico Extradition Act and 4th Amendment: Synonym For Alien The term was used in the case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which a Mexican citizen was kidnapped in Mexico by U.S. agents and tried in the U.S. on drug trafficking charges without regard to the U.S.-Mexico extradition treaty, which Judge Kennedy uses the term synonymously with "alien" in his concurring opinion in a case involving facts where any definition of the two terms applies. Hague Service Convention: Concept Not Used In Treaty The term was used in the case of Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) interpreting the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638 which governs service of process of foreign nationals to determine if it applies to service of process on foreign nationals within the United States. The treaty language of the Hague Service Convention itself, however, makes no reference at all to the nationality of the person served and depends entirely upon whether the person is served abroad in the territory of a signatory or not. Under the plain language of the treaty itself, a U.S. citizen in France has to be served pursuant to the Hague Service Convention, although a U.S. court would usually be in a better position to compel compliance from its own national than it would be from a foreign national. In a nutshell the facts and circuit splitting legal issues presented by the service of process in a product liability case in a state court in the United States in Chicago were as follows: VWAG, a corporation established under the laws of the Federal Republic of Germany, has its place of business in that country. VWoA is a wholly owned subsidiary of VWAG. Schlunk attempted to serve his amended complaint on VWAG by serving VWoA as VWAG's agent. VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service Convention, and that Schlunk had not complied with the Convention's requirements. FWIW, SCOTUS held that the treaty did not apply to service of process within the territory of the country whose courts issued the process. The Public Vessels Act: Context Specific Usage In United States v. United Continental Tuna Corp., 425 U.S. 164 (1976), per the official syllabus: Prior to 1960, the Suits in Admiralty Act authorized suit against the United States in cases involving vessels owned by, possessed by, or operated by or for the United States, if such suit could have been maintained had the vessel been a private one, and provided further that such vessel was employed as a merchant vessel. In 1960, Congress amended the Act by deleting.the latter proviso. The Public Vessels Act authorizes suit against the United States in cases involving "a public vessel of the United States," but bars such a suit by a foreign national unless it appears that his government [96 S.Ct. 1321] allows a United States national to sue in its courts under similar circumstances. Respondent, a Philippine corporation, alleging jurisdiction under both Acts, sued the United States to recover damages resulting from the sinking of its fishing vessel after a collision with a United States naval destroyer. The District Court dismissed the complaint on the ground that, since the destroyer was a "public vessel of the United States," the suit was governed by the Public Vessels Act, that therefore respondent was subject to that Act's reciprocity provision, and that, since there was no such reciprocity, the suit was barred. The Court of Appeals reversed on the ground that the suit, although involving a public vessel, was maintainable under the Suits in Admiralty Act, as amended in 1960 to delete the "employed as a merchant vessel" proviso, free from the restrictions, including the reciprocity requirement, imposed by the Public Vessels Act. Held: Claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act, and, since respondent's claim falls within the Public Vessels Act, the Court of Appeals erred in concluding that that Act's reciprocity provision did not apply. Here the focus is on the relationship of the foreign national to a home state court which may or may not offer reciprocity. The statute is 46 U.S.C. § 781. The case at issue involved a Philippine corporation owned mostly by Americans, which was held to be Philippine nationality and the reciprocity of Philippine courts applied. Presumably in this case a dual national would count as an American and a stateless person would not. | The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary. | What appears to be the controlling case is DC v. Heller, 554 U.S. 570. In Heller, the meaning of "Right of the People" is relevant, and the court finds that in three instances in The Constitution, these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" However, Art. 1 Sec 2 of The Constitution says that "the people" will select members of The House, and then there is the 10th: Heller says that Those provisions arguably refer to 'the people' acting collectively—but they deal with the exercise or reservation of powers, not rights In other words, "the people" can act collectively, but "the people" have individual rights. In the remaining cases of "the people", the expression "unambiguously refers to all members of the political community, not an unspecified subset". We are then directed to US v. Verdugo-Urquidez 494 U.S. 259, which is a warrantless search case involving a Mexican citizen and a search in Mexico, and the part that Heller finds relevant is that ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." In other case law, Underwager v. Channel 9 Australia, F.3d 361 which cites US v. Barona, 56 F.3d 1087 it is likewise said that constitutional rights expressly limited to the "people," such as those created by the Fourth Amendment, are held only by "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community" "The People" thus starts from identifying "a national community", and then if the context is about rights, each such individual has the right, but in the context of powers, the collective has it. |
Is there a legal system or theory where punishment is proportional to the probability of an offence? In common criminal law in order for a defendant to be punished, they must be found guilty beyond all reasonable doubt. Hence, there is a threshold for the probability of guilt, beyond which the punishment is proportional to the offence and/or consequences. I want to know if there is a legal system where punishment is proportional to the probability of guilt. For example, Alice and Bob are equally likely to have committed a known crime and one of them must have committed the crime. Hence, each faces 50% of the normal penalty. Such a legal system could be from anywhere in the world at any point in time, from modern roman legal systems, to small systems governing tribal communities. Any of these are interesting to me if researched. I am also interested if such a punishment system has been investigated theoretically. Primarily, what the benefits are, but the ethical side is also of interest. If anyone can help that would be most helpful, I have not been able to find any scholarly or other types of article. I am interested from a mathematical perspective, but I'd like to know whether such systems exist in reality. UPDATE Just to be clear, I am not asking whether there has been implemented a mathematically precise decision procedure, weighting level of punishment proportional to probability of guilt. But rather, if there is or has ever been an informal (i.e., imprecise) system. There are good reasons for there not to be, I am asking whether there has been or is such a system. Thanks for the answers so far, I just wanted to clarify that. | A series of answers were proposed to similar questions in the world building forum. https://worldbuilding.stackexchange.com/questions/29880/how-could-a-legal-system-whose-punishments-were-based-off-of-level-of-certainty https://worldbuilding.stackexchange.com/questions/29941/how-to-handle-plea-bargains-in-a-court-where-punishment-is-based-off-confidence The relationship to plea bargaining is as follows: When the prosecution has a strong case with a high probability of winning, it insists on going to trial and will make only slight concessions relative to the result that could be obtained at trial. When the prosecution has a case of typical strength with an intermediate chance of winning, it will normally make a significant concession in the severity of the offense charged or other agreements that impact the length of the sentence, relative to the result that would be obtained if the prosecution fully prevails at trial, rather than "roll the dice" and usually the defense will agree in exchange for a more lenient sentence. When the prosecution has a case that is weak (but being ethical, believes that there is probable cause to support), it will normally make very deep concessions such as agreeing to a much less severe charge or for example to probation or a deferred judgment, to at least impose some punishment, in order to avoid going to trial, even when the potential punishment if the prosecution full prevails is very high. Plea bargaining rates in the federal system are in the mid- to high 90%s, while plea bargaining rates in state systems are often in the 70% to 90% range (federal prosecutors can leave weaker cases to state prosecutors if they want to and have a stiff hammer due to high mandatory minimum sentences for many offenses and the sentencing guidelines, but state and local prosecutors have to take what their less elite law enforcement officers come up with). At trial, prosecutors typically win convictions well over 50% of the time (although not too much more, because the more clear cases are either dismissed by prosecutors as unproveable prior to trial or are plea bargained). The net effect of the current system is that the severity of the sentence imposed in the vast majority of cases is proportional to the probability of the prosecution prevailing at trial times the likely sentence if it does prevail, as evaluated mutually by the prosecution and the defense. When there is not a sufficient consensus on the fair sentence in light of those factors the rare trial happens (and more often than not the defense rather than the prosecution overestimates its chances). Unfortunately, this also means that the biggest penalties for going to trial are in the weakest cases in which the prosecution just barely manages to convince the jury and there is a strong probability that the defendant is actually innocent, as opposed to the cases where it is fairly clear that the defendant is guilty. And, people who are actually innocent of everything are most likely to roll the dice and go to trial, since people who are guilty of something know that in any fair resolution that are going to face the significant downsides of having any criminal conviction on their record, while people who are actually innocent may reasonably (although sometimes inaccurately) believe that the system will protect them and allow them to escape all consequences except the costs of defending themselves in court (if they can afford it). Another option that prosecutors have in a case where proof beyond a reasonable doubt may be difficult or impossible, is to bring a civil lawsuit or to seek an administrative penalty, which may result in loss of a licenses or payment of a fine or compensation, rather than bringing criminal charges. In these cases, the prosecution only has to prove a case by a preponderance of the evidence in most cases, and usually, the defendant has no right to an attorney at public expense even if the defendant is indigent. These fines (or civil forfeitures) can also help fund the criminal justice system that pays prosecutors and other participants in the process. Below that standard, prosecutors can seek search warrants, wire taps and arrest warrants in cases where there is merely probable cause to believe that a person committed a crime, which in addition to setting up future prosecutions can also be used as a form of punishment/harassment of someone prosecutors believe to be guilty of a crime even though they may not even have the evidence necessary to prove a civil suit, but the amount of impact that a search warrant, wire tap, or arrest can have on a suspect is much less than a full blowed prosecution. | It is an unquestioned pre-American axiom, expressed in Latin as actus reus non facit reum nisi mens sit rea ("the act is not culpable unless the mind is guilty") which has been part of the Anglo-American legal system since at least the 17th century. It is thus presupposed in all criminal proceedings. It's not that a person only commits a crime with free will, it's that it is not deemed to be a crime if there is no free will. A person can be held at gunpoint and required to commit a criminal act: the person does indeed have free will to choose to be killed rather than commit the act, but the act is legally excused since dying is never held to be the only acceptable alternative to committing an otherwise-criminal act. | Neither with or without a warrant, if the confession is all there is. For a felony, the question is whether there is probable cause (4th Amendment). This is true whether the police arrest you, or they get a warrant – the difference being that in the latter case the warrant is issued by a guy with much greater knowledge of what constitutes probable cause. The question then would be whether a confession alone constitutes probable cause. There is a venerable rule, the corpus delecti rule (300+ years old) that requires there to be independent evidence of a crime, the point of this rule being to to prevent mentally ill people from being convicted of a crime that never even happened. Under that rule, a confession alone would not be probable cause (but a confession and a bloody glove could be). This article reports that at the federal level and in 10 states, there is a lower bar of mere "corroboration" without the need to argue that there was an actual crime. Exemplifying this relaxing of the traditional rule, in Opper v. United States, 348 U.S. 84, the court held that "[a]n accused's extrajudicial admissions of essential facts or elements of the crime, made subsequent to the crime, are of the same character as confessions, and corroboration by independent evidence is required". However, "[t]he corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti" and "[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth; but those facts plus the other evidence must be sufficient to find guilt beyond a reasonable doubt". In such jurisdictions, courts take a "totality of circumstances" approach focusing on whether the confession is trustworthy. | In England and Wales, under section 2 of the Suicide Act 1961 (as amended by section 59 and Schedule 12 of the Coroners and Justice Act 2009) it's a criminal offence to do an act capable of encouraging or assisting someone to commit suicide. I think that applies to Scotland too, and there is similar law in Northern Ireland. Encouraging suicide is also a criminal offence in some other common law jurisdictions, e.g. in Australia. While in other common law jurisdictions, if there isn't such a law, the person might instead be prosecuted for manslaughter - or not at all. The minimum, maximum and recommended penalties may well differ between jurisdictions. I don't know what you mean by "vengeance rampage" but I'm not aware of any jurisdictions where it is lawful for a person to cause harm to someone for revenge. States tend to reserve for themselves a monopoly on the use of force. | The concept is known as lesser included offense. The prosecution believed that they have a chance to prove murder, so they charged murder, but they understood that the judge and jury might not convict on murder. So they said in effect, "and if you won't find him guilty of murder, at least convict for manslaughter." | Under German law, if you are sentenced to a fine because you committed a crime, that fine is measured in Tagessätze (day fine). One day worth of fines is the 30th part of your monthly income, adjusted according to the criminal's personal and economic situation. Basis for that is Criminal Code sec 40 (§ 40 StGB). There is, however, no corresponding principle for prison sentences. The reasoning behind that is, that a wealthy person would hardly be able to "improve" their time in prison compared to a less wealthy one. In fact, they would "lose more money" in the meantime. | "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. | Is there something in the language of the act that makes sexual harassment a civil rather than a criminal offence? Yes. Laws that create criminal offenses have to have language to the effect of "violation of this law is punishable by up to X years of imprisonment or a fine of up to $Y", or "violation of this law is a Class Z felony." Sometimes it is not entirely clear if violation of a law can form a basis of a private civil lawsuit, or if it can only be enforced by government officials, from the language of the statute alone. When it is unclear the courts have to resolve that ambiguity. In rare instances, it may be clear that some parts of a statute have criminal penalties, but due to unclear wording and punctuation in the statute, it is hard to tell precisely which parts of the statute these criminal penalties apply to, and in those cases, courts also have to resolve that ambiguity. There is also some conduct that it is constitutional to punish with a civil penalty, but not as a crime that can result in incarceration. For example, it is unconstitutional in most states to incarcerate someone for failing to pay a debt, but there can be a civil penalty for failing to pay a debt. Courts decide if these constitutional limitations are violated. Similarly, while Congress can enact both crimes and civil penalties, there are some governmental bodies, like school districts or water boards, that have the power to enact certain civil penalties, but do not have the authority to create new crimes. Was that up to the lawmakers to decide, or is that just something that evolved out of the ways the courts and prosecutors responded to sexual harassment claims? And who decides such things in general? Generally, this is decided by lawmakers. Obviously, however, anyone can lobby legislators to take one position or another. Also, the fact that something has a civil penalty does not necessarily mean that prosecutors aren't the people who enforce the law. Sometimes violations of the law prosecuted by prosecutors have civil rather than criminal penalties. For example, many tax law violations are prosecuted by government lawyers with civil penalties, but only a small minority of tax law violations are prosecuted criminally. Further, it isn't uncommon for a type of offense, like securities fraud, to have both civil penalties and criminal charges available as remedies that can be enforced by prosecutors. And, when that happens, prosecutors get to decide which tool to use. For example, even if exactly the same conduct could be prosecuted with either a civil penalty or a criminal charge, prosecutors might prefer a civil penalty because the burden of proof is much lower, the 5th Amendment protection against self-incrimination does not apply (you can refuse to testify but that fact can be used against you in a civil penalty case), and a defendant in a civil penalty case doesn't have a right to a lawyer at government expense. Also, enforcing a civil penalty generates net revenue for the government most of the time, while criminal punishments normally cost the government more money to carry out than any revenue the government may receive from the person found guilty for fines and court costs. On the other hand, trying to enforce a significant enough civil penalty to discourage misconduct against someone who has no money or property may be a futile effort, while criminal sanctions could discourage misconduct from other similarly situated people in the future. |
Is there ever any consultation between judiciary and legislative draftspeople? Often one sees judges attempting speculatively to infer legislators' intents by reasoning about their language. Yet nonetheless the objective seems to be to ascertain the legislators' original intentions. If they really wanted to do this, it seems as though the most reliable and non-speculative method would be simply to ask the authors of the language what had been meant. While the purpose of a separate judiciary is independence and checks and balances to ensure rule of written law, it would seem fair for the judiciary to quiz and challenge the authors as to the plausibility of their clarifications, given the actual written and assented words, in order to prevent them from misadvising the judges if it suits their political purposes after the fact. So my question is simply: in any jurisdiction, but particularly common law ones like the UK and US, is it ever heard of for a judge to ask legislative authors for clarifications? Why, or why not? | For the same reason you can’t ask the parties to a contract what they meant Legislation, once enacted, stands on its own independent of the people who drafted it, introduced it to Parliament and voted for or against it. These are not the same people in any event and since the legislation might have been passed anywhere between the 13th and 21st centuries, a lot of them will be dead. There’s a fundamental issue of fairness here. The people who are obliged to comply with the law (you and I) can’t ask the politicians so neither can the judges who have to decide if we did. Further, the judiciary cannot interact with the executive or the legislature in this way without violating the principle of separation of powers. Imagine you are charged with a crime and your guilt or innocence turns on the interpretation of the statute. Do you really want politicians who are looking at how the case plays out on Twitter telling the judge which interpretation to use i.e. effectively telling them whether you are guilty or not? | The concept of "ignorance" of laws isn't about the individual. It's about administratibility of the system. The argument is that a system with a wide-ranging ignorance defense would struggle to produce results—just or otherwise. So the American system presumes knowledge of the law and then carves out narrower exceptions, such as mistake of law. For example, the law wasn't published, or it had been overruled. Alas, the question about why there isn't a hotline belongs on another site. | It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action. | (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.) | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. | 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. | At the federal level, there is no real equivalent to what you're describing. A probable cause hearing evaluates the government's evidence in a similar way, but it doesn't ask whether a reasonable jury would convict. The closest I can think of is a Rule 29 motion, which does ask that question, but not until trial has already begun. You typically make the motion at the close of the government's case, and (if it was not successful) again at the close of your own, though I've heard tales of judges granting the motion at the end of the government's opening statement. The states all have their own rules, but they're generally pretty similar to the federal rules in this respect, as I understand it. I don't know of any state that allows the kind of motion you're talking about, in criminal cases, at least. In civil cases, I think everyone has Rule 12(b)(6) motions, which ask the court for a pretrial determination that there's no set of facts that could establish liability on the plaintiff's theory of the case. |
Can law.SE activity decisively influence future case law? Meet Bob. Bob has a legal theory which seems intuitively correct, but various types of personalities in the world, perhaps even the majority of people, including many judges, find this deeply objectionable and wish it weren't. Bob posts on law.StackExchange(“LSE”) framing his theory as a question, and the majority of real answers say "yes that's correct." Many just say "eww you Nazi why would you even ask that etc" in vacuous non answers. Then someone comes along and days no that's not correct and gives a perhaps somewhat contrived legal theory as justification for why what most would want to be so actually maybe is. Many read this and think "well, that's a little contrived, and I doubt it would be upheld, but there's a chance it is and I would have never thought of that way of looking at it. Anyway that's probably the best argument that could be made against this objectionable outcome if there was any that could possibly work." Bob theft brings forth an action on his theory to court and the respondent's counsel is at a loss for how to defend this claim. They go and research as this obscure issue has never been judicially tested before so there's no precedent to go on and there's also a complete death of literature on the subject. However he comes across Bob's LSE post and the lone dissenting response gives him his only idea of how to ever possibly go about defending this case. He doubts it will work but is anyway grateful for the new (only) idea for strategy. He puts forth this defensive argument and the judge also really doesn't want Bob's claim to be upheld due to personal ideological bents but he is expecting to have to bite the bullet and rule on Bob's favour until he hears this argument and it gives him a precious way out of the conundrum. Has LSE decisively affected case law? Honestly don't even know what to tag this with please feel free to add further tags. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. | Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law. This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions. | Legally there is no problem. What you say is protected speech under the 1st Amendment as long as it is either true or a matter of opinion. However Ron Beyer's comment is a good one; while legal this sounds very inadvisable. You would be far better off hiring a lawyer. The Mr Dicks of this world make money from the widespread fear of legal action. He will probably fold as soon as he sees a letter from a lawyer threatening a lawsuit. Until then stalling doesn't cost him anything so he will carry on doing it. BTW, don't delay. I don't know about the US, but over here in the UK there are a number of ways that people like Mr Dick can make it hard to collect. Don't give him time to play shell games with his assets. | "Precedent" refers to a finding of what the law is. A jury only finds facts, and operates (supposedly) within the meaning of the law as already established. All the jury reports is "yes" and "no" to questions of fact (with some reference to existing law): they do not report, at least in any official way "we interpret the law as saying X". So it would be impossible for a jury to "set precedent" in the case law sense. In a notorious case, they might "set precedent" in inspiring other jurors to act similarly, but this is not enforceable precedent in the way that case law precedent is. In the US, if the jury acquits the defendant, that is the end of the matter and there is no re-trial. As for the UK, I am not sure but I think that the prosecution being unhappy with the jury's decision does not create an exception to the double jeopardy rule. | It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example. | I finally found the actual transcript of the voir dire part of the case mentioned in the question. http://www.groklaw.net/articlebasic.php?story=2012090614295190 As can be evidenced from the transcript, the judge has specifically instructed the two jurors working as engineers at the local tech companies that they'd have to "forget" what they know about both the software engineering and the patent law itself, too, starting their work on the whole case with a completely clean sheet, using a very simple criteria for making decisions: One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide. Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here. Then, after a short break and a consultation with the lawyers, where Oracle seems to have expressed some concern to having the computer experts be on the panel, which subsequently prompted the judge to declare the following to the two potential jurors who worked at Cisco and HP: So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying? You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works. Since both jurors had so much software and patent experience that they couldn't disregard it easily, they were thus both excused (page 95 of 224). All right. I think it would be too hard for you to sit in this case and sort out what you knew already against what is proven or not proven here, and itwould not be fair to the parties to have that extra burden even though you two actually know something about the subject. It's in a way too bad, but it's for the best. So you two are excused to go back to the jury assembly room. Thank you. The other instructions that the judge gives to the potential jurors is also worth reading (starts on page 36 of 224) The full transcript is at http://www.groklaw.net/pdf3/OraGoogle-942.pdf. In summary -- jurors are only allowed to talk to one another when the deliberation process starts, and, no, they are not allowed to bring any "baggage" to the case at stake. | Has Bob been treated less favourably than Alice by this establishment with respect to his committed philosophical worldview of opposing fascism and all its associations and forms? Has Bob thus been unlawfully discriminated against? No. There is no discrimination law engaged here by the retailer asking if its customer would like to donate to the Red Cross Crisis in Ukraine Appeal or such and not asking if the customer would like to donate to any other appeal. | Bob will be convicted if he is found guilty beyond reasonable doubt. Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder. His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case. Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder. Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe. |
Are laws written logically and rigorously? Are laws written logically and rigorously in law books? For example, do texts of laws specifically use "if and only if" instead of the more frequently used but less logically correct "if"? I am just giving a specific example, but there could be other subtle logical things that laws do not explicitly state. Also, bonus question, has any case in a court of law hinged on a point of logic? | Are laws written logically and rigorously? No. Laws are not consistently written to any consistent stylistic standards. Whatever legislators approve becomes the law even if the law is poorly drafted. While some legislative bodies, such as the Joint Tax Committee of the U.S. Congress and the legislative services department of many state legislatures encourage good, or at least consistent, drafting practices, these standards are routinely ignored in the course of the legislative process. This is particularly true in the United States, since it does not have a "House of Revision" akin to the House of Lords or the Canadian Senate, that is concerned primarily with the quality of legislative drafting, and also does not have law that are drafted by the secure majority of a Prime Minster in most parliamentary systems. Instead, in the U.S. there is constant haggling and negotiation on a bill by bill basis at every step of the legislative process right up through a conference committee reconciling different versions of a bill that arise between two houses of a bicameral legislature. As a result, the key drafting priority is to secure support of a majority of legislators in two houses of the bicameral legislature and then avoiding a veto of the final product, and that objective is pre-eminent over the objective of good drafting. Frequently, in the U.S., legislation is intentionally drafted ambiguously in order to secure its passage with different legislators essentially making "bets" on the courts interpreting the language which is known to be ambiguous in the manner that they prefer. Sometimes legal language that is very precise and logical is interpreted to mean something completely different than what it literally says. For example, consider the 11th Amendment to the United States which says: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. This is an amendment to Article III, Section 2, Paragraph 1 of the United States Constitution, which 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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. But, what the 11th Amendment actually means is that states retain sovereign immunity in most cases. The governing principle in interpreting legislation is not logic but legislative intent. Oliver Wendell Holmes, Jr. summed up the situation famously when he said: The life of the law has not been logic: it has been experience. | The holding of the Miranda decision says: (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him The body of the opinion also says The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. although also He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law When SCOTUS says do this, that is the law. Since SCOTUS say can, will, and can and will, the only safe course of action is to say can and will. This page has some interesting discussion about the problem of the meaning of modals in a legal context. The Miranda warning does not constitute a contractual promise between the arresting officer and the arrestee, so "will" cannot be construed as a binding promise to prosecute and use the evidence in court. "Will" can only be construed as a prediction, as do "may" and "might". If the warning said "can, and mightmay be used against you", that choice or wording would suggest that the probability of statements being used against you is low – that would be totally misleading. The strongest modal should be used, because the probability is high that some statement will indeed be used against the person. Simply saying "can" suggests that it's a mere possibility, as opposed to a probability. "Can and will" is thus the appropriate construction for conveying the probability that your confession will be used against you. "Shall" shall not be used (it is confusing since it doesn't mean what the legal profession sometimes thinks it means); "must" is just plain wrong (it's legally meaningless to say "anything you say must be used against you", when many things that a person says would be inadmissible). | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | In brief: In common law systems, are there specific laws? Yes. Are they written down? Yes, here are the laws of Australia and New Zealand. Or are there only previous court rulings? No. Elaboration: Broadly (and rather vaguely) speaking there are 3 sources of law in a common law jurisdiction: Statute law which consists of the Acts passed by the legislature Administrative law which consists of the rules and regulations made by the administrative arm of government under the powers granted them by the constitution or delegated by the legislature Case law which consists of the decisions made by the courts; this can be decisions based on Long-standing precedents whose origins are lost in the mists of time Interpretations of statute and administrative law It is important to remember that the courts only get involved to resolve conflicts (civil or criminal) - they do not unilaterally make decisions on the law. Judges (if they are wise) never give opinions on the law - that is the role of solicitors and barristers who are the paid advocates of the parties. The role of a judge is to decide how the law fits the circumstances of the particular case before them. To do this they interpret the statutes, administrative rules and decisions made by other judges on similar cases. The decision of a superior court is binding on a subordinate court, persuasive on an equivalent court or a court in a parallel jurisdiction and subject to review by a superior court. The overwhelming majority of cases do not make new case law - most of the arguments in court are about why (or why not) the established law applies to the current facts; they are not about what the law is. Occasionally a decision will be made that modifies the previous interpretation or even more rarely represents a paradigm shift - those are the cases that matter! | No. Jurors generally do not receive such an instruction and it is not a rule of law or evidence. Jurors have to rule in accordance with the law, but how they judge the credibility of witnesses may be influenced by emotional factors. How the witness says something is as much a part of the evidence as what they say. | In the vast majority of countries (both common law and civil law), statutes are interpreted in a manner that reflects the intend of the drafters of the statute a.k.a. legislative intent, when it is possible to reasonably determine what was intended. There is a canon of statutory interpretation in almost all legal systems that provides that absurd or nonsensical interpretations of legislative language are to be disregarded in favor of those that reflect the likely intent of the body passing the law, even if the literal and technical reading of the words does not state precisely what was intended. Thus, if there is a clear grammatical, punctuation, or spelling error and the intend meaning can be discerned from the language of the law, the larger context of the law, or extrinsic evidence such a legislative history and public discussion of the reasons for enacting the law in the first place, those clues will be used to interpret the legal effect of a law. Could this mean legal consequences or would I be safe as I "bought nothing illegal"? No. Ignorance of the law is no excuse even in cases where the interpretation of the law calls for the courts to ignore minor errors in legislative drafting. You would have an argument, but where you can state "in fact 'Scolopendra gigantica' does not exist and they most likely meant 'Scolopendra gigantea'." The likelihood that you will face legal consequences is great. Also, in this particular example, keep in mind that biological species sometimes have more than one accepted Latin name, or once had a different name than the currently accepted name. For example, in this case, "gigantica" and "gigantea" are different grammatical inflections of the same Latin root word, and really are the same word in the same way that "geese" and "goose" are different tenses of the same word in English that refer to the same genus of birds. If a scientist discovers a new type of centipede and names it 'Scolopendra gigantica', would it be illegal immediately? The judges would look at all of the facts and circumstances and decide if the new species was within the scope of what the law intended to ban. But, the mere fact that the word is the same would not make the law apply to it. In the same way, suppose that a law had an exemption and didn't apply to animals in the town of Zootopia where many exotic pets are naturally common in the wild because a failed zoo released them into the area. But, given that context, the town of Euclid could not make itself exempt from the law by renaming itself Zootopia after the former town of Zootopia was disincorporated after its residents were all eaten by lions. If it was illegal to own a 'Scolopendra gigantea' due to that law and a scientist now names a new centipede 'Scolopendra gigantica' would that immediately legalize the 'Scolopendra gigantea'? No. For the same reasons discussed above. Footnote Re Similar Issues With Controlled Substances Laws This said, the issue you discuss does come up, and sometimes wins and sometimes loses, in the case of laws regulating controlled substances (i.e. illegal drugs). One of the reasons that this comes up is that the proper names of chemical substances in organic chemistry is not, as it is in biology, arbitrary. The name of an organic chemical is determined from looking at which atomic elements in which combinations with what kinds of bonds to each other are present. Given a chemical diagram of an organic chemical, every organic chemist would give it the same name, even if they've never discussed it, and likewise, you could ban an organic chemical that has never been observed or synthesized in real life and it would be illegal if it ever was synthesized. These statutes have usually been interpreted strictly to apply only to the named chemicals, but usually include an additional statutory section that either ban "analog" chemicals that are intended to or do have the same biochemical effect as the banned chemical, or allow an administrative agency to add new chemicals to the list without legislative action. Still, complications do come up even then because many lawyers and legislators become lawyers or politicians because they couldn't become doctors or engineers, because they flunked organic chemistry. (Joking aside, almost 50% of college students in the United States taking organic chemistry for the first time fail the course. This and first semester calculus are the most frequently failed college courses in the United States.) The Florida Cheese Ban For example, Florida recently classified a chemical present in many kinds of ordinary cheese as a controlled substance, which would in theory make every grocery store owner and millions of Floridians felons. Florida probably meant to ban high concentration synthetic extracts of that chemical administered as a drug, but didn't do anything to say so. But interpreting the statute to have that meaning was harder in that case since the same statute applies to many, many different drugs and the interpretation of the statute would make the ban on the chemical found in cheese make sense, would not make sense for the other drugs on the list. But, Florida courts may ultimately end up ignoring the addition of that chemical to the list based upon the canon against absurd interpretations, at least on an "as applied" case by case basis where the literal meaning of the statute would make millions of Floridian felons for violating this law. The Grand Junction Conviction For Possession Of A Legal Drug Another case came up in Grand Junction, Colorado where a woman was prosecuted by a government lawyer for possession of a controlled substance for possession of a chemical named in the indictment, and her government provided public defender had his client plead guilty to the crime. The woman tried to explain that this made no sense since its was an ordinary prescription drug, but the prosecutor, her own lawyer and the judge didn't believe her, and her public defender told her she was certain to be convicted anyway. (It isn't clear if she actually had a prescription for the drug, but even if she didn't, it wouldn't have been a crime.) So, she took a plea deal and was sent to prison to serve a medium length incarceration with work release sentence, instead of the medium length prison sentence she could have received if she went to trial, was convicted, and received a typical sentence for that conviction. The problem was that the chemical she was indicted for possessing in violation of the controlled substances act wasn't actually on the controlled substances list and wasn't an analog version of a controlled substance. There was also no reason to think that the drug he was convicted of possessing which had no pleasurable psychoactive effect was ever intended by the legislature to be banned or regulated. About a year later, in the year 2005, when this issue was ultimately discovered, a different criminal defense lawyer brought a post-conviction challenge to the conviction on the convicted woman's behalf, and the convicted woman was released with the conviction vacated, because the crime she was indicted for committing and convicted of didn't exist. Allysan Isaac, 24, was held nearly a year in work release for something that a judge said Tuesday was not even illegal. "You were incarcerated for a case that was not a crime," said Mesa County District Judge Brian Flynn, who presided over the case. Flynn, the prosecutor and Isaac's defense attorney were unaware last year that the offense she was charged with was not a violation of the law. No one had noticed that a prescription drug found in Isaac's possession, an anti-anxiety medication called Buspirone, is not a controlled substance. ... District Attorney Pete Hautzinger said he had "no idea" why Isaac had been charged with and convicted of something that wasn't a crime. The defense attorney who represented Isaac in the first case was also baffled. "I don't have an answer," assistant public defender John Burkey said. "Nobody caught it. The police were saying it was a controlled substance." (Source quoting from and citing an article I read and confirmed the story from in the Rocky Mountain News, a now defunct newspaper. Corroborated here.) Incidentally, even though this woman was horribly wronged because of this wrongful conviction, the prosecutor and judge had absolute immunity from civil liability for the wrongful conviction, and criminal liability requires knowledge that you are committing a crime. The government likewise had no duty to compensate her for her wrongful incarceration because her rights weren't intentionally violated by anyone as required by civil rights statutes. She may have had a claim for legal malpractice against her own lawyer, for which negligence can be a basis of liability. Even that would have been a difficult case to win, however. This is because she would have to show that the public defender violated the standard of care of a reasonable lawyer by relying upon law enforcement's claim that a substance was a chemical banned by the controlled substances act which is a question of fact upon which expert witnesses could reasonably disagree. There is nothing in the public record to show that she pursued such a claim, but a private settlement reached before the case was filed wouldn't be revealed in that way. So, it is possible that a private settlement was reached in a legal malpractice case against her public defender that never actually resulted in a case being filed in court. | Yes though usually adverbs are not subject to statutory definition, so case law resolves most interpretive questions. But, 18 USC 1515: (b) As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information. The Model Penal Code defines a number of adverbs: this is applied in Kentucky. |
Can I ask for a Judge Trial - UK In the UK, at least by my understanding, most trials are heard in a magistrates' court without a jury. Only the most serious crimes are heard in the Crown Court and require a jury verdict. However, if I were being tried for a serious crime, say murder, and I don't trust the intelligence of the general public, could I request that my case be decided purely by a judge? Given the right to a jury trial is supposedly a right, surely one should be able to waive it? | There is nothing (that I can find) that allows for a defendant to elect for a trial without a jury in the Crown Court but such trials are possible, if there is evidence of jury tampering, under section 44 Criminal Justice Act 2003: [...] (2)The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. (3)If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application. (4)The first condition is that there is evidence of a real and present danger that jury tampering would take place. (5)The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. [...] Althought the 2003 Act applies throughout to united-kingdom, there are also special provisions for terrorism-related trials in northern-ireland at section 1 Justice and Security (Northern Ireland) Act 2007: (1)This section applies in relation to a person charged with one or more indictable offences (“the defendant”). (2)The Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant (and of any person committed for trial with the defendant) is to be conducted without a jury if— (a)he suspects that any of the following conditions is met, and (b)he is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. (3)Condition 1 is that the defendant is, or is an associate (see subsection (9)) of, a person who— (a)is a member of a proscribed organisation (see subsection (10)), or (b)has at any time been a member of an organisation that was, at that time, a proscribed organisation. (4)Condition 2 is that— (a)the offence or any of the offences was committed on behalf of a proscribed organisation, or (b)a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence or any of the offences. (5)Condition 3 is that an attempt has been made to prejudice the investigation or prosecution of the offence or any of the offences and— (a)the attempt was made on behalf of a proscribed organisation, or (b)a proscribed organisation was otherwise involved with, or assisted in, the attempt. (6)Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons. And, for completeness, section 43 of the 2003 Act is prospective legislation (i.e. not in force) for certain fraud cases to be conducted without a jury due to the complexity and/or length of the trial. | 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. | Unless you are an ambassador or one of the US states, SCOTUS doesn't have original jurisdiction over your lawsuit, so they can't hear it either. If you've named all the judges of all the courts that do have jurisdiction, then one of them will handle it anyway, under the doctrine of necessity noted before. For cases that do fall within the Supreme Court's original jurisdiction, a jury trial is theoretically possible, but it appears it has not occurred since the 1790s, and only one has surviving records: Georgia v. Brailsford in 1794. See "Special Juries in the Supreme Court" by Lochlan F. Shelfer, Yale Law Journal 123:1, 2013-2014. Otherwise, non-jury original jurisdiction cases are usually delegated to a special master, a sort of "contract judge" who hears all the evidence and recommends a judgment that the full court typically rubber-stamps. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | My understanding is that defendants in Britain have to prove statements true by the preponderance of evidence, whereas in the U.S. the standard of evidence is "compelling" (a lower standard). This is not the case. Preponderance of the evidence can still be the burden of proof in the United States (in a civil libel case, although it must be proof beyond a reasonable doubt in a criminal libel case). But, the difference is in what has to be proved. In Britain, it appears to be necessary to show that the statements are true in order to prevail. In the U.S., it is merely necessary to show in a case like this one (because it involves a matter of public concern) that the statements were made with knowledge that they were false, or with reckless disregard to the truth or falsity of the statements made. A factual basis for believing the statements made to be true is a defense if the basis is at all reasonable, and is a complete defense if the factual basis for making the statement is disclosed and that is true or believed to be true by the speaker. It is not necessary for the statements to actually be true under U.S. law in a case such as this one, although actual truth is also a defense, which is not the case in all circumstances in U.K. law, and was not the case under the historical common law. Historically, defamation claims could be brought for statements critical of the monarch, for statements pointing out the natural infirmities of someone for example by mocking a person with low IQ, or for speaking ill of the dead. Furthermore, the U.S. has a variety of doctrines that make it hard to find that a false statement was made in the first place. For example, statements of opinion are not actionable and many of the alleged falsehoods in the McLibel case would be considered to be statements of opinion in U.S. law rather than statements of fact. Similarly, U.S. law does not require that statements be literally true, and instead recognizes that a defendant may have been engaged in using hyperbole, or may have gotten the gist of the accusation right even though strictly speaking the exact statement made is not technically true (e.g. someone might say that a company paid a "penalty" when it actually paid a settlement amount in a lawsuit seeking a penalty or paid an amount representing compensatory damages only rather than a penalty amount). In the same vein, it must be clear from the context of the statement that the person making it intended it to be received as a truthful account and not a mere parody or satire which was intended to be understood as false. For example, I couldn't sue someone who made a knowingly false statement that I assassinated King George V, who died several decades before I was born, or that I was telepathically controlling my uncle because I had a space alien parasite in my spine. Those claims are so absurd that they would be inferred to intended to be fictional on their face. Certain kinds of falsehoods (e.g. lying about one's military record in a a political campaign) are simply not actionable as a matter of law, no matter what, as the harm is not concrete enough. There is not, however, necessarily a defense under U.S. law to defamation liability if the defendant said many things that were true, but something else that would be defamatory in isolation. For example, even if everything else were true, if the defendant had also stated that the CEO of the Plaintiff was convicted of leading a Nazi concentration camp and killed millions of people, which would have been possible given the CEO's age, knowing perfectly well that the person with a similar name to the CEO who did so was someone else who died an untimely death decades ago, that statement might be defamatory and actionable (at least by the CEO personally and probably by the company if it was alleged that he was hired despite the fact that the company was aware of this circumstance). | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | These questions are typically left to the discretion of the judge in whose courtroom the presentation is happening. It is very common to see these types of devices in trial courts, but they are much less common in appellate courts, and I doubt you'd ever see one in the United States Supreme Court, where the arguments are essentially limited to oral presentations. | It is the jury's job to evaluate the credibility of the witnesses, and it is the judge's job to inform them of that responsbility. It is not appropriate, however, for the judge to indicate to the jury what answer they should come to on those questions. In Quercia v. United States, 289 U.S. 466 (1933), the defendant in a drug case took the stand to deny the charges. Before the jury went to deliberate, the judge made the following observation: I am going to tell you what I think of the defendant's testimony. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don't know, but that is the fact. I think that every single word that man said, except when he agreed with the Government's testimony, was a lie. The jury convicted, but the U.S. Supreme Court reversed, holding that the instruction was an error. It said that the judge has the right, generally speaking, to comment on the evidence, but that right is not unlimited, because juries are likely to be swayed by the judge's assessments, even if he instructs them to make their own decisions: The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence should be so given as not to mislead, and especially that it should not be one-sided; that deductions and theories not warranted by the evidence should be studiously avoided. The comment you seem to be imagining is a closer call than this, but I think most judges would agree it would be inappropriate. At a preliminary hearing, though, where there is no jury, there is no real problem with the judge making that comment. If I were the defense attorney, I'd be glad he did, as it would help inform my decision about whether to pursue a jury trial or a bench trial. |
