anchor
stringlengths 60
12.5k
| positive
stringlengths 32
27.7k
| negative_1
stringlengths 63
27.2k
| negative_2
stringlengths 67
27.7k
| negative_3
stringlengths 63
27.7k
| negative_4
stringlengths 32
27.7k
| negative_5
stringlengths 53
27.7k
| negative_6
stringlengths 90
27.7k
| negative_7
stringlengths 67
27.7k
|
|---|---|---|---|---|---|---|---|---|
Must the interrogation stop when the right to counsel has been invoked? Do police officers have to stop an interrogation when right to counsel has been invoked by a suspect or can they continue the questioning like nothing has happened? | Yes, for the jurisdiction specified in the tag In the United States, questioning must stop as soon as the accused assserts his or her right to counsel. It's been upheld by subsequent precedent, but the origin is in Miranda v. Arizona, 384 U.S. 436, 474 (1966): If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. | I will address only the legal issues. Prosecutors for very good public policy reasons are not required to prosecute every crime they have suspicions about. When exercising this discretion they consider: Is the act, in fact, criminal - many of the things you list, while reprehensible, unethical, and possibly immoral are not actually criminal. Do they have the resources (time, staff, money) to collect the evidence and run this case as opposed to the thousands of other crimes out there. There are always more crimes than can be prosecuted and these have to be prioritised in some way. Do they have enough evidence to gain a conviction beyond reasonable doubt. People can be fired or resign on suspicion, they can't be convicted on it. | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | No. Police are not permitted to impose any punishment whatsoever. Their role in the American justice system is to prevent and investigate criminal offenses. What you're describing is a punishment for a criminal offense, even though it is imposed outside the criminal justice system. The same principles that prevent an officer from punching a suspect in the face or demanding a cash payment to not write a ticket prohibit a police officer from imposing a punishment of his own design, with or without your consent. | 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. | The Fifth Amendment right against self-incrimination applies only in criminal trials, but it permits a witness to refuse to answer a question in either criminal or civil cases, including in a deposition. If he had committed crimes or thought that his answers might have incriminated him, he should have declined to answer. I'm not terribly familiar with this case, but it occurs to me that a lot of the allegations against Cosby go pretty far back; it could be that he was talking about something so far back that he wasn't exposed to any criminal liability. In a case like that, it may even be that a judge had already ordered him to answer the question. Assuming that he voluntarily answered the question, he has waived his right against self-incrimination and the testimony is generally admissible. | You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is "proper" (has the judges name, correct address, is a search warrant and not a warrant of removal/deportation...). Calling a lawyer is always wise, but that does not stop the search. |
Can I use my own Stack Exchange answer in a book? I’ve seen some similar questions, but was wondering about a more specific case. I wrote a Stack Exchange answer, and would like to use it in one section of a book I’m writing (which will be commercially sold). I also modified the answer, and added to it, but some original passages remain. I’m wondering if, as the author, and with proper attribution that the section is based on my Stack Exchange answer, with a link, this is legally acceptable? | Yes, that’s allowed. Under the Stack Exchange terms of service, content you upload is licensed to Stack Exchange Inc. on a non-exclusive basis under CC-BY-SA 4.0. The terms of service do not give Stack Exchange the copyright to your contributions, and a non-exclusive license means you are not promising Stack Exchange that “only Stack Exchange will be allowed to use this content.” That means you can continue to do whatever you want with your own content and do not need to mention Stack Exchange at all. The only restriction is that you can’t stop Stack Exchange from continuing to use your Stack Exchange content under CC-BY-SA 4.0, and since it’s a Creative Commons license you also can’t stop anyone else from using your Stack Exchange content under that license. | Yes That is very simple - copyright is an exclusive right that starts automatically with the creation of a copyrightable work. The default situation is that the author has an exclusive rights to make copies of the work and derivative works. If the code is published somewhere by the author but the author has not said anything about its licence or copyrights, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. They have the right to just publish it somewhere, others don't. If you try to contact the author and they don't say anything and ignore you, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. If it's impossible to find the author (e.g. I have certain cases with literary works where it's not clear who inherited the rights after the author died), then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. That being said, certain forms of reuse (recreating ideas, learning from them, etc) would not be a copyright violation. But in general the situation with the author not saying anything is almost the same as the author explicitly stating "all rights reserved, you're not allowed to do anything, violators will be shot" - some specific uses are allowed even against author's wishes (e.g. 'fair use' clauses) but everything that needs their permission really does need their explicit permission. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | You can do whatever you like with posts made after you change the rules - you have to leave the previous stuff alone. The contributors' have accepted the terms of the licence: They own the copyright or have permission from the copyright holder to post it (the promise) They agree that it can be edited altered or removed CC-BY-SA allows people to copy the stuff off the website and republish it - this is way outside what the contributors agreed to. These people have given permission for their work to be altered but not copied. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | Copyright includes authorization of derivative works such as translations, so you must have permission of the copyright holder to create a translation. You could be sued for creating the unauthorized translation for your friend. If you attempt to further distribute the book, the chances of getting sued increase substantially. That path probably includes your legal obligation to foot the bill for the publisher and distributor having to defend themselves in court, since your contract with the publisher or distributor probably includes an indemnification clause saying that you indemnify them (pay their costs) against damages for your infringement. So your are at risk, and it increases if you do anything to distribute the translation. |
Would this constitute commingling of funds? Question about IOLA accounts (IOLA = Interest on Lawyer Account Fund, see iola.org/about-iola). (IOLA is called IOLTA in some states.) Our client has to pay restitution to Walmart. It has taken me months to get payment instructions from Walmart but now we have everything set. (I had to get them to assign a magic reference number.) The easiest way to make the payment is to use a web form and enter a credit card number. That will generate an email receipt. The slightly harder way is to mail in a check and then try to wring a receipt from the office that took three months to issue a reference number. Our client tried to make the payment to the court months ago but the court wouldn't accept payment. The client wanted to get the money out of his bank account asap so he wouldn't spend it, so he wrote a check to our firm. My supervising attorney (SA) put it in his IOLA account. Now what? I think it's okay to briefly transfer the funds from IOLA to operating (business) and then make the credit card payment online. SA disagrees and thinks the only kosher way to do this is to write a check on the IOLA account. I'm going to do it his way but I'm curious whether his concern was a bit over the top. He thinks what I'm proposing would constitute commingling of funds. If you prefer a more general question, consider almost all of the above background for why I'm asking the question. Basically what I'd like to know is, is it okay to transfer a sum out of IOLA into Operating (Business) for five minutes in order to make an online payment using a credit card. (IOLA accounts don't have credit cards associated with them.) What about writing a check on the IOLA account, to make a credit card payment? (To me, that would not really make things more transparent....) It would be great to have an actual reference but a conceptual answer would be helpful too. | indiana Note: The sources below are for client escrow/trust accounts rather than IOLA accounts per se, but IOLA appears to be substantially similar in the sense that they represent funds that the lawyer is not free to spend administratively. In other words, they are trust funds subject to fiduciary duty and not ordinary operating accounts. The Staff of the Indiana Supreme Court Disciplinary Commission considered such a possibility in their opinion TRUST ACCOUNT MANAGEMENT: HANDLING CLIENT AND THIRD PARTY FUNDS. While not stating outright that such commingling is unethical if there is neither intent to defraud nor recklessness, it gives two reasons why it could cause serious trouble: Risks of Lawyer Commingling Client Funds in Lawyer's Personal or Business Account (a) Client funds become available to the lawyer's personal creditors in the event of an attachment of those funds pursuant to proceedings supplementary to execution or otherwise under the Depository Financial Institutions Adverse Claims Act. IC 28-9-1-1, et seq. Even if the identity of the funds is later clarified, the client funds may be frozen for up to ninety (90) days by virtue of the automatic hold provision of IC 28-9-4-2. (b) Upon bankruptcy, dissolution of marriage or death of the lawyer, client funds may become a part of the lawyer's bankruptcy, marital or probate estate. Once again, there may eventually be a separation of interests in the funds, but in the meantime, client funds will be unavailable to their true owners. (c) ...[a scenario involving actual fraud and/or misappropriation] What they are saying is that even if you 100%, really and truly intend to just use your operating account as an "in and out" tool with full intention to devote your entire attention to promptly disburse the funds to their proper destination, that five minutes of commingling could coincide with some sort of legal event that would greatly complicate the payment. For example, you transfer the client's funds from the escrow account into your firm's operating account at Time=0, morally confident that the transfer will be complete at Time=5. Unbeknownst to you, an earthquake occurs at Time=3 in which you are knocked offline and you and your entire firm are killed by falling debris. The contents of your operating account are frozen by your bank and sent to probate. Your client and Walmart hire another attorney to spend the next few months arguing over what your intentions were and why all of that "operating" money needs to be paid over to Walmart. Similar to the above, you are in the middle of the transfer when a court order is served on your bank to freeze your operating account as part of some investigation into something entirely unrelated to your representation of your current client. Now, you are making your case to the court to unfreeze certain funds while Walmart is still waiting and your client is upset that you messed up something that should have been "simple". A potential solution: The same opinion, in Attachment G, provides: Lawyers are permitted to advance filing fees for their clients out of operating funds, see, Ind. Prof. Cond. R. 1.8(e). In that event, no trust account questions arise from the use of a debit card that draws funds from an operating account. The opinion then seems to indicate that debit cards should not be used, but in this case they are talking about linking cards directly to the escrow account: May lawyers use debit cards to pay client funds for filing fees directly out of trust? The answer has two parts. First, current rules appear to prohibit it. Second, even if the rules were not an impediment, many banks