Can co-parents-in-law marry? For example, a husband's father and a wife's mother Edit: Wait...can step-siblings marry actually? In the The Simpsons episode, Lady Bouvier's Lover, Marge's mom dates Homer's dad. Here, Homer and Marge are characters who are married. If he marries your mother, Marge, we'll be brother and sister! And then our kids, they'll be horrible freaks... with pink skin, no overbites and five fingers on each hand! In the How I Met Your Mother, The Over-Correction, Lily's dad dates Marshall's mom. Here, Marshall and Lily also are characters who are married. So, we, um we just wanted to say that we're sorry for the way that we acted when we found out about you two. Your happiness is what is most important, so, if you two want to date, it's okay by us. Who said anything about dating? This is just about sex. We're family with benefits. 2 questions Generally, co-siblings-in-law can marry, so Homer's brother could marry Marge's sister. But generally, could co-parents-in-law marry? This question might be specific to a location, so if need be I choose the US. If I need to be more specific, I choose New York, the setting of How I Met Your Mother. The thing is, if this were legal, that is step brothers and step sisters cannot marry but co-parents-in-law can marry even if it would make their respective married children step-siblings, then I think there seems to be a loophole: If A and B are widows and dating each other and their respective children C and D are dating, then it's allowed for C and D to first be married and then for A and B to be married, BUT the reverse order isn't allowed? What logic. Let me clarify: The spirit of the law I believe is for C and D to not be both step-siblings and married. The letter of the law prevents marriage if they are already step-siblings but does not prevent them becoming step-siblings by their widowed parents' marriage if C and D are first married. There's no issue here if the spirit of law is actually to prevent "step-sibling then married" and doesn't really care about "married and step-sibling", that is, doesn't care about "married then step-sibling". I guess such a marriage of A and B would be something like not incestuous by itself but would imply an incestuous marriage namely of C and D. So an indirectly incestuous marriage is I believe a loophole based on my belief of the spirit of certain marriage laws. I could not seem to find any question like this online except this. What are the keywords here? I think something about consanguinity? I don't believe this is location-specific. | The question is definitely specific to a jurisdiction. I think this is legal in the jurisdiction you specify. Wikipedia shows incest in New York defined as: Persons known to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. I don't think "our children have married" means the couple is related "as brother and sister through marriage". In England and Wales, this would definitely be legal. Wikipedia lists the relationships that cannot marry, and co-parents-in-law are not on the list. (The table is probably out of date, in that the "for men" and "for women" column should almost certainly be merged.) | I think it is not possible to answer the question as is, but this document from the Indian courts lays out the relevant legal variables. A major split is between Sharers and Residuaries: a Sharers are all related by blood. A secondary split relates to testate vs. intestate succession (was there a will?). There are also special rules for West Bengal, Chennai and Bombay. A widow is generally entitled to a share of her husband's property, but if the husband dies before his father, the husband does not have his father's property. But then, if a Muslim marries under the Special Marriage Act, 1954, they are not treated legally as Muslim for purposes of inheritance. All told, it is most likely that the widow has no legal claim on the property, but still a person should engage an attorney who can assess the particulars of the case. | In New Mexico, where Better Call Saul is set, N.M. R. Prof'l. Cond. 16-505 prohibits an attorney from employing a suspended or disbarred attorney as a law clerk or paralegal only if there is an order from the New Mexico Supreme Court or its disciplinary board prohibiting that appointment. I don't believe the show ever indicates there was such an order. Other states have different rules. Some prohibit this type of activity altogether, while others permit an attorney to continue as a paralegal while suspended, but not after being disbarred. I believe some states merely require that the attorney disclose that she is using the services of an attorney who is under discipline. | tl;dr Spouse before adult child. Patient’s designated surrogate, and court appointed guardian, before both. Assuming your mom does not have an advanced directive or has not designated a proxy, then her husband would come before you. He can ask whoever he wants and in fact he should get the information he can to determine what she would want. The standard is what the decision maker believes the patient would want, not necessarily what the decision maker wants. For example, if the patient has for as long as anyone can remember said repeatedly “I’m not dying hooked up to machines- when the time comes, let me go.” And the next of kin is of the “try whatever is possible to try” mindset, they should still go with what they believe the patient wants. This can be very hard in real life. In Florida, the decision to withhold (e.g. DNR) or withdraw must be with evidence that that is what the patient would want or is in her best interests. You may recall this coming up in the Terry Schiavo case- husband (who was also court appointed guardian) takes precedence over parents, but parents challenged his decision in court. Florida law laws out the order: 765.401 The proxy.— (1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection; (b) The patient’s spouse; (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient; (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or (g) A close friend of the patient. (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider’s bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient’s care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. (2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. (3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest. | 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. | Attorneys are normal officials (Beamte), so the laws about officials apply to them. So e.g. for North Rhine-Westphalia (there are similar laws in the other states) § 47 Gesetz über die Beamtinnen und Beamten des Landes Nordrhein-Westfalen (Law about officials of the state North Rhine-Westphalia): (1) Beamtinnen und Beamte sind von Amtshandlungen zu befreien, die sich gegen sie selbst oder Angehörige richten würden, zu deren Gunsten ihnen wegen familienrechtlicher Beziehungen im Strafverfahren das Zeugnisverweigerungsrecht zusteht. (1) Officials are to excuse of official actions, that are against them or their relatives, if they have the right to refuse to testify against them in criminal proceedings. (my bad translation) These relatives are according to § 52 Strafprozessordnung (Code of criminal procedure): fiancée, spouse (even ex-spouse) and any "person who is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree." So attorneys do not have to prosecute their relatives. In some (but not all) German states this is not only a right of the attorney, but they are forbidden to perform official actions in processes against their relatives. So e.g. in Saxony-Anhalt, § 14 I n. 2, 3 Ausführungsgesetz des Landes Sachsen-Anhalt zum Gerichtsverfassungsgesetz (Law of the state Saxony-Anhalt to implement the Courts Constitution Act) Ein Beamter, der das Amt der Staatsanwaltschaft ausübt, darf keine Amtshandlungen vornehmen, wenn er [...] Ehegatte oder Eingetragener Lebenspartner, Vormund oder Betreuer des Beschuldigten oder Verletzten oder einer Partei ist oder gewesen ist; mit dem Beschuldigten, dem Verletzten oder einer Partei in gerader Linie verwandt oder verschwägert, in der Seitenlinie bis zum dritten Grade verwandt oder bis zum zweiten Grade verschwägert ist oder war; [...] An official, who exercises the office of a prosecutor, is not allowed to perform official actions, if he is or was [...] the spouse or registered life partner, guardian or legal curator of the accused or of the injured or of a party; lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused or to the injured or to a party; [...] (my bad translation) | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | After you are married, your husband will have to petition the US government for you to immigrate to the US. He can also petition for your children to accompany you because they are younger than 21 years. See https://my.uscis.gov/exploremyoptions/petition_for_spouse for more information: A U.S. citizen can file a petition for his or her foreign-born spouse and, under certain situations, the children of the spouse. The U.S. citizen will have to establish the family relationship with the spouse by filing a Form I-130, Petition for Alien Relative. The U.S. citizen may also file a separate Form I-130 for a child of his or her foreign-born spouse if the child is unmarried and under 21 years old. When the petition is submitted, the U.S. citizen petitioner is required to provide evidence to prove his/her relationship to the foreign-born relative. If the petitions are approved, you and your sons will then be able to apply for immigrant visas (if you are outside the US) or for adjustment of status (if you are in the US). |
Influence of Scots Law outside Scotland (especially in the US) The United States legal system is largely based on Common Law, although some systems (e.g. Louisiana) have elements based on European Civil Law. However in the United Kingdom there is another interesting system with its own traditions, procedures, terminology – Scots Law (Scottish Law). I wonder if there is any significant influence of Scots Law anywhere outside Scotland itself, particularly in the US? Are there any elements in any US legal system, or parts of it, that can be traced to Scots Law? | united-states I really can't think of any influences of Scots Law on U.S. law. In all of the areas where I know Scots law to be distinctive vis-a-vis English common law, the U.S. has not followed the Scots law model, and I have never seen a Scottish precedent cited in a court opinion in the U.S. while I have seen many English ones cited (with one narrow exception noted below). For example, while the Scots Law concept of a criminal trial verdict of "not proven" rather than "not guilty" has been discussed by academics and policymakers, to the best of my knowledge, no U.S. jurisdiction has adopted a "not proven" verdict option. Two U.S. states experimented with non-unanimous verdicts, something that U.S. law has since disavowed, but so far as I know, this decision was not borrowed from Scottish practice. In Louisiana, it was a calculated strategy to make it easier to convict black defendants after slavery was abolished. No U.S. jurisdiction has ever had petite juries of 15 in any kind of case. Scotland and the U.S. are now aligned in being jurisdictions that have jury trials of ordinary personal injury cases, something that very few countries do, but in the U.S. case, the right to a jury trial in personal injury cases flows from English law practice that England later modified while the U.S. did not, rather than from copying Scots law. Scotland still has many common law crimes, which U.S. jurisdictions are in the final stages of completely abolishing (most have done so, but there are a few partial stragglers). Similarly, U.S. criminal law, unlike Scots Law, has never required corroboration for a criminal conviction, although, of course, it is desirable to have it if possible. The Scottish Court system has much more specialization of court jurisdiction than almost all U.S. jurisdictions do, although U.S. jurisdictions vary in the extent to which they have specialized courts, and of course, no U.S. jurisdiction has had religious courts since the early 1800s before the church was disestablished in New England. While the U.S. merged law and equity for the most part, as did most common law jurisdictions, the distinction still has a significant residual effect that differs from Scots law which never fully separated the two. Equity is still taught as a distinct elective class in many U.S. law schools to this day. Perhaps the only area I can think of where there has arguably been some borrowing from Scots Law has been in the jurisdiction and choice of law analysis applied to marriage and divorce questions. It used to be easier to get married in Scotland than in England, and in cases of parental or religious opposition, couples sometimes went to Scotland to get married and left courts to sort out whether that was legitimate after the fact. This is an area where U.S. case law sometimes referred to how those issues were resolved in the cases of disputes over whether English or Scottish laws related to marriage formation and marriage dissolution should apply. I don't know the law of mineral rights well enough to describe the provenance of some of its doctrines accurately, but there are some similarities between the Scottish concepts applicable to the structure of mineral rights, when they are reserved in a patent from the sovereign of the surface rights to property (as many key mineral rights in Scotland were starting in the early modern period), that may have some Scots Law influence. The lack of Scots Law impact on U.S. law despite significant Scottish immigration to the U.S. is to some extent a function of U.S. immigration history. Scottish immigration that was early enough to have an impact on the legal system's larger outlines was mostly "Scotch-Irish" (i.e. Protestants from the Scottish borderlands, often traditionally herders or subsistence farmers, who were ancestral to the current Irish Protestants of Northern Ireland), who were lower to middle class, who engaged mostly in rural subsistence farming in Appalachia and the rural American South, and were not prominent in commerce and were subordinate to an English elite (the Episcopal Church of English origins has always a higher socioeconomic status church in the U.S. than the Presbyterian Church which has Scottish roots). By the time middle class Scottish people engaged in commerce and inclined to participate in formal law and politics arrived in the U.S., a wave of migration reflected in the American West mostly from the mid-1800s as part of the gold rush and homesteading movements, the die was largely already cast with respect to major framework level issues in the U.S. legal system. The map below partially obscures this history to some extent, however, because many people with Scotch-Irish ancestry now identify for census purposes as "American." Many anthropologists attribute the "culture of honor" of the American South and Appalachia to a Scotch-Irish ancestral source, and this culture of honor surely did influence the character of various U.S. legal doctrines and legislative developments in the U.S., but it did not involve direct borrowings from Scots Law, and indeed, it can be seen as deriving from a subculture of people for whom formal legal institutions in Scotland were sufficiently weak in practical application that they had little impact on their lives. Honestly, if I had to hazard a guess, I would say that there have been more borrowings from Australian legal innovations (especially in probate and real property), and from civil law systems (for example, the law of good faith and fair dealing, and the law of unjust enrichment), than there have been from Scots law. I would be happy to be corrected if someone is aware of a counterexample, however. | The source of the power of the United States government to do the things that it does are the people themselves. (United States Constitution) The people have decided on three branches of government (judicial, executive, and legislative). The expression of the will of the people through these three branches of government results in the government having authority to enforce laws within the borders of the United States. It is not through any contract, agreement, certificate, registration, or other that you come under the jurisdiction of the United States, but simply by your presence. (There are some limited exceptions for foreign diplomats and tribal sovereignty.) | It's complicated, to say the least. A good starting point is the Wikipedia page on the Law of India... India maintains a hybrid legal system with a mixture of civil, common law and customary, Islamic ethics, or religious law within the legal framework inherited from the colonial era and various legislation first introduced by the British are still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. ...and identifies: Constitutional and administrative law (with the Constitution, in various languages, found here) Criminal law Contract law Labour law Company law Tort law Property law Tax law Trust law Family law and personal law Nationality law For researching specific legislation, the India Code site is a comprehensive "Digital Repository of All Central and State Acts" and contains searchable legislation for all the above areas. And then there's the Indian Kanoon with a large amount of caselaw from court and tribunal decisions. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. | 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. | It is certainly true that different states who share a Head of State can have different succession rules. Thus William IV of the United Kingdom was also King of Hannover. The UK allowed female succession, so Victoria was Queen of the United Kingdom; Hannover didn't, so he was succeeded by Ernest Augustus there. At the moment, all the Commonwealth Realms of which Elizabeth is Head of State have the same rules of succession. They all changed the rules regarding whether a first-born girl would be heir apparent together. They could decide to have different rules of succession, but they probably won't. | The Magna Carta acted as an origin of many legal concepts of today, includng the English, and thus US, common law system. It clearly affected the Founders' views of government and was instrumental in creation of the US constitution. But no provision of the Magna Carta would be considered on its own to be valid US law. |
U.S. Code and the Supremacy Clause The 18 U.S. Code § 1111 punished first degree murder by death Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The US code is a federal law, isn't it? Now Article VI, Clause 2 of the US Constitution, the "Supremacy Clause", says that [...] the Laws of the United States [...] shall be the supreme Law of the Land [...] and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This should imply that every state of the land should punish murder by death, no? How there can be States without death penalty? | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. | Clearly, British laws against e.g. murder, theft, fraud, and most other crimes were received into state law because those matters are under the jurisdiction of the states. States (and also to some extent federal criminal statutes) received British common law definitions of various crimes and defenses, but not British penal statutes (which often didn't define those crimes in the late 18th century). The statutory law of Britain did not apply as U.S. law at either the state or federal level upon the U.S. Declaration of Independence, except in isolated cases where a state, or the federal government expressly adopted it by reference in their own statute. The existence of British law, both statutory and through case law, informs how the U.S. common law was understood (something that was predominantly a matter of state law) and how concept in the U.S. Constitution, U.S. federal statutes, and state constitutions and statutes were understood (especially when terms from British statutes are used in a similar matter in U.S. state and federal statutes and constitutions). But, British statutes did not have direct force and effect in the U.S. after independence. As much as anything else, this simply reflect how the nature of statutes v. common law was understood in the late 18th and early 19th century. Nobody expected that British statutes would be directly applicable, so they weren't. There may have been instances where common law rules actually had their roots in British statutes that were mostly forgotten in long layers of British common law case law, and many statutes expressly adopting British case law also expressly incorporate selected relevant British statutes of generally applicability. But, no British statutes were applicable "automatically" in the U.S. For example, before Congress enacted the Naturalization Act of 1790, would a person born outside the US to a US citizen father have been a US citizen by dint of the US "inheriting" the British Nationality Act 1772 mutatis mutandis? No. Basic ways of thinking about what nationality or citizenship even was or meant would have been received, but not by receiving the British Nationality Act 1772 as U.S. law. And before Congress enacted the Crimes Act of 1790, would an American who levied war against the US, gave aid and comfort to its enemies, or counterfeited US currency have been convicted and sentenced under the Treason Act 1351? Not really. From the adoption of the Declaration of Independence on July 4, 1776 until the adoption of the Articles of Confederation on June 11, 1777, as a practical matter, the revolutionary forced had very little actual control of the courts in an enforceable way, there was an insurgency against the British underway, and it was an ad hoc effort from day to day and month to month that was muddled through without a formal structure or guidance at a colony by colony level, or even more granularly within a colony. In the period from June 11, 1777 until the new U.S. Constitution was implemented in 1789-1790, under the Articles of Confederation, the situation was fluid and irregular. State governments made most statutory and common law, adopting their colonial era colonial statutes but not necessarily British statutes that their local legislature didn't adopt. Central government laws usually acted on the states, not directly on individuals, much like treaties today. There was little or no directly applicable central government legislation. Many topics, like citizenship, were simply ignored in this era. The U.S. Constitution adopted in 1789, and the initial acts of the First Congress to implement it, were a response to the realization that after the war and its immediate aftermath had settled down, that the newly formed country needed to regularize, institutionalize, and deal with a lot of governance issues and legal questions that nobody had had the time or resources or authority to deal with while a war had been going on. For much of this time period the Revolutionary War was in progress and it wasn't always obvious who even controlled the courts or had practice authority to enforce court judgments. The Revolutionary War was not concluded until 1783. It was an improvisation at first, and not necessarily a uniform one, since the Articles of Confederation conceived of the U.S. as many countries in an alliance with each other rather than an actual single nation that had to address legal issues uniformly. Prior to the establishment of the federal court system under the U.S. Constitution of 1789 that remains in force, the only institution of the central government was Congress and its committees, which functioned as a legislative body, a body selecting people with executive authority, and as a court of last resort from state court judgments. Everything was carried out at the state level except for courts-martial. Structurally, the Articles of Confederation were a fused system, akin to the U.K. Parliament which had its highest court of appeals and its prime ministership fused with the legislative authority of parliament, layered on top of 13 separate sovereign state governments. | In the specific example you have given, Florida law could not be applied. A state has jurisdiction over a crime under constitutional due process limits on the scope of a state's criminal jurisdiction if the crime is either committed within the state (regardless of where the harm occurs) or is directed at or impacts the state (the classic example is a gunshot fired from the Ohio side of the state line killing someone located in Indiana, which could be prosecuted in either state, or in both states as it doesn't violate double jeopardy to be prosecuted for the same offense by more than one sovereign). Sometimes these issues are framed not as "jurisdictional" per se, but as "conflict of law" questions limited by the constitution. The proof that a crime was committed in the territory where it is applicable is called proof of locus delecti and depends upon the nature of the crime alleged and the location of the act or acts constituting it. To determine where a crime is committed depends on what acts constitute the crime, something that leaves considerable room for flexible interpretation and a careful reading of the exact wording of the relevant criminal statute. The most important limitation on the territorial jurisdiction of a U.S. state is the Sixth Amendment to the United States Constitution. This applies directly in the case of federal criminal prosecutions in the federal courts, and applies in state courts because it is incorporated to apply in state court cases through the due process clause of the Fourteenth Amendment to the Constitution of the United States under 20th century case law applying the "Selective Incorporation doctrine." The Sixth Amendment mandates that criminal trials be conducted “by an impartial jury of the State and district wherein the crime shall have been committed.” If a suspect is not present in a state to be criminally prosecuted, then the options available to a state are (1) to toll the running of the statute of limitations while the suspect is outside the state to the extent permitted by the relevant state statute and the U.S. Constitution, (2) to bring a civil lawsuit against the suspect instead of a criminal prosecution, or (3) to seek extradition of the suspect, which must be granted under certain circumstances under the United State Constitution and reads as follows in the pertinent part: Article IV, Section 2, Clause 2: 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. (Note that the Sixth Amendment does not apply to civil lawsuits. Civil lawsuit trials can be conducted in a state other than the state where the breach of contract or tort giving rise to the lawsuit took place for jurisdictional purposes and not infrequently is brought in another state, although constitutional choice of law rules limit the circumstances under which a particular state's laws can be applied to a particular set of circumstances in a lawsuit.) The Sixth Amendment, on its face, prohibits Florida from prosecuting a case in the example given in the question involving a crime that was committed solely in Washington State. Of course, the exact definition of the crime might determine where it was committed. In traditional "common law" "blue collar" crimes there is usually no ambiguity over where it is committed except in the most extraordinary circumstances, but in prosecutions of conspiracies and crimes involving economic activity (such as owning or mailing something), the question of where a crime is committed can grow much fuzzier. For example, one could imagine a differently defined crime prohibiting providing funds to finance a purchase of marijuana in excess of 20 grams being committed both in Washington State and Florida at the same time (e.g. perhaps a purchase of marijuana in Washington State was financed by a Florida bank by delivering cash to a courier in Florida who is bound for Washington State knowing that the cash would be used to finance a marijuana purchase). Similar ideas apply in international circumstances where the Sixth Amendment and Extradition Clause do not apply. But, in those cases, the more flexible and less well defined "law of nations" as interpreted by Congress and the U.S. Supreme Court and the President still does impose some territorial boundaries on prosecutions for actions which are not crimes in the country where they are committed under that country's domestic laws. But, those boundaries are not so hard and fast and the idea that a crime is committed in places where it has an impact allow for considerable flexibility in prosecuting crimes committed outside the United States. It has also been well settled since the earliest days of the United States that "The courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 Wheat.) 66, 123 (U.S. Supreme Court 1825) and that this applies to states applying each other's penal laws as well. So, Florida cannot enforce a violation of the criminal laws of Washington State in its courts either. If you get in a bar fight in Seattle, you can't be prosecute for assault in a court in Orlando, even if both of the parties to the bar fight were Orlando residents and U.S. citizens. Some notable cases resolving the question of whether locus delecti is present in a particular case include the following: In Hyde v. United States, 225 U.S. 347 (1912) although none of the defendants had entered the District of Columbia as part of their conspiracy to defraud the United States, they were convicted because one co-conspirator had committed overt acts in Columbia (225 U.S., at 363). So conspiracy is a continuing offense committed in all the districts where a co-conspirator acts on the agreement. Similarly, In re Palliser, 136 U.S. 257 (1890) the sending of letters from New York to postmasters in Connecticut in an attempt to gain postage on credit, made Connecticut, where the mail he addressed and dispatched was received, an appropriate venue (136 U.S., at 266—268). A typical state statute on the subject from Colorado's Revised Statutes (2016) is as follows: § 18-1-201. State jurisdiction (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Case law under this statute sometimes describes the issue presented under this statute a question of "sovereign jurisdiction." See, e.g., People v. Cullen, 695 P.2d 750 (Colo. App. 1984). | No. The language in question dates from when "felony" denoted a much more serious class of crimes than it does today; traditionally, "felony" essentially meant "capital crime." Since then, California courts have narrowed the clause's meaning through caselaw. Incidentally, the provision in question appears in multiple state penal codes (it was a traditional common-law rule), and they have all restricted its meaning. In 1961, a California appeals court considered this issue in People v. Jones (191 Call. App. 2d 478). The court ruled that It is true that Penal Code, section 197, subdivision 1, does provide that homicide is justifiable when resisting an attempt to commit a felony. But the section does no more than codify the common law and should be read in the light of it. Taken at face value, and without qualification, it represents an oversimplification of the law today. The authorities generally rely on Blackstone for the earliest expression of the rule. He rationalized it in terms of no killing being justified to prevent crime unless the offense was punishable by death. (4 Blackstone's Commentaries, pp. 180-182.) But in those days all felonies were capital offenses. Perhaps the leading American case on the point is Storey v. State, 71 Ala. 329, 336-341, where the early law is reviewed and rejected, and the application of the rule limited to the commission of felonies that involve a danger of great personal harm, or "some atrocious crime attempted to be committed by force." This limitation is today generally recognized. This case involved a violent felony (wife-beating), but it was a felony because the legislature wanted to punish what would otherwise be misdemeanor assault more seriously in a domestic setting. As such, The punishment provided by a statute is not necessarily an adequate test as to whether life may be taken for in some situations it is too artificial and unrealistic. We must look further into the character of the crime, and the manner of its perpetration (see Storey v. State, supra). When these do not reasonably create a fear of great bodily harm, as they could not if defendant apprehended only a misdemeanor assault, there is no cause for the exaction of a human life. | Congress could start by repealing the The Antiterrorism and Effective Death Penalty Act of 1996. Afterwards Congress could draft a new law that gives prisoners, sentenced to death, a right to appeal to the Supreme Court. Currently, the Supreme Court chooses which cases it reviews, this law would force the Supreme Court to review each death penalty case. Congress could also mandate that an automatic stay of execution would be issued upon appeal. Then Congress could mandate that such a stay continue until a petition for rehearing is denied. Then Congress could make another law saying that any argument not raised in a lower court is not waived when it is not raised in an appeal. Additionally, it could allow the defendant to appeal each issue one at a time and declare that a stay must be issued for each appeal. In brief, the above would indefinitely postpone any execution for the whole foreseeable future. Let's say the above is not enough. Congress could first off prevent any further appeals when the defendant prevails in any level. For example if the defendant wins an appeal at a state Supreme Court, congress could prevent appeal to the federal Supreme Court. Next, Congress could also delay collateral attacks on the conviction by turning writs of Habeas Corpus proceedings into second trial by adding some clause that if the respondent to the writ does not establish beyond a reasonable doubt that the petitioner committed the crime from the evidence heard during the proceeding, the writ shall be issued, which essentially means the defendant's original trial is invalidated. In brief, Congress could make it financially impossible to handle appeals of death sentences for states, while providing funds for the defendants sentenced to death. Congress could also add so many procedural safeguards that postpone hearings for a duration much longer than a person's expected lifetime. | If you want to sue them, you should start with the US Constitution (as a model), in particular the Free Exercise clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The question is whether one could overturn homicide statutes on the grounds that an individual holds to traditional beliefs that a human sacrifice is required every few months. Or, is it an unconstitutional prohibition of the Mormon belief in polygamy to outlaw polygamy, see Reynolds v. US, 98 U.S. 145. The court held that the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Observe that a religious exception to the law would be unconstitutional, as establishing religion as a means of gaining extra rights. The reductio ad absurdum of the unfettered religious-belief excuse is: Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. The "wall of separation" was modified more recently in the 60's and 70's. In Wisconsin v. Yoder, 406 U.S. 205, the issue was compulsory education imposed on Amish children, where higher education was held to be antithetical to the Amish doctrine of a simple life. The court rules that The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children and especially it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish There were additional holdings pertaining to the legitimacy of the purported belief (that is, is there really such a doctrine – clearly yes). You might have better luck purporting to be a Rastafarian or Hindu, so I will set aside that complication. The core question will be whether the government has a "compelling interest" in the restriction, also whether the restriction is narrowly tailored. In the case of Sherbert v. Verner, 374 U.S. 398, Sherbert's employer required her to work 6 days a week (a change in policy during her time of employment), which she refused to do (as a member of SDA) and was fired. Sherbert was denied unemployment benefits because the firing was for cause. The court ruled that Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. and There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Employment Div. v. Smith, 494 U.S. 872 brings us to the neighborhood that you are interested in living in. The relevant detail is that Smith (and Black) were fired for ingesting peyote in connection with a ceremony at a Native American church. The court ruled that The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use To be more precise, Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. We can contrast this with Lukumi v. Hialeah, 508 U.S. 520. The city of Hialeh passed an ordinance forbidding animal sacrifice, specifically to suppress the Santeria church. The Supreme Court said, no, you may not do that: Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied ... The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. At least so far, restrictions on drug use have not been overruled as conflicting the the Free Exercise clause, although if e.g. Washington state were to prohibit Mormons from purchasing marijuana (where others can), that would surely be struck down as unconstitutional. There are a number of other relevant developments, for example Congress passed the Religious Freedom Restoration Act in 1993, in reaction to Employment v. Smith, and that law statutorily mandating that strict scrutiny be applied to the question of whether a law violates the 1st: but this was ruled unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507. Then in Gonzales v. O Centro, 546 U.S. 418 (Schedule 1 tea for religious purposes), the court ruled that The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca which is to say, we have a case where the federal government was prohibited from enforcing a drug prohibition involving religion. A challenge of the type which you have in mind will surely also involve the question of the legitimacy of the purported religion, where UDV was founded in 1961 whereas one might suspect that your claimed religion is a pretext to smoke pot (hence the Rastafarian suggestion). The WWII era conscious objector cases held that the CO exception to military service is not limited to governmentally-approved religions, but as a general rule, the courts have not ruled that you can simply claim to have a religious belief which is being infringed on and thereby be excempt from the law. The basic issue would be whether either the US government of the state of Kentucky have a compelling interest in preventing the use of marijuana. The Kentucky Supreme Court does indeed recognize the concept of "strict scrutiny", so the case is not doomed from the start. | The double jeopardy clause would prevent you from being retried by the government that tried you for murder (probably a U.S. state). But, you could be tried for fraud and obstruction of justice at the state level, and you could be tried for murder if an appropriate federal offense were located, at the federal level. Often conspiracy to deprive someone of their civil rights is used as a federal offense when there is a state level acquittal, and it isn't impossible to imagine that happening in this case as the victim had a right to the protection of the laws, and the state had a right to enforce the criminal laws, which was deprived in a manner that could be called "under color of state law.' | This is an example of the so-called felony murder rule, in which the crime of murder is defined to include deaths related to a felony committed by the defendant. You'll note that the article actually uses the phrase "felony murder". See the Alamaba Criminal Code at 13A-6-2: (a) A person commits the crime of murder if he or she does any of the following: [...] (3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, aggravated child abuse under Section 26-15-3.1, or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person. It's interesting that "another participant" was apparently held to include the police officer. |
The Extent of the Supremacy Clause: Does it cover Executive Orders? DISCLAIMER: This references some current events as example cases, but this does NOT focus on those current events specifically, nor do I necessarily condone nor condemn any decisions made - to that end, please do not voice any opinions for or against the events referenced, as this focuses entirely on procedure and law, NOT the actual events themselves. The post here is focusing specifically on the powers of law and the Executive Branch, regardless of the situation. A discussion came up with myself and my father who is a lawyer discussing recent events and whether state laws that were put into effect can be superseded by an Executive Order of the President of the United States under the Supremacy Clause, but also some supreme court precedents of import. Currently, the only precedent to enforce fines and vaccine mandates (at a state level) that I am aware of is a 1905 decision by the Supreme Court, Jacobson v. Massachusetts (197 US 11 (1905)), where it allowed Massachusetts to fine an individual for refusing to comply with vaccine mandates set by the state. In current events, mask mandates have been a crucial point of contention in many areas, namely that certain states have written into law that mask mandates are not allowed to be made or enforced within the state. In discussion with my father, we both acknowledged that if the Federal Government and the Legislative branch wrote into law that a mask mandate was required for the duration of the ongoing pandemic of COVID-19, the Supremacy Clause would kick in, and all states that had anti-mask-mandate laws would immediately be superseded at the Federal Level, making their edicts null and void under the Supremacy Clause. However, we were discussing also whether this applies to Executive Orders, as in, if the current Presidency issued an Executive Order mandating that masks be work in public areas until the end of the pandemic, regardless of vaccination status or legitimate reasons for exemption (so a simple doctor note isn't enough, an actual diagnosis that would exempt mask wearing would need to be made), whether that would apply across the entire nation under the Supremacy Clause or not. As a result, the question is: To what extent does the Supremacy Clause apply in a state of nationwide emergencies such as the pandemic, and/or are Executive Orders covered under the Supremacy Clause in terms of states having to follow those orders regardless of their laws and mandates during a state of emergency/crisis/pandemic? | Overview An executive order cannot make new law. However, most executive orders are based on powers granted by law to the President, or to some executive agency or department. Others are based on laws that come under the general power and duty of the President to "take care that the laws are executed" and announce some policy for how laws will be interpreted and enforced. Announced mandates In the case of the mask and vaccine mandates announced but not yet issued by the Biden administration, they apparently claim to exercise powers granted under various laws, particularly the Occupational Health and Safety Act. It is likely that once such regulations are formally issued they will be challenged by those opposed to such mandates. If they are upheld, (or are somehow not challenged and thus assumed to be valid) they will carry the force of the laws under which they are issued, and thus the Supremacy Clause will apply to those laws, and to the orders as ways to enforce those laws. Other Precedents The question says: Currently, the only precedent to enforce fines and vaccine mandates (at a state level) that I am aware of is a 1905 decision by the Supreme Court, Jacobson v. Massachusetts (197 US 11 (1905)), where it allowed Massachusetts to fine an individual for refusing to comply with vaccine mandates set by the state. This is not quite correct. Jacobson is the leading case on this issue, but there have been some others. In Zucht v. King, 260 U.S. 174 (1922) the US Supreme Court held that a local ordinance mandating vaccinations for school attendance did not violate federal constitutional rights, citing Jacobson and calling the matter settled law. Note that the ordinance in Zucht applied to both public and private schools without exception. In Prince v. Massachusetts, 321 U.S. 158 (1944) the Supreme Court opinion included (at 166) the statement that: Acting to guard the general interest in youth's well being, the state, as parens patriae, may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare, and that this includes, to some extent, matters of conscience and religious conviction. (Emphasis added, footnotes omitted) Prince v. Massachusetts was a child labor case, not a vaccination case, and the above comment was technically obiter dictum (not binding precedent). But because of it Prince has several times been cited in later vaccination cases alongside Jacobson and to show that Jacobson is still good law. Note that Prince, like Jacobson and Zucht, was a case supporting state law against a 14th amendment challenge. Supremacy Clause An Executive Order that is not backed by any valid law would not be the "Supreme law of the land" under the supremacy clause, and might well be simply held invalid for lack of Presidential authority to issue it, depending on the subject of the order. But orders claiming to make law on the President's own authority are quite rare. Youngstown Sheet & Tube Co. v. Sawyer Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (the steel seizure case) invalidated such an order. In that case the President not only did not have the backing of a specific law, but failed to follow the procedures set out in a relevant law. In Youngstown Sheet & Tube Co. v. Sawyer the concurring opinion by Justice Jackson has proved influential in later cases and in later congressional drafting of laws. The key passage of that opinion starting at 343 U. S. 635 reads: Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class, because Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure ... Would a vaccine mandate or mask mandate that goes beyond any law passed by Congress fall into Jackson's "zone of twilight"? In the absence of a court ruling, no one can say. | If a law is struck-down as unconstitutional, but all the precedent used to find it unconstitutional gets reversed; what becomes of the law? In U.S. law, the law has effect again, unless it has been amended or repealed in the meantime. Is it totally dead, needing be passed anew? In the U.S., no. It is not totally dead. It is merely dormant. It stays on the books and legislators may decide not to repeal it as a political statement. It also might be considered for interpretive purposes when construing another part of the same law. For example, the meaning given to a phrase in an unconstitutional part of the law might be applied to a different part of the law that is constitutional. Can the judiciary be asked to reinstated, after which point it can be used again? In the U.S., any court can determine that a law is unconstitutional, but the extent to which that ruling is binding precedent on other courts or other parties than those to the case before it depends upon the court in question and upon the doctrine of collateral estoppel (a.k.a. issue preclusion). For example, the legal fight in the U.S. to hold bans on same sex marriage to be unconstitutional was fought in and resulted in ruling in dozens of courts at the trial court and state appellate court, and federal intermediate appellate court level before a uniform ruling was established by the U.S. Supreme Court. Further, even if the issue arises in another case where there is a controlling precedent, attorney ethics permit an attorney to make a good faith argument for a change in the law to any court, so if there is some good faith argument for doing so, the attorney can push that the issue be reconsidered. Of course, usually the answer from the court will be "no." Or can it just be enforced again without any formal process; so long as nobody sues and gets it killed again by a lower court? Sometimes government officials enforce laws that have been held unconstitutional, either because they aren't aware of the relevant court decisions, or because they think that their facts are distinguishable from those under which the law was held unconstitutional (which sometimes happens on an "as applied" basis rather than on a "facial" basis that applies to all cases), or because they think the judge before them might rule differently despite the precedent. Also, would the answer differ according to country? If so, could you please give me some examples of countries handling this differently. Yes. Many countries with legal systems based upon the legal system of countries of continental Europe like France and Germany and Spain, which are called "civil law" countries have a very different process of handling unconstitutional laws, as does the European Court of Human Rights and the highest court of the European Union. In Germany, for example, questions of the constitutionality of a law may be raised only in the Constitutional Court and not in other courts. This ruling is usually final. And, unlike U.S. courts, the Constitutional Court can rule a law unconstitutional during the legislative process, rather than in connection with an actual case or controversy relating to the law taking effect (in which case the law never gets on the books in the first place). I don't know what happens when the Constitutional Court declares a law unconstitutional. I do know, however, that in the case of the European Court of Human Rights and the highest courts of the E.U. that one of the usual remedies will be an order directed at a member state to amend its statutes to remove the offending law, with sanctions imposed if the member state fails to do so. Obviously, once such a law is repealed in this fashion, it would have to be re-enacted to take effect even if the precedent holding that the law was unconstitutional was undermined. | I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case. | The closest the Supreme Court has gotten to criminal liability for official acts seems to be Nixon v. Fitzgerald, 457 U.S. 731 (1982). There it addressed civil liability and held that the U.S. President "is entitled to absolute immunity from damages liability predicated on his official acts." It's unclear how the Justices would decide criminal liability for official acts. (Though some might argue that non-precedential logic in Fitzgerald suggests the Court could extend immunity to the criminal context as well.) As to homicide, murder and manslaughter are federal crimes. See 18 U.S.C. §§ 1111–1112. The latter involves the commission "of a lawful act which might produce death" "without due caution and circumspection." | The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers. | No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion. | 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. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. |
Would the federal decriminalization of marijuana under the MORE act supersede state-level criminal statutes? Bill in question I haven't been able to find a clear answer to this question. I'm aware that there exists the Supremacy Clause which says that state laws cannot contradict federal laws. Another way of wording this question is: would federally decriminalizing marijuana mean that state criminalization is contradictory? Prostitution for example is not a crime or even illegal under federal law, though it is a crime in almost every state. Given this example, it seems like marijuana would remain illegal under state law (if applicable), though I'm not confident about my intuition here. | If such a bill passes as written, it removes any federal criminal prohibitions against marijuana (assuming their research was sufficiently thorough), and raises marijuana to the same legal status as celery salt, which simply is not mentioned by federal criminal law. There would be no federal declaration that marijuana is now legal, and therefore, when federal law is silent, state law can say something. If silence at the federal level precluded state law on the topic, there could be not any state law – the Supremacy Clause only addresses conflicts. The bill could also be written to include a positive declaration that there shall be no laws against marijuana, and that would create a conflict with state law. Often, conflicts are avoided by crafting a jurisdictional difference, such as having laws that only apply while on federal property, or w.r.t. federal employees. The Constitution is structured to separate what the federal government can do versus what state governments can do, so that conflicts don't arise – however, the Commerce Clause ends up being used to expand federal power (e.g. the Controlled Substances Act). As Nate Eldredge comments, there is a huge difference between what is allowed under federal vs. (certain) state laws w.r.t. fireworks, and even town-to-town variations in fireworks laws. Numerous "professional" acts are completely legal w.r.t. federal law but are illegal at the state level. No federal law prohibits me from practicing as an attorney: it's state law that does that (likewise, being a cosmetologist or selling beer). | Arizona does not license chemists, though they do license pharmacists. There is a law against possession of drug paraphernalia, violation of which is a felony. The law also says In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following: Statements by an owner or by anyone in control of the object concerning its use. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any drug. The proximity of the object, in time and space, to a direct violation of this chapter. The proximity of the object to drugs. The existence of any residue of drugs on the object. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter. Instructions, oral or written, provided with the object concerning its use. Descriptive materials accompanying the object which explain or depict its use. National and local advertising concerning its use. The manner in which the object is displayed for sale. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise. The existence and scope of legitimate uses for the object in the community. Expert testimony concerning its use. The size of your equipment would be relevant in defending against such a charge; your publications in the field of chemistry would be relevant. The burden of proof is on the prosecution to show that you were using the glassware to make drugs. Paraphernalia is defined as all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a drug in violation of this chapter. so a garden shovel can be used to grow marijuana, but that is not enough. The prosecution has to prove that the items "are used, intended for use or designed for use" in drug making – not just that they could be so used. | Can a state declare: "any violence against insert a group here shall not be prosecuted," which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue? This would be a violation of the Equal Protection Clause. https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies goes into exhaustive detail on the topic of what may constitute an illegal abuse of selective enforcement. A key quote is highly relevant to your question: [T]he Constitution prohibits selective enforcement of the law based on considerations such as race. There is a lot of case law on this topic. This is frequently discussed in the context of race (especially profiling). | The Supremacy Clause. U.S. Constitution, Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis mine] This is also known as the "Supremacy Clause" of the U.S. Constitution. It prevents any law of any state from acting contrary to the federal constitution. A comment correctly cites multiple cases that use this clause, in part, as the basis for SCOTUS' authority to review State Supreme Court decisions. So in your hypothetical, the federal issue in play is the clarity of the federal constitution which supersedes state law. | LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | A state or local law enforcement officer cannot enforce federal laws unless the officer has been deputized by the federal government to do so. State and local law enforcement officers are sometimes deputized to enforce federal law, but this would almost never be done in the case of FCC regulations. | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. |
Why is the US allowed to print money? Article 1 section 10 paragraph 1 of the US constitution says No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. , yet the the US prints money. I heard that it is attempted to interpret laws the ways they were meant, especially old laws. To me, it seems obvious that it was meant like this: "There shall be no fiat money legitimized by a government (in the US [As the US constitution only applies within the US.])." So why can they legally print money? Basically: If it's illegal for all states to print money, why is it legal for the collection of all states? Or is it possibly that they wanted to prevent there to be several currencies within the US? But then, what would stop a county or town from establishing its own currency? Before you say something like "A county or town typically was too small for that, back then.": How about a union of counties? I'd like to know what problem they intended to solve by including the paragraph quoted above in the US constitution. | It means states having a different currency from the federal government and each other. This was actually an issue in America before the constitution. wikipedia Article 1 section 8 describes congress' powers. The Congress shall have Power To ... do may things including: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; | It depends on the jurisdiction and particular facts. The long history of not counting marriage as prostitution under law because of its social and religious legitimacy makes the transaction-related aspects of marriage fall outside the definition of prostitution in most cases that are not the explicit sale of a person for consideration, which is obviously forbidden as slavery today and could probably also be charged as prostitution in most jurisdictions. In your particular example, the girl is also saying what things will influence how she feels, and no reasonable person would say that she gives up her ability to withhold consent after marriage based on any alleged contract. A contract to lose the ability to withhold consent would also be void as against public policy, regardless of whether prostitution is involved. Bitcoin is a form of virtual currency. It is regulated by money transmitter law and trading it to obtain goods or services that cannot legally be traded for is still illegal. It's not that there is a defined "limit." It's that some things will fit into the definition and others won't. It's about categories, not quantities. | Although the exact answer should depend on the country you are, in general private copies of copyrighted works are allowed. General rules are: You need to have got the work in a legitimate way. That is, that you have purchased a copy of the work with permission from copyright owners or you have got the work from an act of public distribution authorised by copyright owners - if you got it from a website that is not making a copyright infringement itself, you are in the second case. That you don't make a collective or commercial use of the work. (I took these rules from Spanish Intellectual Property law (article 31), but most countries have similar rules, specially in the European Union. Anyway, the exact limits of private copying exception may differ). Since private copying might have an economic effect, some countries collect private copying levies to compensate copyright owners - probably you have already paid for those when purchasing the printer. Therefore, you can print a book downloaded from a website (unless the site is hosting the work without authorization of the copyright owners, as pirate sites do) for your own use. You can't sell the copies or made a collective use of them. Although reach of collective use might be hard to assess, I would suggest that if you want all the people in your class have the book, send them the link so that any one could print their own copy. Update about the USA As the OP has now specified now their country I update the answer with a comment, although an additional answer by anybody more knowledgeable on US law would be great. I'm quite sure that for practical purposes the result is that you can print such a book anywhere in the world. However, I don't know which laws regulates that in the US. Google doesn't return meaningful results for "private copy usa", so I suppose it is know there by another name. Furthermore, statutes in common law countries tend to be less explicit and there might be no case law applicable. For example, I nobody printing a copy of a pdf for himself to read at home has ever been challenged in court in the USA, there might be no explicit rule about the subject. | The situation in Texas is unclear. It is worth mentioning Texas as a state where the law may require statutory authorization in order to copyright state documents. Although the statute does not explicitly state such as a requirement, it can be inferred from an attorney general opinion. At a bare minimum, the Department of Health, the State Preservation Board, the Water Development Board, the Department of Motor Vehicles, and county governments all have statutory authority to hold copyrights. In your specific case, there's an additional complication. Something is only a work of the State of Texas if one of the following is true: 1) it was created by a government employee as part of their job duties, or 2) it was a work for hire. It's quite likely that neither of the above is true for a student newspaper, rendering the question of Texas-owned copyrights irrelevant. | While it is true that cash is legal tender, this can still be overridden by mutual agreement (i.e. in a contract). So the legal tender status only matters if payment methods were not agreed upon before entering into an agreement. In other words: If a restaurant lets you eat without telling you they do not accept cash, they will have to accept cash. However, if they explicitly tell you they only accept card payments, they can insist on this later. This applies in both the United States, in Germany, and in Canada (see e.g. It may be legal tender, but more businesses are snubbing cash). So to address your points: As I understand the legality would work something like this: 1) I accept the the contract where I agree to pay with card in exchange for food Yes - however, in accepting the contract you also accept that the restaurant is "cashless" (assuming the restaurant clearly tells you so, e.g. by putting up a sign or by saying it in person). I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control Yes. Since you attempted to fulfill the contract, you did not commit the crime of theft (which requires intention not to pay). However, you still owe what you promised when entering into the agreement, which is to pay with a card. At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender No. As explained above, if the agreement stipulates a specific payment method, this generally overrides the "legal tender" aspect. In short: You agreed to pay with a card, so you are required to pay with a card. If you cannot pay with a card, you have not fulfilled your part of the agreement. It is is arguable that it is not your fault, but this does not change your obligation. Now you must either negotiate a suitable alternative (cash, cheque, golden watch...), or come back to pay later with a card. Also, the business may be able to charge you additional costs, such as extra accounting work or interest because of your non-standard payment - that would depend on the details. | The general answer is, no, it is not valid in the US, see this article. Exceptions to laws recognizing e-signatures abound which exclude wills from general laws recognizing electronic signatures. Nevada is the one current exception (conveniently located between Oregon and Arizona). There have been attempts to legalize electronic wills, including in Arizona (SB 1298). Although Tennessee does not recognize e-wills, a gentleman in Tennessee went ahead and did it, and in Taylor v. Holt, 134 S.W.3d 830 the court decided that the will was properly executed and witnessed. Electronic notarization is recognized in Arizona, though apparently for things you file with the government (not things that your heirs will eventually file), whereas in Oregon it is a general-purpose way of getting a document notarized. Since the courts are loathe to completely disregard a person's last will and testament because they didn't narrowly follow requirements, you might be able to "get away with it", but it would not make things easier for the executor. | Art. 1 Sec. 9(8) says two different things. The first says that "No Title of Nobility shall be granted by the United States". That means that the US cannot grant a title (hereditary or otherwise) like "Duke of Detroit", "Prince of Princeton". It does not prohibit the practice of speaking of POTUS as "His Highness, the President of the United States", likewise "His Elective Majesty" or "His Excellency", but early discussions in the Senate put paid to even calling a president this, and instead he is just called "Mr. President" (just as judges are called "your honor"). An appellation such as "Chief Justice" is not a title of nobility, it is a job description. We don't have titles of nobility granted by the government. There is a constitutional amendment, the Titles of Nobility Amendment, which was considered but not ratified, which is stricter on the anti-nobility statce. Then there is second thing, that prohibits officials from "accept[ing] of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state", without Congressional approval. Accordingly, the president, sec'y of state or a congressman cannot accept a gift, such as a car, from a foreign power, unless it is approved by Congress. Every congressional "exception" was approved by Congress; moreover, such benefits are not from a foreign power. The Speech or Debate Clause Art. I, Sec.6(1) in fact gives congressmen a privilege (immunity from arrest) which ordinary citizens do not have. So there is no connection between titles of nobility and free bean soup or whatever legal exemptions Congress may give itself. | You mean like this? Of course, a website can charge you to access its pages; many do. And yes, clicking on an "I agree" button can form a valid contract (just visiting the website can't). Historically, the law has adopted the position that if you sign it (including by clicking "I agree") you read it, you understood it and you agreed to it. It's hard to imaging how it could be otherwise because allowing people to get out of contracts by saying "I never read it" is problematical as well. However, there are two things that mitigate against the type of term you suggest; one practical and one legal. Practical: How do they get your money? They can ask for your credits card details and, if they do and you give them a court will probably come to the conclusion that you knowingly and willingly agreed to pay for the service. However, if they don't have any method of getting money from you, they would have to take you to court to do so. There are a number of practical problems with this like: who are you? where are you? Which court can they sue you in etc. Legal: At common law, there exists the doctrine of unconscionability that describes terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience. Such terms are legally unenforcable. Further, in many jurisdictions, consumer protection law often give additional protections up to and including not enforcing terms that are merely unfair not just unconscionable. |
Under what authority can the US make federal reserve notes legal tender? By what constitutional authority does the US have to make these legal tender. I can see in the constitution that the US can coin money, but the right to make legal tender is given to the states and limited to gold and silver. The 10th amendment would seem to deny the right then to the federal government from the same, but i can also see how with the limitation of those two, it's simply a denial for the states to make anything ELSE legal tender, not expecting them to make legal tender laws at all. I'm reading this case which seems to claim that such authority exists, however the case is from 1884 before the fed even existed and the notes they are referring to were redeemable in gold or silver, effectively making them lawful substitutes for such. https://supreme.justia.com/cases/federal/us/110/421/ IIRC it was 1974 when paper became no longer redeemable for metal, at which point it became a completely different thing, but i could not see a case where it was challenged on its legitimacy as legal tender. | The Secretary of Treasury is authorized and obligated to print United States currency by statute, codified at 31 U.S. Code § 5114. This is an exercise of the enumerated power to coin money: the "coinage clause." The Legal Tender Cases and the case that you cite (Juilliard v. Greenman, 110 U.S. 421 (1884)) are the leading authority on the scope of the coinage clause. In those cases, the Supreme Court held that the coinange clause grants to Congress the power to issue paper money that is legal tender. That power has not been challenged since. Juilliard v. Greenman: The states are forbidden, but Congress is expressly authorized, to coin money. The states are prohibited from emitting bills of credit, but Congress, which is neither expressly authorized nor expressly forbidden to do so, has, as we have already seen, been held to have the power of emitting bills of credit, and of making every provision for their circulation as currency short of giving them the quality of legal tender for private debts, even by those who have denied its authority to give them this quality. It appears to us to follow as a logical and necessary consequence that Congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. ... ... we are irresistibly impelled to the conclusion that the impressing upon the Treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress, consistent with the letter and spirit of the Constitution, and therefore within the meaning of that instrument ... The reasoning in this case was not based on the paper being exchangable for metal, so any changes in that regard since will not have affected the outcome. For a deeper history of how this power has been understood, and for an originalist lens on the topic, see Robert G. Natelson, "Paper Money and the Original Understanding of the Coinage Clause". | If you cannot legally purchase a gun in Utah due to any restriction, such as residency, and you engage someone else to knowingly buy or gift you a gun (such as a "straw man" purchase from a dealer or private sale), that is illegal. From the same link you posted (my emphasis): Can I buy a firearm as a gift for someone? Yes, as long as the receiver is not a prohibited person and the gifting is not being used to circumvent a background check or other laws. Calling a purchase intended in place of another is a straw purchase. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | Federal facilities are required to adhere to the flag code. Non-federal governmental entities are not, and the explanation is more complicated. In theory, the federal government should have very little power over the decision-making of state governments -- this is a principle of federalism and is expressly stated in the 10th Amendment. In practice, however, the federal government has a lot of power over state governments. Congress can condition the allotment of federal monies to states, i.e. block grants, as long as such a condition meets the five point test spelled out in South Dakota v. Dole. The most stringent of these points is that the condition "must not be coercive" so as to apply "irresistible pressure", creating a false choice where accepting money is the only realistic option (thus complying with the conditions). I couldn't find a clause within USC Title 4, Chapter 1 for withholding funds from states in the event of noncompliance, similar to one that exists for the national drinking age. Therefore states (state, county, municipal all treated as an extension of state power under the US Constitution) are not required to to adhere to the flag code. Theoretically, Congress could pass a new law that would condition the receipt of some federal funds on the states' compliance with the flag code. But the new low could face additional hurdles, since the condition must be "directly related to one of the main purposes for which... [the funds] are expended" (quoting from Dole). This restriction is the reason why states were given the right to opt out of the Obamacare medicare expansion without losing their pre-existing Medicaid funding (567 U. S. ____ (2012) at 51), and is also the reason why the recent "Sanctuary Cities Ban" is having legal trouble. It would be unlikely that any law like this would hold up. It's also worth noting that most states have their own flag law, which makes this whole discussion of the federal law's effect on state facilities. As you noted, since US v. Eichman, all criminal penalties for violating any flag code have been unenforceable against individuals. My best guess is that the proper method of enforcement in federal buildings is simply administrative action, since violating the code can provide cause for firing federal employees under Chapter 75 of the Civil Service Reform Act of 1978. | Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce." At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use. | This happened recently in Washington state, when the state Supreme Court ordered the state government to comply with a constitutional funding mandate (McCleary v. Washington, 2012). The state did not comply for 6 years and was fined ($100,000 per day) for 3 years. I don't recall that the state paid a penny, and the courts did not demand payment of fines for that period. Public opinion did not have any obvious effect, but you could take this to Politics SE to get a lot of opinions as to whether public opinion mattered. The federal government can't get involved, unless they (the federal government) first make a federal issue out of it, perhaps because of some law suit. Power of enforcement is essential non-existent, given a sufficiently non-cooperative state government. I should point out that the court's order was a bit vague, that is, it was not "release Smith from custody instantly", it required the government to act to the satisfaction of the court. | The US Constitution (broadly) does three things: It defines how the government should operate It places certain powers in the hands of certain individuals (branches of government, federal government vs states, etc.) It restricts the actions and powers of government (originally the federal government, and thought the 14th amendment, the states, and through them, municipal governments). The main thing is that there is a distinction between a governmental organization (which is effectively a portion of the government) and an organization that is funded in whole or in part by the government (The difference being if the government controls the organization or appoints (some of) it's leads, such as the FBI or Federal Reserve). Generally, the latter is not bound by the Constitution; however, it may be bound by laws or grant stipulations. Elaborating on your three questions: Free Speech: Constitutionally, no one but the government is restricted from moderating someone else's speech. There may, however, be legal repercussions, but not constitutional issues. Discrimination on protected characteristics: This is not forbidden by the Constitution, at least not in the way it is is meant colloquially. The Constitution only prohibits discrimination in access to voting, and then only for race, color, sex, and prior servitude. However, such discrimination is illegal, due to laws, such as the Civil Rights Act. A non-governmental organization that receives funds from the government constitutionally is no different than one that does not. Legally, there may be differences. | The short answer is that a few individual trades would be legal (e.g. if you sell some to a friend), but doing so on a regular basis for profit (e.g. offering a sale price and a bid price to all comers) would not unless you get the appropriate licenses and comply with relevant laws. Doing this is onerous. Any kind of "money services business" is subject to federal regulation. The federal definition is a business trading more than $1,000 per day, so in theory as long as you keep below that you wouldn't have to worry about federal law. In practice you might find yourself having to prove to the Feds that you have not exceeded the threshold on any day in the past. There is also a separate licence regime for Virginia which you must also comply with. Finally, if you sell Bitcoins to someone when you have a reason to suspect that they are planning to do something illegal with them then you are breaking the law. Edit: While its not strictly a legal issue, some people who have traded Bitcoins outside of recognised exchanges have had their bank accounts closed because the activity has triggered the bank's money-laundering detectors. Edit 2: All the above applies if you are trading directly with people who you found on something like localbitcoins.com. Trade via an exchange such as BitStamp is legal: all the AML and KYC regulations are their problem not yours. You merely have to provide the necessary identification to open an account. |
How low is the bar for "legitimate government interest"? The default and lowest standard of review for constitutional questions in the US is "rational basis review". Higher standards are required, if fundamental rights or suspect classifications are at issue. As Cornell summarizes the situation, "to pass rational basis review, the challenged law must be rationally related to a legitimate government interest". Assuming a law which is not subject to higher review, it could fail rational basis review if the identified government interest is not legitimate (the cases of interest here), or if the interest is legitimate but the law is not rationally related to that interest. An example of upholding a "legitimate government interest" is Christian Legal Society Chapter v. Martinez, where a UC anti-discrimination requirement was objected to on First Amendment grounds, and the court rejected that argument, finding that "The all-comers policy is a reasonable, viewpoint-neutral condition on access to the RSO forum; it therefore does not transgress First Amendment limitations" – the court found the university's policy to be rational, indeed "creditworthy". My question is, has any ostensive government interest ever been found by a court to be illegitimate? The test would be a case not involving triggers for higher review, where the law was overturned, and the failure was because the interest was deemed to be illegitimate (not because the law isn't rationally related to the interest). I specifically want to exclude any cases where the matter does involve suspect classifications or fundamental rights, but where the court employs a rhetorical flourish and says "This wouldn't even pass rational review", or otherwise declines to focus primarily on existing triggers of higher-level review. An example of a kind of case that doesn't clarify the matter is St. Joseph Abbey v. Castille, 712 F.3d 215. Although the court concludes "The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none", the ruling also starts by saying The district court enjoined their enforcement, finding that they deny equal protection and due process of law. We will AFFIRM the judgment of the district court. They do not say that the interest is illegitimate. (My underlying hypothesis is that there are no cases of low-review where a government interest is held to be illegitimate, implying that all government interests are legitimate). The case of US v. Morrison adds a complication to the question. In that case (cited in this answer), a law granting federal civil remedy to victims of gender-motivated violence was struck down. The original belief of Congress was that the law would be allowed under the Commerce Clause and the 14th Amendment. The court in its opinion set forth a fundamental constitutional limit on what the federal government can do: Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison The court did not go any further in pointing to a specific clause in the Constitution (e.g. the 10th Amendment). Likewise in Marbury v. Madison, the constitutional limit on government is captured in the statement The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. The Morrison court then rejected the claim that there is such constitutional authority. This puts the case into the "strict scrutiny" basket. Similarly, in US v. Lopez, an anti-gun law (ostensively authorized by the Commerce Clause) was overturned because "The Act exceeds Congress' Commerce Clause authority", and accepting the government's position "would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States" – a 10th Amendment issue. The complication then is that a court has available a tool for upping the level of scrutiny, if it can be found that there is no constitutional authority for a particular law. The concept of "legitimate interest" could then be dispensed with entirely (although it certainly does exist in the case law, in the affirmative but apparently not in the negative). An observed in Wes Sayeed's answer, one prong of rational basis analysis is whether a law exceeds authority, and a lesser question (the one I focus on) is Whether or not there is an articulatable need for the law to exist (the Congress/Legislature does not have to justify its reasons for a law but it usually does, and that reason is presumed valid regardless of how it's contrived). I am looking for evidence that this lesser prong actually exists, and distinguishes possible vs. impossible laws. Or, is every case of "not a legitimate government interest" elevated to the status "not a constitutionally-granted power"? Even more briefly, is "legitimate interest" just another way of saying "constitutional power"? J. Stevens concurring in NY Bd. of Elections v. Lopez Torres states that as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.” I have not located a relevant majority opinion which upholds this conclusion. | This is a bit sideways of your question, but the Supreme Court has held that "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) later cited in Romer v. Evans, 517 U.S. 620, 634-635 (1996). | There is no "different legal procedure" for challenging the constitutionality of a law. The only way to do so is through the process that this question contemplates: to argue that the law is unconstitutional in a civil or criminal trial. Whether the law bears directly on the matter at trial or only on ancillary matters such as discovery, the court has the power to find the law unconstitutional and to issue orders accordingly. The extent to which such a ruling binds other courts depends on which court issues the ruling. | Walker (Texas DMV) v. Sons of Confederate Veterans holds that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design... When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says The plate "NULL" falls into the category covered by this ruling. The court has 'refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”' In the aforementioned case, the viewpoint that was not permitted was arguably a pro-Confederate viewpoint, and it was ruled that the government has no obligation to express such a viewpoint. The court found that strict scrutiny under the Free Speech Clause is not applicable in this case; in a potential application of strict scrutiny to the instant circumstances, the government is actually on even stronger footing, since there is a compelling government interest at stake (the ability to bill people for road usage without the need for toll booths). Governments have long been able to restrict insulting and profane words as vanity plates. I would be very surprised if he is able to force the government to accept this plate. | In england-and-wales, an illuminating judgement of the Court of Appeal explores the relationship between such terms as "bound to fail", "not arguable", "no rational basis", "unfounded", "misconcieved", "hopeless", "totally without merit", and "no realistic prospect of success"; Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82. This arose in the context of a judicial review application, where procedural rules allow some claims to be rejected at an early stage, rather than proceeding to a full hearing. The normal course is that the claimant (the person who objects to a decision the government has made) will file papers with the court describing their claim. If the judge deems their case "arguable", then it can carry on, ultimately with the judge deciding who is right. If not, then there can be a "renewal hearing", where the applicant can explain their case orally, in the hope of persuading the judge that their case is arguable after all. But if the judge says the case, on the basis of the written material, is "totally without merit", then there is no renewal hearing, and we are done. The claimant could file a fresh case, if the judge's reasons for denial gave them enough clues about what might be arguable instead, or can appeal the finding. Evidently, then, some points can be not arguable, but also not totally without merit. In Wasif, the court differentiated between (paras 15ff): Cases where the judge "can see no rational basis on which the claim could succeed" are certainly bound to fail, and a hearing would be pointless; they are totally without merit. Cases which contain a rational argument, but the judge "is confident that, even taking the case at its highest, it is wrong". Notwithstanding the judge's confidence, it is possible that his mind could be changed if an oral hearing took place, so these should not be deemed to be totally without merit. They are described as "not arguable" at this stage, but the claimant gets to argue that they are arguable. The decision is one involving, well, judgement, and is not totally precise, but the experienced judges in Wasif felt that it was a realistic distinction in practice. The court points out (17(3) and (5)) that a hearing gives the claimant the chance to address specific issues the judge has noted, especially when they are self-represented and their documents are not well-prepared. In those instances, the judge might be able to spot an actual arguable claim lurking in the material, and "the correct course" could be to refuse permission but allow an oral hearing so that the real issue can be drawn out. What we can see from this is that a point might be "not arguable" (the judge thinks it is plainly wrong), but still have some level of merit at that stage (the judge is willing to let the claimant address his objections). When the judge comes to deliver his opinion at the very end, he might still say that a particular point is without merit (he has heard all about it and thinks it is completely wrong) even if he'd conceded earlier that the claimant deserved a chance to present it. Not all arguments that fail are described as "without merit". If Bob prevails in Bob v Rob it does not follow that all of Rob's points were hopeless. Judges can deploy colourful opprobrium but are just as likely to recognize that some arguments are strong, even when the opposing argument was stronger. Equally, a judge might decide that neither Bob nor Rob is completely correct, and the real answer is some other position - even when they both presented reasonable arguments that were worth hearing. | In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an "asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause". O'Connor in her concurring opinion further states that "There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths", but this falls short of a ruling that a person has a protected liberty interest in seeking medical care. Cruzan v. Director affirms that "[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment" (also noting that "informed consent" may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease". There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure. Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard. It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA. | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution. You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.) So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand. From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution: First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia: But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.) You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell. | The only relevant case heard by SCOTUS is Nixon v. US, 506 U.S. 224, where a federal judge was tried and convicted for actual crimes, but would not resign his position so continued to draw his salary. The key legal question was whether the matter is "justiciable" (meaning, not a political matter but a legal matter). Nixon's argument was that Senate Rule XI violates the Impeachment Trial Clause, and the court held that the question (more specifically what it means to "try") is nonjusticiable. White & Blackmun, and Souter, wrote concurring opinions (which might be called on in a subsequent impeachment case) that reminds the reader (and future court) what was not part of the holding of the court, and what might therefore allow future impeachment review. White writes The Court is of the view that the Constitution forbids us even to consider his contention. I find no such prohibition and would therefore reach the merits of the claim. I concur in the judgment because the Senate fulfilled its constitutional obligation to "try" petitioner. He observes that the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. But, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to "try" impeachment cases. When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being "a bad guy," counsel for the United States answered that the Government's theory "leads me to answer that question yes." Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process. Souter in his opinion states that One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply" 'a bad guy,'", judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. In other words, review of an impeachment is largely but not entirely off the table, at least until SCOTUS declares that impeachments are completely unreviewable, no matter what, period (unlikely to ever happen). |
If one is mistaken about whether consent is required, is that a defence to sexual assault in Canada or similar jurisdictions? In "Canadian man found not guilty of raping wife", a sexual assault prosecution failed due to mens rea because it wasn't proved that the man knew his behaviour was illegal. Not because he didn't know that the sex was not consensual, just that he thought non-consensual sex was legal (it has been in a wide variety of jurisdictions belonging to many different cultures, and still is in others). Has such a defense been used before, either in Canada, or other countries with a similar legal system, such as the UK or Australia, for sex without consent? If so, have courts decided whether or not it is a valid defense, and if it has been ruled a valid defense, have such cases been appealed? The section on mens rea in the Wikipedia article "Laws regarding rape" only talks about ignorance about whether the sex was consensual. The section Ignorance of the law and mens rea gives as an example someone making a mistake with their taxes, which seems fairly different to the scenario discussed here. | This judgment (R. v. H.E., 2017 ONSC 4277) was overturned on appeal (2018 ONCA 879): [2] After accepting the complainant’s testimony that both she and Mr. E. believed that, as his wife, she did not have the right to refuse to have sex with him, the trial judge explained the acquittal by expressing a reasonable doubt about whether Mr. E. had the required mens rea for the offence. ... [3] Mr. E. concedes that the trial judge committed reversible errors in this reasoning. He acknowledges that to the extent the trial judge based his acquittal on Mr. E.’s and the complainant’s shared belief that the complainant could not refuse to have sex with him, that belief would be a mistake of law that cannot form the foundation for an honest but mistaken belief in consent defence. He is correct. To avoid conviction based on an honest but mistaken belief in consent, the accused must believe in a state of facts that amount to consent according to law... ... [6] The parties therefore agree that the appeal must be allowed and the verdict of acquittal set aside.... [7] We would therefore allow the appeal, set aside the acquittal, and order a new trial. | The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law." | If the younger person starts a civil suit against the older person for statutory rape, can the older person countersue for "actual" rape? There is no civil action counterpart to statutory rape. Is there any way that the older person can use the "actual" rape as a defense in either a civil or criminal charge? Statutory rape does not give the person who is defined as a victim of statutory rape to bring a civil action for money damages against the adult with whom that individual had sex. Sometimes there might be a civil action for breach of a fiduciary or confidential relationship, or intentional infliction of emotional distress/outrageous conduct. But that would be the exception, rather than the rule, and the civil action tort would not be a strict liability offense. While statutory rape is sometimes a "strict liability crime" in the sense that actual subjective consent is not a defense, and reasonable mistake of age is not a defense, a prosecution for statutory rape still requires proof of a voluntary act by the defendant charged with the offense. The claim that someone did not voluntarily have sex with the underaged person and instead was forced to engage in sex with the underaged person without their consent would be a valid defense to the crime. This is because it would prevent the prosecutor from proving that the defendant committed the voluntary act element of the crime beyond a reasonable doubt. This kind of defense could also be conceptualized as the affirmative defense of duress which would still apply to this offense. My understanding is that if the older person has been convicted criminally for statutory rape, that would bar that person from prevailing in a civil suit for "actual" rape. Would this be true[?] One could bring a civil action for assault and battery in connection with a rape not implied in law by virtue of age (i.e. what you mean when you say "actual" rape). A criminal conviction for statutory rape (for which all appeals have been exhausted) would probably be a valid defense to such a civil action pursuant to the doctrine of collateral estoppel (i.e. because a binding determination of the same issue with the same or stronger burden of proof was finally resolved on the merits in another case involving the same people). This is only true, however, because the lack of voluntary act defense would have been available in the criminal case for statutory rape. has such a sequence of events actually happened anywhere in the United States? Probably. The United States has had states with statutory rape laws for many, many decades and many hundreds of millions of people, if not billions of people, have lived in that time period. So, almost anything that could happen with respect to a widely enacted law involving activities that are possible for ordinary people to engage in has probably happened. This said, however, I've never heard of a legal case with this fact pattern in the news media or in reported case law (although admittedly, this isn't my area of practice). The more common case which does come up from time to time is a case of brother-sister incest where there is dispute over who should be charged (usually, but not always, the older sibling, and in rare instances, both are charged). Historically, in the overwhelming majority of cases where statutory rape charges could easily be proven, they are not brought by prosecutors. Sometimes this is because that is what the victim wants. Historically, victims have frequently wanted this outcome, either out of hope for an ongoing relationship with the adult, or doesn't want to relive a traumatic event, or out of the well founded believe of the victim that the case would do more to harm her reputation and well being than it would to suitably punish the adult (and keep in mind that statutory rape is often a misdemeanor offense which might be punished fairly lightly at sentencing depending upon the judge). Sometimes this is because the prosecutor sees keeping the perpetrator employed and able to pay child support when a pregnancy results as a preferable options. Sometimes this is because proving that sexual intercourse happened with someone beyond a reasonable doubt in cases that did not result in pregnancy, when the only witnesses are the alleged defendant and the allege child victim whose credibility may be questioned, was very difficult prior to DNA evidence, widespread use of rape kits, and cheap, ubiquitous video and photography use. Furthermore, factually, it is exceedingly uncommon for young minor girls to rape adult men, and until quite recently, the statutory rape laws applied only to female victims. Even now, with gender neutral statutory rape laws being the norm, prosecutors are much less likely prosecute an alleged statutory rape involving a male victim than a female victim. Finally, many prosecutors feel morally justified in invoking their authority to press statutory rape charges only when they believe that there was a non-consensual sexual act committed against the victim which happened even if it was hard to prove and are reluctant to bring such charges if the prosecutor believes under the circumstances that the act was consensual in fact, even if legally the defendant is still legally guilty in those circumstances. Generally speaking, attitudes towards this have grown more harsh towards men who have sex with young minors in recent years, but historically, this was a pretty important factor. | 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 sounds like it would fall under the "extreme pornography" part of the Criminal Justice and Immigration Act 2008. Section 63: (7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following— (b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals, and a reasonable person looking at the image would think that any such person or animal was real. (7A) An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following— (b) an act which involves the non-consensual sexual penetration of a person's vagina or anus by another with a part of the other person's body or anything else, and a reasonable person looking at the image would think that the persons were real. What you describe would likely result in serious injury to the victim, and the video appears to be non-consensual. Note that the actual origin is not relevant; if the videos were actually a brilliant piece of special effects and no anuses were harmed that gets you nowhere. The only thing that matters is what a "reasonable person" looking at the videos would have thought. Context might make a difference; if the videos were made by an identifiable company then a reasonable person might assume the producers would have at least obtained consent and complied with their local laws about safety. OTOH if they look like they were filmed on someone's phone and downloaded from some sketchy file-sharing site then a jury is likely to see this as suggesting to the "reasonable person" that the acts shown were real and non-consensual. Edit in response to comment: The law in question says 'An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal'. So it can still be porn even if it wasn't filmed consensually. If "pornography" could only refer to consensual images then the prosecution would need to obtain evidence of the consent or otherwise of the participants. This might be impossible if a participant is dead or cannot be identified. Also the definition above matches both the dictionary definition and most people's idea of what makes something "porn"; the point of porn is sexual arousal. | Yes, and also there needs to be intent to cause alarm or distress. See section 66 Sexual Offences Act 2003: (1)A person commits an offence if— (a)he intentionally exposes his genitals, and (b)he intends that someone will see them and be caused alarm or distress. (2)A person guilty of an offence under this section is liable— (a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b)on conviction on indictment, to imprisonment for a term not exceeding 2 years. For clarity, although the above legislation uses the masculine subject pronoun "he", this offence may be committed by a female also. See section 6(a) Interpretation Act 1978: [...] (a)words importing the masculine gender include the feminine; [...] | There are no small sexual assaults Indecent assault/sexual assault/sexual touching Different jurisdictions have different definitions but, wherever you are, the behavior you describe is a criminal offense and the appropriate course of action is to report it to both your employer and the police. The fact that the perpetrator is under the professional care of the victim does not change this although, if the positions were reversed, this would be an aggravating factor. That is, assuming you are willing to make a statement to the police and, ultimately, testify before a court. It may not come to that - the police may not press charges. You can also civilly sue for the damage you have suffered. Work Health and Safety Your employer has an obligation to provide a reasonably safe workplace. If this is a not uncommon occurrence then they should have analyzed the risk and determined appropriate mitigation strategies and trained you in these. Have they? | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). |