refuse to issue debit cards on trust accounts. The professional rule cited above in the Indiana Rules of Professional Conduct provides that lawyers may "advance court costs and expenses of litigation". If the payment to Walmart can be considered a court cost or expense, it may be reasonable to pay the amount out of your operating fund and then immediately reimburse it with a client reimbursement from their escrow funds. The pay-then-reimburse model also mitigates the issue mentioned above about intervening causes stopping the transfer. If you have a heart attack right after advancing the funds from your operating account but before filling out the paperwork to reimburse yourself, neither the client nor the other party (Walmart) has been adversely affected. | First of all, there is more than one legal sense in which the term a person's "estate" is used. You are using it in the archaic sense of all of the property owned by a living natural person, but this is not a contemporary use of the term. Normally, the term estate is referred to property that belongs to a dead person that is subject to probate, the property that belongs to a trust, or the property that was transferred to a bankruptcy trustee by operation of law upon the filing of a bankruptcy petition. None of those modern senses of the word apply to this question. You are just asking about the extent to which a particular kind of debt (criminal restitution) can be collected from the person who owes that debt. Your tag also implies that you are particularly interested in New York law. The probate laws of the State of New York are codified in a portion of its statutes known as the EPTL (Estate, Powers and Trusts law), but as noted above, that is not relevant in this case. The criminal law provisions related to restitution, and the general rules applying to debt collection (spread across several of New York's statutes such as the Real Property Actions and Proceedings Law (RPAPL), the New York Penal Law, and the Civil Procedure Laws and Rules (CPLR)) are the laws applicable to your subquestions. 1) Mr. X has spent all the money and is broke. He can't possibly pay the $1 million. When he gets out of jail and (presumably) starts working again, how much of his income can he keep, and how is "excess income" assessed toward the $1 million debt? This involves the liability of Mr. X and not "his estate". If he goes bankrupt this debt would not be discharged if the proper procedural steps are taken. In general, restitution judgments can be enforced by the procedures set forth for collection of a civil judgment and also through the terms of any relevant probation or parole conditions (which would typically allow for incarceration for willful failure to comply with the conditions to the extent that Mr. X is able to do so with minimal due process protections). Civil judgments can be enforced through garnishment of amounts owed to you (such as bank account balances and wages) subject to certain exemptions from creditors (only some of which apply to restitution judgments) and through writs of execution against property owned by you (the process is quite different for tangible personal property v. real property). The general rule is that wages are exempt from creditors up to an amount equal to 30 hours times minimum wage or 75% of the total whichever is greater. There is usually no exemption for income as an independent contractor, businessman or for bank accounts (unless fully traceable to certain exempt assets). Certain kinds of property (there is a long list) are exempt from creditors as well (although certain kinds of assets are exempt as against some but not other creditors). 2) Mr. X has a house worth $1 million with a mortgage of $1 million (a civil liability). I have been told that a criminal judgment takes precedence over a civil liability. Is it true, as my friend asserts, that the $1 million crime victims will get their money before the mortgagee after the house is sold? This is also a claim against Mr. X and not his estate. Your friend was incorrect. A mortgage is a property interest that takes priority over an unsecured debt like a restitution judgment even if that debt may have special priorities in some circumstances. (This assumes that the mortgage is recorded before a "judgment lien" is recorded in the real property records of the county where the house is purchased or is recorded contemporaneously with the purchase of the house. If a judgment lien is recorded and then a mortgage is entered into and recorded later, the judgment lien would have priority.) 3) Mr. X has a house worth $2 million with a $1 million mortgage, and $1 million of equity. Is there anything (e.g. taxes) that will stand in the way of the house being sold, $1 million being paid to reimburse the crime victims, and $1 million to the mortgagee? Put another way, what is the order of reimbursment between victim, mortgagee, and other claimants such as taxes? To grossly oversimplify a complicated process with a variety of exceptions: The highest priority would be any outstanding liens for unpaid property taxes, Then sometimes all or part of a homeowner's association lien, then the first mortgage, then any other other liens junior to the mortgage that are not subject to a homestead exemption of CPLR Section 5206, because the homestead exemption was waived or to which it does not apply by law (e.g. mechanic's liens for work done on the property but not paid for and second mortgages), then the homestead exemption amount (paid to Mr. X) which in New York ranges from $75,000 to $150,000 depending upon the county in question which remains exempt for one year if kept segregated or reinvested in a new home (twice as much if the debtor is married), then judgment liens paid in order of recording which were recorded prior to the restitution judgment lien. The property interest in the house associated with judgment liens or other mortgages recorded after the restitution judgment lien foreclosed upon that burden the property (i.e. junior liens) are erased in a foreclosure, subject to a right of redemption set forth in in RPAPL Section 1352: Sec. 1352. JUDGMENT FORECLOSING RIGHT OF REDEMPTION. Where real property has been sold pursuant to a judgment in an action to foreclose a mortgage, and an action is thereafter brought to foreclose or extinguish a right of redemption in such real property, the judgment, instead of directing a sale of the property, shall fix the right of any person having a right of redemption therein or the right to foreclose a subordinate mortgage or other lien and shall provide that a failure to redeem or commence an action for the foreclosure of such mortgage or other lien within such time shall preclude such person having a right of redemption or the holder of such mortgage or other lien from redeeming such property or foreclosing such mortgage or other lien, and thereafter such person having a right of redemption or the holder of such mortgage or other lien shall be excluded from claiming any title or interest in such property and all title or interests of such person having a right of redemption in, or the right to foreclose a subordinate mortgage or other lien against such property shall thereby be extinguished and terminated. The claims would be paid out of the proceeds of a sheriff's sale net of the costs of sale. If there is money left over after all of these claimants are paid, it would go to the property owner, Mr. X. But, in your scenario with a $1 million mortgage and a $1 million restitution lien and a $2 million value, there would be no excess. If a properly bid sale price is not enough to pay the entire restitution judgment, the shortfall called a "deficiency" remains as a "deficiency judgment" that is still owed by Mr. X. Strictly speaking, the higher priority liens don't get paid from the sales proceeds (except the owner's homestead exemption amount), instead the foreclosure sale buyer takes the property subject to those liens and those senior lienholders have a right to foreclosure in turn if they are paid off. Also, procedurally, the value of the property net of higher priority liens and encumbrances is determined by the highest bid made at a sheriff's sale (with the foreclosing debtor allowed to use the amount of the lien as payment), not on the basis of an appraisal or prolonged sale via a realtor. Often there will be no bidder other than the creditor bringing the foreclosure. APPENDIX: Criminal restitution in New York State is primarily governed by N.Y. Penal Law Section 60.27 which reads as follows: Restitution and reparation In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law. The court shall hear and consider the information presented by the district attorney in this regard. In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim. In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim, including an amount equal to the value of the time reasonably spent by the victim attempting to remediate the harm incurred by the victim from the offense, and the consequential financial losses from such action. Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law. The provisions of sections 420.10, 420.20 and 420.30 of the criminal procedure law shall apply in the collection and remission of restitution and reparation. For purposes of the imposition, determination and collection of restitution or reparation, the following definitions shall apply: (a) the term "offense" shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense. (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 or 190.80 of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twenty-one of the executive law and the office of victim services or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim. A victim shall also mean any owner or lawful producer of a master recording, or a trade association that represents such owner or lawful producer, that has suffered injury as a result of an offense as defined in article two hundred seventy-five of this chapter. (a) Except upon consent of the defendant or as provided in paragraph (b) of this subdivision, or as a condition of probation or conditional discharge as provided in paragraph (g) of subdivision two of section 65.10 of this chapter, the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony, or ten thousand dollars in the case of a conviction for any offense other than a felony. Notwithstanding the provisions of this subdivision, if an officer of a school district is convicted of violating any section of article one hundred fifty-five of this chapter where the victim of such crime is such officer's school district, the court may require an amount of restitution up to the full amount of the fruits of the offense or reparation up to the full amount of the actual out-of-pocket loss suffered by the victim, provided further that in such case the provisions of paragraph (b) of this subdivision shall not apply. (b) The court in its discretion may impose restitution or reparation in excess of the amounts specified in paragraph (a) of this subdivision, provided however that the amount in excess must be limited to the return of the victim's property, including money, or the equivalent value thereof; and reimbursement for medical expenses actually incurred by the victim prior to sentencing as a result of the offense committed by the defendant. Any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment. In the event that the court requires restitution or reparation to be made to a person and that person dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased. The court shall in all cases where restitution or reparation is imposed direct as part of the disposition that the defendant pay a designated surcharge of five percent of the entire amount of a restitution or reparation payment to the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law. The designated surcharge shall not exceed five percent of the amount actually collected. Upon the filing of an affidavit of the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected, as the case may be, the court shall direct that the defendant pay an additional surcharge of not more than five percent of the entire amount of a restitution or reparation payment to such official or organization, or the actual cost of collection or administration, whichever is less unless, upon application of the defendant, the court determines that imposition of such additional surcharge would cause undue hardship to the defendant, or any other person who is financially supported by the defendant, or would otherwise not be in the interest of justice. Such additional surcharge, when added to the initial five percent surcharge, shall not exceed ten percent of the amount actually collected. If the offense of which a person is