Self defence with an illegal weapon First off I’d like to say this is just a hypothetical question that I thought of today. This following scenario is to be taking place in Canada. Let’s say a guy is at his house on his private property. He’s downstairs on the main floor when someone tries to break into his house. The guy kicks down the door and has a knife in his hand. The owner of the house carries around with him an illegal hand gun which he uses to shoot which kills the person who broke into his house. My understanding is that because it’s on his private property and because he felt in danger for his life that it wouldn’t have been using excessive force and it would be self defence. Very quickly the police would realize that the firearm he used to shoot and kill person was illegal in Canada. Would the man end up not getting charged with anything, or because it was with an illegal weapon would it become murder or something similar. I’m also assuming he’d get charged with a crime for having the illegal gun. Is that correct or wrong?? Thanks in advance | They may be charged independently with unauthorized possession of a restricted or prohibited firearm (s. 95 of the Criminal Code). R. v. Dockerill, 2013 BCSC 2429: [2] Mr. Dockerill, you are to be sentenced for your offence of unauthorized possession of a restricted firearm, namely a 9 mm semi‑automatic pistol, that either was loaded or was unloaded with readily‑accessible ammunition for it also in your possession (contrary to s. 95(1) of the Criminal Code). [3] You used the pistol to kill John Borden in a gunfight on May 25, 2010, in the parking lot outside the business premises where Mr. Borden lived on Wilgress Road here in Nanaimo. The circumstances of the offence are described in my reasons for judgment after the trial (2013 BCSC 1454). [4] You were originally charged with murder as well. However, the Crown dropped that charge in July 2012, when it accepted that you used the pistol in self‑defence. The Crown accepted that Mr. Borden had opened fire on you with a .44 magnum revolver when you arrived with your friend Dylan Ambrus to collect some money. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | When a country makes criminal laws, these laws usually apply to anyone present in the country, and acting in the country. But the country is free to declare that some law might apply to its own citizens in a foreign country, or even foreign citizens in a foreign country. Assuming the laws about using marijuana say nothing about the country, that most likely means it only applies to using marjuana in the country itself. But if the US government decided that taking marijuana in Canada is illegal for US citizens, then nobody can stop them. In this case, Canada would not extradite you (unless Canadian law says that it is criminal for Canadians to use marijuana in another country), and Canadian police would likely not collect evidence. So even if illegal, it would be hard to convict you. PS. The "polygamy" case would be interesting, I think you would have to read the exact wording of the laws in every country. Some countries will say that you can't get married twice, and the attempt to get married a second time while already married is bigamy. In that kind of country you wouldn't have committed a crime within that country. Also, you would only be married to the first wife. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | Possibly negligent homicide or involuntary manslaughter. Really dependson the state where this happens and the exact elements that need to be proven. Lester has asked his wife to do something that he knows might result in her death and does not warn her. He probably has a duty to warn her. | Legal Context This kind of argument is often called a "defense of others" defense which is available in every jurisdiction of which I am aware. Almost every state has a specific description of when this is permitted as part of their criminal code, usually in a general principles section at the beginning, or in the sections pertaining to crimes of violence. Some details vary from one state to another, but none of the facts presented in this hypothetical really push the envelope in terms of distinctions between one state's law and another. Most of the differences involve situations when the use of deadly force is allowed. For example, states differ regarding when deadly force allowed to prevent a burglary of your home or business which is in progress, particularly if it is possible to avoid a use of deadly force at all by retreating in a manner that puts you at no one at any significant risk of bodily injury. But, the scenario presented does not appear to involve the use of deadly force (although the definition of "deadly force" can be slippery and lead to some subtle variations in what is permitted from state to state). Another common nuance of variation between states involves the circumstances under which physical force or deadly physical force is authorized to make a citizens arrest, but this situation is also not implicated by your hypothetical. Once Thug is beat up, the scenario ends without any effort to detain Thug until the police arrive. Generally speaking, a defense of others defense that justifies a use of force under criminal law will also not give rise to civil liability in a lawsuit for assault and battery as opposed to a criminal prosecution for it. A Sample Defense Of Others Statute The pertinent section of the Colorado Revised Statutes (2016), strongly influenced by the language of the Model Penal Code (which never adopted in full by any state but highly influential stylistically in how U.S. criminal codes are drafted) is very typical of the majority rule regarding the defense of others and reads as follows (emphasizing the language relevant to the scenario in the question): § 18-1-704. Use of physical force in defense of a person (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Analysis of the Hypothetical Facts Is Paul guilty of assault and battery for attacking Thug, or would self-defense or some other standard defense apply? Paul is probably not guilty of assault and battery for attacking Thug because a defense of others defense justifies his actions. Paul is using physical force to defend a third person (and presumably himself as well once once he is involved in the fray) from what he reasonably believes to be the use of unlawful physical force by Thug, and generally, under those circumstances Paul may use a degree of force which Paul reasonably believes to be necessary for that purpose. Paul is most vulnerable in this scenario on the question of whether he reasonably believed that the degree of force he used was reasonably necessary for the purpose of defending Emily and himself from Thug's unlawful use of physical force, or whether he went further than what was reasonably necessary for a few minutes that left Thug "incapacitated and thoroughly bloodied". For example, suppose that Paul had already caused Thug to try to flee the scene after the first minute at which point Thug was slightly bruised and afraid of Paul, but was not at all incapacitated. But, suppose that despite this fact that Paul, awash with adrenaline from the fight, continued to pummel Thug for a couple more minutes as Thug repeatedly tried to flee the scene only to be dragged back by Paul. Suppose that Paul continued the fight after it was no longer necessary because Paul wanted to punish Thug for his mistreatment of Emily and to discourage other people from trying to attack Emily in the future, even after Paul knew that there was already no real risk that Thug himself would continue to use unlawful physical force against Emily no or in the near future. Under these circumstances, which aren't inconsistent with the hypothetical facts, if this extra couple of minutes caused Thug to be much more badly injured than he otherwise would have been if Thug had been allowed to flee after the first minute, then Paul could still be guilty of assault and battery, even though his actions were legally justified for the first minute of the fight. There is no indication that either Paul or Emily provoked the attack on Emily, or that either Paul or Emily was the initial aggressor, or that this was actually a pre-agreed dueling situation. So each of these circumstances which would be exceptions to the general rule that the defense of others is justified do not apply to this case. There is likewise no indication that Paul used "deadly force" as opposed to mere "physical force" in handling the situation. It is likely that Paul would have committed a crime if he had shot and killed Thug instead of beating him up, if Paul knew perfectly well at the time that he was capable of beating up Thug and making Thug go away for good as a result without resorting to a firearm, unless the attack on Emily was severe enough for Paul to reasonably believe that the attack was putting Emily at a real risk of serious bodily injury. | The pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant. | You have accurately summed up the conundrum. There is little else to say. You need to accept that there is confusion, even within the law itself, and rely on context to establish in any given instance which meaning is meant. You will come to find that there are many instances of such confusion in the law. The historic technical distinction in the law (especially in tort law) between assault and battery has been collapsed in the everyday vernacular and this had made its way even into the way that the words are used even by law enforcement officers and legislators, who grew up speaking the vernacular language like everyone else. Where I live, in Colorado, the word "menacing" has been used be legislators to replace the historic sense of the word "assault" and the words "assault" and "battery" have become synonymous. But, in England, they are struck with a situation in which the meaning of the word "assault" has become context specific. |
What should police do in case a stolen item is evidently in suspect's house A person (woman) says that B person (man) had stolen an item (laptop), because she has seen B doing that, being few meters away from the location, watching how he has done it (watching her items which were visually identifiable easily with the unique colors and stickers on her laptop). Then also GPS signal was coming from the B's home, and when she called the messenger, the ringtone come from B's home (device was still connected to the WIFI). When she called a police, they couldnt do anything and said that they have wait for a court order (search warrant) and even it was dubious if they would get search warrant at all. After weeks, the search warrant was issued, but no need to guess any joke out of it, there was already no trace of existence of the item in thief's home. Similar situations happened quite many times around me, people being robbed quickly, and police being unable to do anything, and all such cases closed without any success. Des the police act correctly? What should the owner do in such a case, when the owner still knows the item's location exactly and immediate action is needed, but the police is not helping? (p.s. Maybe jurisdiction doesn't much matter here, let's consider a typical civil country). | united-states In the US, the default rule is that your home is your castle. In general, nobody, not even the police, can enter your home without your permission. The main exception to this rule is that police do not need your permission if they have a search warrant to search your home. To get a warrant, the police must convince a magistrate that they have good reason (ie, "probable cause"), such as a gps track, to believe they will find evidence of a crime if they search the house. The police in your hypothetical are in a similar situation to police who are tracking the gps signal from a "bait car/bike/phone/tablet/package." (A bait car is a car/etc that has been fitted with a camera and gps tracker, and left out as bait for thieves.) As long as the car is in public view, the police do not need a warrant to search it and arrest the person driving it. However, once the bait car is out of public view, where the police can no longer see it, they need a warrant to go in and recover it, even if they can see it on the tracker. (See, for example, the instructions for bait car programs from the Eugene and Reno Police Departments.) (For phones, which may not be in "plain view" even if the thief is, the police use ring programs to make the phone ring. Hearing a phone respond to a ring program gives them probable cause under the "hearing" version of the "plain view" doctrine.) Bottom line: In the US, the police need a search warrant. Since search warrants take time and effort, police may be unwilling to get a warrant for something as low valued as a phone. If the police can't or won't help, there are various options for privately enforcing one's rights. These range from the legal -- knocking on the door and confronting the thief -- to the illegal -- left to your imagination. | Of course not. If the owner/tenant needed to be home I could rent a house in my name, and then never occupy it (my associates live there) the cops could never enter. Wilson v. Arkansas, 514 U.S. 927 (1995) - Cops executing a warrant need to knock. If no one answers they must wait a reasonable time for an occupant to let them in. It's the knock and announce rule. By implication it might lend authority to what is an obvious answer. | I gather that you either a) don't want the bike or b) are physically unable to retrieve it. You are acting like a spectator here. You ARE involved. By doing nothing, you are creating trouble for others, and failing to create a good. They must go through an extensive process to protect the rights of an owner they don't know who even is. What you should do, is to send a paper letter to the landlord at that complex. Dear landlord, You may have a bicycle at Location Here inside Apartment Complex Name Here. I am the owner of the bicycle. I had to leave the region, and I had to leave the bicycle behind. I cannot come back and claim it. Perhaps you know someone who could use a bicycle. Please give the bicycle to them, or dispose of it as you see fit. Here is the key to the lock. Signed, Your name Why a paper letter? Because you can't email a key! If you sent an email and key separately, they'd get confused. Plus, the signature on paper is legally binding, so they don't have to worry about it being a trick. Tape the physical key to a piece of paper, to keep it from rattling around and chewing a hole in the envelope. (it could be the paper the letter is written on, note that a printout of a Word document is fine). Paper letters have gone out of style, I know; you can work out how to send them, but an older person will help you do that faster, since well, we used to do everything that way. Now if you do want the bicycle, that gets harder. You will have to have one of your roommates give a key to someone who can retrieve it for you and store it for you. And you/they may need to coordinate with the landlord to even get access to it / find out if it's still there. This is probably a waste of your time. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | Suppose I live in State A, but am on vacation to State B. While on vacation, suppose someone living in State C, but currently in State D, accesses my bank account to take money out illegally. The bank has a central headquarters in State E, although my branch of the bank is in State F. In which of these states could I file a lawsuit? Any of them? All of them? The thief would be the defendant in a lawsuit brought by you. The fact that you are on vacation in State B is irrelevant. You can always sue someone where they are domiciled, so State C is one forum where you could sue the thief. You can also always sue a natural person (as opposed to an entity) in a State where they are physically served with process, so if a summons from the courts of State D were served upon the thief while the thief was in State D, then State D could handle the case. You could also probably sue in State A on the grounds that intangible property is deemed to be located where the owner is domiciled and the theft of intangible property was a harm directed a State A. But, there is an argument that if the thief has no way you knowing that you lived in State A as opposed to State F where your branch is locate, that the thief's actions were targeted at State F. State E would not be a very plausible state to argue that there is jurisdiction. A federal district court has geographic jurisdiction only over cases that could be heard in the state courts of the state where it is located, so a federal court case would be brought only in the states where a state lawsuit could be brought. A federal court cases would either have to seek at least $75,000 (since there is diversity of citizenship between you and the thief), or would have to state at least one theory arising under federal law (which might or might not apply to this case). The you can choose which state to file in from those that are available. Which of these states could file charges against the person? A state can prosecute if the crime happened there, or if the crime caused a harm there. In this case the answer to both of those questions could be muddy. Basically, State A or F is probably where the crime caused harm, and it isn't clear from the OP facts where the crime was committed by the thief (we only know where the thief is now). These acts would also probably violate some federal crime that could be prosecuted in federal court, mostly likely the federal courts in State A or State F. Which of these states could file charges against the person? Could the federal government file charges as well? Would more than one prosecution violate the double jeopardy clause of the Fifth Amendment? What if these were countries instead of states? The double jeopardy clause applies to prosecutions within a single U.S. state, and in addition to any state prosecutions, a single prosecution can be made at the federal level. Likewise, prosecutions in different countries do not count against each other for purposes of a double jeopardy clause. Many U.S. states have a binding or non-binding policy of not prosecuting crimes that have already been prosecuted by another U.S. state or by the federal government, the U.S. Justice Department likewise has a non-binding policy of not prosecuting cases which have already been prosecuted by a U.S. state or another country. But these policies do not have constitutional dimensions and are not required by the 5th Amendment. if I use a Canadian Wi-Fi network without authorization from within the United States, would US or Canadian law apply? In criminal cases, choice of law and jurisdiction over the case are the same thing, because a state or country can only apply its own criminal laws. In civil cases, choice of law is a question distinct from jurisdiction. A court applies the law with the most significant connection to the disputed legal issue in question (sometimes more than one set of laws in a multi-issue case), even if it is the law of a different state or country, which is a standard that affords a judge considerable discretion. Either U.S. law or Canadian law could be plausible to apply in this case depending on the detailed circumstances and the legal issue that is disputed. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | It depends on the actual content of the tip and to what degree the police believe the tip to be reliable given the totality of the circumstances. I'll give two examples where tips (one actually anonymous, one deemed anonymous) were found to give probable cause or reasonable suspicion to support a search or seizure. Illinois v Gates 462 U.S. 213 (1983) established that the test for whether there is probable cause for issuance of a warrant is based on the "totality of the circumstances". In Gates, police received an anonymous letter disclosing that the defendant was selling drugs, along with some predictions about the defendant's future activity. After verifying that some of the predictions were correct, the police obtained a search warrant for the home. The court observed that "under the "totality of the circumstances" analysis, corroboration of details of an informant's tip by independent police work is of significant value." Navarette v California 572 U.S. ___ (2014) reiterated that "reasonable suspicion takes into account the totality of the circumstances, and depends upon both the content of information possessed by police and its degree of reliability. An anonymous tip alone seldom demonstrates sufficient reliability, but may do so under appropriate circumstances" (quoting from the syllabus, with internal citations and quotations removed). In Navarette, an 911 caller asserted that a truck with a particular appearance was driving erratically and had run her off the road. The court said: "Even assuming for present purposes that the 911 call was anonymous, we conclude that the call bore adequate indicia of reliability for the officer to credit the caller’s account. The officer was therefore justified in proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway." They also observed that "a 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity." | How far can one go to defend him/herself from an unreasonable search and seizures, in the same sense of one defending him/herself from an unlawful arrest? Not very far. Basically all you can do is try to talk the officer out of it. He thinks he sees evidence in sight... If the police officer reasonably believes that there is evidence of a crime in plain view, then the officer can proceed to seize the evidence. If the property owner tries to use force to prevent the seizure, then the officer can arrest the property owner. ... the property owner ... highly believes there is no possible way he could have seen the evidence from outside his property. It doesn't matter what the owner believes (unless the owner can somehow convince the officer before the search). What matters is what the court believes. But the owner cannot bring the matter to court before the officer enters the shed. If the officer insists on entering the shed and the owner can establish in court that the officer couldn't see the evidence and that there was no other lawful basis for a warrantless search or seizure, then the evidence will be inadmissible. The owner might also be able to prevail in a civil suit for the violation of civil rights, but the bar for such a suit is very high, so the likelihood is very small. |
What laws cover offences against those with various sets of protected characteristics? The Equality Act 2010 legally protects people against discrimination, harassment or victimisation based on nine "protected characteristics": age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation The Public Order Act 1986 (as amended by the Racial and Religious Hatred Act 2006) introduced a set of "aggravated" versions of existing public order offences, as well, if I'm not mistaken, as creating some completely new offences of its own, such as "stirring religious hatred". The 1986 Act is only concerned with the characteristics of race and religion, but are there any laws that make it more of a crime to knowingly hit a disabled or gay person than to hit an able or straight one? | Are there any laws that make it more of a crime to knowingly hit a disabled or gay person than to hit an able/straight one? No. But, the victim's charastistics (among other things) will be taken in to account when determining the defendant's culpability at sentencing. The Sentencing Council offers this definition for High Culpability for common assault. Victim obviously vulnerable due to age, personal characteristics or circumstances The are also statutory "hostility" aggravating factors that increase the seriousness, and therefore affect the court's sentence, at section 66 Sentencing Act 2020: 66 Hostility (1)This section applies where a court is considering the seriousness of an offence which is aggravated by— (a)racial hostility, (b)religious hostility, (c)hostility related to disability, (d)hostility related to sexual orientation, or (e)hostility related to transgender identity. This is subject to subsection (3). (2)The court— (a)must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and (b)must state in open court that the offence is so aggravated. (3)So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4)For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if— (a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on— (i)the victim's membership (or presumed membership) of a racial group, (ii)the victim's membership (or presumed membership) of a religious group, (iii)a disability (or presumed disability) of the victim, (iv)the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be) (v)the victim being (or being presumed to be) transgender, or (b)the offence was motivated (wholly or partly) by— (i)hostility towards members of a racial group based on their membership of that group, (ii)hostility towards members of a religious group based on their membership of that group, (iii)hostility towards persons who have a disability or a particular disability, (iv)hostility towards persons who are of a particular sexual orientation, or (as the case may be) (v)hostility towards persons who are transgender. (5)For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6)In this section— (a)references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins; (b)references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief; (c)“membership” in relation to a racial or religious group, includes association with members of that group; (d)“disability” means any physical or mental impairment; (e)references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment; (f)“presumed” means presumed by the offender. And, for completeness, as well as the Public Order Act 1986 cited in the OP, further racially or religiously aggravated offences msy be found in Part II Crime and Disorder Act 1998. | 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. | Some are, some aren't. For instance, Title VII of the Civil Rights Act prohibits all employment discrimination on the basis of race, including discrimination against whites. On the other hand, the Age Discrimination in Employment Act explicitly only protects people who are at least 40, and the Supreme Court held that it only applies to discrimination against older workers in favor of younger workers in General Dynamics v. Cline. While both laws forbid discrimination on the basis of X, the Supreme Court held that Congress clearly meant to limit ADEA to discrimination against older workers. You specifically use veteran status as an example. Veteran status is protected by the Uniformed Services Employment and Reemployment Rights Act. The point of the law is explicitly to make it easier for people to serve in uniform without messing up their career. The law specifically bans discrimination against veterans (or a couple other service-related categories) on the basis of service. It does not ban discrimination in favor of veterans. In fact, the federal government (which is supposed to be a model employer under USERRA) gives veterans a preference in hiring decisions. Congress's goal in enacting Title VII was to make race a non-factor in employment; their goal with USERRA was to encourage military service. | Selective prosecution is when a defendant (1) is charged with a crime based on conduct that others are generally not prosecuted for; and (2) is singled out for an impermissible reason, such as race, religion, or First Amendment-protected speech. Wayte v. United States, 470 U.S. 598, 608 (1985). Because there is no indication that you are being targeted for an impermissible purpose, this does not appear to be selective prosecution. It does sound like the chief is a jerk, but American courts do not care about that sort of thing. | Generally, irrespective of charge, there is no 'shield laws' in the UK legal system. Any such provisions are a matter of discretion for the judge on the same grounds as the admissibility of evidence. Though the following case relates to a murder case rather than rape, it does provide justification for the lack of 'shield laws'. In R v Davis [2008] UKHL 36; [2008] 1 A.C. 1128 (henceforth Davies), as described in para 3, per Lord Bingham, the witnesses were subject to extensive protective measures, as 'they claimed to be in fear forth their lives if it became known that they had given evidence against the defendant'. [Tom Bingham, The Rule of Law (2011 Penguin) 99]. The case addresses issues at the time of the original hearing. However, more recently, there have been statutory provisions for anonymity of witnesses, specifically section 86 of the Coroners and Justice Act 2009. This enables witness anonymity orders to be made, however there are specific requirements that can be found in subsequent provisions of the Act, but there is no common or absolute protection of victims or witnesses. A closing note regarding the 'victim' in the rape case, it should be noted that in the UK legal system, as criminal cases are brought by the CPS on behalf of the Monarch, not the victim and as such the victim is, for all intents and purposes, a witness. | In English law there isn't a specific offence of "mooning". However: It is conceivable that under Public Order legislation someone mooning could be found guilty of causing "harassment, alarm or distress". There was a man arrested for mooning a speed camera, charged with a public order offence and subsequently acquitted. In 2010 a Kent man was issued with an anti-social behaviour order (ASBO) that banned him from mooning (among other things). ASBOs were civil orders, breach of which was a criminal offence. Had that man continued to moon, he could have been found guilty of the criminal offence of breaching the order. (ASBOs have since been replaced with a system of civil injunctions and civil behaviour orders.) It is conceivable that repeatedly mooning one or more particular people would be deemed harrassment. I am not aware of criminal cases but there was an employment tribunal case that found the person had committed sexual harrassment in the workplace because they had mooned a colleague. At common law it is an offence to outrage public decency, "an act which is lewd, obscene or of disgusting character, which outrages minimum standards of public decency as assessed by the jury." I doubt whether a brief moon would amount to that; worse behaviour might. | It is illegal in Scotland. There is currently no law specifically against it in the rest of the UK. If you find this is unbelievable, yes it is. There are attempts now to change the laws. PS. There are no photos taken "of the act". Taking the photo is the act. The pervs use a selfy stick or just get down on the floor to take photos, or take photos on stairs. PPS. News on Jan 16th 2019: "A new law will now be introduced in the next couple of months. It could mean that perpetrators might face up to two years in prison and are added to the sex offenders register." | Lèse majesté is not prosecuted in the UK While it is still technically illegal to advocate the abolition of the monarchy under the Treason Felony Act of 1848, more recent freedom of speech laws means that it is not possible to bring a successful prosecution. The only reason it hasn’t been abolished is that Parliament has better things to do and, since the government doesn’t bring charges under it, the courts can’t quash it. So, the Monarch has the same legal protections as anyone else. |
What is the legal status of entering a ticketed music event without a ticket? Bob Dylan is playing in Alice's city next week, but she doesn't have a ticket. she somehow manages to sneak into the venue without being noticed but is then later caught. Has Alice committed a criminal offence? | Obtaining services dishonestly It is an either-way offence punishable by 12 months summarily or 5 years on indictment and/or a fine in both cases. | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | Hope you have a good prosecutor and a sympathetic judge "They asked repeatedly how much she had to drink ..." Objection: Asked and answered "how she could claim not to remember certain details" Objection: Calls for a conclusion/speculation. The witness is not a brain scientist, she cannot speculate as to why people remember some details and not others. She is testifying as to what she does remember, not as to why she doesn't remember things. "asking if she had not been flirting with him in the days before the incident" Objection: Relevance. Is the defense seriously suggesting that flirtation, if it happened, in the preceding days amounts to consent at the time of the incident? "asked her why she had not chosen a more modest one" Objection: Relevance. Is the defense now suggesting that what the witness wore amounts to consent? | They can’t But they aren’t This is the law (as amended). Section 9 contains the penalties. In any event the police don’t fine people they issue an infringement notice which is an allegation of an offense - police can issue these even if they reasonably believe they took place - they are entitled to be wrong. The person given the notice can admit the offense by paying the fine or contest the allegation by going to court. | No. There could be a remote possibility if Alice knew of Bob's severe heart condition (but even then, no reasonable person would expect someone to get a heart attack out of disagreement over personal tastes however heated/cutting). But as she does not, no chances. Poor Mr and Mrs Bob. | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer | You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal. | Yes, why not? It happens all the time. Usually the witness will just say, "I am not sure" or "I don't remember, exactly". Also, if Bob is the only witness, how would anyone prove that he was committing "perjury"? In the case of an uncooperative or dissimulating witness, Judges sometimes can hold them in contempt of court, but it is pretty rare. In general, the court has to find "beyond a reasonable doubt" that the witness is refusing to testify honestly. (See "Federal Grand Jury Practice and Procedure" by Paul Diamond) It depends very much on the situation. Note that just trying to act "drunk" would not be a good idea, because that is contempt of court. |
How is a judge to evaluate a witness's credibility? How is a judge to evaluate a witness's credibility? | canada I suspect this approach is consistent with most common-law jurisdictions, but other answers for comparison would be great. First, there is a distinction between credibility and reliability. R. v. T.T., 2020 ONCJ 368: ... I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. And also, R. v. Morrissey (1995), 22 OR (3d) 514: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. About credibility, see R. v. Gagnon, 2006 SCC 17, paragraph 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. Other courts have listed some of the factors that might be relevant. R. v. J.T., 2019 BCCA 180 says the factors include: "a witness’s demeanor in the witness box, although it is recognized that it would be dangerous to rely wholly on demeanor to convict"; "internal inconsistencies in a witness’s testimony at trial and/or external inconsistencies in a witness’s testimony with prior testimony or out-of-court statements"; "any explanation by the witness for the inconsistencies"; "any consistent evidence or corroborating evidence to support the witness’s evidence, although corroboration is not a requirement"; and "how a witness withstands cross-examination." There are prohibited approaches to assessing credibility. Section 276 of the Criminal Code says that "evidence that the complainant has engaged in sexual activity... is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant... is less worthy of belief." It is an error to infer from a delay in reporting sexual assault that the complainant is less credible: "the trier of fact must not make an adverse inference on the complainant’s credibility based purely on the stereotype that any delay in disclosure indicates falsehood." R. v. D.D., 2000 SCC 43. It is also an error to "[judge] the complainant's credibility based solely on the correspondence between [their] behaviour and the expected behaviour of the stereotypical victim of sexual assault." R. v. A.R.J.D., 2018 SCC 6. | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | It's always going to be a fact-specific situation, but the first step is to conduct whatever factual investigation is feasible to disprove your belief. If your investigation indicates that your belief is correct, you send a cease and desist letter. If that doesn't work, you proceed to litigation. | 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. | Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in several versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract. Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial. A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding. A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it). | 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. | How would jury selection work for a trial of Donald Trump? Just like it does for everybody else - using the rules for criminal procedure in the relevant jurisdiction. For example, in New York, each juror must be fair and unbiased: A juror who cannot provide unequivocal assurance or whose credibility about the assurance is in doubt would properly be excused for cause. Jurors (like judges) are not blank slates; they have opinions about all sorts of things. That doesn't matter. What matters is if they can set those opinions aside and make a decision based only on the evidence. It is not necessary for juror's minds to be empty, just that they be open. |
What laws enable the police to tow a vehicle when the driver has a suspended licence? Michigan police had my truck towed out of my driveway after my son was stopped by them and found to have a suspended license. I was not aware his license was suspended. Is this practice legal? The officer stated that it was their policy to tow vehicles | It may be legal, depending on surrounding circumstances. Under MCL 257.904b(1) When a person is convicted of an offense punishable under section 904(1)(b) or (c) or a local ordinance substantially corresponding to section 904(1)(b) or (c) for operating a motor vehicle while his or her license to operate a motor vehicle is suspended, revoked, or denied, the court shall order the motor vehicle, if it is owned in whole or in part or leased by that person, impounded for not less than a period the court orders but not more than 120 days from the date of judgment Under the assumption that there was a violation of the law, a conviction and license suspension (for the relevant crime), then the vehicle shall be impounded. It would not be legal for the police to spontaneously decide to impound the vehicle without a court order (which the court must issue). The statute does require that the vehicle be owned or leased at least in part by the person who violated the law. You might then argue that this does not allow impoundment for a vehicle borrowed with permission, and if the judge rejects that argument you could try to argue it up to the Michigan Supreme Court. | Is asking police to justify their orders illegal? NO but the manner in which the "asking" is done may be. | The vehicle occupying the lane has right of way i.e. if you merge and cause a collision, you are liable. The fact that the other driver was in breach of the road rules as well as you is immaterial. If you rephrased the question to be "A vehicle behind you in that lane is exceeding the speed limit - can I exceed the speed limit too?" you would see why. "Because they were breaking the law I should be allowed to" is not a defence that has any prospect of being successful. The law says you must give way when merging, so give way when merging. | Yes, you would be responsible. Maintaining the vehicle in a state that enables compliance with the law is the owner's responsibility, and it is a driver's responsibility to comply with the speed limit. There is no knowledge or intent requirement in a speeding violation. That said, a judge might show leniency if you came to court with documentation of a repair or recalibration of the speedometer after the citation. | The legal hook is reported to be §129 of the Code of Criminal Procedure, which authorizes use of force to disperse an illegal assembly, which this sort of is. No statute that I can find states that police can smack lawbreakers who are forced to disperse, but as is common in common law countries, the laws of India are not fully explicit on that which is allowed or forbidden for police to do. As this article indicates, systematic limits on police use of force remain to be developed. | depending on the Jurisdiction, you actually were in violation of law! In germany it is a misdemeanor to drive with the high beams on in such a fashion that it blinds or dazzles other road traffic, such as traffic from the front. It is also a traffic violation to drive with front lights that don't properly illuminate the street - such as a broken one. In the worst case, improper illumination voids the validity of the safety certificate (TÜV) and thus you may not drive the car at all on public streets until you have repaired the defect. Not having a valid TÜV can mean you are also not insured! In the US: YES, a stop is most likely legal In the united-states, Terry v Ohio is the governing case. It prescribes that, to initiate contact with a car and detain it on the street curb, reasonable suspicion is enough. What could be reasonable suspicion for the police? In the case presented, 'The high beams are on constantly to hide non-functioning/sufficient normal light' would be the very first thing that comes to my mind, so there very likely is reasonable suspicion to initiate the stop. Ot of course 'The high beams are suitable to dazzle me for a split second, and thus the driver endangered traffic'. Endangering traffic can actually be a felony in some cases. Or just 'They shone their brights into my eyes and violated the High Beam statute' - which is actually the most likely case. As a result, while a broken headlight is not reasonable suspicion to search a car, them and high beams might qualify to make a stop reasonable, especially if at first just a verbal warning not to dazzle oncoming drivers was intended by police. Only if the local law is worded in a peculiarity, that might invalidate a stop. And you might be in violation of law here too! california High Beams can be a traffic violation within 500 feet of oncoming traffic and 300 when trailing another car, if they are not so aimed that the glaring rays are not projected into the eyes of the oncoming driver. florida Under Florida Law, it is also a noncriminal traffic infraction to drive with the high lights on in such a way that it blinds traffic within 500 feet of them oncoming and 300 if you are behind them. Again, the test is that the beams are only ok if they are so aimed that the glaring rays are not projected into the eyes of the oncoming driver. new-jersey Here comes a possible source for your quote: New Jersey has a similar high beams law, but also a recent case. The judgment from the New Jersey Surpreme Court is only valid in New Jersey. According to it a high beam violation has to be witnessed by the officer themselves to justify a "terry stop". If you dazzle a moving police cruiser they may stop you. If you dazzle the moving car in front of them, they may stop you. But if you beam your high beams at a stopped car or no car at all, then the police can't stop you. HELD:The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A.39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court s suppression of the evidence is affirmed. Had the officer, in that case, operated the car while being on the same road, the stop would have been constitutional. But he was on foot in a crossing street. texas Wait, actually the quote stems from Texas. However, it has nothing to do with high beams but additional lights such as "Angel Eyes". Texas too has a High Beam Statute, which just like other states, bans blinding oncoming traffic: (c) A person who operates a vehicle on a roadway or shoulder shall select a distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle, except that: (1) an operator approaching an oncoming vehicle within 500 feet shall select: (B) a distribution aimed so that no part of the high-intensity portion of the lamp projects into the eyes of an approaching vehicle operator; and Even in Texas, blinding the police cruiser would thus be enough to stop the car, at least for a verbal warning and lecture. Common courtesy While it might not be against the law to dazzle someone everywhere, it actually does impact the other drivers: there have been crashes induced by traffic running high beams and blinding oncoming traffic, which then ran off the road or into other cars. In some countries, if they catch you for causing a crash that way, you are in for negligence. As a result, it actually is common courtesy in Europe to dim off your high beams when you notice oncoming traffic, and, if you don't run high beams yourself but notice high beams oncoming to flash them up for a brief moment so you get noticed. | Yes. At international borders and international airports (because those are the equivalent of a border), US customs officers may do searches of people and belongings without a warrant and without any particular reason to think they'll find contraband. This includes the authority to do some level of disassembly of the car, if they then reassemble it. See United States v. Flores-Montano, 541 U.S. 149. This is known as the "border search exception." Moreover, police normally don't need warrants to search your car if it was mobile when they found it and if they have probable cause to believe they'll find contraband. This is known as the "automobile exception" or the "motor vehicle exception." It was established in Carroll v. US, 267 U.S. 132. Individual states may have stricter requirements on police searches, but the Fourth Amendment doesn't require police to get a warrant to search your car if, say, you drove it up to a checkpoint and they have probable cause. The difference at a border is that they don't need probable cause and the car never had to be mobile: they can search you on a hunch. | As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury. |
Why is Miller's case titled R (Miller)? Why is Miller's case titled R (Miller)? R (Miller) v Secretary of State for Exiting the European Union The meaning of R is Regina (Queen). This is confusing me. Wasn't the case brought by 'an individual(s) v the government'? Why is the title 'government (individual) v government'? | The Queen (or King) is not the government; she represents the State. The difference is often ignored by ministers, but is important particularly in constitutional cases. Miller began as Miller v Home Office, a judicial review case. When it became clear that the question was what powers the government actually had in a certain situation, the Supreme Court decided that constitutional points should be argued by, effectively, an amicus curiae on behalf of the state, with government lawyers defending their own viewpoint (and other interested parties intervening). This made it, in their view, a case of the state versus the government, with 'Miller' being either an acknowledgement that the applicant remained a party or a means of distinguishing this case from all the other "R. -v- Government" cases over the years, depending on your point of view. | Does this create precedent? NO This was a Crown Court case, only the Supreme Court and the Court of Appeal can set precedent which it did with similar circumstances in R v Hill 1989 | As a matter of law, the Duchy is correct, because a superior court of record agreed, and dismissed the arguments made on the other side. The cited claims from Republic come from a case in the First-Tier Tribunal (EA/2010/0182) about whether the Duchy was a "public authority" for the purpose of the Environmental Information Regulations 2004. The FTT said that it was, since either the Duchy or the Duke were carrying out certain functions of public administration (as the harbour authority for St Mary's Harbour on the Isles of Scilly), and whichever one it was, the Duke was in charge of the Duchy; and meanwhile, the Duchy appeared to have some elements of legal personality, as cited in the question above. This decision was appealed to the Upper Tribunal, The A-G for the Prince of Wales v the IC and Mr Michael Bruton [2016] UKUT 0154 (AAC), which disagreed as to the Duchy being a body with its own separate identity - see paragraphs 71-102 - and reversed the ruling below. The basic issue is that the Duchy of Cornwall was brought into being by a royal charter of 1337. It predates modern common-law or statutory developments about bodies corporate, income tax, corporation tax, and so on. It also precedes the not-exactly-modern developments of the limited scope of royal authority and the prerogative, norms of statutory construction, the Crown as separate from the royal person, and other apparatus of constitutional monarchy. It is true that it sits uncomfortably in the modern world, as a sui generis feudal creation that is not something we would create today. However, as a matter of law, the UT said that what counts is what the Duchy is, not what it ought to be. Figuring out the law means looking at the actual law as opposed to ancillary indications, such as what Duchy officers have said from time to time, or administrative actions of the Health and Safety Executive. Parliament has had the opportunity to consider the position of the Duchy several times and has so far declined to change it. The charter of 1337, which was deemed to be an Act of Parliament by a court case in 1606 (!), grants land and privileges to the Duke of Cornwall, whoever that might be from time to time, and with a reverter to the Crown when there is no Duke. The UT found that this "creates something that has similarities to a trust, but without trustees" (there was a nascent body of law relating to trusts in 1337, but it was nowhere near its modern flourishing). Unlike with the creation of the Duchy of Lancaster, this charter does not incorporate the Duchy as an entity in its own right - the "Duchy" is just a word used to describe the possessions of the Duke or King held under the charter. If it is a separate entity then that is not because of the charter. The UT examined various of the claims made in the FTT but rejected them, saying that "such examples cannot create such an entity or body and each investigation of the submissions based on them that took place before me showed such statements or implications to be wrong (e.g. that the Duchy owns Highgrove was shown to be wrong by the production of the Land Certificate)." It also rejected the idea that the people who administer the Duchy could be regarded as some form of partnership or unincorporated association, finding that they had not come together in that fashion. It said that therefore, the only remaining route to the Duchy being a corporation would be if the other primary legislation dealing with its management had created it as such by "necessary implication". Those Acts, of 1844, 1863 and 1982, deal with accounting and management for the Duchy of Cornwall. From their context and content, the UT said that they seem to envisage the property in question as belonging to the Duke (not the Duchy) as "the legal owner of the assets etc. comprising the Duchy estate", and that "the relevant officers and employees work for the Duke, or the Duke’s guardian when he is a minor, or the Sovereign when there is no Duke, and not for an entity or corporation called the Duchy." Therefore: [T]he Duchy of Cornwall or the Duchy is no more than a name that has been used correctly to describe the possessions of the Duke of Cornwall (the Duchy estate), or to the Duke (or his title), or collectively and conveniently to describe the officers and persons who from time to time act for and on behalf of the Duke as the owner of the Duchy estate. Save to the extent that it is a reference to the Duke as a natural person the Duchy of Cornwall has no legal personality and is not a person, body or entity that has its own functions and powers or a separate identity of its own. Although this was not before the UT, it would seem to follow for tax purposes that if the Duchy is not a body corporate, then it is not liable for corporation tax under the Corporation Tax Act 2010 - see section 1121, which defines "company" for that and the companion Corporation Tax Act 2009. It also does not fall within section 443, "Companies controlled by or on behalf of Crown", firstly because if it's not a company, then that section fails immediately, and secondly because "Crown" here refers to the Crown in the sense of governmental public functions, not the Queen (or her family members) personally. | There is no opinion from the Ninth Circuit. I just checked PACER, and there is a docketed order dated May 18, 2016: Filed order (STEPHEN REINHARDT, MARY H. MURGUIA and JOHN B. OWENS) We have reviewed appellant’s opening brief, appellees’ motion for summary affirmance and appellant’s opposition thereto. We conclude that the questions raised in this appeal are so insubstantial as not to require further argument. Accordingly, we grant appellee’s motion for summary affirmance. See United States v. Hooton, 693 F.2d 857 (9th Cir.1982) (per curiam) (summary affirmance appropriate where the result is clear from the face of record); see Mullis v. United States Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388, 1394 (9th Cir. 1987) (judges are immune from civil liability for damages and for declaratory relief for their judicial acts). AFFIRMED. [9981929] (WL) [Entered: 05/18/2016 02:48 PM] I downloaded Jaffe's Ninth Circuit brief and it's a pretty dull work of a crank. I use the RECAP Mozilla add-on, so the Ninth Circuit docket and brief should show up on RECAP soon. Go to https://www.courtlistener.com/ and in "Advanced Search", search on docket no. 15-56328. Based on past experience it should show up in a day or two. But that's the Ninth Circuit brief, not the SCOTUS one you're looking for; unfortunately, the U.S. Supreme Court is the one US court that is not searchable via PACER. You're limited to the docket, opinions and orders that the Court publishes on its site. For more legitimate cases, briefs can often be found on either SCOTUSBlog or the ABA's briefs page, but not in this case. | england-and-wales - present day... Would the contents of the envelope be considered privileged? No Although it is possible to argue that the letter is a communication to the lawyer (albeit by mistake) its purpose is not in relation to seeking or receiving legal advice, so it fails to meet the definition of legal privilege: There are two forms of legal professional privilege: Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated. Would the lawyer be required to divulge it if asked by the police or in a court? Yes, No, Maybe If the lawyer is a suspect/defendant then there is no requirement to answer any questions whatsoever. Similarly, there is no obligation on a witness to answer questions unless a statutory provision has been triggered, such as the lawyer being given a Serious Organised Crime and Police Act 2005 Disclosure Notice. Would he be required to report the matter to the police on his own? Yes Although there is no general requirement to report a crime (of this nature) to the police, the lawyer's profession is in the "regulated sector" which requires Suspicious Activity Reports to be submitted to the authorities: ... in respect of information that comes to them in the course of their business if they know, or suspect or have reasonable grounds for knowing or suspecting, that a person is engaged in, or attempting, money laundering... What difference, if any does it make that the client apparently did not intend to send these contents to the lawyer? None that I can see ETA The status of legal privilege in 1925 seems to have been the same as now, and this Wikipedia article, under the heading History offers this in support: The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v Lovelace ([1576] EngR 10 (& Ors)) | I don't see the contradiction. The ACLU article you link to explains that the Supreme Court found against discrimination on the basis of sexual orientation in principle in the 2018 ruling. Instead they found that the Colorado Civil Rights Commission had taken a dismissive attitude to the religion of the bakery's owners, and that in itself was religious discrimation and a violation of their First Amendment rights. I would say the 2018 ruling paved the way for the more recent one, which is why the article you link is titled: "In Masterpiece, the Bakery Wins the Battle but Loses the War" | The author of the passage is telling you where the quotation comes from, using a formal case citation. Lawyers usually don't use footnotes, endnotes, or parentheses to set off these citations. Case citations are a sort of shorthand developed by lawyers and judges over the past few centuries. The goal is generally to identify the name of the case, where to locate it, when it was decided, and what court decided it. Although there are a few different styles for formal citations to cases, you don't need to learn much to cover the basics for common types of cases. How to Read It Case name Brown v. Bd. of Educ. Case names usually have a "v." in the middle. Most of the time, the plaintiff goes on the left and the defendant goes on the right. But United States Supreme Court cases are different. Almost always, the Supreme Court reviews decisions of lower courts. They do so in an unusual way: the loser in the lower court asks the Supreme Court to change the outcome. Because the loser, more formally called the "appellant," is the one initiating proceedings in the Supreme Court, they go on the left. (To learn more, look into "writ of certiorari.") Since Brown is a Supreme Court case, we can guess that Brown lost in the lower court; and indeed that's what happened in this case. There are some arcane rules about abbreviating case names. The full name of this case is "Brown et al. v. Board of Education of Topeka." If you're a law student, especially if you're on the law review, you get to learn all about these rules. If you're not, thank your lucky stars and try not to worry about it. Volume, reporter, and page number 347 U.S. 483 This is the bit you want to copy and paste to find the case. It's a lot like a URL: the idea is to clearly identify and locate a case. If you just want to find the case on the Internet, you don't need to understand how it works, and you can skip to the next section. These three parts tell you where to find the beginning of the case in a good old-fashioned printed book. You know those yellow books in the background of lawyer advertisements? That's what we're talking about. They're called "reporters," because they originally contained somebody else's reports of what judges said in court. Now, of course, the judges write down their own decisions; but the name stuck. The middle part, here "U.S.", identifies what set of books the case is in. You can learn something about the court from this: U.S. -- United States Reports -- United States Supreme Court F., F.2d, F.3d -- Federal Reporter -- Federal Courts of Appeal F. Supp -- Federal Supplement -- Federal District Courts (trial courts) The first number is what volume the case is in. This is the number printed on the spine of the book. The second number is what page the case begins on. Pinpoint citation , 495 When somebody wants to refer to a specific place in a case, they just put the page number or range right after the case page number. Remember, "483" was the page the case starts on; "495" is the page where the court actually say what we're talking about. If you flip to page 495 of volume 347 of the U.S. Reports, you'll find the quoted sentence. Remember: usually when you see two numbers separated by a comma, like "483, 495", the first one is part of the citation to the case as a whole, and the second one says what page to look at. Date and court name (1954) This part varies a lot between the different formal styles. In "Bluebook" style, which most law journals use, the year the case was decided is enclosed in parentheses, along with anything necessary to identify the court. Here, there's no court name, because we already know from the "U.S." that it's a Supreme Court case. For lower appellate cases, this might be "(9th Cir. 2005)", meaning that it's a decision of the Ninth Circuit Court of Appeals from 2005. Dealing with short citations You may also see something like "Id. at 495". This is a short citation; "Id." means "the last thing I cited." Go back to the nearest previous citation and look that up, going to the page cited. How to Use It (aka "tl;dr") The key to actually finding a case on the Internet is to copy the three numbers in the middle--the volume, reporter name, and page number. Here, "347 U.S. 483". Don't include any pincite after a comma; Google and many search engines may be clever enough to figure out what you mean, but they may not. There are a bunch of free online services providing case texts. I prefer Google Scholar; just paste the citation in, being sure to select "case law". Other people like CourtListener, FindLaw, and Justia.com. Commercial databases like Westlaw or LexisNexis have a lot more than just the case; most importantly, they list citations to the case. Your local public law library might have a terminal for one of the services that you can walk in and use. Be sure you're reading the actual case, not a summary or "annotation." This is especially true if you're writing an answer here on Law.SE. Many case summaries, especially for famous cases, are written for first-year law students; some of them are probably written by first-year law students! They're often helpful, but they focus on what the student needs to know for class, which often isn't what the case actually said. If I find you quoting a case summary as if it's "the law," I will not be very nice to you. | Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so. |