convicted is a class A, class B, class C, or class D felony involving the sale of a controlled substance, as defined in article two hundred twenty of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from such person or his agent as part of the investigation leading to such conviction. Any restitution which may be required to be made to a law enforcement agency pursuant to this section shall be limited to the amount of funds expended in the actual purchase of such controlled substance by such law enforcement agency, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any law enforcement agency seeking restitution pursuant to this section shall file with the court and the district attorney an affidavit stating that funds expended in the actual purchase of a controlled substance for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. Any law enforcement agency receiving restitution pursuant to this section shall promptly transmit to the commissioner of the division of criminal justice services a report stating the dollar amount of the restitution received. If the offense of which a person is convicted is defined in section 150.10, 150.15 or 150.20 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any municipality or volunteer fire company which has expended funds or will expend funds for the purpose of restoration, rehabilitation or clean-up of the site of the arson. Any restitution which may be required to be made to a municipality or volunteer fire company pursuant to this section shall be limited to the amount of funds reasonably expended or to be expended for the purpose of restoration, rehabilitation or cleanup of the site of the arson, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any municipality or volunteer fire company seeking restitution pursuant to this section shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended or to be expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. For the purposes of this subdivision, "volunteer fire company" means a fire company as defined in paragraph a of subdivision two of section one hundred of the general municipal law. Notwithstanding any other provision of this section to the contrary, when a person is convicted of harming an animal trained to aid a person with a disability in the second degree as defined in section 195.11 of this chapter, or harming an animal trained to aid a person with a disability in the first degree as defined in section 195.12 of this chapter, the court, in addition to any other sentence, shall order the payment of restitution to the person with a disability who was aided by such animal. If the offense of which a person is convicted is defined in section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and the property taken is timber, the court may upon conviction, in addition to any other sentence, direct the defendant to pay the rightful owner of such timber an amount equal to treble the stumpage value of the timber stolen as defined in section 71-0703 of the environmental conservation law and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation. Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration. If the offense of which a person is convicted is defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62 or section 240.63 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this subdivision, in addition to the ordinary meaning, shall mean any school, municipality, fire district, fire company, fire corporation, ambulance association, ambulance corporation, or other legal or public entity engaged in providing emergency services which has expended funds for the purpose of responding to a false report of an incident or false bomb as defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62, or section 240.63 of this chapter. Any restitution which may be required to be made to a victim pursuant to this subdivision shall be limited to the amount of funds reasonably expended for the purpose of responding to such false report of incident or false bomb, less the amount of any funds which have been or will be recovered from any other source and shall not include a designated surcharge pursuant to subdivision eight of this section. Any victim seeking restitution pursuant to this subdivision shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding, except as provided for by section 3-112 of the general obligations law. Where a transfer of probation has occurred pursuant to section 410.80 of the criminal procedure law and the probationer is subject to a restitution condition, the department of probation in the county in which the order of restitution was imposed shall notify the appropriate district attorney. Upon notification by the department of probation, such district attorney shall file a certified copy of the judgment with the clerk of the county in the receiving jurisdiction for purposes of establishing a first lien and to permit institution of civil proceedings pursuant to the provisions of subdivision six of section 420.10 of the criminal procedure law. | Contracts contain an implicit term that obligations will be carried out in a reasonable time While the situation is unusual and we obviously don't have the specific terms of the agreement, it would appear that the vendor agreed to contribute to half the cost of the roof repair and your sister was obliged to contribute the other half and arrange for the roof to be repaired. Implicit in this is that she would do this within a reasonable time. Your sister does not have the right to keep the money in limbo indefinitely. It's open to argument whether a year is a reasonable time or not. Similarly, if your sister is in breach of the agreement, the vendor would probably only be entitled to damages for what they have lost; they would not normally be entitled to terminate the contract. Their damages might be assessed as the difference between what their share costs now compared to what it would have cost a year ago - this may be nothing or a lot depending on how prices have changed - and interest lost on the balance that should have been returned to them. | No employer has ever the right to withhold your pay check for work you have done. It is strictly illegal. Even if they had 100% evidence that you caused damage and were responsible for that damage, they still can't withhold your pay. They have to pay you, and then they can try to take you to court. The reason for this law is exactly cases like yours, where people try to avoid payment. If the "powerful attorney" tells you that you are not getting paid, then that "powerful attorney" is making a big mistake, because any lawyer would love to take your case to court and see the judge cutting the "powerful attorney" down to size. If you don't want a lawyer now, then you can write a letter by registered mail telling them that you worked for them, how much the payment due is, that they are legally required to make that payment, and that you will take them to court if they are not paying. If there is a conflict between law and a "powerful attorney", the law wins, and the law is on your side. | You have the legal (contractual) obligation to pay the amount that you owe for your meal. The restaurant can refuse to accept a particular kind of payment, such as check, cash, credit cards (generally or brand-specific), various cash-transfer programs, foreign currency, bitcoin or ridiculous numbers of pennies. There is no requirement that they do today what they did yesterday. If you have in your possession only a Discover card, and if they are unwilling to accept service barter as payment (washing dishes is classical), then you would have a debt to the restaurant which you must pay in a reasonable time, using an acceptable medium (such as cash, unless they don't accept cash). They cannot make it impossible or highly burdensome for you to discharge your obligation (e.g. they cannot demand Krugerrands or Mongolian ᠲᠥᠭᠦᠷᠢᠭ as the alternative payment, unless you are in Mongolia). You were given advance notice of this possibility of non-acceptance, yet you willfully proffered a card that you knew that they were not likely to accept a second time. Your hands were not clean, and if this had gone to court, you could not expect mercy from the court on the grounds that you were surprised that they didn't accept your card. | 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. | No, this is not an acknowledgement of guilt or liability. It offers a "discount" some sort of reduction in price. This could be an offer of settlement without admission of liability, or even just advertising for repeat business (unlikely as that may seem). Without the rest of the communication, there is no way to tell. Unless there are specific admissions, this statement alone is not likely to have much significance in such a case. Edit: There is still not enough context to tell exactly what the sender of this communication wanted to accomplish with the offer of the discount, but since the OP now says "the party does not take the responsibility" this is not an admission of guilt, whatever else it is. It sounds like some sort of backdoor form of settlement offer without admission, but that is far from clear to me. My original answer is not significantly hanged here. | 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. |
Is it a crime to shoot a kidnapper who is in the process of kidnapping your child? If someone was in the process of kidnapping your baby and you were chasing after that person, if you have a gun on you and you use it to shoot that person and then that person dies, would you be charged with murder? | What you are charged with - murder and the appropriate degree, manslaughter, felony assault or other crime - depends on the local or federal prosecutor (and possibly a grand jury), the jurisdiction and how the prosecutor views the evidence; and if the prosecutor feels they can win a conviction against you in front of a jury for the charges. The prosecutor will look at the evidence and try to determine your motive and what actually happened: did you want to kill the kidnapper, i.e. use deadly force to stop the crime? Did you only want to wound the kidnapper and save your baby? Did you only want to wound the kidnapper but inadvertently killed him/her? Was it possible to stop the kidnapping without using force at all? Did you first try to stop the kidnapping without deadly force and then resort to shooting the kidnapper? Did you endanger others in the area by shooting? Those details all factor into the prosecutor's decision on which of the different degrees of murder, manslaughter, etc., to charge the parent with (or, not charge). See What Is Manslaughter? What Is Murder vs. Manslaughter? | Nolo.com. Once the prosecutor decides on charges, they will try and win a conviction against you in front of a jury for the charges. The prosecutor could possibly decide that the case already been tried in the court of public opinion - the person saving their baby and shooting a criminal is too sympathetic to charge with a crime - and there is no use in bringing charges and not getting a conviction from the jury. Or, the prosecutor could decide that you were legally defending yourself and family and potentially deadly force was justified; this will greatly depend on jurisdiction, i.e. the different types of "Stand Your Ground" laws or other similar laws regarding self-defense in different states. You may be confusing the idea of being charged with a crime and actually being of a convicted of a crime. The prosecutor can charge you with a crime and take you to court, but unless the jury convicts you on the basis of evidence, you won't be convicted. | 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. | 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 | The term doesn’t come up Because, AFAIK, there are no circumstances where being ignorant of the law allow a person to escape culpability. There are, however, laws that allow ignorance of the facts to be an excuse. For example, a person who receives stolen goods where it is reasonable to believe that they aren’t is not guilty of the crime (although the still don’t own the goods). | The stated facts are an almost carbon copy of the facts in R v Dudley and Stephens (1884) 14 QBD 273 DC so we know the answer - No The court ruled that cannibalising the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of natural causes, the sailors killed the boy intentionally and were guilty of murder. There was some degree of necessity arising from the threat of starvation but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Specifically, cannibalism is not the crime; murder is. Necessity requires: an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law. In practice, necessity is only a defence to relatively minor crimes, like breaking traffic rules in a race to a hospital or breaking a window to escape a burning building - the consequences of the breach have to be relatively trivial in relationship to the consequences of adhering to the law. | In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so. | If I remember the case correctly, he didn't make his home look uninhabited (that is nobody is living there) but as if the inhabitants had left (gone shopping etc.) to make it look attractive to burglars. He then waited inside, armed with a gun, with the intent of shooting any burglars that might arrive. He shot the first burglar in the legs, and then proceeded to kill the unarmed and now defenseless burglar, who was lying injured on the ground and was in no position anymore to hurt him. He then did the same with a second burglar, shooting her in the legs, then shooting her multiple times, and when he found she was still alive, he shot her point blank in the face while she was lying on the ground. You are asking the wrong questions. You are asking "is it illegal to remove a truck". It's not. What is illegal is to intentionally create a situation where you shoot people and try to claim "self defence". It can very well be argued that by luring burglars into your home with the intent to kill them, they are not actually illegal in that home, because you wanted them to be there. You can do many things that are each completely innocent but add up to a crime. Actually, for everyone interested, I posted a question maybe last week or the week before whether you can be convicted for both first degree murder and second degree murder for killing a person, and it was exactly this case that inspired the question. What should he have done? If he hadn't lured the burglars in, I believe the case would have still been a double murder, since he killed both unarmed teenagers when they were absolutely no threat. It might not have been first degree murder since it would not have been premeditated. But he intentionally lured them in, making it premeditated (first degree) murder. If he had only injured them, the fact that he lured them in could very likely have made this an assault. You asked: "Now that the burglars are in his house, what should he have done? " Well, he got himself into a dangerous situation. Remember, he was convicted for premeditated murder. So just before he shot the girl in the head, he should have instead put the gun away and called police and an ambulance. It would have been one murder instead of two. Just before he shot the boy, he should have put the gun away and called police and an ambulance. It would have been just attempted murder. When he heard the first person entering, he should have called the police and waited. When the burglar came in sight, he should not have shot and injured him. It's a similar question to "if I try a bank robbery and there is an armed guard, what should I do". The only legal thing to do is to drop your weapon and wait to be arrested. If an armed burglar had appeared instead of two unarmed teens, well, he would have put himself into a dangerous situation. Just as the burglar would have no right to shoot even if a home owner points a weapon at him, he had no right to shoot, no right to self defense, since he had intentionally created the situation. Tough shit. That's what you may get if you plan a murder. Responding to some comments: @J.Chang Are you being serious? You are not allowed to make your house inviting to burglars, while waiting inside with the intent of killing them. Self defense only applies when a reasonable person would believe they are in danger. Reasonable persons don't think that a burglar comes in with the intent of blowing themselves up and taking the home owner with them. And no, you don't get to "assume the worst". Not when the worst is something no reasonable person would expect. Thanks to Dale for pointing out that even for soldiers in a war situation, where different rules apply, deliberately killing a helpless enemy combatant is murder. | We're missing a lot of facts that would help drive the analysis. The first question I'd ask was whether this was part of an actual or attempted sex offense. If that's the case, the suspect could be facing particularly serious charges. Other information is also missing, such as the drug involved, whether it's on the list of controlled substances, her knowledge of the drug, her relationship to the suspect, and so on. Still, based on the information we've got and the inferences we can make from them, I could reasonably see the following charges being filed: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual Sec. 12-3.05. Aggravated battery. (g) Offense based on certain conduct. A person commits aggravated battery when, other than by discharge of a firearm, he or she does any of the following: (1) Violates Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another and any user experiences great bodily harm or permanent disability as a result of the injection, inhalation, or ingestion of any amount of the controlled substance. (2) Knowingly administers to an individual or causes him or her to take, without his or her consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance, or gives to another person any food containing any substance or object intended to cause physical injury if eaten. Sec. 12-4.5. Tampering with food, drugs or cosmetics. (a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics. Sec. 12-5. Reckless conduct. (a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person. Sec. 21-1. Criminal damage to property. (a) A person commits criminal damage to property when he or she: (1) knowingly damages any property of another Sec. 11-1.20. Criminal sexual assault. (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and: (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent; Sec. 11-1.30. Aggravated Criminal Sexual Assault. (a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim, except as provided in paragraph (10); (3) the person acts in a manner that threatens or endangers the life of the victim or any other person; (4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony; (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim's consent or by threat or deception for other than medical purposes; Sec. 11-1.50. Criminal sexual abuse. (a) A person commits criminal sexual abuse if that person: (2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Sec. 11-1.60. Aggravated criminal sexual abuse. (a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim; (5) the person acts in a manner that threatens or endangers the life of the victim or any other person; (6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim's consent or by threat or deception. Sec. 9-1. First degree Murder (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Sec. 9-3. Involuntary Manslaughter and Reckless Homicide. (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly Sec. 9-3.3. Drug-induced homicide. (a) A person commits drug-induced homicide when he or she violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance. Sec. 9-3.4. Concealment of homicidal death. (a) A person commits the offense of concealment of homicidal death when he or she knowingly conceals the death of any other person with knowledge that such other person has died by homicidal means. Sec. 9-3.5. Concealment of death. (b) A person commits the offense of concealment of death when he or she knowingly conceals the death of any other person who died by other than homicidal means. |
Does the Right to Counsel require qualifications? In the U.S. the Constitution has been interpreted as requiring that anyone arrested be allowed, at their request, to consult with a lawyer before being questioned, and to have one present during questioning. (Actually, that may be too strong an assertion: as best I can tell these often-called Miranda rights appear only to apply when law enforcement wishes to ensure that statements from a subject in custody be admissible in a criminal trial against the subject.) Recently the Supreme Court ruled in United States v. Gonzalez-Lopez that not being allowed counsel of one's choice was grounds for automatic reversal of a conviction. The Right to Counsel seems well-defined for trial, but not for arrest and investigation. Therefore: Regarding the arrest and/or custodial interrogation stage: Are there any laws that govern who can serve as counsel, and how one must be allowed to contact them? For example, if I am arrested and: I want use a friend who has no legal training as "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of my contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? What do police have to do to facilitate my access to my desired counsel(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? What means must I be granted to find and contact the counsel of my choice? (I'm hoping that there is settled law on these questions, though this report suggests that, practically, police can do whatever they want until a lawyer actually finds out a client has been arrested and manages to locate him!) | 1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason – it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel – they are not counselors! 2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client). They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.) 3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut – innocent people do occasionally get arrested and convicted! No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival. Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem. 4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer. What means must I be granted to find and contact the counsel of my choice? This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent. | The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully. | Arrests For Crimes A charge must be identified very early in the criminal justice process, typically upon booking an arrested person at a police station or jail, which will usually take place minutes to hours after an arrest is made. At the latest, a provisional charge will be revealed at a first appearance before a judge (which will usually take place within a day, or sometimes a bit longer on a weekend or holiday in rural areas whether it should or not), although the charges identified at that time can be amended later in the process. A plea of guilty or not guilty is entered at an arraignment, which sometimes is combined with a first court appearance and sometimes is conducted separately. A preliminary hearing happens much later in the criminal justice process, after an arraignment (which is sometimes combined with a first court appearance), and after counsel is assigned to represent the person who is charged. A preliminary hearing is an adversarial mini-trial before a judge at which the prosecution presents evidence sufficient to establish probable cause on previously disclosed charged in a somewhat summary fashion (not necessarily everything to establish guilt beyond a reasonable doubt), and the attorney for the defendant can cross-examine witnesses, object to questions improper under the rules of evidence, and introduce exonerating evidence (although this last option is only rarely utilized). A preliminary hearing is a substitute for a grand jury indictment as a means to screen whether charges are supported by probable cause. Usually, but not in absolutely all cases, if the arrest is pursuant to an arrest warrant, the arrest warrant will be presented to the person being arrested immediately prior to, at the time of the arrest, or immediately after the arrest is made, and the arrest warrant will provide some insight into the charge. But, unless a state statute or court rule provides otherwise, a charge does not usually need to be disclosed during the actual process of making an arrest, or while the person arrested is being transported to a police station or jail for booking, although the charge often is disclosed at that time or even before the arrest is made. Frequently, someone is read their Miranda rights before the charge is identified. Some of the fine details are a matter of state specific court rules and statutes, but the general outline of the process described above is the U.S. constitutional requirement. The process for arresting a minor is not very different from the process for arresting an adult, but usually, when a minor is arrested, a parent or guardian must be promptly notified of the arrest and the charge, if possible. Many states have a minimum age for arresting a minor for committing a crime or juvenile delinquency offense, which is typically somewhere in the range from age seven to age twelve, although there is considerable variation on this point. This is an area of the law