Who owns the ancient alien bases hidden underneath Antarctica? I know most of you don't believe in "aliens," but my friend John MacQuoid believes there are underground ancient alien bases in Antarctica. Yeah, I know this sounds ludicrous, but according to John, an ancient alien species built several bases in the southern hemisphere hundreds of thousands of years ago. These bases now lie there, waiting for someone to discover them. My question is: who becomes the owner of the ancient alien bases once they're are discovered? Is it the person or country that discovered them, the Antarctic Treaty signatories, or the aliens themselves? | The Antarctic Treaty doesn't establish ownership or sovereignty Article IV of the Antarctic Treaty makes clear that the Treaty is not a renunciation by any contracting party of any basis of claim to territorial sovereignty in Antarctica. And "[n]o acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica." So, while the Antarctic Treaty establishes an arrangement for cooperative shared use of the areas, it is not about sovereignty or ownership. Territorial claims There are (were) however territorial claims to various areas of Antarctica. These have not been resolved at international law. Who owns the centre of the earth? A traditional common-law property rule is that ownership extends to the center of the earth (see generally, John G. Sprankling, "Owning the Center of the Earth"). Sprankling notes that this was never taken literally until after it was introduced by Blackstone and argues that its time is near an end. But in any case, I think the correct starting point is that the owner of the surface owns what's underneath, at least to an extent. Who owns the alien bases, and what would that mean? Applying Earth law, ownership of the alien bases would be disputed among those nations who are willing to assert territorial claims to the surface under which the alien bases are found. However, if these bases are cultural heritage property (which their age suggests they might be), the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property could prevent the import, export, or transfer of any of the material from the bases. The "owning" country (if that is ever resolved) might have obligations under international law to preserve the bases. Further, if the dispute over the property results in armed conflict, the competing states could have obligations under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict to avoid damaging the cultural property. Is Earth law the applicable law? If we take this hypothetical at face value, it implies we are not alone and in relationship with other extra-terrestrial culture(s). If members of those cultures were to reach out, that should at least bring us to consider that our law is not supreme. Our law would need to coexist with other law; other law that potentially has very different conceptions of ownership and rights. | 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 :-). | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | This is a live political issue. Currently, the various datasets are incomplete and have known accuracy issues. Considering a particular parcel of land: It might not be in the Land Registry at all. About 85% of land in England and Wales is registered, and less in Scotland and Northern Ireland. Scottish registered land might only appear on the paper "Register of Sasines", as opposed to the more recent electronic database, or potentially in even older county-specific sasine registers. The owner might be a company, partnership, trust, etc., rather than a natural person. The ownership and control of that company (etc.) can be hard to trace. Companies House data is not verified; companies can be incorporated overseas; the trusts register is not publicly searchable; things can be muddled. Raw data might not show that a dozen properties, each owned by a single company that owns nothing else, are in fact ultimately controlled by a particular person of interest. Different people may own the freehold, or a leasehold, or have various other forms of ownership or control. Even a long-term tenancy may be of interest for database purposes. Because of continuing interest in anti-money laundering, tax evasion, and general accumulation of wealth, there have been plans to have a new "register of beneficial ownership". Such a register would record, for each plot of land, the name of the human beings who actually own and control it in the end. In the anticipated structure, each of those people would have an identifying number, and so we would get your proposed reverse index where you could look up a person and see what they owned. The register introduced by the Economic Crime (Transparency and Enforcement) Act 2022 is the "Register of Overseas Entities" (ROE). However, as the name suggests, it only covers companies/partnerships/etc. from outside the UK. It's operated by Companies House. Overseas entities who have dealt in UK land since 1999/2014/2022 (depending on which part of the UK the land was in) have to list their beneficial owners. Because this is new, it is also not very complete yet: it only went live on 1 August 2022 and no penalties apply until the deadline of 31 January 2023. In Scotland, the "Register of Persons Holding a Controlled Interest in Land" (RCI) is meant to do the same but not just for overseas entities. It is live since 1 April 2022 and the initial registration period ends on 1 April 2023, so again it may not be very complete just yet. There will likely be more political tussle over potential creation of a more extensive UK-wide register. Until that exists, this is a known problem with the extent of current data. You can get a partial view but even that will be frustrating when it comes to the most interesting chunks of property. | Reading some background on Stefan Molyneux (Wikipedia) would indicate that he is a (Canadian) right-wing provocateur (Merriam-Webster) and there is no legal logic to his claim that anyone involved with the migrant caravan - either as a refugee or a person giving aid - is committing an act of treason. Provocateurs - on the political left or right - seek to incite arguments and/or movements on social or political issues with emotion and not on legal frameworks or logical discussion. Provocateurs use words and phrases that can be identified as Dog-whistles (Wikipedia). Calling out "treason" and accusing one of being a traitor are examples of dog whistles. The legal reasoning against leveling calls of treason against anyone helping the caravan members are many; the migrants are not (from the U.S. Constitution:) levying war against them (the US), or in adhering to their enemies, giving them aid and comfort.... because: • None of the countries of origin of the migrants are currently in armed conflict with the U.S. • None of the migrants - alone or as a whole - are armed to engage the U.S. or are a threat to the U.S. • The refugees are easily identified as economic migrants, political refugees or those fleeing violence (domestic, communal, sectarian). • According to Refugee law (Wikipedia) and US Federal law, migrants have a right to due process at the border. • There is no clear proof of an ulterior motive or funding for the migrants in the the caravans. There could be - now or in the future - Americans or American-based aid groups helping individuals or the group as a whole with necessities with food and safety while they travel or after they arrive at the border. But the fact remains that each migrant - when and if they reach the US border - will be legally assessed individually as a migrant or refugee. The aid they may have received is really no different than what many NGOs provide who help arrange a refugees' processing through legal immigration channels, in some instances in conjunction with a US Government agency or with an arm of the United Nations. Such aid by an American is not treasonous for the legal reasoning above. | The Iran lawsuit depended on a statute directed against Iran, not applicable to the Chinese government. The Alien Tort Claims Act, which gives US federal courts original jurisdiction for torts "committed in violation of the law of nations or a treaty of the United States", neither of which is likely to describe the allegation against the Chinese government. The Chinese government probably would not entertain such a suit, and US courts do not have jurisdiction. It is also unclear how much US property is owned by the government of the PRC which could be seized: reports simply talk about "owned by the Chinese" without distinguishing government vs. private ownership. | I would assume that the seller ('Transferor') still owned numbers 7 and 11 at the time of the sale. If so, this clause means that the owners of 7 and 11 (now and in the future) have a right of way on the path coloured blue on the plan. The land still belongs to number 9, but the owners cannot build on it so as to block the path. (As mckenzm comments, "on foot only" is an important qualification; the neighbours do not have a right to install utilities under the path, and the owner can put in obstacles that prevent bringing cycles down it). | Florida bar membership is something that can be determined from public records to see if he is an attorney or not. I would be stunned if he was not. It could be that he was an enrolled patent agent prior to being admitted to the practice of law and has never updated the record. Alternatively, it could simply be that there was a data entry error. No large database is 100% accurate. For most purposes, the rights of an enrolled patent agent and an attorney admitted to patent law practice are the same in PTO practice, so correcting this error (assuming that it is one), even if it was discovered, wouldn't be an urgent priority. |
Can written notices such as company terms and conditions be rejected on grounds of being too long Sometimes companies post 30 page terms and conditions notices that an end user must accept by clicking in a box. Can such agreements be rejected well after the fact (after clicking) on grounds like: being unreasonably long or legalese level beyond the comprehension of a typical user? | canada Not merely because of the length or legalese, and not the entire contract. But there is a line of authority in Canadian law that can lead to exclusion-of-liability clauses being unenforceable, and length is a factor. When there are unusual exclusion clauses, inconsistent with the main purpose of the contract, executed in hasty circumstances, where the contract is long and/or small and the signer's attention is not drawn to the exclusion clauses, courts have been wary to enforce them. Karroll v. Silver Star Mountain Resorts Ltd., 1988 CanLII 3294 (BC SC): [18] ... to allow someone to sign a document where one has reason to believe he is mistaken as to its contents, is not far distant from active misrepresentation. [19] In the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or onerous terms to the attention of the signing party, nor need he advise him to read the document. In such situations, it is safe to assume that the party signing the contract intends to be bound by its terms. [20] But situations may arise which suggest that the party does not intend to be bound by a term. In Tilden the hasty, informal way in which the contract was signed, the fact that the clause excluding liability was inconsistent with the overall purpose of the contract, and the absence of any real opportunity to read and understand the document given its length and the amount of small print on its reverse side, led the Court to conclude that the defendant should have known that the plaintiff had no intention of consenting to the onerous exclusion in question. In these special circumstances, there was a duty on Tilden to take reasonable measures to bring the exclusion clause to the attention of Mr. Clendenning. Tilden Rent-A-Car Co. v. Clendenning, 1978 CanLII 1446 (Ont. C.A.) said: In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. In the case at bar, Tilden Rent-A-Car took no steps to alert Mr. Clendenning to the onerous provisions in the standard form of contract presented by it. The clerk could not help but have known that Mr. Clendenning had not in fact read the contract before signing it. Indeed the form of the contract itself with the important provisions on the reverse side and in very small type would discourage even the most cautious customer from endeavouring to read and understand it. Mr. Clendenning was in fact unaware of the exempting provisions. Under such circumstances, it was not open to Tilden Rent-A-Car to rely on those clauses, and it was not incumbent on Mr. Clendenning to establish fraud, misrepresentation or non est factum. Having paid the premium, he was not liable for any damage to the vehicle while being driven by him. As Lord Denning stated in Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 at p. 360: "We do not allow printed forms to be made a trap for the unwary." | Yes, you can. An excellent example is this very website - at the bottom of this page you will find a series of links in the footer, one of which is "Terms of Service". I think you will agree that most people using the Law SE are making no money from it or paying no money to use it and yet the terms of service sets out in black and white what a user of this site can do, and what the repercussions can be if they breach the ToS, so it serves a purpose as an excellent example for your question. | Typical examples are contracts you "accept" online, like TOS's and privacy policies. Nobody reads that... Websites know that nobody reads their huge TOS's or privacy policies, and it has also been demonstrated (researches, polls, articles)... To target this specific portion of your question, this was addressed in Zappos.com Inc., Customer Data Security Breach Litigation (MDL No. 2357), U.S. District Court, District of Nevada. Consumers won a small victory. From Zappos.com Loses Arbitration Bid in Data Breach Class Action Lawsuit: The main problem, according to the court, is that the arbitration clause is buried as a “snippet” in a 4-page Terms of Use contract, which can only be found by clicking on an obscure link on the site. “We cannot conclude that Plaintiffs ever viewed, let alone manifested assent to, the Terms of Use. The Terms of Use is inconspicuous, buried in the middle to bottom of every Zappos.com webpage among many other links, and the website never directs a user to the Terms of Use. No reasonable user would have reason to click on the Terms of Use, even those users who have alleged that they clicked and relied on statements found in adjacent links, such as the site’s ‘Privacy Policy,’” the court said. Later, the court blasts Zappos for trying to bind users into arbitration simply because they browse the site. According to the court: “The arbitration provision found in the Zappos.com Terms of Use purportedly binds all users of the website by virtue of their browsing. However, the advent of the Internet has not changed the basic requirements of a contract, and there is no agreement where there is no acceptance, no meeting of the minds, and no manifestation of assent. A party cannot assent to terms of which it has no knowledge or constructive notice, and a highly inconspicuous hyperlink buried among a sea of links does not provide such notice. Because Plaintiffs did not assent to the terms, no contract exists, and they cannot be compelled to arbitrate.” So it seems the court recognizes there is no meeting of the minds in some instances. | In general, yes, though there may be a jurisdiction-specific limit. The basic principle is that the website owner offers something of value in exchange for something else of value: Netflix offers content in exchange for money. What is crucial is that the user must have agreed to make a payment, and the website owner has the obligation to establish that the user agreed. Otherwise, there is no contract and no obligation to pay. There is no legal requirement that a person pay in advance, though it is quite traditional. If you have an obscure file called "legal" with some promise-to-pay term buried in it, the probability is low that the simple existence of such a file would be taken by the court to constitute acceptance of an offer. | How to send a document restricting its spread? In theory you could have the company sign a Non-Disclosure Agreement (NDA) prior to sharing the details of your project. However, your chances of enforcing the NDA seem negligible except maybe for George White's suggestion about a patent application. It is otherwise in your best interest to think of another way of showcasing your skills set. Assuming that the company signs your NDA, you have no realistic way to prevent the company from misappropriating (i.e., stealing) your idea(s). You will have no access to the company's systems to ensure that it has deleted all copies and records that could result in unauthorized disclosure. Even if you find out that the company misappropriated your information, it could be too late because the statute of limitations expired, and/or too costly --not just in terms of money-- to bring court proceedings for misappropriation. | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | An agreement to agree is void There is a multitude of case law on this point. If the NDA was not available to you when you signed the employment contract and the term was couched as you describe; then the term would be unenforcable. That is, your employment contract would be binding except for that term i.e. you could not be compelled to sign the NDA. Now, there may be a requirement on you to negotiate in good faith in an attempt to find an NDA you can agree to but if you can't find one you can't find one. You cannot (legally) be fired for this reason. Now, if the NDA was available, and you were told where to find it, and irrespective of if you did or didn't find it, you would be bound to the NDA. |
Can a recreation center ban me without reason and not reimburse my fees? I took a martial arts class at a recreation center. It ended 3 months ago. Today I received a phone call from the director of the recreation center. He asked me to come in for a meeting regarding multiple complaints about my behavior. He refused to discuss it over the phone or give me any more detail. I am taking other classes at the same recreation center (for example I use the gym) and he asked me not to attend until we've had our in person meeting. I was sincerely unaware of any issues or incidences that happened. What are my legal rights? My understanding is since it's a private building they can ban me from it for no reason. Would they have to reimburse me for the membership and class fees that I'm currently enrolled in? Do they need a valid reason to ban me? | What does the contract say? When you signed on for these classes, you signed a contract. This will spell out each party’s rights and obligations. Since the rec centre drafted the contract it probably gives them the right to expel you and probably doesn’t require them to reimburse you if they do; but you would need to read it to be sure. | Can landlord backbill 4.5 years worth of utilities that were never billed to us bimonthly as directed in the lease? Yes, since the bimonthly billing issue appears to be within the LA statute of limitations for claims of breach of contract: 10 years (see here). But you might want to check the actual legislative language of the statute referred therein and the prior or consecutive ones --all pertaining to statutes of limitations-- so as to ascertain the accuracy of information in the first link (navigating through the bunch of LA two- or three-line statutes for this and that gets annoying). They are desperate to get me to move out since it is a rent-controlled unit and I feel like they have done this to cause issues and force me to default on rent. Is this a legal practice? I am not knowledgeable of state legislation particular to rent-controlled units, but I highly doubt it is lawful for them to proceed that way. Other details you describe reflect that the company has been --or is being-- malicious or grossly negligent. If so, strictly speaking, the company's conduct (1) ought to weaken its position or merits in trying to force you out, and (2) tends to contravene the contract law covenant of good faith and fair dealing (see below). If your lease mentions any statutes regarding rent-controlled units, you may want to search for case law at leagle.com to see how the statutes are applied. Without knowing the terms of your lease, I think your priority should at all times be the rent itself so as to avoid eviction. Does the "billing every two months" in the lease have any hold on this issue if they breached their own lease? Maybe not. The repeated, yet sole, failure to send you the bimonthly billings falls short of landlord's breach of contract. For your argument on breach of contract to prevail, you would have to prove that the landlord knowingly/deliberately let the water bills pile up prior to demanding you to pay everything at once. That would prove that the landlord is not meeting the covenant of good faith and fair dealing that is prerequisite in contract law. | There are two senses in which this action might be "against the law". One is that it violates some specific (statutory) law, the other is that it violates some common-law principle especially pertaining to contracts. We can quickly dispose of the possibility that you have violated a statutory law: there is nowhere in the US where you are compelled by law to do anything about foreign language classes (take, avoid, pass, whatever). Your university has the right to establish and enforce whatever requirements it deems proper for awarding degrees and credits, and has the legal power to act broadly in providing an education. Let's say that they have stated a requirement that everybody must take 2 quarters of some foreign language, then if you don't do that, they are entitled to withhold the degree from you. Whereas, if you had satisfied all of the requirements for the degree, then they could not arbitrarily withhold the degree -- it is now a thing that you have a property right to. Just as the university has the right to impose requirements (with appropriate advance notice), they also have the right to suspend requirements, generally or according to circumstances (as long as it is not arbitrary). A typical actual example is "that class hasn't been taught for 3 years". In this case, the requirement was not suspended, but an agent of the university acting within the scope of their appointment judged that the requirement had already been satisfied in your case. The university administration might not actually approve of the professor's choice and might change their rules or sanction the professor (at my university this was common practice, albeit never officially sanctioned), but it is the sort of thing that is within the scope of the professor's job (to judge that you have satisfied the "bottom-line" requirements of the course). Since there was no wrong-doing on your part and you acted in a good faith belief that the professor's actions were "allowed", then the university would be buying itself a pile of legal trouble if it were to rescind your degree. | Utah has a lot of public parks, so to point in the right direction, I will assume that this is a public park in Salt Lake City, it's just a plain old grassy field, and it's not during a special event. A person is suspected of some crime like selling drugs, not arrested, but told by a police officer to go away and never come back. This is way beyond the power of the police. After due legal process, a proven (not just suspected) public menace could be ordered by the court to stay away from the park. A police officer can, of course, order a person to leave a park when they violate a park rule, in fact rule number 1 is "It is unlawful for any person to do or to allow or permit any of the acts prohibited by this chapter in any park in Salt Lake City", so the police cannot legally turn a blind eye to rule violations. Violation of park rules is an infraction which can earn you a ticket of up to $299. However, the officer can tell you to go away, rather than giving you a ticket or arresting you. But an police order cannot issue a unilateral restraining order. Apart from city laws, there are general state laws regarding trespass and destruction of property. The state criminal trespass law says that A person is guilty of criminal trespass if...knowing the person's... entry or presence is unlawful, the person enters or remains on to which notice against entering is given by...personal communication to the person by the owner or someone with apparent authority to act for the owner In this case, the owner is the city, and the officer has apparent authority to act for that owner. In the case of private property, the owner or his agent has very broad authority to give notice requiring you to leave (e.g. if you don't like their politics or their shirt); but in the case of public property, the government has more narrowly circumscribed authority to kick you out. | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | Option 1 is that this is a private school. The school can establish whatever rules they want. There might be a cause of action for breach of contract, but more likely there is some clause saying "You have to do what the principal tells you". Private organizations are allowed to completely suppress you freedom of expression. Option 2 is that this is a public school, in which case they are bound by the First Amendment (which is a limit on government action). Such a prohibition is legally untenable, but you may have to go to court to get an official ruling on the matter. If speech is objectively disruptive, it can be limited, but your examples are not objectively offensive or disruptive, they are simply somewhat provocative. Here is a summary from the ACLU of what public schools can't do w.r.t. student appearance. | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. | Setting aside everything but the title, the Title IX coordinator does not have a federal obligation to email questions to anyone. They may, however, have an institutional obligation to act in a particular way, which might include always email questions, or never emailing questions (the latter is most likely). Assuming someone filed an institutional grievance against you, you have some right to answer these charges – it will be spelled out in the institution's rules. The federal regulations are between the institution and the government, and the institution then creates rules to keep themselves in compliance. The usual worst-case scenario is that someone files a grievance, which is reviewed by the institution. As the accused, you will be informed of the charges against you, and will have the opportunity to defend yourself at least by the "committee decision" phase. Prior to that point, the institution can gather any data deemed relevant, and may well require that all questioning be conducted in a face-to-face meeting. Universities generally have minimal specification of procedural requirements, until they run into a problem and impose rules. To determine a person's authority to require something of you, you can ask them to tell you the university rules that give them that authority. Your attorney can then compare their demand with their authority and advise you whether you must comply, or perhaps strategically should comply, or should refuse. The federal regulation which drives this is 34 CFR 105 subpart A. The logic of this is that the institution cannot discriminate on the basis of sex, if they do, they can be punished, but they can also "erase" the discrimination if they "overcome the effects" of the discrimination. §106.8 requires the institution to have a coordinator who assures compliance and does what is necessary including investigating. There must also be a grievance procedure: (b) A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part. There is absolutely no further federal specification as to what this coordinator can do, instead the government leaves it up the the institution to come up with procedures. The only requirement is that there be no judgment of discrimination. |
if employer is willing to settle prior to litigation in federal court I would like to ask this question related to employer wrongful termination of the employee as a result of retaliation for employee protected activity at work. Would you give up OSHA claims if employer is willing to settle the case prior to bringing litigation in fed court ? Is it explicitly implied that you would not bring OSHA claims if employer settles the matter with you? | A settlement can include whatever terms the parties agree on, short of terms prohibited by law. Usually one party gives up at lest some claims. Then other party nay also give up,claims, or make a payment, or both. There may be other terms as well, including confidentiality of the details. It is not uncommon for both parties to give up all claims against each other. Settlement agreements are legally binding on both parties. We cannot advise on what kind of settlement a particular person should take in a particular case. For tht, consult a lawyer. | The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing "I want to bring this case as evidence" is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case. | Is a firm required to arbitrate disputes arising after the expiration of employment contract? The wording of this question is problematic. From your description it is doubtful that the contract truly expired at the end of the first year. It is valid for a contract to encompass multiple phases with different provisions specific to each phase. Providing that "[a]fter the first year the employee may continue working for the company, until terminated, as an at will employee" is different from expiration of the contract at the end of the first year. The contract simply outlined what happens before and after that point in time. The employer's allegation that the contract expired at the end of the first year is inconsistent with outlining in that same contract the nature of the parties' continued relation after the first year. Said nature of the employment relation should have been outlined in a separate contract in order to preempt an interpretation of there being one same/ongoing contract. The employer's allegation is vague and untenable also in a scenario where the employer terminates the employee within the first year. The employer's allegation seemingly implies that the employee's deadline for arbitration proceedings expires at the end of the first year. That would give the employer the opportunity to evade the arbitration clause by choosing a timing that de facto prevents its employee from enforcing the clause. Questions regarding arbitration are unanswerable without knowing the exact terms of the relevant clause(s). Just like the contract provides a transition from fixed term employment to at will employment, it is possible --but not necessarily the case-- that the arbitration provision is applicable only to some of the phases that the contract encompasses. | Setting aside everything but the title, the Title IX coordinator does not have a federal obligation to email questions to anyone. They may, however, have an institutional obligation to act in a particular way, which might include always email questions, or never emailing questions (the latter is most likely). Assuming someone filed an institutional grievance against you, you have some right to answer these charges – it will be spelled out in the institution's rules. The federal regulations are between the institution and the government, and the institution then creates rules to keep themselves in compliance. The usual worst-case scenario is that someone files a grievance, which is reviewed by the institution. As the accused, you will be informed of the charges against you, and will have the opportunity to defend yourself at least by the "committee decision" phase. Prior to that point, the institution can gather any data deemed relevant, and may well require that all questioning be conducted in a face-to-face meeting. Universities generally have minimal specification of procedural requirements, until they run into a problem and impose rules. To determine a person's authority to require something of you, you can ask them to tell you the university rules that give them that authority. Your attorney can then compare their demand with their authority and advise you whether you must comply, or perhaps strategically should comply, or should refuse. The federal regulation which drives this is 34 CFR 105 subpart A. The logic of this is that the institution cannot discriminate on the basis of sex, if they do, they can be punished, but they can also "erase" the discrimination if they "overcome the effects" of the discrimination. §106.8 requires the institution to have a coordinator who assures compliance and does what is necessary including investigating. There must also be a grievance procedure: (b) A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part. There is absolutely no further federal specification as to what this coordinator can do, instead the government leaves it up the the institution to come up with procedures. The only requirement is that there be no judgment of discrimination. | Summary If they didn't steal your withholding, it depends a great deal. But if your employer stole your withholding, the IRS will sue them on your behalf. You will absolutely have grounds to sue them, and because tax law is so cut and dried in these situations, in that case, you will almost certainly win. You need to contact the IRS immediately and advise them what your employer has done. This is more important than anything else because until you do, you can't be sure the IRS will figure out what happened (they might. They're really good at tax stuff). If your employer didn't advise you that you are now responsible for paying your own quarterly estimated income taxes, the IRS will almost certainly grant you relief from penalties for failure to file timely and they could potentially abate interest as well, depending on the circumstances. They are especially likely to grant penalty and possibly interest abatement if you've never filed 1099 before. If your employer withheld tax from your pay that they then failed to turn over to the IRS, good news for you - bad news for them. The IRS takes no mercy whatsoever on employers who steal tax withholding from employees. Advising the IRS that this may have been the case is all you should need to do - the IRS can check its own records, your employer's records, etc. They will let you know once they've determined whether your money is where it's supposed to be; if anything is out of order, rest assured they will already be pursuing the case against your employer. In this case, the IRS will waive all penalties and interest that may have been assessed as a consequence of your employer's failure to turn over your withholding. If you are currently unable to pay, that's not the end of the world. Make the IRS aware of your current financial circumstances and your inability to pay due to unemployment. They have installment agreements you can request, or if that won't work, they can temporarily suspend collection action while you get things straightened out. There's a bunch of paperwork they'll ask for, and penalties and interest will continue to accrue, but as long as you let them know the situation, they will apply a dramatically reduced rate to reflect your efforts to comply. | 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. | Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy). | At Will Employment - In General An "at will" employee in the U.S. can be fired at any time for any reason without any prior notice or warning. Outside a union shop or a civil service employment situation, even an illegal reason for firing does not give you the right to be reinstated in your job - instead it gives you a right to sue for money damages. Unemployment Benefits and Employment References If you are fired for good cause (or you quit in a situation that is not a constructive termination), you are not entitled to unemployment benefits. If you are fired without cause particular to your conduct (e.g. you are laid off in the employer's reduction in the size of the employer's labor force), or your are fired for a reason that is not good cause (e.g. you are fire because the boss is annoyed because you are such a goody two shoes that you always show up to work on time), you may be entitled to unemployment benefits based upon your term of service and earnings (short time employees are often not entitled to unemployment benefits no matter what). If you apply for unemployment benefits because you assert that you were fired without good cause, and the employer believes you were fired for good cause, the employer can dispute that finding in a summary administrative hearing. Employers fight awards of unemployment benefits for employees who are fired rather than laid off, because it affects the employer's unemployment insurance rates (and because they care, for non-economic reasons, if the integrity of their stated reasons for firing someone are not believed, or if their reasons for firing someone are not considered to be legitimate grounds for termination by a government agency). Even if you are entitled to unemployment benefits, these benefits are much smaller than your regular pay, and generally last less long than the period for which you were employed. A formula or calculator should appear on the Texas Workforce Commission Website. I assume when you say that "They put a few fake tags on me" that this means that they stated reasons that would be valid "for cause" reasons for termination and you dispute those reasons apply to you, but please clarify if I am mistaken. If that is the case, it is likely that you would have to fight for any unemployment benefits you are otherwise entitled to in an administrative hearing as the company is likely to contest your claim that you were not fired for good cause. This also means that if you seek new employment that they will give you a bad reference to someone who inquires about your employment (although many HR departments are afraid to do that for fear of defamation liability and will only confirm the dates of your employment and your position). Wrongful Termination Lawsuits Separate and apart from unemployment benefits, if you are fired, not just without cause, but for an illegal reasons (e.g. race, sex, and select statutory prohibited reasons), you may bring a wrongful termination lawsuit. Some of those reasons (firings related to discrimination by a private sector employer) require you to file an EEOC complaint and have it investigated by them first, other of those reasons (mostly whistle blowing statutes and breaches of written employment contracts that don't allow for termination of employment without cause) allow you to immediately bring suit for wrongful termination. The legal status of firing someone because you complained about another employee's ethical violation depends upon the exact nature of the ethical violation. For example, a U.S. Supreme Court case decided this month (i.e. February/March 2018) held that whistle blower protections under U.S. securities laws apply to people who report securities fraud to the SEC, but not to people who report securities fraud to a supervisor in the company. "My fellow employee was a lying asshole who acted unprofessionally (in non-technical sense of the word), and I complained about this conduct to my supervisor and the employer didn't care" standing alone, would not normally constitute conduct that is covered by a whistle blowing statute that could allow you to bring a lawsuit for wrongful termination of employment, although it might constitute a constructive termination for bad cause by an employer (if you quit) or termination for bad cause by an employer (if you were fired) for unemployment insurance purposes. The legal theory behind the amount of damages that can be awarded in a wrongful termination lawsuit is a bit obscure. As a rule of thumb, six months wages is a pretty typical settlement amount in a wrongful termination case prior to a determination by a court of employer liability. At trial, there is wide variation in what juries award in wrongful termination lawsuits involving similar facts. Sometimes the award is minimal even when the jury finds that the employer wrongfully fired you, and sometimes the award is very substantial, amounting to many years of lost income in amount. Contractual Payment Obligations Generally speaking, unless a written contract provides otherwise, you have no obligation to return a hiring bonus and the employer has a contractual duty (and probably a statutory one as well) to pay you through the date of termination without deduction for a hiring bonus paid. This includes any amounts, including bonuses, that the employer was obligated to pay you, although proving an entitlement to a bonus can be difficult unless that standard for receiving one is clearly defined and you clearly met those standards as a factual matter. Sometimes, you can even win a breach of contract award for a bonus that was not yet fully earned if the only reason that the bonus was not awarded was the employer's bad faith conduct. You could sue to collect unpaid wages in a Justice Court (the limited jurisdiction court for small claims in Texas) if necessary, if the amount you are claiming is under $10,000. If you have a claim for unpaid wages in a larger amount or also have other damages, you would need to bring suit in the appropriate county court or district court, depending upon the amount claimed. |
Has any law failed a test of rational basis? Has any federal or state law ever been struck down because it had no rational basis, in a case where that was the standard for constitutionality? | The following article found seventeen cases between 1971 and 2014 when the Supreme Court, purportedly applying rational basis scrutiny, held that the law in question violated the equal protection clause. Holoszyc-Pimentel, Raphael. "Reconciling rational-basis review: when does rational basis bite?" New York University Law Review 90: 2070-2117 (2015) The article's introduction appendix to the article gives brief summaries of all seventeen. (As well as one extra case, Logan v. Zimmerman Brush Co. in which the majority opinion did not mention rational-basis scrutiny, but two concurring opinions, signed by a total of six justices, did.) The author specifically cites Romer v. Evans as mentioned in bdb484's answer. Another quotable example is USDA v. Moreno, 413 U.S. 528 (1973), which examined a provision that denied food stamps to households where unrelated people were living together (e.g. hippie communes). Its second-to-last sentence: But the classification here in issue is not only "imprecise," it is wholly without any rational basis. Incidentally, Holoszyc-Pimentel's thesis is that in these cases, the Court was not truly applying rational-basis scrutiny, but some other slightly stronger standard, which the author calls "rational basis with bite". The full list of cases from the article: United States v. Windsor, 133 S. Ct. 2675 (2013); Romer v. Evans, 517 U.S. 620 (1996); Quinn v. Millsap, 491 U.S. 95 (1989); Allegheny Pittsburgh Coal Co. v. Cty. Comm’n, 488 U.S. 336 (1989); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612 (1985); Williams v. Vermont, 472 U.S. 14 (1985); Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Plyler v. Doe, 457 U.S. 202 (1982); Zobel v. Williams, 457 U.S. 55 (1982); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973); James v. Strange, 407 U.S. 128 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lindsey v. Normet, 405 U.S. 56 (1972); Reed v. Reed, 404 U.S. 71 (1971). Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) | 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. | I think you misunderstand some of the relationships between laws, decisions, and justifications, and you're conflating two separate areas of jurisprudence. The linked real-world example you provide is happening in the employment context, but also in a government context (since it is a public school). But all the examples in your list have nothing to do with employment law and would be purely statutory/regulatory prohibitions. I will attempt to answer broadly enough to cover both domains. Laws and regulations can be challenged as discriminatory The things you have listed under "decency law" would be criminal or regulatory matters. A preliminary question would be whether the laws as written even capture the behaviours you've described. To the extent that they result in discrimination, the laws could be challenged as breaches of s. 15 (right to the equal protection and equal benefit of the law without discrimination) of the Canadian Charter of Rights and Freedoms. There may be other Charter arguments too, if the laws affect expression or life, liberty, or the security of the person. (Public decency / nudity laws are more frequently challenged on grounds of free expression.) Decisions of school boards are subject to the Charter The Charter almost certainly applies to decisions of public school boards and schools. See Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, paras. 39-41. These decisions could be challenged by judicial review (i.e. court review of an administrative decision-maker's decisions) and would be analyzed for reasonableness, including whether the decision strikes a proportionate balance between the Charter right and the statutory objectives (Doré v. Barreau du Québec, 2012 SCC 12). Even if there is an infringement, the government gets a chance to justify it If you're looking for some sort of a "line" it is found in the justification or reasonableness analysis. Where a law or regulation is challenged, and if a breach of s. 15 is established, then the onus is on the government to justify the breach as a reasonable limit as allowed by s. 1 of the Charter. This will depend on the importance of the government objective, whether there is a rational connection between the objective and the law, whether the law is minimally impairing, and whether the impact on the claimant is proportional to the salutary effects of the law. When a court reviews an administrative decision for reasonableness, it is "engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited" (Doré, para. 6). In each of your examples, the judgments would be highly fact-based and it is fruitless to speculate about what the evidence might show. Relevance of association with minors You ask whether it would matter "if the person in question was primarily associating with minors." This likely would not matter if a law was challenged, because such challenges are about the validity of the law, not the factors that might render its applicability to a particular person to be more or less justified. But if the law itself had the purpose of protecting children, or if the law itself was targetted solely at those associating with minors or those in positions of authority over minors, this would be a factor weighing in favour of justification of the infringing law (Irwin Toy, R. v. Sharpe). Whether the person in question was primarily associating with minors would matter in the context of an administrative decision, because these decisions are case-specific. Some anti-discrimination statutes provide more protections Ontario's Human Rights Code potentially contains even further protections. Section 5 says that every person has a right to equal treatment with respect to employment without discrimination because of sex, gender identity, gender expression, and other enumerated factors. Section 24 provides for exceptions to that right in educational settings (and some others) where what would otherwise be discrimination is actually a bona fide qualification of the employment and if it cannot be accommodated without undue hardship on the employer. These judgments are also highly fact-based and it would be fruitless to speculate about what the evidence might show. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | Nowhere Collectively The US doesn't know the number of laws on all the federal, state, and city books. Often the lowest level of laws and ordinances are only in a city database, and sometimes not on the internet. As a result, there is already an impossibility to get all the laws in the US in one database - and there are even countries that have not taken any steps to make their laws accessible on the internet at all. For example North Korean Law. This is compounded by different entities proclaiming their laws and regulations in only their own language and on different proclamation platforms. Where available at all, the countries have country-wide laws and ordinances on their own dedicated websites. But again, federalism for the win: there will be different proclamation platforms for lower levels of legislation. For example germany has its justice department host https://www.gesetze-im-internet.de/ which hosts all federal german laws. Schleswig Holstein hosts their state-level laws in corporation with the service Juris on https://www.gesetze-rechtsprechung.sh.juris.de/jportal/portal/page/bsshoprod.psml and the town of Kiel has all of its ordinances and special orders on https://www.kiel.de/de/politik_verwaltung/ortsrecht_bekanntmachungen/index.php Why a conglomerate is a bad idea Now, making a conglomerate of all the laws is actually a bad idea for several reasons: Updates. The different entities that are in making regulations with the force of law only update their official proclamation site. Often, such changes are not announced too loudly for the lowest levels, and with the number of cities in a single federal state, it's near impossible to keep the database up to date on a complete level. This is why different databases usually only scrape the federal levels. Scraping will break quickly. Each of the websites I pointed to in Germany has a different system setup, making scraping these websites for the relevant information basically useless. Compounding that, City ordinance pages are redesigned at a somewhat elevated pace, resulting in the scraping of these pages to break quickly, even if you manage to set it up. Citability. In a court of law, only the official text is relevant. If an update is missed, then the whole text is useless - you'll have to look up the actual, currently in-force version of the law or ordinance, so the conglomerate is not helping. You want a ginormous database. In some countries, judgments also make law as precedent. So you want every judgment in your database. Which quickly runs into a different problem: The US alone generates millions per day. | what is the state of the law with the valid parts of Bill B? If by "valid" you mean the sections which are unrelated to Bill/Law A, then they retain their status just as if the court had not stricken the unrelated legislation. For instance, see *Loeb v. Columbia Township Trustess, 179 US 472, 490 (1900) regarding invalid sections: "One part may stand, while another will fall, unless the two are so connected, or dependent on each other in subject matter, meaning or purpose, that the good cannot remain without the bad". This is also known as the doctrine of elision. See State v. Tester, 879 S.W.2d 823, 830 (1994). The doctrine is premised on "there [being] enough of the act for a complete law capable of enforcement and fairly answering the object of its passage" coupled with an indication that the legislative intent is "to have the valid parts of the statute enforced if some other portion of the statute has been declared unconstitutional". One way to evidence the latter is by including a severability clause in the statute, Id. Similarly, see Gannon v. State, 372 P.3d 1181, 1203 (2016), and Small v. Sun Oil Company, 222 So.2d 196, 199 (1969). You did not specify the jurisdiction you have in mind. Regardless, that jurisdiction is very unlikely to take a materially different approach to address this issue. | Amendments to the US Constitution are part of the US Constitution, and this includes the so-called Bill of Rights. The doctrine of applying parts of the US Constitution to states, known as incorporation, comes from the 14th amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The scope of the doctrine of incorporation is logically limited to amendments because the original articles of the constitution state how the federal government is run, and does not guarantee any rights or privileges to individuals. Amendments 1,2,4,8 are fully incorporated against states, 5 and 6 are partially incorporated, third and 7th are not incorporated, and for 9th and 10th there is no ruling. This arrangement derives from decisions by the Supreme Court, interpreting the 14th Amendment and the concept of "due process". If a state were to passe a law forbidding criticism of the governor (violating the First Amendment), an individual could sue to have the law found unconstitutional. Because, under the 14th Amendment, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article", Congress can and has passed a law prohibiting violation of civil rights: 42 USC 1983. Since the state in this hypothetical scenario has violated federal law, the federal government (Dept. of Justice) has standing to sue the state for violating federal law. | The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes). |
Is the text of the New Vulgate protected by copyright? Recently there was a question on the Latin Language Stack Exchange website about different translations of the Bible, I am considering editing some passages in the form of a comparison between the different versions (one column per translation). Is the New Vulgate copyrighted or can I use it freely? I have not found any information on this subject in the CONSTITUTIO APOSTOLICA. | Vatican copyright law article 5 says Spetta alla Santa Sede ed allo Stato della Città del Vaticano il diritto di autore sulle opere create o pubblicate sotto il loro nome o realizzate per loro conto. § 2. Ai fini della presente legge per Santa Sede si intendono, oltre al Romano Pontefice, i Dicasteri e gli Organismi della Curia Romana, nonché le Istituzioni ad essa collegate. § 3. A ciascuno dei soggetti di cui al paragrafo 2, che siano dotati di autonomia amministrativa nel quadro della normativa generale o dello statuto proprio, sono affidati l'esercizio e la tutela del diritto di autore nelle materie di rispettiva competenza. § 4. La durata dei diritti esclusivi di utilizzazione economica che spettano ai soggetti di cui ai paragrafi precedenti è stabilita in settanta anni a partire dall'anno di prima pubblicazione dell'opera, qualunque sia la forma nella quale la pubblicazione è stata effettuata, ovvero dall'anno di morte dell'autore ove questi sia indicato nell’opera §4 is the crucial time limit: 70 years from publication: The duration of the exclusive rights of economic use belonging to the subjects referred to in the preceding paragraphs is established in seventy years starting from the year of first publication of the work, whatever the form in which the publication was made, or from the year of death of the author where this is indicated in the work Under Italian copyright law article 29, The duration of the exploitation rights belonging, under art. 11, to the State, the provinces, the communes, the academies or public cultural organizations, or to private legal entities of a non-profit making character, shall be twenty years from first publication, whatever the form in which publication was effected. In the case of communications and memoranda published by academies and other public cultural organizations, the term shall be reduced to two years, after which the author shall wholly recover his right to the unrestricted disposal of his writings. While Italian copyright law generally holds in Vatican City, it does do only when not contradicted by Vatican law. The across-the-board 70 year copyright is a clear indication of an exception regarding duration (indeed, it also allows perpetual copyright for writings of popes). Also noting that Italian copyright law does not have a "fair use" exception, we can conclude that the work is and will be protected for some years. | A document, or an image of a document, created using a font would not be considered to be a derivative work of that font. If it were, our system of licensing fonts would need to be significantly different. In any case the part of the license which reads: [This license] allows the licensed fonts to be used, studied, modified and redistributed freely as long as they are not sold by themselves. It specifically permits such use of the fonts. By "derivatives" the license seems to mean modified versions of the fonts, which it permits the licensee to create and use subject to certain restrictions. This seems to be confirmed by the license text which says: The requirement for fonts to remain under this license does not apply to any document created using the fonts or their derivatives. The plain meaning of this is that derivatives of the fonts are used to create documents, not that they are documents themselves, and that in any case "any document created using the fonts" is not subject to the license restriction. | The text and content (including all diagrams and illustrations) of the 1847 work (and of any other work published in 1847) are in the public domain in the US and everywhere in the world. You may freely use them verbatim or in any modified form that you wish. You are not even legally required to credit your source, although not to do so would be unethical, in my view. The version by Nicholas Rougeux that is linked to in the question has the licensing statement: Posters and website design are copyright Nicholas Rougeux. All other content and diagrams are under the Creative Commons Attribution-ShareAlike 4.0 International license (CC BY-SA 4.0). This will not apply to any content copied from the 1847 version, of course. You may use any of the new content and diagrams so released, or make and use derivative works based on those elements, provided that you comply with the CC BY-SA 4.0 license. This has a number of provisions, but the major ones are that you must release your work under the same license, must acknowledge your source work, and must not impose any additional conditions or restrictions on users of your derived work. These are spelled out in sections 3.a and 3.b of the license (linked above). Please read the full terms if you intend to use this license. If this procedure will satisfy your purpose, you do not need any further permission from Nicholas Rougeux, nor to pay any fees or royalties to him. If you do not choose to place your work under a CC BY-SA 4.0 license, then you must not use the diagrams from Rougeux's version, nor modified versions directly based on them, nor an overall design clearly and directly based on the original design of that version, unless you secure permission from Rougeux (or the current copyright holder of Rougeux's version, whoever that may be). Given that Rougeux chose to release under a CC BY-SA 4.0 license, he may well be unwilling to grant permission under a different license, but that is his choice to make. Exception: in the US, you may use content from the Rougeux version to the limited extent permitted by fair use. This is not likely to cover the use of all or a large number of diagrams, particularly for a competing version of the same base work. Without specific information on how much content you would be using from that version, and how similar it would be to the original, no one can reliably determine if fair use would apply or not, but fair use is most likely to apply when a strictly limited amount of content is reused, and particularly when it is used for a different purpose than the original. Also, fair use is a strictly US legal content, and a work that might be held to be fair use by a US court might be considered an infringement by the courts of some other counties. Other countries have their own exceptions to copyright which are different in scope and terms from fair use. Many of them are significantly narrower. Note that a work posted to the internet is in effect published in all countries, and a copyright holder might choose to sue in any country s/he pleases. US courts might well enforce such a judgement even if it would not have been the judgement of a US court. Rogeux (or any other creator of a new edition) can have no copyright in elements already present in Byrne's 1847 work. Any similarity to Rogeux's work that is because of a similarity to Byrne's 1847 work is not copyright infringement. But any new elements introduced by Rogeux (or anyone else), including the manner of adding interactivity to a diagram, may well be protected by copyright (although the idea of having an interactive version of the diagram will not be). Any new or significantly modified text or diagrams introduced in a later version will be protected. As to any other versions of the 1847 "Byrne's Euclid" that may have been published, the publishers gain no copyright over the original 1847 work or any of its elements, including text, diagrams, or color scheme. Provided you do not use any original content newly introduced in such editions, you do not need to secure any permission from, or pay any fee to, the copyright holders of such editions. However, you may not use any such original content, or modified versions clearly based on such original content, without permission, unless an exception to copyright, such as fair use, applies. All that I said above about fair use would then apply. A copyright holder may grant or refuse permission to use a protected work or create a derivative work on any terms that s/he chooses, and charge any fee or royalty rate s/he thinks proper. Lack of response to a request for permission must be treated as if the response was "No". | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | 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. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | The audio book would probably be an infringing derivative work because the client could redistribute it once the client received it. It sounds very much like a product that is regularly sold by merchants relying on copyrights. Conceivably, simply reading a book aloud to a client in some sort of streaming context that could't be shared with others or replayed would merely be fair use, much like hiring a baby sitter to read a book aloud to your children would be clearly fair use. If there were an automatic text to sound converter as opposed to an individualized performance, it might not be considered infringing. There are people with programs that do this who haven't been sued, but the boundaries haven't been explored very thoroughly. Honestly, there isn't a lot of guidance in this area from statutory language, and the questions would often not be guided by much case law involving similar facts. Your intuition living in the modern world is probably almost as good as a lawyer's in this situation. |
What is the legality of the use of non-commercial-use-only software as a tool in a company? I'm doing some experimentation with machine learning, for purely educational/scientific purposes, and one of the concerns that came up, is: If I use training materials (images and other data) designated for non-commercial use, and then release the trained model, do I also need to give the model a non-commercial license, or can I mark it as completely free to use for any purpose? Would I be responsible if someone uses this model for commercial use? | There is no fixed legal meaning to "non-commercial", instead, every license must define what is meant by "non-commercial", if it uses that term. CC BY-NC 4.0 says that NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. That would mean that you cannot sell software of a dataset so licensed, but you could give it away. Copyright does not prohibit using a work as raw data for some kind of analysis, such as counting occurrences of words, so it is legal to publish a table of word-counts from the Harry Potter novels, even though you can't publish the novels without permission. The word counts are facts, not "expression", and copyright doesn't protect facts. It is possible that your initial access to the expressive work was contingent on not doing something with that work, for example a license to copy a book in the first place might be contingent on you not using the data for purposes of statistical analysis. For Harry Potter books, there's really no way to show that Smith could only have gained access to the work by agreeing to a certain license and showing that Smith did agree (Potter books are everywhere). It is possible that some work is so well controlled that you did indeed agree to "not subject the work to statistical analysis". It is highly unlikely that there is any such condition is attached to a work that has is "non-commercially" licensed. You can read the license and see what it actually says. Basically, an abstract model of X is not X itself, it is a fact about X, and facts are not protected. | The starting point is whether you infringe copyright by downloading or using the cracked software. The licence you purchase relates to a specific copy of the software. The licence almost certainly does not say 'You can use any copy of this software.' It will usually say something like 'You may install this software', surrounded by other language that makes it clear that 'software' refers to a specific copy. E.g. the Windows 7 EULA says 'you may install one copy of the software on one computer' and, in another place, says 'By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.' Nothing in that licence allows you to download an infringing copy of Windows from elsewhere and apply your licence to that copy. In the case of Windows, you don't have a licence to run 'Windows', you have a licence to run a specific copy of Windows. Therefore, even though you have purchased a licence, you would not have a licence for the cracked copy. Running a computer program inherently requires you to make copies of it in memory. In the absence of a copyright licence, this is copyright infringement: MAI Systems Corp v. Peak Computer Inc (1993) 991 F.2d 511 (defendant, who was not a licensee in relation to software, ran software and in doing so created copies of the software in memory; the person was purportedly authorised by a licensee to do so, but the licensee did not have the right to so authorise the defendant). In some jurisdictions, there is legislation to permit non-licensees to run software without infringing copyright, but these provisions (at least the ones in the US and Australia) don't apply to copies of the program which are themselves infringing copies. See 17 USC 117(a) and section 47B of the Copyright Act 1968 (Cth). Now, supposing you do infringe copyright, the question of whether that is a criminal act will depend on the jurisdiction and the other facts of the case. In Australia, downloading or using software is almost never a criminal act (offences under the Copyright Act require trade in infringing copies or commercial scale, etc). In the US, infringing copyright for commercial gain (e.g. if the software is for use in a business) or of particularly expensive software might be criminal under the No Electronic Theft Act. Furthermore, downloading the 'cracked' software may make one complicit in the distributor's offending, specifically by way of 'counselling and procuring' or 'conspiracy'. The distributor's offending may include the kind of commercial copyright infringement that is criminalised. | If the tool circumvents Windows' copy protection (which is a computer question, not a legal one, but I cannot imagine a circumstance in which this isn't access-circumvention), then it is a violation of 17 USC 1201, which forbids "circumvent[ing] a technological measure that effectively controls access to a work protected under this title". It is both illegal to use, and to "manufacture, import, offer to the public, provide, or otherwise traffic" in such a program. | The customer will own exactly what is stated in the contract. As the contractor, who wants to be able to reuse code (which is in everybody’s best interest) you want to keep the copyright, with the client having the license to use the code any way they want. If the customer wants the copyright with the contractor losing all rights, that will be in the contract, and it will cost. If the contractor produced an application that use lots of domain knowledge supplied by the client, that will often not give the client copyright, if the contractor is the one producing the actual expression of that knowledge by translating knowledge into code. If the client provides knowledge that is actually a trade secret, then an NDA should be signed. And again, it’s contracts. The client can put into the contract that their domain knowledge must not be reused. That is quite reasonable. The client might add to the contract that the contractor will not write software for any competitor. That is legal if it is in the contract, but it will cost. | 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. | Generally speaking, you must be Licensed, or enter a written agreement, in order to use any logos from any company, especially any time the reference is referenced commercially. There are exceptions to the rule, and some are more lenient than others, but you should always check before showing any company's trademarks or brand icons. For example, Intel® allows third parties to refer to them by name, but displaying a logo requires a license or written permission, per their Trademarks and Brands guideline. You'll find that most companies are probably willing to overlook violations of Licensing as long as the product is placed in a favorable light, since's that's basically free advertising, but you'll want to take the extra few moments and simply call them and ask. A ten minute call could save you tons in legal fees and/or fines. From what I've seen, most companies will allow use of their company name for most commercial and non-commercial uses, but reserve some logos only for licensed partners, and others still only for themselves. They will also generally specify appearance guidelines, such as rendering ® and ™ only the first time on each page of printed material, as well as a specific guideline for sentences and phrases that the name may or may not appear in. They also usually specify that such phrases may not imply that the company is a partner or representative of the company, etc. You can see Intel's Trademark Symbols and Acknowledgements page for an example of what you'd expect to be required to do. This page also gives some example sentences of acceptable and unacceptable phrases. For example: Correct Usage Look for PCs with Intel® Core™ processors. Incorrect Usage Look for PCs with Intel® Core. Mostly, they're concerned about making sure ™ is used correctly, as well as specifying that they make processors, not entire systems. You'll want to try and stay on the good side of their legal department, and represent fairly. | 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. | 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. |
Is misrepresentation a tort or a breach? I am confused by the provisions in tort and contract law for damages in the case of misrepresentation. I am reading specifically in New York law and it seems unambiguous that the only damages allowed for a claim of negligent misrepresentation are "out-of-pocket losses" which can be zero even when a plaintiff has suffered measurable losses. Consider this scenario: Bob is an excavator. Alice approaches Bob and says that she has buried $1000 in a particular location. They enter a contract for Alice to provide the location of the money, Bob to excavate it, and the parties to split it 50/50. Bob takes his shovel and spends a week digging at the location and to the depth specified by Alice, but finds nothing. Alice says that she honestly believed the money was there, but agrees that Bob performed the excavation properly and that nothing was found. In this case, Bob has a cause of action for "negligent misrepresentation" by Alice. But Bob has no "out-of-pocket damages" because the only thing he spent in performance was his time and labor. (This understanding is detailed here.) It doesn't seem equitable for a tort to be recognized but offer no real remedy. I'm wondering if the problem is that I'm looking at a tort when there is another cause of action under contract law? Contract law appears to offer "benefit of the bargain" as a remedy for breach of contract, and in this scenario it does look like Alice breached the contract ... except that the breach was a negligent misrepresentation. Is there a cause of action for that under contract law even though it's explicitly a cause of action in tort? | What misrepresentation? Alice said she buried the money there. That the money is not there now is not evidence that she didn’t. it’s evidence that something happened to it between then and now. However, let’s not let the flawed example obscure the question. Let’s pretend instead that Alice said the money was there now. Misrepresentation Pre-contractural false statements of fact by one party that induce the other to enter the contract give a cause of action in contract law; they are not a tort. There are torts that are similar like deceit and negligent misstatement. The link provided is talking about fraud - the criminal equivalent of deceit (and the word fraud is often used when technically it’s talking about the tort of deceit). The out-of-pocket rule applies to torts so Bob can recover his losses. Personal time invested is not an out-of-pocket loss as it represents an opportunity cost, so, Bob cannot recover what he or his excavator might have earned instead. He can recover his fuel costs and depreciation on the excavator as those are “real” out of pocket expenses. If Bob had been an employee of a plaintiff company, they could recover his wages but not what they might have sold his time for. That’s just how it is with torts. Misrepresentation is a different beast. It’s a contractural claim so the damages are the “benefit of the bargain”, in this case $500. However, this is only available if the misrepresentation was fraudulent (Alice knew the money wasn’t there), Alice had no reasonable grounds for believing the statement to be true, or at the court’s discretion. Further Bob must prove that it was this statement that caused him to enter the contract and that he would not have entered it otherwise. Alice’s statement may give Bob more than one cause of action and it’s up to him which he chooses to pursue. If he spent less than $500 on fuel he stands to get more with a misrepresentation claim but if his out of pockets are more than $500 he’s better off with a negligent misstatement claim. In either case, these are tough causes to prove. | 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. | What awards can I expect? In what ways would a judge's decisions about awards be legally limited? $500? Interest? Time spent pursuing collections? Filing fee? Anything else? My research so far suggests $500 plus reasonable (less than credit card) interest. Your lawsuit would be for breach of contract, probably filed in California small claims court for this small dollar amount. An award for breach of contract includes: the amount not paid pursuant to the contract, pre-judgment interest from the date that payment was due at the statutory rate in California (the legal rate specified in the contract applies until the contract is superseded by the verdict, but if the prejudgment interest rate is not specified in the contract, the rate is ten percent per annum from the date of the breach, California Civil Code § 3289), post-judgment interest at the statutory rate in California (10% per annum in a contract if not otherwise specified), and out of pocket costs incurred in filing the lawsuit (typically, the filing fee, the service of process fee, postage, copying costs incurred for trial exhibits, and any court fees incurred to collect the judgment if it is entered). Attorney fees are not available unless the contract says so. You are not entitled to any recovery for time spent pursuing collections. Often you have have a collections agency collect it for a percentage of the amount recovered (probably 50% in a claim of this size) plus a small fee, although they might not accept such a small dollar amount debt to collect. The main virtue of this is that it hurts the credit of the person who owes the money, a harm to the non-paying customer that is often far worse than not paying the amount owed on time. Are there any other legal disincentives for this behavior? A well drafted contract can provide for an award of attorney fees incurred in collecting the debt, can set a non-usurious interest rate and late fees for non-payment, and can take steps like requiring a deposit up front, or consenting to service of process by mail, to make collection more likely and to create stronger incentives to pay. Also, if the non-payment rate is low enough and the value of your time doing what you normally get paid to do is high, it may not make economic sense to pursue bad debt which takes some time and some money to get a small potential recovery, as opposed to letting it slide and doing more work that does pay. A small claims lawsuit is probably ten to thirty hours of work for which you will not be compensated even if you win. Depending upon your average hourly rate for your labor, and the percentage of your billings that go uncollected, it may not make economic sense to collect the unpaid bill, or you may want to delegate the job to someone else whose effective hourly rate of labor value is lower. Courts are cost effective places to collect large debts, and can be cost effective if many people owe you money and you can mass produce your collections process (as, for example, credit card companies do). But courts are often not cost effective for collecting one off small dollar amount debts, despite the streamlined process and reduced filing fees that are available in small claims court. if only a fraction of contractors seek justice, and the award never exceeds the originally agreed upon amount, then the rational decision would seem to be, don't pay the contractor. Consumers are not purely rational actors on a transaction by transaction basis in these matters. The vast majority of the time, people pay as agreed even though they could get away with paying less by forcing the person who did business with them to sue them to get paid. On a case by case basis, this is often not rational, but as a long term strategy for all transactions that a consumer enters into, it often does make rational sense. In small dollar transactions, blacklisting people from future business and harming their credit records is usually enough of an incentive to make uncollectible invoices an acceptable cost of doing business. But a good business person does evaluate every customer to whom trade credit is extended for creditworthiness if the customer does not pay in advance. On the other hand, as a business person, you may have a strategic interest in pursuing every unpaid invoice even if it isn't cost effective to do so when considering that unpaid invoice in isolation, in order to instill in your customers the knowledge that when you say you will sue them if you aren't paid, that you are making a credible threat. This may discourage people from not paying you in the first place. | The question does not say what reasons the other party gives for not paying, and so one cannot judge whether such reason is covered by the terms quoted in the question. In general a contract need not be highly specific if the intent is clear. However, any ambiguity will usually be resolved against the party who wrote the contract, so it is in that party's interest to be as clear and specific as possible. It is not clear from the quoted terms that they form a contract at all. No consideration is stated. Contractual provisions which deny all recourse are not always enforceable. They may be overruled by law or regulation, or by prior court decision or by an equitable decision. If there is a serious problem with the service provided, particularly in a consumer transaction, a court might reject a provision denying all refunds even if it is quite specific and clear. The question does not list the jurisdiction (country and, for federal countries, state or province). Laws on contracts and enforceable terms vary significantly in different jurisdictions. Without this a specific answer is not possible. | In contract law in the United States, this is a "liquidated damages" clause. It provides that when one side breaches the contract, it has to pay a certain amount of money to make up for it. Normally this is done where it is difficult to calculate the actual damages in the event of a breach, or where the parties would rather avoid calculating the actual damages--a common example is where you put in an earnest money deposit on a house and then forfeit the earnest money if you do not buy. However, there are restrictions on what kind of damages are permitted. Notably, a "penalty" usually refers to an unreasonable amount that is unenforceable as against public policy. It would ordinarily be unreasonable to make someone pay a hundred million dollar penalty for breaking a ten thousand dollar contract, for example. Liquidated damages clauses frequently say "this is not a penalty" and "the parties agree this is reasonable" to make it harder to invalidate them on public policy grounds. Instead, if the liquidated damage payment is a payment meant to reflect actual damages that are just hard to calculate, it is much more likely to be enforceable. You would need to research liquidated damages and penalties in the state whose law governs the contract to determine whether the particular clause is permissible under state law. See https://www.google.com/search?q=restatement+of+contracts+penalty&ie=utf-8&oe=utf-8 | Does Bob have a case/standing? Yes, this is a reasonably straightforward contract dispute. Once you contract to do something and you then don't do it, you are liable for damages. Contractual damages are assessed on an expectation basis - the innocent party is entitled to be placed financially in the same position as though the contract had been completed without the breach. Bob is entitled to have the item and not to be out-of-pocket more than he agreed to pay. But ... There may not be a contract - see What is a contract and what is required for them to be valid? A contract is formed when the parties reach an agreement and most website terms and conditions are clear that this is NOT when the customer pays for it. For example, Amazon says: The Order Confirmation E-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've dispatched the product to you (the "Dispatch Confirmation E-mail"). So, here, two things have to happen before Amazon and you have a contract: they have to physically dispatch the goods and they have to send you an email saying they have. If they do one without the other, there is no contract. If your vendor has similar terms, you don't have a contract with them and are not entitled to contractual damages. You would not have a case in equity because they were clear that there was no contract until these things happened. You might be able to argue negligence if they sent the email without dispatching the goods but your damage basis would be different. Tort damage is calculated on a restoration basis, not an expectation basis, so you can recoup your losses but not claim any lost profits. It makes no difference here but if you had had a buyer who was going to pay you twice the price you paid, in contract you are entitled to the lost profit, in tort, you aren't. However, if the contract has a dispute resolution clause, that would normally have to be complied with before you can go to court. In some cases, this may prevent going to court at all, for example, if the dispute resolution clause included binding arbitration or expert determination. If there is a choice of law clause then this will usually be binding, however, if this is a consumer contract in New Zealand then NZ consumer law will apply in addition. Similarly, courts will usually observe a choice of venue clause. With what reasonable time lapse between (false) shipment notification of the original order and placing the eBay order? A reasonable time. Depends on what the product is and what normal delivery times are. For a 5mm screw, a reasonable time is probably measured in months. For an aircraft carrier it's probably measured in decades. Does this sort of a claim fall under the jurisdiction of small claims court (given that the amount is less than the threshold)? Neither New Zealand nor England & Wales (bearing in mind Scotland and Northern Ireland are different jurisdictions) have small claims courts. The correct venue in New Zealand is the Disputes Tribunal which is not a court, and in England and Wales it is the County Court. Procedurally, would it be more advantageous for Bob to file the claim in the UK or in New Zealand? Ask a lawyer in each jurisdiction. Now Bob wants to claim damages from the store in the amount "Total for the eBay order less total for the original store order" — on top of full refund of the original order. Bob is not entitled to a refund. He is entitled to damages. A more accurate way to state the damages is the total for the eBay order and to not make any mention of a refund. | I love Wikipedia to bits, but it's sometimes worth reading the "talk" pages as well as the article, and trying a few other sources. I think this one comes closer : Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. In the paragraph you're translating, "damages" is used as a broad term : the text then goes on to mention "losses, liabilities, claims, injuries, lawsuits, costs and expenses" as specific forms of damages. "Damages" as highlighted in the translation is the word I would use, as it covers many different things with a financial effect on the plaintiff. "Losses" is more specific, and is already covered in the list that follows. Losses may be considered damages, but not all damages are losses. | No An LLC that didn’t exist at the time of the act or omission that caused the loss being sued over is not a valid defendant. They would sue you personally and all of your assets, including the LLC, would be available to the creditor. |
What rights would a healthy individual have if she ate spoiled food sold by a supermarket? Suppose that an individual ate some spoiled food but she has no obvious symptoms due to her own healthiness and well-being. Suing the supermarket for medical bills is unrealistic; at the same time, having spoiled food might have long-term negative effects which is difficult to measure and prove. Some countries have laws that such an individual is entitled a remedies 10X of the original purchase amount (see for example p. 43 of this summary of food safety laws in China). What rights do Americans (or Europeans) have? | england-and-wales She (as the claimant) would have to prove that the food caused her "long-term negative effects" and the shop (as the defendant) was negligent in knowingly offering spoilt food - a legal concept known as "causation" that Wikipedia describes as concering: the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law. [...] The claimant must prove that the breach of the duty of care caused actionable damage. The test for these purposes is a balance between proximity and remoteness: that there was a factual link between what the defendant did or failed to do, and the loss and damage sustained by the claimant, and that it was reasonably foreseeable at the relevant time that this behaviour would cause loss and damage of that type. I cannot find any relevant caselaw using the given circumstances of far-future ill-effects, but it seems unlikely (to me) that such a claim would succeed on the information available due to the remoteness between events. | With respect to the two-year guarantee for faulty products, The Consumer Sales Directive does not apply to non-tangible products like softwares delivered by internet. (b) consumer goods: shall mean any tangible movable item, with the exception of: Relevant rules on faulty digital services are contained in the Digital Content Directive, which provides In the case of a lack of conformity, the consumer shall be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article. The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including: (a) the value the digital content or digital service would have if there were no lack of conformity; and (b) the significance of the lack of conformity. However, this is essentially irrelevant for free apps where no reduction of price is possible and it is likely an obligation to fix the app is disproportional given the price is zero. Notably, the directive also puts most responsibilities regarding the "digital environment" (e.g. computers and network costs) on the consumer, as the environment is not particularly tied to the digital service. In your comment, you refer to a 14-day rule. You might be confusing the guarantee laws with the cooling-off period provided by the Consumer Rights Directive. In that case, you have a right of withdrawal but are only entitled to the costs you paid to the trader, and not any other third party, which is zero in the case of free apps. In an analogy to physical goods ordered online, you don't get a refund for your bus ticket if you need to go to the post office to collect it. By the way, Google terms cannot override public law and in fact if you look into Google refund policy you'll see that EU laws are specifically mentioned. | Reports I've seen are that these seed shipments have false customs declarations, claiming that they contain something else, e.g. this one which was declared as "ring". That would violate 18 USC 542: Whoever enters or introduces, or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance, or makes any false statement in any declaration without reasonable cause to believe the truth of such statement, or procures the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, whether or not the United States shall or may be deprived of any lawful duties; or Whoever is guilty of any willful act or omission whereby the United States shall or may be deprived of any lawful duties accruing upon merchandise embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission— Shall be fined for each offense under this title or imprisoned not more than two years, or both. Indeed, if they had been properly labeled "seeds", the packages would probably have been intercepted by US Customs and never have been delivered in the first place. International shipment of seeds and other agricultural products tends to be tightly regulated due to the risk of spreading plant diseases. There is also the Federal Seeds Act, 7 USC 1581: The importation into the United States is prohibited of— (1) any agricultural or vegetable seeds if any such seed contains noxious-weed seeds or the labeling of which is false or misleading in any respect; Under 7 USC 1596 violation is punishable by a fine of up to $1000 for the first offense, and up to $2000 for each subsequent offense. | Every State in the union has some form of involuntary mental health hold. Regardless of whether or not the patient claims it was an accident, it is incumbent upon the hospital or facility where the individual is held (which is typically at least 72 hours) to do an in-depth analysis of whether the person is a danger to themselves or others. While in this scenario it may've been an inadvertent overdose, the empirical evidence suggests it could have been intentional as the practitioner cannot see into the thoughts and motivations behind the patient's actions. Even taking the patient at face-value, addiction to the extent of overdose is also a mental health issue, which may cause a person to be a danger to themselves. From a clinical perspective, it is much more likely than not that one of the two scenarios occurred, versus a truly mistaken overdose. One would need to mistake their actions numerous times in a day to take so much as to overdose. If you look at it from the inverse perspective, if the facility failed to keep a person who'd just overdosed, or the first responder failed to initiate a hold and the person later died, minimally they would be liable if sued by the family in an action for wrongful death. The unfortunate facts are that if a person was set on committing suicide, it unlikely they would be forthcoming with that fact, for this very reason (the mandatory hold), so a person's word cannot be the determining factor. Even if someone was not intentionally trying to take their life, having taken enough Xanax to cause medical overdose would suggest the potential that even if not suicidal, the individual was at a minimum abusing the medication by taking much more than prescribed (or in a way that is contraindicated - such as with alcohol or other depressants) and potentially suffering from benzodiazepine addiction. Either way, if the hold was not initiated or cut short - and then someone ended up dying from an overdoes - the responsibility and potential liability is the same. A person who is suicidal can reassess what may be a snap decision, or have a chemical imbalance stabilized, or a severe addiction identified in that amount of time. For the person who ctually takes so much medication as to mistakenly cause overdose, this is certainly inconvenient; however, 72 hours is a short time in the grand scheme of things to potentially save a life. The law will nearly always err on the side of safety and prevention. | england-and-wales Yes it is legal. There is no law prohibiting such behaviour. A restaurant menu invites people to ask for items on the menu. People are free to make other offers too, e.g. "no cheese" or "will you add an egg?" or "will you accept £10 for the burger, it's all I have?" The customer is free to make an offer and the restauranteur is free to accept or refuse the offer. "No I don't want to sell you a burger patty on its own for £3." Unfair contract terms seem irrelevant because there is no contract at the stage when the customer asks the restauranteur for a food item. | Some jurisdictions provide for statutory warranties on fitness and merchantability of goods. The effect of these exclusion clauses will vary between jurisdictions, so I will briefly examine two different effects of law with respect to supply of goods. For the United States, certain warranties are implied in the sale of a product, provided for in the Uniform Commercial Code § 2-314, (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchantwith respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promise or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. The Uniform Commercial Code § 2-315 states that: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. This means that the warranties in § 2-314 will generally apply to products that are sold, unless excluded as per § 2-316 UCC § 2-316 (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Licenses that specifically exclude implied warranty are sanctioned by the UCC, and therefore would be considered in the United States. UCC §2-106 defines a sale as passing of title from the seller to the buyer for a price. States may have additional laws that may affect the interpretation of the UCC. For example, Ark.Code Ann. § 4–1–201(32): (29) "Purchase" means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property. However, Neuhoff v. Marvin Lumber and Cedar Co., 370 F.3d 197 (1st Cir.2004) held that windows provided free of charge to replace defective windows did not come with implied warranty. However, not all jurisdictions allow the exclusion of implied warranty. For instance, consider Australian Consumer Law. (Part 3-2, Division 1): 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision. 67 Conflict of laws If: (a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or (b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division: (i) the provisions of the law of a country other than Australia; (ii) the provisions of the law of a State or a Territory; the provisions of this Division apply in relation to the supply under the contract despite that term. What the above sections mean : (54) there are implied statutory warranties (64) that cannot be excluded by contract, (67) and applies even if the proper law of a contract is not Australia. It is important to note that these do not depend on the existence of a contract (see 54(1)); gifts are covered, though I am unaware of any case law on this. In addition, title (s51) and non-infringement ("undisturbed possession") (s52) must be guaranteed by the supplier and cannot be excluded. In addition, the mere existence of this statement, purporting to limit or remove guarantees that cannot be limited or excluded, puts the supplier in breach of s29 as they are making a "false or misleading statement in connection with the supply, possible supply or promotion of goods or services". This is a criminal or civil offence and can be punished by fines of up to $1.1 million for a body corporate and $220,000 for a person other than a body corporate plus injunctions, damages, compensatory orders and other remedies. However, a simple "To the extent permitted by law ..." at the start would make this legal. So, does it have an effect? Sometimes. But not always. And at least in the United States, there are specific requirements if you want to exclude implied/statutory warranty. | 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). | There appears to be no specific number of hours. This article touches on the matter, presenting a slew of cases where e.g. the prisoner was on a hunger strike (self-imposed starvation is not cruel and unusual punishment). Gardener v. Beale upheld a 2-meal plan with 18 hours between dinner and brunch to be allowed. This was, however a temporary exception rather than a long term policy which was to provide 3 meals not spaced further apart than 12 hours. There does not seem to be any period deemed to be legally too long, however a prison system may have (probably does) have a policy, which cannot simply be ignored. |
Can a wiki for a video game be created without authorization from the game creator? Consider someone wants to create a wiki (user-editable community site) for Heroes of the Storm. The creator of a wiki site is not necessarily the author of any substantive content on the site, but might choose the logos, styles, initial organization, etc. Will the creator of the wiki site need to get authorization from Blizzard (the game creator) for doing this? Or is creating a wiki site protected by fair use (or a similar exception in law)? | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. | I believe you have just misunderstood what you paid for. Blizzard's End User License Agreement says: Your use of the Platform is licensed, not sold, to you, and you hereby acknowledge that no title or ownership with respect to the Platform or the Games is being transferred or assigned and this Agreement should not be construed as a sale of any rights. It also says: Blizzard may change, modify, suspend, or discontinue any aspect of the Platform or Accounts at any time, including removing items, or revising the effectiveness of items in an effort to balance a Game. Blizzard may also impose limits on certain features or restrict your access to parts or all of the Platform or Accounts without notice or liability. | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. | It doesn't work like that! If the code is not properly licensed, you can not acquire a license for it. If you don't have a license, you can not use it. Usage without a license is copyright infringement and not allowed: the copyright is with the author, and only the author may make derivates or copies or allow them to be made by licensing it. You do not gain copyright by fixing a licensing error - in fact, you commit copyright infringement if you do not have a license, and providing wrong copyright management information is illegal under 17 USC 1202 | Probably not I think this question represents a misunderstanding of the linked article, and in any case of the specifically US doctrine of fair use. Fair use is always based on a part of a copyrighted work copied without authorization. If there was authorization, there would be no need to resort to the defense of fair use. The article discusses the commercial use of short sections of musical works used for commercial purposes. It points out that the idea that any use of an excerpt of less than 30 seconds is permitted is a myth. In this it is correct. While the amount of a copyrighted work used is one of the four factors to be considered in deciding wither a use is a fair use, it is not the only one, and no specific amount is always permitted. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) The US Supreme Court held that quotes amounting to about 3-400 words from a 500-page book were an infringement, and were not a fair use, because they were the "heart of the book". The linked article says that one should ask "Was the work obtained from a legal source, in a lawful manner?" and asserts that "taking a copy from an unapproved source invalidates fair use." Nothing in 17 USC 107 says this, and I don't know of any authoritative source for such a statement. The article also says that "Commercial, for-profit use is not fair use, while commentary or criticism may be." This is simply incorrect. While a commercial purpose tends to weigh against fair use, it does not preclude it, and commercial use has been held to be fair use in some cases. Even in the case of Harper & Row v. Nation Enterprises linked above, fair use was seriously considered, and was not denied simply because the use was commercial. No one o0f the four fair use factors is final taken alone. I do not think the linked article is a reliable guide to US copyright law. In the case described by the question, an unreleased game has been distributed without authorization over the internet, and reviews written based on that unauthorized copy. Whoever copied the game committed copyright infringement, but a suit might not provide substantial damages unless actual economic harm could be demonstrated. (And, of course, the identity of the infringer would need to be proved.) But a review based on such a leaked copy would not necessarily be an infringement. If the review described the game, but did not quote any of its dialog or other text, and did not reproduce any sounds or images from the game, there would be no infringement. If the review did quote from the unauthorized copy, the usual fair use analysis would apply. The fact that the copy had been unauthorized would not determine the outcome. Fair use is defined by 17 USC 107. This provides: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Note that criticism is one of the specified purposes for which fair use is designed, and an unpublished work is still subject to fair use. If the review quoted so much of the game that the potential market for it was harmed, that would weigh against fair use, but it is hard for me to see how a mere review could do that to an interactive game. (17 USC 107(4)) is normally applied when an infringing copy serves as a replacement for the authorized version, and sales are lost as a result. I suppose it might be argued that a bad review that was a direct result of an infringement came under this provision, but it is a strech at best, and US First Amendment considerations would tend to prevent such a ruling. In short, it seems unlikely that any normal review would be an infringement, and that the game was leaked would not make it one. | No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting. | It is not per se necessary to license objects depicted in a video game. A 2020 court case has decided that the same rules apply to video games as to other forms of art. Just like you don't need to license every car on the road every time you take a picture of said road. Most court cases that are brought against non-licensed use of vehicles claim something other than simple use of the design, such as false implication of license or use of a trademark. Military vehicles enjoy less protection than civilian ones. The works of the US Federal Government, for one, are not copyrightable. The design of military vehicles is also a lot more functional rather than artistic. To claim copyright protection for a vehicle design, one would have to prove that the design wasn't driven by function - which is something military contractors for large projects definitely aren't hired to do. A carrier's or SSBN's shape, for instance, isn't copyrighted at all, because it's necessary for their performance. However, there are elements of real-world objects that would be protected by copyright against depiction in games. An accurate and detailed depiction of non-functional elements can be a copyright violation. Cases have been brought against artist tattoos on human models. A complex vinyl decal on a car can also be copyright-protected against depictions, but only to the extent that its depiction isn't necessary to keep the vehicle recognizable. For a big studio, licensing the vehicles can be simpler and cheaper than risking a need for a potential legal defense. It can also provide help from the manufacturer in recreating a detailed design, such as drawings and 3D models. But it is not strictly necessary. | Games can be protected by patent. You get some protection through copyright, but only on things like artwork and the precise text of the rules; someone could copy the ideas of the game with different artwork and not violate your copyright. You would need a patent in each country you want to protect it in. In general patents are expensive and complicated. Here is some general guidance on the relevant law in the USA, and how it applies to video games. If you hire a developer you can do so with a non-disclosure agreement (NDA). This is a contract requiring them to keep your ideas secret. Here is an article about using NDAs when hiring a contractor, but its a complicated area of law and you might be better hiring a lawyer to draft one for you. |