where active efforts to pass reform legislation to take a less punitive approach with younger minors are underway. Minors Taken Into Custody For Other Reasons Also, while adults are overwhelmingly arrested on suspicion of having committed a crime, a minor is sometime placed under law enforcement or social services custody in a manner that looks like an arrest, but isn't, for a reason other than a charge that the minor is actually believed to have committed a crime. For example, suppose that a five year old child is found in an apartment at which two adults presumed to be the child's mother and father, are found dead (the reason for their deaths doesn't really matter). In that situation, the law enforcement officer at the scene would generally take physical custody of the child pending the arrival of a social services officer at the scene who would then take physical custody of the child from the law enforcement officer until another suitable guardian could be located, even though there is no suspicion that the child committed a crime. The name for this process varies from jurisdiction to jurisdiction. In New York State, for example, this is called "person in need of supervision" case (PINS for short), which is sometimes thought of as a civil custody matter and is sometimes classified as what is called a "status offense" that justifies the government taking custody of a minor even though the minor has not committed a crime. | I am guessing that the question is about the United States, since the "objection!" procedure is not the same in other places. The Supreme Court has held that even though you have the right to represent yourself, this is conditional on your maintenance of proper conduct. If you disrupt proceedings and disregard judicial directions, then the judge can find you in contempt of court, just as with anybody else who was doing that. In Illinois v Allen, 397 U.S. 337 (1970), a self-represented litigant "started to argue with the judge in a most abusive and disrespectful manner", threatened the judge's life, and made clear that he intended to filibuster the process, saying "There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this." The judge ordered him removed from the courtroom on several instances of this behavior, and also appointed professional counsel. Following a series of appeals against all this, the Supreme Court ultimately said: Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly. | Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob, she has no such duty? Alice and her counsel have some reciprocal duties. The duty of good faith and fair dealing, while in principle applicable to any contractual relationship, is not a good framework in which to analyze those duties. It is more fruitful to consider this specialized situation as a relationship arising at law which is not predominantly contractual in character. It is an attorney-client relationship primarily, not a contractual one, particularly in the case of appointed counsel who is not voluntarily selected or paid by the client. There are rules of professional conduct that specifically govern the allocation of responsibilities between an attorney and a client, some of which are particular to criminal defense clients and their attorneys. These rules of professional conduct would be controlling, not the duty of good faith and fair dealing. Further, it bears noting that the proposed arrangement would result in a forfeiture of the attorney-client privilege which is not a condition that any reasonable attorney engaged in a criminal defense case would agree to allow, for the client's own good. The main rules of professional conduct that are applicable (all U.S. jurisdictions use the same numbering system for their rules of professional conduct although not all of them are identical in content) are Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4 (Communications), and Rule 1.6 (Confidentiality of Information). Of these Rule 1.2 is most important. It states: [A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. It also prohibits a lawyer from allowing his or her services to be used in furtherance of an ongoing crime or fraud. Rule 1.4 provides that: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 3.1 (Meritorious Claims & Contentions), Rule 3.3 (Candor Towards The Tribunal) and Rule 3.4 (Fairness to Opposing Party & Counsel) would also often be pertinent (as this defines what communications an attorney can and cannot have with others ethically, primarily prohibiting an attorney from knowingly using false testimony or faked evidence). There is some variation from state to state in the exact details of these rules, but the general thrust and the general scheme of organization is the same. In a nutshell, the clients has a responsibility to determine ends, and the lawyer is charged with deciding means, although in practice, it can get more complicated than that when the ends and the means are intertwined. The main exceptions in criminal cases to this division of labor are the means involved in electing a jury trial and choosing to have the client testify as a witness. A lawyer could reasonably insist, as a condition of ongoing representation by the lawyer of the client, that communications between lawyer and client not have someone else listening in. | According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police. | 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. | They have a right to be present but can be removed under Illinois v. Allen While in general, a person has a right to be present for the trial and conviction hearing, they can be removed if they disturb the orderly process. SCOTUS also offers to have him fined again and again (only works if the accused is not judgment proof) or to gag and bind an unruly defendant. Illinois v. Allen, 397 U.S. 337 (1970) Syllabus Respondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so "absolute" that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had. Held: A defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. Pp. 397 U. S. 342-343. A trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U. S. 343-346. On the facts of this case, the trial judge did not abuse his discretion, respondent, through his disruptive behavior, having lost his right to confrontation under the Sixth and Fourteenth Amendments. Pp. 397 U. S. 345-347. Example of removal in action: The Darrell Brooks case As a rather public example, this happened during the Darrell Brooks trial, multiple times: there's abouht 9:12 hours and 6:15 hours of sentencing hearing in this case, including breaks, split between two days. On the 2nd day, the judge starts the actual sentencing by elaborating on how she understands the case at about 3:11:45. If you look up the transcript, keep in mind that the local time at the start of the video was about 12:50, ten minutes to 1 PM. At 3:44:20, Mr. Brooks starts to speak up and interrupt the judge, receiving in quick succession multiple warnings that he will be removed if he doesn't stop. After 40 seconds, the order to remove him from the courtroom is given. The hearing resumes at around the 3:49:50 mark, Mr. Brooks now in a separate courtroom. The judge elaborates that Mr. Brooks has a right to be present, and also why he can be removed under Illinois v. Allen. There is more elaboration on this topic till Mr. Brooks is muted at about the timestamp 3:53:00, because he is unwilling to do the required pledge to reclaim the right to be present under that case. More explanation about it follows that the judge wants the pledge in writing at that point. The reading of sentencing factors only resumes at around the 3:55:00 mark. Mr. Brooks writes something at about 3:57:00, and the paper is given to the judge at 3:59:19, ruling that whatever is on the sheet is not a pledge and thus he stays removed at 3:59:25. For some hour Mr. Brooks waves papers at the camera, writing another note to the Judge at starting about 4:41:00, before resuming waving with the new note at about 4:43:20 and showing his statement to the camera at 4:55:52. Sadly the quality is not good enough to read the letters, and not even the judge can read it at 5:57:00 - re-iterating that unless it is a pledge to stay quiet, he's not coming back. The prosecution manages to make out the top word as Objection at 4:57:20 and shortly after it is ordered that he may return with the sign, but if he so much as speaks up, he will forfeit his right to be present. Court resumes at about 5:03:20, corresponding to 4:53 in the courtroom. Mr. Brooks is instructed that he can only stay in the courtroom if he is to waive his right "to do so", and that if he doesn't behave he'd be removed again and told to sit down. Instead, Mr. Brooks starts rambling about subject matter jurisdiction at 3:04:00. Told once more to sit down, this transpires: Mr. Brooks: "I'd like to go back to the other court room." Judge: "It's not a courtesy to you. If you like to specifically waive your right to be physically present, then I will entertain that. Otherwise, you need to sit down." Mr. Brooks: [something unintelligible] "I never waived a right to not be present" [more unintelligible] Judge: "That's because you forfeited your right to be present by conduct. You're now back in this courtroom. Mr. Brooks: "Your honor I wrote three... I did what you asked me to do..." Judge: "You never once pledged to me sir, that you would not interrupt, and you're demonstrating by being here that you will continue to interrupt. Mr. Brooks [something to the effect that the judge told the bailiff that the pledge had to be in writing] Judge: "Mr. Brooks, this is not a debate. You asked to come over here and I honored that, and I brought you back. Mr Brooks [Interrupts, the words My Right are understandable.] "three times. I shouldn't have to do it three times!" Judge: "None of the opportunities you wrote to me said *I pledge to not interrupt." Mr. Brooks [Interrupts] "I never had to do that before! You've never required that before!" Judge: That is actually not true sir. Mr Brooks [argues that he'd never been required to pledge like that before in trial] Judge: Mr Brooks, You were just simply trying to delay the inevitable, please sit down. Mr. Brooks continues to argue and stand up, despite now being told to sit down and be quiet for the 3rd time since returning to the courtroom. A 4th order to "please sit down" is issued at about 5:05:35 and two more within about 20 seconds later. Mr. Brooks rants and complains about being removed in the first place and that he'd want to exercise his right to be present. The Judge finally re-iterates at 5:03:40 that the reason he was brought back was not because he had complied with the request to pledge not to interrupt, but because the next portion is very important. Mr Brooks doesn't sit down and argue. At 5:08:00 the judge clarifies that he "did not reclaim his right to be present" (which was forfeited back at timestamp 3:44:20!). A minute later, the judge orders him directly - with a warning that this is a direct court order and not doing what is told is contempt of court: Judge: Sit down and be quiet, so I can make the appropriate record. Mr Brooks [dispnbeys] Judge: All right, he's not going to obey, he has now forfeited his right to be present He will go into the other court room. We are in recess until he's there. 5:09:25 -The camera pans to the clock showing 4:59:20 Around timestamp 5:13:20 trial resumes, and the judge once more reiterates that and how the court deems Mr. Brooks having forfeited the right to be present for about two minutes. His sign that he objects to the other room and wants to return is ignored, even as he parades it around. Sentencing continues without him. The sentences are read starting timestamp 5:55:20 - no further interruption happens. |
How can a person declaring bankruptcy afford a lawyer? In most jurisdictions, a person overwhelmed by debt can declare a personal bankruptcy (for example, filing for a Chapter 7 bankruptcy in the United States, or for a Verbraucherinsolvenz in Germany). Reading articles on celebrities filing bankruptcy (Toni Braxton files for second bankruptcy, Boris Becker’s life ‘ruined’ by bankruptcy conviction, says lawyer), it seems that people typically retain a lawyer to represent them during the bankruptcy proceedings. However, does declaring bankruptcy not mean that you have virtually no assets left, and will remaining assets not be frozen during the bankruptcy proceedings? So how can a person filing bankrupty afford a lawyer? Is the lawyer paid from public funds? Or are there exceptions from the asset freeze? I am most interested in answers about Germany or the US - other perspectives are welcome, too. | united-states Typically, people who have the very least assets and little prospective income expected (e.g. homeless vagrants) don't file for bankruptcy. The creditors can't get blood out of a turnip so there is no advantage of doing so. Also, often no one extends them credit in the first place, so they have few creditors in most cases. Instead, people file for bankruptcy when: They have significant assets and significant debts and want to preserve assets exempt from creditors such as equity in a house that benefits from a homestead exemption (in which case payment of a bankruptcy lawyer is a debt with priority over other debt's of the debtor in bankruptcy), and/or They have significant future income prospects and want to preserve future income by eliminating debts, and pre-pay the bankruptcy lawyer with assets saved by not paying creditors when due. These prepayments are not "clawed back" because paying bankruptcy lawyers is a debt that has priority in bankruptcy over other creditors, and/or They have assets that would be sold for fair less than fair market value in ordinary auction sale type debt collection methods, and would realize far more value (possibly paying off debts in full as a result) in a bankruptcy. If there is a realistic probability of payment in full of the debts in an orderly disposition of those assets, often an individual Chapter 11 bankruptcy is filed instead. Also, a simple bankruptcy in Chapter 7 for someone with no assets that are not exempt from creditors (which is the predominant form of bankruptcy filing in the U.S.) isn't expensive and is usually mass produced by paralegals with only light lawyer supervision. It can usually be done for as little as $300-$500 of attorney fees, plus filing fees and mailing fees, for a total of well under $1,000. Sometimes a bankruptcy petitioner can get friends or family to advance or give them that money for that purpose. | Yes; While contracts can be made in written and oral form bigger acquisitions normally are in written form. Also consider this: They can't prove that they told you that the balcony is not usable. Thats a big negative in buying a property and they would need to have it documented. If they still refuse consider seeking professional help. In my country lawyers offer "fast help" that isn't legally binding but costs you only 10$ and helps you finding out if your case has any possibility to get accepted/if you're right. EDIT: Regarding the reservation fee: You can dismiss that. You didn't reserved that object, you reserved a house with balcony. | Whether one can recover attorneys fees after litigation in California depends upon the nature of the case. Their amount may be affected by the nature of the judgment. The general rule is each party is responsible for that party's attorney's fees. That means that the trial result is irrelevant - no matter what happens, one pays for one's own attorneys fees. There are, however, some exceptions: First: if the parties are litigating a contract, the contract text itself may provide that the prevailing party can recover attorneys fees from the non-prevailing party. Such "Attorneys' Fees Clauses" are common. The prevailing party may have to file a motion in the trial court for the judge to add attorneys fees to the judgment amount; the judge will also be responsible (in ruling on the motion) to determine the amount of attorneys fees. Second: specific state statutes may allow the prevailing party to recover "Statutory attorneys fees." This is completely dependent on whether the case at issue fits the various statutory definitions. For example, the Song-Beverly Consumer Warranty Act (the California "Lemon Law") provides for the recovery of attorneys fees by an aggrieved consumer. There are multiple other examples throughout the California Codes. Third: @ohwilleke (to whom thanks) added a comment below that includes other exceptions to the general rule. The comment text was: There are a few other exceptions, e.g. breaches of fiduciary duties involving trust finds, bad faith breaches of insurance contracts, etc. Also, it is possible for attorneys' fees awards to be made because litigation or some specific conduct in litigation is either groundless and frivolous, or violates a court rule. Further, a prevailing party generally gets court costs (e.g. filing fees, expert witness fees, copying costs, and other out of pocket expenses other than attorneys' fees) even when attorneys' fees are not awarded. Most are modest, but not expert witness fees. If the case at issue does not fall within an exception, the general rule — each party is responsible for their own attorneys fees — applies. | To determine whether an attorney is licensed to practice in a specific jurisdiction, you need to look up that attorney in the bar that applies to that jurisdiction. Some attorneys do not allow their information to be posted on the online lookup, in that case you would have to call the bar to confirm that s/he is licensed. I assumed you meant more than "case" in the legal sense above. For instance, if you want a Patent, you would need someone licensed to the Pat Bar. Cases they have worked on: You can use Google Scholar and select Case Law / the Jurisdiction you are concerned with and search for their name exactly (I would also limit the time frame.) The attorneys for each side are listed at the top. Some of the large cases have multiple pages of attorneys with their name on the case. Alternatively, if you have a subscription service to WestLaw Next, Bloomberg Law, or LexisNexis you can lookup the attorney and see case information as well, as well as court documents they have submitted in various cases - this allows you to get a glimpse of their writing style. Alternatively, you can visit your local law school's law library and, if they have public access, use the public terminals (at least my law school has these.). | Assuming that privilege applies, no Not all communications with your lawyer trigger privilege and if it doesn’t then the lawyer is not your lawyer and is under the same obligation to report as any other member of the public. If privilege does apply then they must keep your secrets. If they are defending you and you confess to the crime then they can: represent you if you plead guilty withdraw unless that would prejudice your defence continue to act providing that they do not: suggest someone else committed the offence set up a defence inconsistent with the confession they can: argue the prosecution has not made their case, that you are not guilty of the offence charged by reason of law, or argue for any other (non prohibited) reason that you should not be convicted. | This is a civil case, taking away your freedom is only for criminal offenses. Not paying your bills is not a criminal offense. It is up to the creditor to look for your assets, etc. A court can make you show up and answer questions about your assets and income. While you are in court the judge can make you give your gold watch to your creditor. Outside the parameters of the question there are circumstances like failure to pay child support when you do have the funds that can lead to incarceration. In some places you can be jailed for contempt of court if the court requires your presence to let the creditor have the ability to try to get access to your assets and you do not show up. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | It's no fantastic legal source, and rules may vary in different countries, but from the Wikipedia article on Attorney client privilege: Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such action. In other words, if the client's lie is related to one of the lawyer's interests (for example, if the client sues the attorney for malpractice based on the advice he was given), the lawyer can break privilege on his own behalf, thus testifying that his client lied. As to the specific case you brought up, I would say that privilege wouldn't protect the client from the lawyer discussing things never brought up. In other words, we could force the attorney to testify, since one of two things is true: The attorney really did give him that advice, in which case the client has already voluntarily given up his right to confidentiality by describing what was said between them, or The lawyer never gave him that advice, and privilege wouldn't protect a conversation between the two that never transpired. |
Could there be a lawsuit against actionnetwork.org for sending unstoppable spam? actionnetwork.org is a mass-email tool for politics. Once a user has signed up for ANY campaign newsletter that is built on actionnetwork, all other campaigns on actionnetwork are free to spam the user. There is no way to unsubscribe from all actionnetwork emails. They will only let you unsubscribe from one newsletter at a time - and there are thousands. Is this illegal in the US? Can they be sued? | Such a lawsuit will fail The CAN-SPAM act applies to commercial emails. The emails you describe are political emails and outside its jurisdiction. All you can do is tune your junk mail filter. | Just the email in such a list is annoying but not really concerning. There are millions of people who put their email into publicly available contact data, and after a couple of years of use any email is going to be exposed some way. That's why websites use passwords in addition to just the email and why mail programs have spam filters. Your email was probably not used to sign up anywhere. Instead, spammers pretend that you signed up to slow attempts to prosecute them. A bit of a joke, really, considering how hard it is to prosecute spammers. The valid/invalid remark is used to facilitate spamming, no need to send mails to long-inactive addresses. More concerning than a 'leak' of your email would be a leak of your email plus password. (Such things also happen, and they are a reason why one should use different passwords and 2FA/MFA on important sites.) If it is just the email, see my first bullet point. There is a significant likelihood that the 'website owner' you think you identified is another victim of the address trader. Getting to the real culprit will require significant forensic effort. That effort is unlikely to happen for just emails. | Given a large database of email addresses that you can't prove have given consent to receive email, the only legal thing to do with it, is to (securely) delete it. (I am going to switch your question about a larger company to a bank: in the UK, big pharma is forbidden from advertising to individuals.) In principle the rules are the same for a huge bank and everything down to a self-employed plumber. In practice the plumber will be told "don't do that again" rather than fined. This case was treated under the Data Protection Act, which has a maximum fine of £500,000 – so a big bank would probably have been fined more, but not necessarily much more. Under GDPR, fines are related to turnover, so the fine would be a lot bigger for a large bank. The incident is a year old now. Details here. | 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. | No enforceable contract can contain illegal clauses and work Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all. In germany, a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations. | Can't we get a legal action about AdBlocker as web masters? No. I assume that by "web master" you mean a server admin who contracts with entities which are seeking to advertise their goods and services. An advertiser pays the server to transmit (or send(), in terms of a socket API) certain content to whoever submits a GET or POST request ("the client"). The scope of the contract ends there, and the end consumer or client is not a party to that contract. Any point beyond the server admin's routers, it is perfectly lawful for end users to run some program on the client side where the purpose of that program is to (1) parse any packets received in the client socket, (2) filter out some of it, (3) and forward the rest to a browser. Bringing legal action against AdBlocker would be somewhat akin to suing producers of TV remote controls under the allegation that the mute button functionality blocks advertisement content. | it would violate law? It would be very dependent of what your jurisdiction is and what the software does. I would expect most software that would be lawful to install at your home would be lawful to install at your company, but there may be exceptions. To put an hyperbolic example, if you work at the CIA and you install some remote access software that allows you to access your workstation from a non-secure PC through non-secure methods, I am pretty sure that would be illegal, even if you had the best of intentions. A recent scenario taken from real life involves some members an organization who are required to use official e-mail servers for FOIA