Is a lawyer allowed to follow a client's instructions to hide evidence? The police arrested a suspect linked to sexual assaults. The police searched his home. It sounds like initially the search warrants were very limited in scope but they widened as things turned up. While he was in jail, his lawyer followed his instructions to hide evidence. From Wikipedia Bernardo told his lawyer, Ken Murray, that the rape videotapes were hidden in a ceiling light fixture in the upstairs bathroom. Murray found the tapes and hid them from evidence. Later Murray resigned as Bernardo’s lawyer and John Rosen stepped in. Rosen turned the tapes over to police. [17] Murray got off on all charges. How is this possible? He knew what was on the tape, at least in a general sense. Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal? This action had the potential to lead to the release of an extremely dangerous person to the public. I find a lot of the story confusing. For example if police were still searching the house why would they let someone remove the tapes? If they were finished searching the house and didn't find them then why did he get the lawyer to remove them? Also why could he be kept in jail without charge for 71 days? | Quick answer "Is a lawyer allowed to follow a client's instructions to hide evidence?" Probably not. I discuss this in the final section of this answer. About this specific case, the Crown did not prove beyond a reasonable doubt that the lawyer (Ken Murray) had intended to conceal the tapes permenantly or that he was aware of an obligation to disclose them prior to trial. As summarized by Austin Cooper, K.C.: Justice Gravely held that the concealing of the tapes for 17 months until Bernardo’s trial had a tendency to obstruct the course of justice, and therefore the actus reus of the offence was proved. On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved. Accordingly, he found him not guilty. Deeper answer I'll first attempt to explain the trial judge's reasons (R. v. Murray, 2000 CanLII 22378 (ON SC)). At the end, I answer your more general questions. Facts February, 1993: Ken Murray was retained to defend Paul Bernardo on sexual assault charges; it was this charge for which Bernardo was already in custody at the time of the search of his home. April 30, 1993: The final search warrant of the Bernardo home expired. May 6, 1993: Ken Murray opened a letter from Bernardo that instructed the defence team to retrieve six 8mm videotapes. They located the tapes, removed them, and they committed to not tell anyone about the tapes. May 18, 1993: Bernardo was charged with two counts of first-degree murder and related offences. Murray's retainer was expanded to include defence of these charges. Bernardo authorized Murray to copy and review the videotapes and make use of them as appropriate in his defence. Two of the tapes contained evidence of sexual assault and death threats. Others contained evidence about the character and actions of a co-accused which Murray thought could be useful in Bernardo's defence. Early June 1993: Murray made a copy of the tapes and became fully aware of their contents. July 11 and 12, 1994: Bernardo told Murray he intended to deny ever having any contact with the victims that were on the tapes. He told Murray that the tapes were not to be used to contradict this position. July 24, 1994: After learning about DNA evidence and learning what the co-accused told police (all pointing to Bernardo being with the victims in the home), and after confirming that Bernardo insisted on maintaining his position that he had no contact with the victims and that the tapes were not to be used, Murray "felt obliged to terminate the solicitor-client relationship". August 25, 1994: After a period of discussion with John Rosen (a lawyer from another firm), Rosen agreed to take over the defence of the first-degree murder charges. Murray did not tell Rosen about the tapes. Murray would remain defence counsel on the sexual assault charges. August 27, 1994: Rosen and Murray met with Bernardo to explain the change in counsel on the murder charges. August 30, 1994: Bernardo directed Murray to not reveal any of his materials to "other counsel retained on my behalf for other offences that are currently before the Court... unless I specifically direct the release of such materials, in writing." Murray retained his own lawyer who further sought advice from the law society. The law society advised that (1) Murray remove himself as counsel for Bernardo on all matters; (2) Murray give the tapes to the judge in a sealed packet to be subect to court determination; and (3) to tell Bernardo of these steps as soon as possible. Rosen (the new defence counsel on the murder charges) became aware of these plans, learned that the tapes existed, and was concerned the tapes would be turned over without any input from him. September 21 and 22, 1994: After much discussion with Crown counsel, Rosen got instructions from Bernardo to turn over the tapes; the tapes were delivered to the Metropolitan Toronto Police and the Niagara Regional Police. The charge Ken Murray was charged with wilfully obstructing or attempting to obstruct the course of justice. The law The judge applied what is known as the "tendency test". He said: Attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice (the actus reus). "Wilfully" then constitutes the mens rea -- that is the act is done for the purpose of obstructing the course of justice He noted: The system functions within the broad principles of the presumption of innocence and the right to silence. The Crown must fully disclose its case. The defence has no reciprocal obligation. Application of the law Actus reus In this case, the judge found that Murray had done the actus reus of the offence: On the face of the evidence Murray's action in secreting the critical tapes had the tendency to obstruct the course of justice at several stages of the proceedings. The tapes were put beyond the reach of the police who had unsuccessfully attempted to locate them. Secreting them had the tendency to obstruct the police in their duty to investigate the crimes of Bernardo and Homolka. Further, there was no justification that negated the actus reus. This evidence on the tapes was not privilged; it was not communication between solicitor and client. The judge found that "once [Murray] had discovered the overwhelming significance of the critical tapes, Murray... was left with but three legally justifiable options": (a) immediately turn over the tapes to the prosecution, either directly or anonymously; (b) deposit them with the trial judge; or (c) disclose their existence to the prosecution and prepare to do battle to retain them. Mens rea The Crown had to prove that Murray's intention was to obstruct the course of justice. The judge found that the Crown did not prove this element beyond a reasonable doubt. The judge found that Murray may have not intended to permanently suppress the tapes and that Murray may have believed he had no obligation to disclose the tapes prior to the trial. He had presented several theories regarding the potential usefulness of the tapes to the defence which would have required holding back the tapes for their tactical or "surprise" value. Also, the judge noted that the law in this area was confusing.1 While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue. Ethical responsibility Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal? No. But they do have an obligation to not lie to the court or to allow their client to lie to the court. This is why Murray knew he had to withdraw from the case when Bernardo was committed to the defence that he had never encountered the victims. To answer your title question, "Is a lawyer allowed to follow instructions from his client to hide evidence?", the answer today is "probably not." It has even been suggested that if defence counsel is faced with this issue, they should instruct their client: It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution. Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime. The Law Society of Ontario's Rules of Professional Conduct now say (Rule 5.1-2A): A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice. Any lawyer faced with this dilemma should probably do what Mr. Murray eventually did and retain their own lawyer and/or get advice from their law society. 1. While the maxim "ignorance of the law is no excuse" generally holds true, the mens rea of this offence includes an intention to obstruct justice. The judge understood this to invite an inquiry into what Murray believed the law required of him. This approach has been criticized: see Lucinda Vandervort, "Mistake of Law and Obstruction of Justice: A 'Bad Excuse'... Even for a Lawyer", 2001. | It depends on the nature of the crime, among other things. Under Section 8 of the Police and Criminal Evidence Act 1984 (PACE) the police must provide evidence to a court that a search warrant is necessary to secure and obtain evidence relevant to an ongoing investigation into a crime. If there is evidence that time is of the essence with regards to the evidence at stake (e.g. there is a high probability that the evidence will be destroyed unless it is secured immediately) then the search warrant will be expedited. Once the search warrant has been secured, it will be an operational matter for the police to decide when and how to act on it. They could choose to do a dawn raid, for example, or they could monitor the suspect for a week and then search the property when the suspect is out. Be aware that under Section 18 of PACE, a search warrant is not necessarily required. The police may, in the course of arresting someone for an indictable offence, search the premises without a warrant provided certain criteria are met. Of course, this is predicated on the police having grounds for arrest, and in the vast majority of cases, a search warrant will be obtained. | So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because "a reviewing court resolves neither credibility issues nor evidentiary conflicts." People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you. | As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury. | If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | Conducting an illegal search does not amount to a permanent get out of jail free card ("does that invalidate all evidence against you". What is excluded is evidence derived from that illegal search, regardless of what crime they were searching for. It would include later evidence for an unrelated crime where the probable cause was uncovered by the illegal search. The doctrine is not absolute, so a grand jury can inquire about a matter brought to their attention via an illegal search ("the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons", US v. Calandra). Also, the doctrine excludes the product of a bad faith search without probable cause e.g. where the officer lies about the probable cause. There is also a "social cost" consideration, see Pennsylvania v. Scott. Utah v. Strief establishes three related doctrines. Unlawfully-obtained evidence independently acquired by officers from a source may be admittede. Evidence may be admitted if it would have been discovered without the unconstitutional source. Finally, since the poison fruit doctrine is intended to limit illegal police action, it may be admitted when there is a remote connection between illegal police conduct and gathering of evidence (e.g. the existence of an arrest warrant, discovered after the search). Nothing in your hypothetical points to an exception. The "social costs" consideration was specifically related to "social costs of allowing convicted criminals who violate their parole to remain at large", but the potential for wider application is established (however, it is well-established that evidence of ordinary drug possession is excluded, from the myriad cases of such exclusions over the past century). | So, lets say for argument's sake the search is illegal (we'll discuss scenario later). Is the murder weapon inadmissible? No. Evidence seized in an illegal search is inadmissible for use in court, as to allow it would reward the state for breaking the law. At time of arrest it's still evidence and depending on what other evidence comes out might not be inadmissible (More on this later). If the knife is the only thing linking the driver to the murder, then it's inadmissible. What would happen to the driver, who was most likely the murderer? At this stage, the driver might be arrested and charged... inadmissibility is a matter for pre-trial motions, which takes place after the cop made the search. Whether the guy is a murder or not, he is a suspect who has been accused. Can the police arrest him, and investigate him with the hope of finding other evidence that would be enough to sentence him for the murder, despite the inadmissibility of the actual weapon? This all takes place before the inadmissibility of evidence is declared, so they certainly could investigate the guy, cuff him, read him his rights, book him, Danno, and put him in jail to help build their case. HOWEVER, if the knife is the only thing linking the man to the crime, then all of this becomes what's called "Fruit of the Poisonous Tree". Because the knife was used as the sole evidence to secure search warrants against the suspect, and should the knife become inadmissible, anything that resulted from the execution of the warrants is itself inadmissible. is the murderer in practice immune from being charged for this case, since the weapon cannot be tied to him? Not entirely. Rarely is a murder weapon needed to secure a conviction. Not only that, but while the search is illegal, there is an exception called "Inevitable Discovery" which holds that evidence seized illegally initially may still be admissible if the cops can show that the legally obtained evidence would have led to the knife. Suppose they had CCTV footage and captured the man entering the area of the scene and found out he had a connection to the victim, and got a warrant that would have included his car... that would mean the knife is admissible even if the search was illegal. If the weapon is considered inadmissible, is it returned to the suspect? If yes, would it also be returned even if it is of a type that the suspect is not legally allowed to own? Yes to both, though when it would be returned is subject to possible use in other investigations. Additionally, while I don't know of any knife ban laws in the U.S., there are examples of contraband seized by arrest for a different offense was not returned when the initial offense was overturned on appeal, meaning the contraband evidence was no longer validly seized and thus that half of the case was overturned... but the defendant wasn't returned his drugs. Is the weapon permanently inadmissible for all future, or could it be used in a later court proceeding? No. I'm starting to suspect I know the TV show and episode that inspired this question, but the search violated suspect 1's rights and thus was inadmissible for his trial. However, if a second suspect was discovered as the evidence was developed, and the investigation lead to the knife (say... suspect 2 had access to suspect 1's car... like say... through his job at a car wash that suspect 1 was patronizing... and planted the knife in suspect 1's car to frame him) then the knife is admissible because of inevitable discovery rule. Now, the TV Show I alluded too, and you'll forgive me as it's been a while, the events were that the cop pulled over suspect 1 for a valid reason (busted tail light, intentionally done by suspect 2 to get attention) and saw the knife on the backseat of the car, which is not a violation of search and seizure rules. The bloody knife was in plain view and gave probable cause to arrest and search the entirety of the car. If you leave evidence in a place where the officer can see it, they can seize it in a car at least. Places like the glove box, under the seats, or the trunk would properly hide it and not allow the officer to search the car, but through the windows is just fine. |
NDA without a defined maximum liability amount I would like to ask if it is normal (standard situation) for an NDA to not define the maximum liability amount. Someone can hack my computer or data storage and I inadvertently access confidential information. I see this as too great a risk. I also don't understand the following wording: breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages. | There is no "normal" or "standard situation". The parties are free to negotiate whatever terms they like within any limitations imposed by law. If you're unhappy with the proposed terms then you should either negotiate to include a liability limitation clause, refuse to agree the NDA, or consider whether the benefits of signing it outweigh your concerns. If you are entering into the NDA as a consumer and with a trader, then in england-and-wales, you might have some protection from Section 62 of the Consumer Rights Act 2015 which provides: (1) An unfair term of a consumer contract is not binding on the consumer. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. For example, a contract which imposes unlimited liability on a consumer, while capping the liability of the trader, could be unfair. This will very much depend on all the circumstances and what the contract as a whole says: (5) Whether a term is fair is to be determined — (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. A term also can't be assessed for fairness if it specifies the main subject matter of the contract (which arguably a liability clause in a NDA does) and the term is transparent and prominent (see Section 64). "I also don't understand the following wording: ...breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages." What this is saying is that, in addition to all the usual actions that the other party could take against you for breaching the NDA (e.g. suing you for damages in the event that they suffer a loss from your breach), they can also apply to a court for an injunction without needing to prove that your breach caused them any loss. An injunction in this case would be a court order requiring you to stop breaching the NDA (e.g. to stop divulging information subject to the NDA). | Does the original 'No Problem' good will waiver from Party B holds in court? Generally speaking, yes. Party B cannot undo his waiver unless (1) it was induced fraudulently, or (2) the contract supports striking that kind of waivers. There might be other scenarios entitling B to undo his waiver, but all of them are exceptional and don't differ that much from these two alternative conditions. That being said, the evidence (such as the recording) should make it clear that party B waived enforcement of the timeliness of payments, not his entitlement to payments themselves. In the event that party A has already made the payments he missed and scenario (1) or (2) applies, party B's remedies are limited to the concrete losses he incurred as a result of party A's belatedness. The principle is that remedies be available to the extent necessary to avoid injustice, as is frequently contemplated in the Restatement (Second) of Contracts. | Contracts are subordinate to the law Any clause in a contract that is unlawful is void. So, if the law compels you to disclose information then even if a contract prohibits it, disclosure is not a breach. However, in most circumstances, law enforcement officers have no power to compel disclosure - you have a right to remain silent. As such disclosure when it was requested but not required would be an actionable breach of contract. On the other hand, a judge can most certainly compel disclosure. | Sorry, what did I agree to? NDA means New Drug Application, right? Or is it Notre Dame Academy? Maybe it's Nebraska Dressage Association - don't want to cross those guys, their horses are mean. When you are trying to form a contract with someone, it's very important that you and they are talking about the same thing. What can't I disclose? That I had a phone call? What I said? What you said? Only the confidential bits? If so, what are they? Can I tell my business partner? My lawyer? My secretary? The IRS? Another important thing about making a contract is to agree on the terms. Post-facto contracts are not a thing After you paint my fence, you can't demand payment. We have to enter into a contract before the thing that happened happens. Elements of the call might be confidential anyway I am bound to respect confidences that were entrusted to me where a) the information is confidential b) it was imparted to me in a situation of confidence and c) disclosing it would cause harm. We don't need a Non-Destructive Analysis to document that. | Such use might well be illegal, and subject the user to tort liability, or possibly even criminal liability. Parties For this discussion let us call the person or company that developed and wants to protect the information D, the person or company that downloaded and wants to use the information U, and the person who placed the information on the server P. Trade Secret One possible source of liability is if D considers the information to be a trade-secret. The law on trade secrets varies to some extent in different countries, although there is a general similarity. Since no jurisdiction is specified in the question, I am going to look at the united-states law. Definition The LII page on "Trade Secrets defines a trade secret under the US Uniform Trade Secrets Act ("UTSA") as: "information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. A similar definition is given by the USPTO page on "trade secret policy". Prior to the USTA, and still in those US states that have not adopted the USTA, trade secrets were/are protected under the common law. The LII page lists the common law factors, as given by the Restatement of Torts (1939) § 757, comment b: The extent to which the information is known outside the claimant's business The extent to which it is known by employees and others involved in the business The extent of measures taken by the claimant to guard the secrecy of the information The value of the information to the business and its competitors The amount of effort or money expended by the business in developing the information The ease or difficulty with which the information could be properly acquired or duplicated by others These factors may apply in other common-law countries. In either case, one must consider how the would-be user came to acquire the information, and thus how it came to be on the server from which it was downloaded. One must also consider whether it was the subject of "reasonable efforts" to protect its secrecy, under the circumstances. Circumstances If P was violating an obligation of confidentiality, such as an NDA or a duty as part of an employment relationship, then the placement of the info on the server was improper. In such a case its acquisition by another, such as U might constitute misappropriation. The same would be true if a person under an obligation of confidentiality arranged for the server to be indexed by a search engine, when it should not have been. The case for misappropriation would be stronger if U knew that the information was considered confidential by D, and also if P had informed U about where to find the info, or what search terms would uncover it. If P was acting with the permission of D, and P or someone else at D simply failed to realize that the server was, or might become, indexed, then the question is whether the steps taken by D to keep the info secret were reasonable. If this a case of "inadvertent disclosure resulting from the trade secret holder's failure to take reasonable protective measures" then there is no misappropriation, and the actions of U are lawful. That will depend of a judgement of whether D's actions were reasonable in light of the value of the info and the overall circumstances. If the placement of the info on the server is considered to constitute "general publication" of the info, so that it is no longer secret in any meaningful sense, then D may have a claim against P, but not against U unless U acted in collaboration with P. Copyright Law The documents downloaded from the4 server are almost surely protected by copyright. Directly incorporating them into an open source project without permission from the copyright holder would be copyright infringement, and would subject U to a suit for infringement. However, copyright does not protect ideas, methods, or facts. If U learns a method or idea from the document, and uses that knowledge without directly copying or closely paraphrasing the document, there is no copyright infringement and no claim under copyright law. Patent Law The question does not mention any patents. It is possible that D has patented the method describe in the downloaded documents. If so, and if the patent is valid, any use by U would be patent infringement, and the question of how U learned the info becomes irrelevant. However, most software developments such as data structures are not patented, so this is a somewhat unlikely, albeit possible, case. Notre that if the information is covered by a patent is is by definition not secret, as all patents must be openly disclosed. But they may not be widely publicized, and if U does not make a patent search, U may not realize that the document includes patented technology. This possibility is largely incompatible with the trade secret possibility, althogh it is possible to use trade secrets in connection with patented tech. Conclusion In short whether U may lawfully use then info, or is subject to a tort claim by D, or even criminal action, depend on the details of the overall facts. U would do well to take legal advice on the matter before proceeding to use the info. | We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission. | You are suggesting strict liability for software bugs. You haven't tried to show any negligence or incompetence on Microsoft's part, but just appear to have assumed that the existence of a bug that causes harm should create liability. Strict liability is rare, at least in the US, and does not in general apply to software. Given strict adherence to the best practice in developing software, there will be bugs, so a bug is not itself evidence of any sort of wrongdoing on Microsoft's part. In real life, if there was strict liability for software bugs, nobody and no business would write software for the use of others, because of the ever-present potential of being wiped out by lawsuits despite all they could do. | Every software is potentially vulnerable, unless it runs on an air-gapped computer with sealed data ports. How vulnerability fixes are prioritized against other goals is usually a business decision, legitimately made by the management. There are some jurisdictions and issues where the law requires them to act, but again there is usually a judgement call involved. For example, the GDPR talks about due regard to the state of the art. What you describe seems to be a difference in opinion about the importance of the fix. Ask about that at Workplace SE, not here. There are ways for software developers to influence their management, but ultimately the management is responsible for the outcomes and gets to decide. You can inform your superiors, in writing. If you are in a large company, there may be a legal or compliance department. Inform them if you have a reason to distrust your superiors. In most jurisdictions, you cannot simply talk to the press, either now or later. If you believe that your company is acting criminally, talk to a lawyer. |
What causes of action against Hospital Authority physicians, when they refuse to prescribe all necessary medications that can be dispensed for free? Premises and Postulations The patient must pay to consult with Hospital Authority ("HA") physicians, but deservedly and legitimately need the myriad medications that Patient is requesting from HA. Hypothetical fact pattern HA clinics dispense medications for free, including minerals and vitamins. According to news reports and consumer complaints, some HA physicians are too stingy. These miserly physicians refuse to prescribe all of Patients needed medications. When patients request them all, these Patients try to shoo them. These HA physicians show them door and allege Please buy these medications at a pharmacy. Then patients bring up their low income, or stress that they cannot find a pharmacy that sells them. But these physicians still try to cast Patients out. I am not willing to prescribe so much on a single consultation, even if you are impoverished. I advise you to consult a private doctor or a private hospital, or formally complain to the Hospital Authority. Threatening to complain fails to solve the problem. These skinflint physicians won't budge. Patients who complained to HA before find the complaints process too sluggish and useless. HA's solution is to book another consultation — HA is just asking Patients to try their luck, and to stumble on a kindhearted doctor. HA forbids patients from requesting a specific Physician. HA doesn't guarantee Patients can see the same Physician. Indubitably, patients must not need to debate tightfisted physicians, or be brushed off — particularly if they are too ill or unable to debate! Questions Ought these patients to rely on Contract? Or Tort? Or both? Contract law applies, because the HA's Fees and Charges are contractual consideration. What causes of actions do Patients have against these pinchfists Physicians? I am seeking details, not just a vague or short answer introducing the tort of (medical) negligence. Undoubtedly, Patients are interested in convincing Physicians to prescribe these medications during their consultation, not to sue them after. | The doctor is a professional Engineers don’t put extra wings on airplanes because the client asks. Lawyers don’t throw unsubstantiated allegations in their pleadings because the client asks. Accountants don’t change the balance sheet because the client asks. And doctors don’t prescribe unnecessary medications or vitamins because the client asks. For most people with normal health and a relatively balanced diet, nutritional supplements are medically unnecessary. They may make the user feel better through the placebo affect but doctors prescribe things that are necessary, not things the patient wants but doesn’t need. You can sue a doctor if they are negligent. One sure sign of negligence is if they adopt the treatment plan proposed by the patient without applying their professional judgement. | united-statestexas In the US, it depends on the consent-to-treat laws of the state. In Washington, under RCW 9.02.100, everybody has a right to reproductive privacy (be it contraceptives or abortions). Under the federal HIPAA privacy rule, the minor requesting contraceptives would therefore be "the individual", which means that disclosure to others requires consent from the patient. Given the supremacy clause, that's all she wrote for Washington. The majority of states similarly allow 16 year olds to request contraceptives. Texas Family Code §32.003 spells out the conditions where a minor can consent to their own medical treatment, which does not include the situation you describe, therefore parental consent would be required (which clearly implies parental notification). Furthermore, that law also says (d) A licensed physician, dentist, or psychologist may, with or without the consent of a child who is a patient, advise the parents, managing conservator, or guardian of the child of the treatment given to or needed by the child. Therefore in Texas there is no prohibition against informing the parent(s). (Note that in the Texas Family Code, "child" is a synonym for "minor", so this also applies to teenagers, not just small children.) Carey v. Population Services Int'l, 431 U.S. 678 is an important ruling regarding the rights of minors to make their own decisions regarding contraception, but it does not go so far as to declare that minors have a constitutional right to give consent to the requisite medical examination. | If that person becomes incapacitated or is deemed unfit to make their own decisions, will I be required to be physically present (for example, to sign something) to make those decisions if called upon? While it is customary for someone making decisions as weighty as removal of life support, to come to the hospital or care facility in person and discuss the issues with treating physicians, it isn't required. When you are physically there it is easier for you to personally assess the patient's condition rather than just taking someone else's word for it, and you have more informal access to everything that is going on in terms of people coming in and out of the patient's room, providers you wouldn't have known to speak to initiating conversations with you (e.g. there is typically an ER nurse for each shift, several residents doing rounds checking on a patient, and often also an outside specialist doctor involved in the treatment team). It is also usually easy when you are physically in a hospital to locate someone knowledgable and familiar with the kinds of issues you are facing at the moment to provide spiritual and religious guidance if you feel this would help you make your decision, while your neighborhood clergy person may not have a good understanding of these issues since they don't come up as often for someone is doesn't frequently spend time around people being treated in hospitals or hospices. And, this kind of pastoral counseling requires not just religious knowledge but an understanding of the options that are being presented through the lens of what is religiously and morally important about the differences between the different options. When I was an attorney for a hospital handling these issues for the hospital, we would have been willing to work with an out of state medical power of attorney agent without their physical presence. But, the fact that this was deep in the Rocky Mountains far from other urban areas (i.e. Grand Junction, Colorado) may have influenced a willingness to be flexible since it would often take a lot of time and money for someone to arrive in person. Also, while the medical power of attorney gives a specific person authority to act, an advanced medical directive is simply a document that goes into a patient's medical record that advises treating providers of the patient's intent and doesn't actually need next of kin approval or a medical power of attorney agent's say so to implement, although better practice is to seek that consent first in case there are any reasons why that advanced medical directive might have been procured improperly from someone lacking capacity or subsequently revoked. There usually will be forms for a medical power of attorney agent to sign, not authorizing a particular medical procedure, but authorizing treatment in general and providing personal and financial information about the patient in connection with admitting that person. But, these days, hospitals are relatively comfortable with handling that paperwork via fax or scanned copies sent via email, and some of the more flexible hospitals will even accept photos of signed documents sent via text message. | Another possible answer: The legal profession is a cartel, protected by laws. "Unlicensed/Unauthorized Practice of Law" is a big enough issue that its acronym (UPL) is well known among people who discuss law. Non-lawyers may decline to provide legal advice because they don't want to be charged with UPL. Likewise, as a matter of policy (at least in the U.S.) most government agencies and many employers in businesses that frequently receive requests for legal information instruct their employees to avoid giving anything that could be construed as legal advice. Which policy employees might cite to avoid helping with requests for even the most basic legal information. | In the US, a patent holder has no obligation at all to use their patent. They can charge as much for their patented product as they want, and if there are no alternatives then they're in a pretty good market position. If Intel wants to make more microchips and ASML won't sell them the tools they need, Intel just has to offer more money. It's a monopoly, but that's the whole reason patents exist: giving inventors a monopoly on their inventions in exchange for publishing how they work. There is such a thing as using a patent anticompetitively, but it takes a lot more than charging a high price. Your Pfizer example runs up against one of the limits of patents, though. Patents are a government-supported monopoly, and they're only useful as long as the government keeps supporting them. A government has the sovereign power to say "we're not going to enforce this patent." If the company has facilities in that country, the government even has the power to say "you must manufacture more of this product." This is rare. Most countries are subject to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which says they will provide a patent system that's also available to foreigners. But TRIPS allows countries to authorize the unlicensed use of patents to supply their domestic market under appropriate circumstances. The patent owner still has to be paid a fair amount, but the patent isn't ironclad. Countries can also issue compulsory patent licenses to produce drugs for export to other countries, again under appropriate circumstances. You could also have an ad hoc agreement between WTO members to make new TRIPS rules for something. This last option was actually discussed to waive COVID-19 vaccine protection worldwide, although it didn't end up happening. If Pfizer was charging $1,000,000 per dose, it probably would have happened. As was said in the comments, the Pfizer example was extreme. If Intel can't expand chip production because of ASML's patent, that's basically a commercial problem and should be solved by paying ASML more money. If people can't get COVID vaccines because Pfizer charges too much, that's a humanitarian problem and can be solved through government intervention. | The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) may apply to you and provide certain rights. HIPAA does seem to cover part of this, though if it covers you particularly and the lab that performed the test is a separate question. On the Department of Health and Human Services website discussing HIPAA, they outline requirements discussing pre-employment drug tests. Basically, your authorization is required in order to release the results of the drug test to your employer and there is nothing prohibiting the employer from conditioning employment on your provision of that authorization. This seems to indicate that the drug test is a medical record. In another section on the same web site concerning your medical records, it outlines that the Privacy Rule gives you the general right to inspect, review and receive a copy of your medical records if the health care provider is covered by the Privacy Rule. You can read about the privacy rule on yet another section of that web site. Generally speaking, the privacy rule applies to any health care provider that transmits health records electronically. Certain exceptions to the rule apply, however determining what those exceptions happen to be is a more difficult task. You will notice from the hhs.gov web site that any entity that is covered by the privacy act is required to give you a privacy practices notice (with certain exceptions). If you didn't receive a privacy practices notice then the entity conducting the drug test is probably not covered by HIPAA. If you did receive a privacy practices notice then the entity conducting the test is covered by HIPAA and you have a right to review your records. | The parties don't need to explicitly agree on the price beforehand, unless a law explicitly requires it for a specific kind of transaction. Contracts do not need to have all terms explicitly spelled out for those terms to be binding; it is expected that dental care has a cost, and if you don't explicitly specify the cost then it's assumed you're willing to pay a reasonable fee. They can't charge you six million dollars for a bandage, but there's a very wide range of fees considered "reasonable" for a doctor to charge. If you care more about the price, it's your responsibility to work these things out yourself before saying "yes." The dentist does not need to make you sign a written contract saying it's your job to check, because when you agreed to the care without asking about the price you already agreed to pay whatever would be charged (subject to the fact that courts will not enforce an unconscionable contract). California law requires hospitals to provide someone without insurance a written estimate of healthcare costs upon request, as well as requiring any hospital with a master list of charges for services to make it available to the public and to give anyone (on request) a list of average charges for 25 common outpatient services. It does not require medical charges to be set out in advance without a request, just like other fields of commerce aren't generally required to do that. | There is, as far as I can see, no Crown exemption from the sale of goods acts (including the International Sale of Goods Conventions), but unfortunately for this patient the NHS has no liability either in logic or in law. The doctor provided a written prescription, for which there is no charge, and which allows patients to buy certain drugs. The patient took the prescription to a chemist's, which (for money) provided the drug specified in it. Even if the patient had noticed that the prescription was for the wrong form of medicine, the pharmacist has no discretion to alter it; if the prescription specifies tablets, the patient can either buy the tablets or not buy them and take the prescription back to the doctor. In neither case has either the doctor or the chemist committed any conceivable offence regarding sale of goods. (There might theoretically be a case for negligence, but it would never be worth either suing a doctor for an £8 prescription fee or reporting him to the authorities for writing a prescription for the right drug in the wrong form). |
"last chance!" Fraudulent marketing Meet Bob. Bob has received marketing messages on 5 different days this week from a business telling him that it's his last chance or "final call" to sign up for service where he can get promotional price of £5 for the first month until midnight that night. Suppose Bob had signed up on this basis and then saw the next day's marketing message suggesting that in fact it hadn't been his last chance after all. Is Bob entitled to any remedies, both in the case where he bought something, and that in which he didn't? I'm interested in answers pertaining to any jurisdiction at all. | The Advertising Standards Authority is the body in the UK that regulates advertising, and is backstopped legally by Trading Standards. In both the "CAP" code that covers non-broadcast media (leaflets, print adverts, signage etc) and the "BCAP" code that covers broadcast media such as radio, TV etc there is in section 3 "Misleading Advertising" the following (emphasis mine): 3.31 Marketing communications must not falsely claim that the marketer is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice. And the "Consumer Protection from Unfair Trading Regulations" have this to say under the list headed "The following practices are banned outright": 6. Limited time only Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice. Both of which would seem to apply here. Of course where Bob has purchased I expect any liability the seller would have would be likely limited to the cost of the product/service. Where Bob hasn't purchased anything? Bob could of course bring the misleading advertising to the attention of the ASA who may act regardless, they don't care whether Bob has purchased anything or not, of course Bob probably wouldn't get any compensation or the like because they have no damages. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | There is no requirement that a service company do customer surveys at all, or that it report the results. If they use customer surveys in advertising and the results are falsified or misleading, that might constitute false advertising, and be subject to government enforcement. But if the report survey data as of a particular date, and mentions that date in the ad, that is probably not misleading enough to be unlawful, even if the company knows that later surveys show different results. If the company just tosses all bad survey results and reports only the good ones, that is probably misleading. But they can report specific "customer testimonials" even if they are not typical, as long as they do not claim that they represent the average customer experience. | You seem to have a solid understanding of the ePrivacy implications, but lack a fundamental insight: your organization does not have a right to achieve its mission or a right to disseminate unwanted marketing. But other people do have a right to not be subject to excessive marketing. Of course, reality is more complex, so it's probably not entirely impossible to do marketing. In your point 1, you note that some EU/EEA/UK countries distinguish ePrivacy protections between consumer and business subscribers. You can research the exact rules in the potential customer's country. This may allow you to email corporate/business accounts. I would strongly advise against messaging via Linkedin if there is a chance that the person is using that account for personal purposes like networking or hunting jobs, not just for conducting official company business. ePrivacy has markedly different rules for email marketing vs phone marketing. Whereas there are pretty strict rules for electronic messages and robocalls, manual cold calling can be OK from an ePrivacy perspective. However, many EU/EEA/UK countries have rules that go beyond ePrivacy, and may have a kind of do-not-call registry that you must respect. Of course manual calls take more effort than spamming emails, but recall the above point that you don't have a right to spam other people. Phone calls are probably the most appropriate approach when the company lists individuals' phone numbers on its website. This will at least give you a few seconds of attention with a real human, more than you can expect from an email that is likely to be caught by spam filters. Marketing via physical mail tends to have very lax rules. Note that every company/business that has a website will have to disclose its contact details including an address there, so this information is easy to acquire. However, chances are low that anyone would seriously engage with that marketing. You can consider alternatives to direct marketing, so that interested companies eventually come to you. Things like press releases, writing guest articles in industry publications, speaking at relevant conferences, working on search engine optimization, buying ads. On the GPDR aspects: GDPR and ePrivacy overlap, and it is necessary to comply with both sets of rules (GDPR likely applies here via Art 3(2)(a)). But where they potentially contradict each other, ePrivacy as the more specific law has precedence. For example, ePrivacy overrides the default GDPR legal basis rules when it comes to email marketing to existing customers (opt-out basis, no consent needed) or to using cookies (needs consent unless strictly necessary). Information that relates to corporations is not personal data, but information that relates to individual employees or to sole proprietors would typically be personal data. Since you are unlikely to obtain consent for using this data, you would need an alternative GDPR legal basis such as a "legitimate interest". Relying on a legitimate interest requires that you conduct a balancing test, weighing your interests like marketing against the recipient's interests, rights, and freedoms. Core question in this context is whether the data subject can reasonably expect their personal data to be used like this, taking into account the nature of their relationship with you. Since there is no pre-existing relationship, claims of a legitimate interest are weak to start with. However, it may be possible to argue that when a company makes employee contact details available via its website (not LinkedIn!) then relevant marketing can be reasonably expected. I would rather not rely on such arguments, though. | If you are given a paid job, and you do the work, then "consideration has been provided", and 1682 will not apply. As to "referral fees" those sound more like kickbacks, but it depends on what, if anything, the person gets for the fee. | Jurisdiction: england-and-wales Preliminary issues Firstly, as some of the comments have highlighted, this could be a scam. I have personally come across such a scam on two occassions. The scammer rents a property short term (e.g. 2-3 weeks) on AirBnB. They then pose as a landlord or letting agent and advertise the same property as a long term let. They collect a deposit and rent from any person who wants to be a tenant. They may even copy the keys and give each "tenant" a set. On move in day, you arrive at the property to find that you are not the only person trying to move boxes in. It has always struck me that landlords are generally very careful to vet their tenants by checking ID, proof of address, obtaining references, and running credit checks. Yet tenants rarely do any vetting at all of their landlords. A very basic and easy check you can do is to purchase the title register (not title plan) for the property from the Land Registry. This costs £3 and will give you the name of the person who owns the property. If the property is an apartment then you will generally want the leasehold title register (not the freehold). Once you have the name, you can then ask your landlord to provide proof that they are that person. Secondly, you've tagged the question united-kingdom, but the UK is actually comprised of multiple legal jurisdictions and housing law varies among them (particularly in Scotland). I'm answering this on the basis of england-and-wales. Third, questions asking for legal advice on real situations are off-topic here. My answer will just address the general issues and shouldn't be taken as advice for your situation. Contract and due dates There is nothing in contract law which prevents obligations from arising before the date that the contract is agreed. It is not unusual for parties to draft contracts which govern past behaviour. In that sense, it is perfectly acceptable to agree a contract on 12 August which requires rent to have been paid on 8 August (albeit it would be inadvisable to agree such a contract as you would immediately be in breach if you had not already paid). On the other hand, a contract which purports to have been agreed on a date which is earlier than when it was actually agreed, can amount to fraud. I would be wary of a subsequent email which purports to allow a later due date which contradicts the contract. Unless there is a clause in the contract allowing for the landlord to postpone due dates, the email is unenforceable and your real due date is still 8 August. The attempt to change the due date is effectively a variation of the contract, and a variation which is not permitted in the contract itself needs to be executed as a second contract. That means you need all the elements of a contract: offer/acceptance, intention to be bound, and consideration. The problem here is the latter. The landlord is providing consideration (a later due date) but you are offering nothing in return. Holding the room "The agent told me they cannot hold my room too long due to the high volume of interest in booking the rooms." "Once you have signed this agreement you will be liable for the full rent set out in the agreement unless released from your tenancy by the Landlord or Management Company." These two positions are contradictory. If you agreed a tenancy (as implied by the second quote), then you have a contract which is legally binding on both parties. The first quote is incorrect - there is nothing to "hold" because the room is already yours. On the other hand, it may be that what you agreed was a holding deposit agreement (rather than a tenancy agreement) which is merely a commitment on the part of the tenant to forfeit a sum of money (which by law cannot exceed 1 week's rent) in the event that the tenant (as opposed to the landlord) decides not to proceed with the tenancy. The wording from the second quote (liability for full rent) implies that it is a tenancy agreement rather than a holding deposit agreement. Or, in the alternative, that it is an illegal holding deposit agreement which asks for more money to be forfeited than is lawful. You'll need to read your full contract to understand what it is. If it's a tenancy agreement, it will be obvious from the wording that you have actually rented the property. Obligation to pay rent "My question is do I have any legal responsibility to pay for the entire rent by the new due date (25 August) for APT1?" Unfortunately, if you have signed a tenancy agreement, then you are legally bound to fulfill your obligations under it (provided such obligations do not break the law). If it contains a clause stating that you must pay 51 weeks's rent, then that is what you must do. "If they told me they cannot hold my booking any longer, do I need them to confirm in writing that I'm released from the agreement?" As a general rule of contract law, nothing needs to be in writing unless (a) the law requires it to be in writing or (b) the contract requires it to be in writing. You agree non-written contracts all the time when you go shopping, use the bus, etc. The same applies to taking actions which are governed by a pre-existing contract e.g. giving your taxi driver verbal directions once you are en-route. The phrase "unless released from your tenancy by the Landlord or Management Company" says nothing about the release needing to be in writing; therefore it can be verbal (provided that there isn't another clause somewhere else in the contract which requires it to be in writing). Be aware however that verbal statements can be difficult to prove. | That's a sad story. The answer to your question is: Yes. If your case is attractive enough then a lawyer might agree to represent it on a contingency basis. Contact lawyers in the jurisdiction where the fraudster has a physical, business, or legal presence. In the U.S. you can ask for referrals to lawyers from the state bar association, or you can call or email them or their firms directly. However, if the amount of potential damages is too small, or the prospects of collecting them too low, then you will probably not find any lawyer interested in taking the case on contingency. If the fraudster has left many victims then you might try to pool your cases to make legal action more attractive. You also might contact the state attorneys in his jurisdictions, as they will sometimes pursue cases against serial scofflaws. | No The contract is created at the moment that an offer was accepted. In normal circumstances: You accepted an offer that they made to the general public by sending a purchase order for specific items at specific prices, or They accepted your offer by communicating their acceptance to you (being advised that the goods have been dispatched counts). However, in this circumstance, the company has been explicit that the contract is only created when either: You checkout and pay, or They “supply an invoice to you.” It appears that neither event happened so there is no contract. Their specific terms have overridden the common law rules on offer and acceptance (as they are allowed to do) and the offer has not been accepted until you receive their invoice. Specifically, it cannot be accepted by performance (dispatching the goods) and the requirement for the invoice to be supplied overrides the postal rule. Note that, in this case, you got lucky. 99 times out of 100 there would have been a valid contract and you would have breached it. In future, cancel orders specifically, don’t make assumptions. |