purposes setting up their own private mail servers. Of course, YMMV. can I purchase it for myself, and then use at workplace Even if the software is legal it does not mean that it is ok to use it at the workplace. Most business have rules about what software may be installed in the PCs, who may install it and how to manage it. Your software could introduce security vulnerabilities that your IT team may need to be aware of, or incompatibilities with other software. It may introduce legal liabilities (you install a "home edition" licence in a corporate environment where that licence is invalid). Your company may discipline you if you breaking those guidelines and install software without authorization, even if there is no harm for them for this action. On top of that, if your actions cause some damage to the company, it can sue you to get you to pay for those damages. Before taking any action you should inquiry about your company's IT policy and, if your company does not have one or if the policy is not clear about allowing you to install the software, ask the people in charge (preferably in writting). | No. This would not be illegal. There is considerable case law holding that a mere link to a website is not itself actionable, either civilly or criminally, for wrongdoing by the operator of the destination site. This said, even though it would not be a breach of copyright, per se, in some circumstances one could imagine the link, together with other actions to give the link more context and substance (e.g. a revenue sharing agreement with the illegal website operator based upon clicks referred from your site) to support a claim of civil conspiracy to violate copyright laws, or even a criminal conspiracy to do so. But, it would be very hard to make out a civil or criminal conspiracy claim against someone who maintained a "warning" site. Similarly, it would not be actionable to have a webpage that linked to a website that used to be legitimate when the webpage was set up, if the link then rotted and the site at that address was replaced by a website that streamed videos illegally or promoted child pornography, without your knowledge. |
Does Fluff Busting Purity violate Facebook's terms of service? I'm getting annoyed by Facebook reels, sponsored posts, and other elements on Facebook, desiring a means to control them. The most powerful way to control what content appears on Facebook appears to be the Fluff Busting Purity extension. It's an extension designed to customize the appearance of Facebook by removing certain elements, such as reels or sponsored posts. However, according to Wikipedia, Facebook (not surprisingly) hasn't taken too kindly to it in the past, banning the creator in 2012. Wikipedia cites The Next Web as a source, which brings up section 3.11 of the Facebook terms as the likely text at issue: “You will not do anything that could disable, overburden, or impair the proper working or appearance of Facebook, such as a denial of service attack or interference with page rendering or other Facebook functionality.” The Next Web also adds: On the surface, it seems Facebook is well within its rights to shut down the user’s account for violating its ToS, but the developer of the extension / script has a point when he – or she – says a browser add-on does not require an API key or license to access Facebook’s services by design. While the creator of the extension may have been banned, I discovered that the page for the app itself is alive and well: https://www.facebook.com/fluffbustingpurity Would I be violating Facebook's terms if I used F.B. Purity? Update Here is the developer's response: https://www.fbpurity.com/news/important-news-facebooks-legal-team-have-told-me-i-am-banned-from-facebook-because-of-f-b-purity/ | It is not obvious that it violates the TOS (which is a complex wall of text and links to chase). §3 states that "we need you to make the following commitments", followed by some subsections – you can re-interpret this as an agreement on your part to do this stuff. Those subsections relate to "legitimate accounts and users" (not relevant), "what you can do" (potentially relevant), "permissions you give" (granting them license to use your stuff), not infringing on their copyright. The second subsection about what you can "do" says that you can't "violate these or other terms", or do anything unlawful, or infringing, nor may you upload viruses, or scrape Facebook data. So it turns out that there is nothing specific in that subsection, but it does say that you won;t violate "other terms". §5 presents a bunch of other possible terms and policies: Community Standards, Commercial Terms, Advertising Policies, Self-Serve Ad Terms, Facebook Pages, Groups and Events Policy, Meta Platform Terms, Developer Payment Terms, Community Payment Terms, Commerce Policies, Meta Brand Resources, Music Guidelines and Live Policies. Those primarily apply to advertisers, group-pages, developers, commercial use and content broadcast via Meta. Community Standard applies to everybody, and as you should predict there is a long list of specific sub-categories such as "Violence and Criminal Behavior", "Safety", "Objectionable Content", "Inauthenticity" etc. You would have to hire a lawyer to do an exhaustive search and interpretation. However, it appears that using an ad blocking app is not forbidden on FB, and that seems to be what that extension is. But you should read it for yourself. All. Of. It. It may have violated the older TOS, but that clause seems to me missing from the present TOS. | It's hard to say, under the Twitter TOS. They do not claim that copyright is transferred to them: "You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content)". But you do license the content: By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. The totality of conditions, including the Twitter Rules, is ever-evolving and not apparently contained in a single link. From what I can tell, there is no condition that prohibits a user from copying tweets into a book. There are numerous statements about "respecting copyright" which refer to taking material that is not licensed to Twitter and redistributing: nothing about redistributing licensed material.A plain reading of the first bold sentence says that you can make your content available to the world, not restricted to "retweeting". | VirusTotal is no different than many internet companies which operate with user-supplied content (i.e. Facebook, Youtube, etc.), and they are no different in the way they protect themselves with a TOS that outlines all aspects of their use of any material contributed or licensed or sold. Their Terms of Service states that users must own the copyright for what they upload and give VirusTotal a license to use it and relicense it and profit from it. VirusTotal uses the "safe harbor" clause of the DMCA to limit their liability for illegal uploads and provide a recourse for users who claim a copyright violation of uploads. And VirusTotal clearly seek to limit their liability for their own service in the case of false positives by standard clauses that claim they "do not warrant or guarantee that the services are accurate, reliable or correct." They're really no different than many internet companies; read the Terms of Service. It's a legally binding contract for all users, though some jurisdictions may limit some aspects of it. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Such an image is copyrighted, as part of the movie. You cannot legally use it without permission from the copyright holder, unless the use of the image falls under fair use (note that fair use is a strictly US legal concept. It does not apply anywhere else) or a similar exception to copyright, such as "fair dealing". There are multiple factors which must be considered in making a fair use judgement. No one factor ever totally controls the decision. It is a case-by-case decision. But several things about your proposed use suggest to me that it will not qualify as a fair use. The image is part of a creative work, not a work of non-fiction such as a news report or a textbook. That weighs against fair use. You seem to be using the whole image, although it is only part of the movie. That probably weighs against fair use to some extent. A use in "a social media post regarding a sales vacancy" sounds commercial to me. If so, that would weigh against fair use. The copyright owner might well wish to market images from the film. If so, and if many people used images from the film as you propose to use this one, that might harm the market. This weighs against fair use. You don't seem to be making any comment on the image, or using it in any significantly transformational way. That weighs against fair use. Use of the image does not seem vital or even important to the message you intend to communicate. That also weighs against fair use. In short, I think you would be wiser to use an image that you have or can get permission to use in this way. If you use this image, it is possible that the copyright holder would sue for copyright infringement, or issue a DMCA take-down notice, or both. | It could be. Accessing any web page is subject to whatever the terms of use are for the page, and if those terms state that the page may only be accessed from within the US, then accessing the page from outside the US is a violation of the TOS (hence use is infringing): see 2.4(h) of the Netflix EULA. There are EU rules that override such terms, within the EU. The usual way to circumvent technological location-restrictions (where the web page says "I'm sorry, I can't let you do that") is to use a VPN and pretend to be somewhere else. Use of a VPN is not per se illegal in most countries (there are exceptions), but using it to circumvent geo-blocking may be. Again returning to the point that the TOS may itself say "No you may not", the interesting question is what to conclude if there is no such statement, for example I did not see anything in the PBS TOS that restricts access to the US (I didn't look very deeply). Terms of service can't be secret: you can't be held to following rules that you cannot reasonably know of. If you attempt to access a page that uses un-announced geo-blocking technology and it informs you that you can't use the page because of your location, then you have effectively been put on notice that there is a rule. If you happen to be using a VPN and access an un-announced, (reasonably) undetectable geo-blocked site, that would not be a breach of the terms (because you have not been put on notice that location is a term of use). | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." | Pretty much everything you need to know about the ownership and licensing of your material on Medium is in the Medium TOS you contractually agreed to when you signed up with the service. Basically, you granted Medium a license to use the work, but you did not agree to an exclusive license nor turn over copyright to them. Part of that Terms of Service – Medium Policy reads: Content rights & responsibilities You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. You’re responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. You’re welcome to post content on Medium that you’ve published elsewhere, as long as you have the rights you need to do so. By posting content to Medium, you represent that doing so doesn’t conflict with any other agreement you’ve made. By posting content you didn’t create to Medium, you are representing that you have the right to do so. For example, you are posting a work that’s in the public domain, used under license (including a free license, such as Creative Commons), or a fair use. We can remove any content you post for any reason. You can delete any of your posts, or your account, anytime. Processing the deletion may take a little time, but we’ll do it as quickly as possible. We may keep backup copies of your deleted post or account on our servers for up to 14 days after you delete it. Pertaining to presenting Medium content in an iFrame on another site, this is reasonably close to not allowing that: You may not do, or try to do, the following: ... (2) access or search the Services by any means other than the currently available, published interfaces (e.g., APIs) that we provide;... You can use Embed Code Generator | Embedly to embed an iFrame of a Medium page on another site. But contacting Medium via the email at the bottom of the TOS would tell you for sure if it is OK. Comments on your pieces on Medium do belong to the owner. And You own the rights to the content you create and post on Medium. appears to cover the idea of copying your material from Medium to your own site. If in doubt, ask them. |