Jurisdiction over trademark infringement when infringement has a foreign origin My understanding is that to file a trademark infringement lawsuit, I have to file it in the state where the "infringing activity" is occurring, in other words the location of the defendant. However, this creates two problems/questions: (1) What if the infringer is foreign? For example, imagine there is a company in Hong Kong ripping off my trademark and selling knock offs by mail to customers in the United States. I can't very well file the lawsuit in Hong Kong. (2) Supposedly trademark infringement suits can be filed in state court (although federal courts have original jurisdiction). If I am suing in a state court, can I sue in my home state (the state of the plaintiff)? In other words, by suing in a state court can I circumvent the normal requirement to sue in the location of the defendant? | There are some complexities here. First of all, in the US, trademarks may be protected under either state or federal laws. Suits for trademark infringement under either kind of laws may be filed in state courts, although suit under federal laws are more often filed in federal courts. My understanding is that to file a trademark infringement lawsuit, I have to file it in the state where the "infringing activity" is occurring, in other words the location of the defendant. That is not quite correct. The infringing activity occurs wherever sales are made, and often wherever goods or services with an infringing marks are advertised. If goods are sold by mail, the infringing activity may be held to occur where the customers are located. If an infringing mark is being used to sell or advertise goods or services in a particular US state, suit may normally be filed in that state, whether in state or federal court, no matter where the infringer is located. (However it may be much easier to secure damages if a suit is won when suing in the jurisdiction where the infringer is located.) Procedures are different if the trademark is registered than if it is not. Trademark suits are often complex and costly. It would be very wise to consult an experienced trademark lawyer when considering bringing such suits. If goods carrying infringing marks are being imported into the US, the US Customs can seize or deny entry to such goods. A trademark lawyer might be able to advise how to get the customs service to act on such situations, and what the limits of such enforcement is. Trademarks are generally matters of national law. A mark that is valid and fully protected in the US, may not be protected at all in Hong Kong, for example. | There's no "common law copyright" in the US. There's common law trademark, but copyrights and trademarks are different things. All copyright is based on federal copyright statutes, and an unregistered copyright is just called an unregistered copyright. What an unregistered copyright gives you is almost the same thing as a registered copyright: the exclusive right to exercise various rights (reproduction, distribution, public performance/display, etc.) Registration is required before you can actually file an infringement lawsuit, but it's OK if you only registered it after learning about the infringement. The main reason to register the work early is that you might be able to collect higher damages if it was registered before the infringement. If the work was unregistered when the infringement happened, you can only collect actual damages. If it was already registered, you can instead opt to collect statutory damages. Statutory damages don't require you to show actual loss; instead, the court awards between $750 and $30,000 per work based on what it considers fair. The lower limit can go down to $200 if the infringer had no reason to think they were infringing, and the upper limit can go up to $150,000 if the infringement was willful. You can also collect attorney's fees if it was already registered. In the comments, the question was raised of whether someone else might be able to register the copyright for your work before you and what would happen then. When I say "registration is required before filing a lawsuit," the requirement is that you submit the registration paperwork properly, pay the fee, and wait for the Copyright Office to act on the application. If they accept the registration, you're all set. Even if they refuse, though, you can still file an infringement claim -- you just have to also serve the head of the Copyright Office, who has the option of jumping into the case to argue about whether the work could legally be registered. You can also sue the Copyright Office to get judicial review of a denial under the Administrative Procedure Act (refusal still lets you file infringement lawsuits, but you can't get statutory damages or attorney's fees against an infringer unless the Copyright Office actually accepted the registration). | The answer to the question "can so-and-so sue me?" is almost always "yes", regardless of context. Such a suit might be baseless, and it might get settled in your favor, but you still have to spend the time and money to defend yourself. This can be disastrous for a start-up that's trying to get off the ground, and it's how patent trolls make their money. (I'm not accusing SnapChat of engaging in such tactics as a rule, of course; I'm just pointing out that the legal system does allow for them.) Whether or not you are likely to be sued is a separate question, and one that can really only be effectively addressed by a trademark attorney with full knowledge of the particularities of your situation. | Generally, you may only file an action in the Western District of Virginia if the actions or inactions that you believe violated your rights occurred within the boundaries of this District. When a lawyer uses the word "generally," it typically signals the existence of exceptions. The specific statutory provision of 8 USC 1447(b) supersedes the general rule expressed in the handbook. I am not a lawyer, so I hope that the lawyers on this site will correct me if I am wrong, but I believe that this provision establishes "subject matter jurisdiction," and the statute explicitly grants that jurisdiction to the court for the district in which the permanent resident resides. The "application for a hearing" should be submitted to the court for the western district. If I were you, I would try to find out whether "applying for a hearing" is in fact the same as filling a suit; it sounds to me like they may be different. In the latter case, you submit a "complaint," which makes you a "plaintiff." The use of "apply" and "hearing" suggests that different procedural rules may be relevant. If that is the case, it supports the conclusion that the general rule expressed in the handbook does not apply, since the talk of rights violation also implies a complaint and a potential trial rather than an application and a hearing. After writing the previous paragraph, I found a few discussions online that make it clear that "apply for a hearing" does mean "file a suit," but it's still not clear to me who the defendant would be. Another open question is when the 120-day period begins. It seems that different courts have different opinions on the matter. | The legal standard is whether the allegedly infringing mark is confusingly similar to the mark that is allegedly infringed. This is a mixed question of fact and law usually determined by the trier of fact (which is the jury, in a jury trial where there is a colorable dispute of fact regarding the issue). | None of the methods suggested protect Bob from a copyright or trademark infringement claim. These methods may protect Bob from a claim that Bob is an intentional infringing party, as opposed to being an "innocent infringer". But, an innocent infringer is not immune to liability for copyright and trademark infringement. Instead, an innocent infringer is simply subject to less potent penalties and remedies than an intentional infringer of the copyright or trademark owner's rights. Also, innocent infringer status ceases when Bob receives a cease and desist letter if Bob continues the infringing conduct. This said, in the first case, if Bob independently writes the blog post without copying anyone else's work, Bob has not infringed any copyright. This is true even if someone else had already written exactly the same thing. Copyright infringement, unlike patent infringement and trademark infringement, requires that the infringing work actually be derived from the work claimed to be infringed and independent invention of a work is a full defense to copyright infringement. | When you file a DMCA notice, what it really means is that you are saying: "Dear website, there is some copyright infringement going on against my works, and I'm willing to take someone to court. You have the choice of removing these materials, which means I cannot sue you, or you can leave copyright infringement on your website and you will be part of the court case". When the purported infringer gives a counter notice, what it really means is that they are saying: "Bring it on. Take my to court. I'm not afraid of you. By the way, dear website, because you followed the DMCA procedures and I gave you the counter notice, you can't be sued for copyright infringement if you restore these materials, even if they are infringing on copyright. " And the website tells you politely "we played by the rules of the DMCA. So now it's between you and the purported infringer, you can't sue us for showing the contents. " So yes, if you don't take the copyright infringer to court, nothing will happen. | First, a preliminary correction. Patents are different than copyright. 35 USC §271 defines patent infringement: Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Can patent holders sue patent infringers? Yes. See 35 USC §281: A patentee shall have remedy by civil action for infringement of his patent. Does the US Government own US Patent 6630507? Yes. The assignee is "The United States of America as represented by the Department of Health and Human Services". What does this patent claim? "Claims" are the things that the patent protects for exclusive use (or making or selling of) by the patent owner. Quoting from Joseph D. Summer, Patenting Marijuana Strains: Baking Up Patent Protection for Growers in the Legal Fog of this Budding Industry: [US Patent 6630507] patents a method of use of a non-psychoactive cannabinoid compound for treating some diseases. The patent does not claim a composition of matter or a compound, but rather a method for using specific cannabinoids for treating oxidative stress. Are dispensaries infringing? Not for direct infringement (but see the next section). They are not selling the method of treatment. The closest a dispensary comes is selling the raw material that may be used in such a treatment. Who would be liable? Doctors or hospitals prescribing or administering the claimed treatment? No. 35 U.S. Code § 287(c) says: With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271(a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity. This says that even if a medical practitioner infringes a patented medical method when they use that method, they cannot be punished. But, direct infringement did happen, and thus, providers of the materials necessary for that direct infringement may have committed contributory infringement 35 USC §271(c). This is where a dispensary may be liable. If they provide the products or compounds that the claimed method requires, to somebody who directly infringes (even if that direct infringer happens to be shielded from liability), the dispensary may be liable for contributory infringement. This would depend on whether the particular compound is "a staple article or commodity of commerce suitable for substantial noninfringing use". |
If hate speech is legally protected, then is it constitutional to stack on additional punishment for hate crimes? Wikipedia, Hate speech in the United States: "In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker’s viewpoint." Then why is hate crime punished more severely than non-hate crimes? There are laws that specifically state that if a crime is motivated by hate, then extra punishment should be added during sentencing. https://www.justice.gov/hatecrimes https://www.police.iastate.edu/hate-crimes/ "In Iowa, a hate crime is considered a “penalty enhancement,” which means a person convicted of one of the above enumerated crimes would receive a sentence one degree higher than it would be for the same crime without a bias or hate component." But if there is no such thing as "hate speech" in the eyes of the law, then how can "hate crime" exist as a separate category? If the government is not allowed to define "hate speech", then how can it define "hate crime"? I wish to expand on this further. The supreme court has ruled that same sex marriage is a constitutional right. So the government is not allowed to pass laws banning same sex marriage or sexual activity between two men. Got it. But can the government pass a law saying that if someone is currently in a same sex marriage, and also charged with sexual abuse of a minor, then such a person shall "receive a sentence one degree higher than it would be for the same crime committed by a heterosexual person" ? The supreme court also ruled that access to abortion is a constitutional right (for now, at least). But can the government pass a law saying that if someone is charged with say driving under the influence of alcohol, and also previously had an abortion, then such a person shall "receive a sentence one degree higher than it would be for the same crime committed by a person who never had an abortion" ? | The First Amendment says that "Congress shall make no law ... abridging the freedom of speech", so to the extent that such a definition serves to limit one's freedom of speech, it is unconstitutional. If would also be unconstitutional to reward "love speech" or any other viewpoint. Crimes, such as murder, arson, rape and so on, are not constitutionally protected. The government can therefore define various parameters of severity (various degrees of assault defined in terms of "wantonness"). Assault, arson and murder are not legal forms of "expression", so assault motivated by a viewpoint is not "protected speech" – it isn't speech at all. | 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. | The relevant portion of the U.S. Constitution is the full faith and credit clause (which the Respect for Marriage act is primarily an implementation and enforcement of). This requires states to honor marriages and divorces entered into in different states (subject to limited public policy exceptions that the Respect for Marriage act further limited), and also, for example, paternity determinations and court judgments from other states. This was one argument among many used to argue that same sex marriages from other states should be recognized in other states. But the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), in which it established a right to same sex marriage in all U.S. states, relied instead mostly upon a substantive due process clause analysis similar to that of Loving v. Virginia, 388 U.S. 1 (1967), which held that bans on interracial marriage were unconstitutional. The Article IV privileges and immunities clause protects very little (mostly the right to interstate travel and the right for an out of state resident to be licensed in a profession in a state). The Slaughterhouse cases, 83 U.S. 36 (1872), in the late 19th century gave a very crabbed interpretation to the 14th Amendment privileges and immunities clause, limited that only to rights arising from federal citizenship. The logic of the Slaughterhouse line of cases spilled over into the privileges and immunities clause of Article IV of the U.S. Constitution. The Article IV privileges and immunities clause applies to rights specific to state citizenship to prevent those rights from being denied to out of state U.S. citizens. But those rights are few and far between, and court crafted exceptions have been carved out in cases where it does exist (hunting and fishing license fees and college tuition, for example). | The United States gives the accused the right to a fair trial. However, it also gives exceptionally strong protection to the media (and to people in general) to speak on matters of public concern; there are very, very few cases where a US government (federal, state, or local) can legally order someone not to publish something (as opposed to letting it be published and then issuing sanctions). The rule of thumb for content-based restrictions on speech is that they must be the least restrictive way of achieving a compelling government interest. For trials, there are other ways to achieve a fair trial without restricting the press. One of the most preferred ways to do it is to use the voir dire process, in which jurors can be rejected for prejudice. Courts can also move the trial to a new location; they can grant motions from the defense to delay the trial while things cool down; they can sequester the jurors (meaning that the jurors are kept in a central place and prevented from talking to anyone else or reading anything about the case); if none of these are done, a conviction can potentially be reversed on appeal. US courts will, wherever possible, modify the trial to mitigate the damage done by the press, rather than restrict the press to mitigate the damage to the trial. For a review of a few different approaches to this in different jurisdictions, you might want to look at this law journal article. | 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. | Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so. | As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar. | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. |
Is distribution of drugs in itself a crime? You always seem to hear of people being done with "possession with intent to distribute," rather than actual distribution. Why is this? | Yes, distribution of controlled drugs is itself a standalone offence. Under the Misuse of Drugs Act 1971, s. 4(1), it is an offence to supply or offer to supply a controlled drug to another. And supplying includes distributing. Possession with intent to supply is also an offence. Section 5(3) makes it an offence for a person to have a controlled drug in their possession, "with intent to supply it to another." The Crown Prosecution Service says: Where the evidence supports a charge of supplying or possessing controlled drugs of any class with intent to supply, this is to be preferred to a simple possession charge. | A sufficient explanation would be that the ticketed driver was caught and the unticketed driver was not because the officer was already responding to a situation. Had the officer caught the unticketed driver, he would have ticketed him for the same offense. Courts would accept that it would be impossible for the officer to deal with both offenses at the same time. Selective enforcement is done properly when the prosecutor evaluates the risk verses reward of perusing a criminal prosecution against an individual based on the evidence, the nature of the crime, and the likely-hood of a conviction if it goes to trial. For example, while using illict substances is a crime, the government will usually only prosecute on that charge if they find your use while in possession with intent to sell (or in connection to another crime). In this instant, the high school stoner is not going to be as instrumental in the case as the dealer, who can lead to suppliers if he cooperates OR is removed from distributing in his territory if he does not. If the stoner is picked up on a minor offense and carrying a small amount on his person, the police might arrest him for the crime but agree to not press charges if he gives them information to who the dealer who sold him the substance is. Again, the risk here is putting a small time criminal into jail at cost of society, when society would benefit more if that cell was housing the bigger fish (a criminal record can prevent getting certain jobs, which will more likely turn stoner high schooler into jobless loser, which would be a drain on public welfare in and of itself, and that's not including the possibility that joining in drug trafficking as a seller would fix his lack of income). Conversely, in cases such as espionage, the death penalty is on the books but is rarely pursued in favor of lesser sentences. Here, the pay off is that they dangle the death penalty over the spies head unless he tells them about all his spying activities, which benefits the spy agency in filling in security gaps and potentially finding more spies. The use of lighter charges in exchange for a guilty plea is also favored as trials are costly. If a criminal pleads guilty to a crime that the government has them dead to rights for, the prosecution will reward them with lighter offenses for saving their office the price tag of a full blown trial. All this is on condition that selective enforcement is not used as a basis of discrimination, which is illegal for the prosecutors to do. | Note that what is being bought or sold here is actually information about the exploit. Attempting to criminally penalize the transmission of information in the US often runs into First Amendment issues. If a person has good reason to know that information is going to be used to commit a crime, or is likely to be so used, and there is no plausible legitimate use for the information, that person might be charged with complicity or conspiracy for distributing the information. But where there are legitimate uses, that is much less likely. Here the information could be used to defend against the exploit, or to identify and remove software subject to the exploit, or for research into such exploits generally. There may be other legit uses as well. Some years ago the Federal government attempted to prosecute a person for exporting a book describing how to create an encryption program. The courts eventually ruled that this was protected speech. I suspect a similar ruling would be made in the sort of case described in the question, but the details would matter. | Growing marijuana is very often legally classed as "manufacture of a controlled substance." In criminal law, "manufacture" tends to be explicitly defined to include cultivation, but this is in fact a reasonably common use of the term (it doesn't have to mean producing with machinery). And so it's extremely unlikely that anyone will be convinced that you even might have thought the agreement didn't cover growing marijuana. The intent of the parties is fairly clear there. | You are misinformed. In fact, approximately the reverse is true: in a typical jurisdiction in the United States today in excess of 95 percent of criminal cases that begin never reach a verdict. (The exact number varies a little, depending on which exact court system we're talking about.) Or never reach a trial at all, in fact. Or never even come close to making it to the trial date. Now, in some of those instances the charges wind up being dismissed. In some others defendants are diverted outside of the traditional criminal justice system when the circumstances seem better suited to other resolutions (examples: a petty criminal who steals to feed a drug addiction is diverted into a process where he or she will get drug treatment, a non-violent mentally ill person is put into a process where he or she will get mental health treatment); if they complete the diversion program the criminal charges are dropped. But in the vast majority of cases a defendant winds up pleading guilty, in court, to something. Sometimes in exchange for the prosecutor dropping certain other charges. Sometimes in return for the prosecutor downgrading a charge he or she would otherwise pursue in court to a charge for a lesser offense. Sometimes just in return for perhaps getting some credit in the eyes of the judge for "acceptance of responsibility" when sentencing rolls around. But make no mistake: there are few elements more central to the way modern American criminal justice works than plea bargaining. But don't feel too bad: for what it's worth you are certainly not alone in thinking otherwise. In fact, in my personal experience almost everyone outside the legal profession and the court system/s holds at least a few large misconceptions about the way criminal justice in the U.S. actually works. General news media outlets contribute quite a bit to helping those misconceptions form by typically focusing solely on the rare, high-profile, controversial (and thus ratings-grabbing) cases rather than the vast, vast number that end in a whimper instead of a bang. Law drama shows and movies almost invariably bear little relation to reality. (And that's is totally fine, BTW, as long as you realize they bear almost no relation to reality.) Which makes sense: Law & Order: SVU probably wouldn't have stayed on the air year after year if most episodes just consisted of an endless stream of one rote, dull plea hearing after another, each featuring some otherwise-unremarkable sleezeball who's been caught dead-to-rights downloading and re-distributing child pornography. (And, BTW, the misconceptions aren't limited to criminal law & justice, by any means. In fact, in my view other high-profile legal arenas like civil litigation, intellectual property disputes, constitutional law battles, and many others are even more misunderstood. But I digress...) Anyway, to sum up: very frequent plea bargaining = one of the foundations of how modern American criminal justice operates at a practical level. For tons more stats, background info, and analysis corroborating and analyzing that fact, see the links commenters have already posted and/or any of the many, many good items on the topic indexed via our friend Google. | 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. | 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. | The players behind KAT don't make themselves known. The owners of Pirate Bay were known and were personally legally pursued. That's the place to start. Law enforcement can't criminally charge anyone if they don't know who is responsible. Second is that KAT complies with DCMA takedown rules. They publicly claim to at least. PB was known to have a more f-off attitude. The US Justice Dept does pursue KAT which is why KAT changes domains so often. They do get shut down. Law enforcement has better things to do. The record and movie studios and industry-groups have money and technology to pursue infringers. It's my impression that law enforcement is happy to let the copyright holders do the heavy lifting and the government can come in with criminal charges. |
Am I allowed to use US web hosting according to GDPR I live in UK, and I own a super simple website (web blog). The users of my website are not required to log in or provide any kind of personal information, they are just readers of my content. I used to be under the impression that I do not need to worry about GDPR, but articles like this one lead me to now believe otherwise. What concerns me even more is that my hosting provider is a US company, and the server is physically located in US. So all user information like IP addresses and browser specifications is stored and processed in US. Is it even legal for me to use a US web server, seeing that US is considered an "unsafe" environment by GDPR? What are the measures that I need to take to ensure it's legal? And one extra question: If I want introduce the ability for my users to login and comment on my website, will I be able to use a US database to store user emails and comments? | I'd rather not, but this might be compliant if you make sure that the personal data under your responsibility remains secure and protected even if it is processed abroad. Since the UK has left the EU, it is sometimes necessary to distinguish between implications of the EU GDPR and the UK GDPR. These are functionally equivalent, but in the matter of international data transfers the practical details have diverged. In my answer that you cited, I argued that any website processes personal data, and is thus potentially in-scope for the GDPR. If you cause another organization to process this personal data outside of the UK, you are performing an international data transfer (called “restricted transfer” in UK guidance). For example, such non-UK processing occurs if you use cloud services that run outside of the UK. The UK ICO has guidance on international data transfers. As in an EU GDPR context, you can only perform the transfer if the data remains suitably protected, or one of the exceptions applies. The data remains suitably protected if the target country was attested and “adequate” level of data protection, or if you have implemented appropriate safeguards. As of 2022, the list of countries considered adequate is generally equivalent to the EU list of adequacy decisions. Notably, the US is no longer on that list after the Schrems II decision that invalidated the Privacy Shield Agreement. Since this decision was made before Exit Day, it also applies in the UK. This leaves “appropriate safeguards” for UK→US restricted transfers. In the linked ICO page, read the section Is the restricted transfer covered by appropriate safeguards?. In brief, you will need to perform a Transfer Impact Assessment, and sign Standard Contractual Clauses with the US data importer. In a Transfer Impact Assessment (TIA), you check that the data remains protected despite the transfer into a country without an adequate level of data protection. There is no official guidance on conducting a TIA, but the IAPP has a template and the EU EDPB has recommendations on supplemental measures to protect data transfers, which might reduce the risk and affect a TIA in your favor. It's worth noting that the EDPB recommendations were written in the wake of the Schrems II ruling, and can be summarized as “compliance is impossible when using US-based cloud services”. But this is your assessment, and TBH it seems the UK is a bit more relaxed than the EU in this regard. The Standard Contractual Clauses (SCCs) are a pre-formulated contract that binds the foreign data importer to handle the data properly. In essence, this translates relevant aspects of the UK GDPR into contract law. Many service providers already provide a Data Processing Agreement that includes SCCs by reference, but you'll have to make sure that these contracts have been entered in a legally binding manner. Sometimes these apply automatically as part of the terms of service, sometimes you need to explicitly sign these documents. But SCCs are one detail where UK GDPR compliance and EU GDPR compliance diverges a bit. The old EU SCC templates from 2004/2010 can no longer be used and have been replaced. For compliance with the EU GDPR, the new 2021 SCCs must be used. For compliance with the UK GDPR, you have two options. You can either use the 2022 International Data Transfer Agreement (IDTA), or you can use the 2021 EU SCCs along with the 2022 UK International Data Transfer Addendum which modifies the EU SCCs in some details. Don't want to deal with TIAs and SCCs? Switch to a hosting provider that only processes the personal data under your control in the UK, or in a country with an adequacy decision (e.g. EU, Canada, Israel). | You are right that a visitor of a website does not expect to be tracked upon opening the website. But when using Google Analytics configured in the way explained in my other post, the visitor is not tracked. At least not in a way which violates the GDPR. You worry about the cookies. I also found this article which also does and suggests to either: change the _ga cookie to a session cookie, so it will be removed when the browser is closed. To do this, set the Cookie Expiration variable in your Google Analytics Settings to 0. completely disable cookies. (GA does not require cookies). To do this, set the storage field to none: ga('create', 'UA-XXXXX-Y', { 'storage': 'none' }); If you do not disable cookies, cookies can be used for tracking, which is more general defined in the GDPR as profiling. Profiling is defined in Art. 4 GDPR as: ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements; Art. 22(1) GDPR disallows profiling. Therefore in the settings menu from Google Analytics you have to disable data sharing and data collection. So data will only be used for the analytics function. But because you have configured to Anonymize your visitors IP Address, the part of the IP address used for this, is no longer considered personal data. This is because approx. 250 other users share the same part of the ip address which is stored, so data is not distinguishable between those 250 users. The anonymisation used by google is currently considered good enough. At least by the Dutch DPA. This might change if someone proves it is not good enough anonymized. Note that I am not a lawyer either, but I have read from multiple experts that analytics can be a "legitimate interest", the same way marketing can be a legitimate interest. This way configured the privacy impact is considered very low. It is also very important to note that a DPA consideres GA Google Analytics compliant. Even if a court would not agree in the future, you are acting in good faith if you follow those instructions, so you will probably not be fined. The DPA does currently not suggest to change the _ga cookie to a session cookie, or disable cookies completely. Note that the GDPR does not require doing anything to make it technical impossible to track someone. If a website has access to the data to track someone, but "promises" not to do that, that is fine. And rules regarding the usage of cookies in general, is not part of the GDPR, but (currently) part of the ePrivacy Directive. Only the way to ask for consent for storing cookies is defined in the GDPR. | No. That is spelled out pretty clear in Article 11. In fact, if you want follow accepted data minimisation principles (and you should), you should not log anything about cookies at your or a third party's website. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | The GDPR only mentions cookies once (Recital 30). (It says that cookies are personal data if they are associated with natural persons.) As far as cookies go, nothing has really changed since 2002, and the exception granted in the EU cookie directive Article 5(3) is still valid: This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service. If your site complies with the 2002 directive today, it will be GDPR compliant. All the "EU Cookie Law Compliance" plugins I've checked out let the admin configure the site to comply with the 2002 directive, and most let you choose between implicit consent (which is, and still will be, OK if you or third party services do not use cookies for profiling or to collect personal data), soft consent, or hard consent. The latter is however mandatory if you or third party services use cookies to for profiling or to collect personal data. However, if at least one of your cookies are used for profiling (and if you use Google analytics, you are), or if they are used to collect personal data, the exception from explicit consent quoted above does not apply and implicit consent (i.e.: "continued use of the site amounts to implicit consent to the use of cookies") has never been legal for the site. So while nothing has changed since 2002, there is a lot of misinformation about cookies floating on the Internet, and a lot of sites have their cookie banners set up wrong. You may want to do a new cookie audit for your site to verify that you comply with existing legislation. | No, it is not legal. Regardless of their location, the only legal options for companies serving to EU residents are to either deny access altogether or to make consent truly optional1 Recital 42 states (emphasis mine): Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement[...] Recital 43 states: Consent is presumed not to be freely given [...] or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. 1 Of course, remember that consent is only one of several means that allow them to process data. For example, if you were getting a trial account for a limited time, it would be considered a legitimate business need to ensure that you are not just opening new trial accounts when the old ones expire. So, if they wanted some data from you to ensure that you are not a previous user and you refused to provide it, then they could deny giving you that trial account without breaking the GDPR. | No GDPR applies to people (not just citizens) who are in the EU. It has no applicability if both parties are not in the EU. | First of all, Google's TOS says we reasonably believe that your conduct causes harm or liability to a user, third party, or Google — for example, by hacking, phishing, harassing, spamming, misleading others, or scraping content that doesn’t belong to you And you ask: But suppose a researcher, say based in UK, managed to work around them, get a big amount of data from Google searches and use it to publish some research. You're confusing methods with results. Someone uses methods to get a result, but if the results are not legal, the methods are usually illegal, too. Would the above depend on how they circumvented Google's checks (i.e., by using lots of proxies)? The words "or scraping content that doesn’t belong to you" means just that; it does not give any wiggle room for the actual method used to scrape. Could they get, theoretically, into trouble? Very much so. The researcher would have at least civil liability, and possibly criminal exposure. Would they, practically? Google can be very not kind to people who break their TOS. And Google has lots of money to spend on lawyers and court fees to enforce their TOS. Google would probably be able to easily prove the data came from their servers, and would probably have server logs to help prove it. And see user6726's answer for specific legal citations in the US and UK. |
Intellectual property protection for a simple web tool I have created a pretty simple web tool where the user enters some personal information and receives back a spreadsheet listing the likely consequences of various lifestyle choices. (I am being deliberately vague here.) I believe that a) this is a useful tool, b) there is currently nothing like it on the web, and c) it would be extremely easy for a competent programmer to devise a perfect substitute. I showed this site recently to a near-stranger who is an executive at a large corporation, and was surprised a few days later to receive an email asking if I'd be interested in selling the site, and if so, how much I want for it. He also requested permission to share the site URL with a selected few of his colleagues, and promised not to share it further without my explicit permission. I am paralyzed by the "how much do you want for it" question, but that's not something I expect to get help for here. Instead, my question is: Should I (and can I) do anything at this point by way of intellectual property protection. It seems clear to me that if this organization wants a site like mine, their staff can whip one up for them in a few weeks. Is there a way to protect against that? | united-states You are protected by copyright as a matter of law, even if you don't post a copyright notice, although you have slightly more procedural rights if you do post a copyright notice and there would need to be a filing with the copyright registrar (a division of the Library of Congress) before you brought suit. You can't really get any other intellectual property protections for it except possibly a trademark if you have a distinctive mark or name or logo for the app. | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | The fact that a developer is showing off work that he/she has done for other another company doesn't imply that that developer owns any copyright to the work. In Canada, see the Copyright Act, § 13 (3): Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright and § 13 (4): The owner of the copyright in any work may assign the right... In the US, see 17 U.S.C. § 201 (b): In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. and § 201 (d): The ownership of a copyright may be transferred... "What rights should and should not be attributed to the developer?" That is a business decision to be made on a case-by-case basis. Advice about the prudent balance of copyright between an employer/client and employee/contractor is legal advice. "Is it okay to use this projects as part of the developer's portfolio?" If the developer can link to public use of a product that he/she developed for a company, then the developer is not violating copyright by simply advertising that they worked on the product and linking to, without reproducing, the work. If the developer for whatever reason maintained copyright ownership in the code and other assets, it would not be copyright infringement to reproduce those as part of the portfolio. If the developer did not maintain copyright ownership in the code or assets, reproducing those may be copyright infringement, dependent on whether the copyright owner allowed the developer to reproduce those elements, or if the reproduction is fair use. There may be other laws or contracts implicated, though: non-disclosure agreements, trademark law, among others. | 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. | "Doing the same thing" is very common. We even have names for certain categories of websites, such as "web shop" and "blog". Such concepts are not protected in general. Obviously, you can't copy the name of existing webshop, or their logo, but things like a "rectangular layout of products for sale" aren't original. There is of course a grey area here, because there's a continuum of similarity. In general, similarities that follow from technical justifications are acceptable (having an upload button is sort of the point for your website), similarities that are cosmetic only (same color choice) might be interpreted as intentional attempts to cause confusion. | You can't You agreed: by submitting Materials in any form to the Company, in addition to other provisions of the Terms, you automatically grant Company a royalty-free, world-wide, irrevocable, non-exclusive, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, the Company and its affiliates. They can keep and use your data forever and give it to whoever they want. The clause you quote doesn't alter that. All it says is that once a year, if you ask, they will tell you what information they shared and with whom. If they feel like it they will tell you how to get the information deleted. | Unless you were operating under a non-disclosure agreement he (and you) can use any information that he learned unless it violates IP law. It sound like what you told him is generic (if expert) views on high-level approaches to software design. That is, you didn't give him slabs of code that you own the copyright for or disclose trade secrets that you own. That sort of advice is freely usable by him. There is a reason that consultants in every field don't give away their advice before signing the contract. Now you know what it is. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. |
What relevance does the stated year have in online copyright claims? I've noticed that many websites will use a bit of JavaScript to keep the declared copyright year at the bottom of the page up to date. For example: new Date().getFullYear() (which simply reports the current year, no matter when the content was actually last updated). Does this practice actually accomplish anything other than make the site appear to be more recently/frequently updated? | Almost none. It is a legacy of the era when copyright protection was a function of year of publication. Including it is appropriate, however, to meet the formal requirements for a legal notice of claim of copyright which has some procedural implications if it is omitted. | Copyright exists whether they make that statement or not. Giving such notice informs the public that the work is copyrighted, who owns it, and when it was published. If the work is infringed, the defendant will not be able to use an innocent infringement defense. There's nothing special about using the domain name, as it's probably the name or DBA of the business that owns the domain. | Yes Of course, the period is not actually "indefinite" - it has a definite end: the date of your death. It also has another (unstated) endpoint: the point at which the information ceases to be confidential other than through your breach: for example if published in a patent application. The correct legal term here is not "indefinite"; its "forever" or "perpetually". I prefer forever because perpetually technically means "all the time" rather than "neverending". However, documents commonly use “indefinite” when they mean “forever” so there is unlikely to be grounds to dispute the interpretation. Under US law there is no prohibition on perpetuities as there is in most common law jurisdictions (80 years is typical) so this contract is totally legit. As for the law preventing "morally bankrupt practices and intellectual enslavement"; it does: you don't have to enter this contract if you don't want to. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. | The author, or the copyright holder if the author has sold or assigned the copyright, may register a copyright at any time, even many years after the work was copyrighted. However, for all modern works (since 1978 in the US) the work has copyright protection as soon as it is created and set down in a tangible form (such as on paper or in a computer file), whether it is registered or not. Registration cannot gain or lose copyright protection. It is evidence of the copyright, and it provides some additional rights if an infringement suit should occur. If there are multiple co-authors, one author should ideally register on behalf of all of them, listing all co-authors, but multiple registrations will do no major harm. No one who is not an author or copyright holder of a work (or a valid authorized agent of the author or copyright holder) may legitimately register a copyright in that work. Registration procedures and the exact benefits of registration vary by country. In fact, some countries do not have any copyright registration. Edit: In the US, registration procedures are described in Circular #2 from the Copyright Office. Falsely registering a copyright is a crime under 17 U.S.C. § 506(e), and could be reported to law enforcement. See also Wikipedia's article on "Copyfraud". If a false registration has been made, the true author can file a conflicting registration. This should be sufficient to allow a copyright infringement case to be filed. It would be very wise to consult a lawyer with experience in copyright infringement issues before taking steps in the matter. Second Edit: It is one of the elements of an infringement claim that the plaintiff owns the copyright, or has been authorized by one who does. often this is not disputed, and is passed by with no significant time or effort. But if a false copyright registration has been made, in which a person who was not the author claims to be the author, then evidence clearly establishing the actual authorship will probably be needed if the case goes to court. A registration establishes a rebuttable presumption that the person who registered the copyright owns it, and this presumption would need to be overcome. | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | Here's where you went wrong legally: Suppose I legally obtain some digital image created by somebody else (e.g., by downloading from a public website). That, right there, is copyright infringement- unless the copyright owner has granted permission or the image is public domain you cannot copy it - this breaches "the right to make reproductions". By posting it on the web (assuming that it isn't itself an infringing copy) they have given implied permission for you to look at it in a web browser but not to copy it into a presentation even if that presentation is never presented. If it is presented then that makes the infringement worse - it adds breaches of "the right to communicate to the public" and "the right to use the work as a basis for an audiovisual work". How is this different from the computer wallpaper? It isn't. If you are using the one of the defaults that shipped with the OS then the license gives you permission. If you are using someone else's copyright without permission then it's a breach. There are defenses to copyright infringement but these are quite nationally variable - search this or other sites for "fair dealing" and "fair use". |
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