Will using a cover of a song in a film free me from legal obligations? I want to use the song "Whole Lotta Love" in my upcoming film. Obviously the song is copyrighted by led Zeppelin. So I'm planning to get a few musicians and cover the song and then use it as a background score for my film. Will that free me of the legal obligations? | No, the musical composition itself (i.e., what you might express tangibly in sheet music) has copyright distinct from the copyright that exists on Led Zepplin's recording of the song. Your new cover will still be a derivative work of the musical composition. When you record a cover of a copyrighted song, you must get permission from the composer (or current copyright holder of the composition). In the United States, however, you can compel the copyright holder to grant you license under 17 USC §115. Under a compulsory license, you pay a fixed fee per copy of the cover that you distribute (currently 9.1 cents), and the copyright holder must allow you to distribute those copies. See the circular Compulsory License for Making and Distributing Phonorecords from the U.S. Copyright Office. I am not aware of other countries that have a similar compulsory license scheme, so in those jurisdictions, you would need to negotiate a license with the publisher or an intermediary agency they use. However, even if you did get a compulsory license to distribute your cover song, you must get permission to synchronize the song with a video. The American Society of Composers, Authors and Publishers describes the copyright holder's exclusive synchronization right: A synchronization or "synch" right involves the use of a recording of musical work in audio-visual form: for example as part of a motion picture, television program, commercial announcement, music video or other videotape. Often, the music is "synchronized" or recorded in timed relation with the visual images. Since the synchronization right cannot be acquired under a compulsory license, you will need to have the publisher (or whoever the copyright holder is) agree to license the synchronization right to you under whatever terms the two of you can agree upon. | Copyright is hard. The movie has a copyright, and so has its ship model. This is the original copyright. The boardgame has a token. That thing has its own copyright, no matter if it's a parody of another thing or not. The copyright holder might not be the boardgame maker, but it is under copyright. In any way, parody is fair use, so no harm here. The model has a copyright, but also infringes on the film's copyright as it is a derivative of the film. If the film copyright holder wants, they can have it taken down and sue the maker. In any way, this model is available under a specific license. The model license is clearly Non Commercial. The CC-A-NC license can't be changed to one that is commercial. You can only add more No categories. The questions: 1 - No. Your work is a derivative work of both the model AND the boardgame. You don't parody the boardgame. 2 - You need a license from not one but at least two sources: the model author and the boardgame copyright holder. You might even need a license from the original film company. 3 - YES. He made the model, he can license it as he wants, but the license might be ineffective: He might have coverage under an explicit fan license with the movie company to make the model (allowing sharing under such other license) or not (when it might be silent acceptance of fan works, am implicit license or just plain lack of knowledge of the infringing model) - determining if the company wants to pursue is not your legal battle. Your battle is more likely with the copyright holder (of movie and boardgame) anyway because you lack a valid license from them. "I used this infringing model and breached the license I got it under" is... a very precarious point in court. 4 - No. You used the other work, you can't get out of the CC-A-NC license by altering the item. It'll always be a derivative work of the model you put in. You only get copyright in the changes. The resulting item has shared copyright with the original model maker. He gave you a license to do that, but the unbreakable condition unless you get a different license is: You can't ever sell this, you HAVE to tell them that I was part of this design. | Copyright requires originality Your infinity hard drive appears to be a machine designed to violate copyright by immediately copying anything presented to it. Damien Riehl and Noah Rubin were creating original melodies. These do not have copyright until they are fixed in a tangible medium. That's what the hard drive is for. This is insurance against them being sued if they release a song and someone claims it violates that person's copyright - they can produce in court the melody with a date stamp of 2015 (or whatever). GitHub or similar would be even better evidence. In this context there is a specific allegation that melody X infringes copyright. Riehl & Rubin can then go to their records (including metadata) and say no, here is melody X version 1 through n and they all predate your release so we didn’t violate your copyright. | I think that both your examples would be considered, if not outright copies, then at the very least derivative works of the originals. Under US law, the copyright holder of a work has the exclusive right to prepare derivative works. So anyone who prepares such a work without the authorization of the copyright holder is infringing their copyright and will be liable for such infringment. The US Copyright Office, in their Circular 14, explicitly includes "a new version of an existing computer program" as an example of a derivative work. That would certainly seem to cover the GTA folks. The concept that derivative works generally include "translations" might capture them, too. Your example of transcribing a musical performance isn't explicitly mentioned, but I think your sheet music would likewise be a derivative work of the performance: it includes all the editorial and arrangement choices made by the orchestra. Of course, both the performance and your transcription are derivative works of the original composition, but since the composition is out of copyright, there's no legal problem with that aspect. | It depends on how much you "copy" (including translate). If you were to have a list of 250 or even 1000 challenging words that appear in the movie, and even list the words in the order that they first appear in the movie, then there is no question of infringing on their copyright. If you create a transcription or translation of any part of the movie, then you are potentially infringing (a transcription being where you write down the spoken English dialogue). There are circumstances, pertaining to "fair use", whereby you could defend yourself in a lawsuit, but you would really need to engage a copyright attorney to advise you where the limit is. The purpose of the "fair use" defense is to make it possible for someone writing a review of a movie to actually quote short bits of dialogue. From the perspective of what would be useful for language learning (i.e. the amount of text that you would need to copy), providing a translation would almost certainly constitute infringement. In listing words which occur in a movie, you would not need to limit yourself to just single words, because there are idiomatic expressions like "down with that" or "kick the bucket", which involve a number of words but function as single units. When it comes to text, the copyright holder does not own the specific words, but he owns the "expression". The closer your product is to replicating that text, the more likely it is that the product will be found to infringe (this is why my example involved just listing the words once: and it should not be the 25,000 most difficult words, since that would amount to near-literal copying for a substantial initial part of the movie). If the movie is also released with e.g. Arabic subtitles (which would involve a licensing agreement), then greater caution would be advised in providing a word-list of difficult words that appear in the movie, because of the "effect on market" consideration. | A song with the same melody and different lyrics is a derivative work. It does not matter whether the song is to be sung for money, or not. The copyright owner still retains the rights to the melody, and can deny anyone permission to use it in a derivative work. Furthermore, using the derivative song to make a statement does not restrict or reduce the rights of the copyright holder. Refer to Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), below. See: Derivative work Derivative works can be created with the permission of the copyright owner or from works in the public domain. (...) The copyright for the derivative work only covers the additions or changes to the original work, not the original itself. The owner of the original work retains control over the work, and in many circumstances can withdraw the license given to someone to create derivative works. And: Why is parody considered fair use, but satire isn't? As the Supreme Court explained in Campbell v. Acuff-Rose Music, Inc., “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Also: Mechanical license Within copyright law within the United states, such mechanical licenses are compulsory; any party may obtain a license without permission of the license holder by paying a set license fee, that as of 2018, was set at 9.1 cents per composition or 1.75 cents per minute of composition, whichever is more, which are to go to the composition copyright holder. (...) In American law, US Code Title 17, Chapter 1, Section 115(a)(2) states: "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." thus preventing mechanical licenses being used to make substantially derivative works of a piece of music. (...) For example: Puff Daddy wants to sample the opening riff from “Every Breath You Take” by The Police. (...) He is free to hire musicians to reproduce the Police's sound, but he cannot copy from any phonorecord with only a mechanical license. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. |
Dreamers legal status vs Unborn The conservative argument that the Dreamers law is unconstitutional is that it ascribes equal protection to non-US citizens under the 14th Amendment. The 14th Amendment lays out clearly and explicitly that only US born or naturalized citizens have equal protection. Why doesn't the same logic follow that laws granting equal protection to a non-citizen fetus would be unconstitutional? | The conservative argument that the Dreamers law is unconstitutional is that it ascribes equal protection to non-US citizens under the 14th Amendment. The 14th Amendment lays out clearly and explicitly that only US born or naturalized citizens have equal protection. If anyone makes that argument, it's an extreme fringe. The 14th Amendment does not prevent states from giving equal protection to non-citizens. In fact, in general, the 14th Amendment means states are required to give equal protection to non-citizens. See Graham v. Richardson: The Fourteenth Amendment provides, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It has long been settled, and it is not disputed here, that the term "person" in this context encompasses lawfully admitted resident aliens, as well as citizens of the United States, and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886); Truax v. Raich, 239 U. S. 33, 239 U. S. 39 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S. at 334 U. S. 420. It's also settled that illegal immigrants are fully entitled to equal protection of the laws. See Plyler v. Doe: That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish. The dissent to Plyler also agreed that illegal immigrants are entitled to equal protection of the laws: I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Equal protection does not mean people in different situations must be treated identically. States are limited in their ability to discriminate against lawful permanent residents (Richardson), but there are situations where discrimination is appropriate (Foley v. Connelie, which held that a state can require police officers to be citizens). It's often considered reasonable for states to discriminate against illegal immigrants, but Plyler held that it was unreasonable to deny children the right to attend school because they were illegal immigrants. At the federal level, Congress has broad authority to discriminate against non-citizens (one reason states are fairly limited here is so they don't interfere with federal authority). The question in the case mentioned in the comments, DHS v. Regents of the University of California, was whether the Trump administration's decision to end DACA was legal. One argument raised was that it violated the Equal Protection Clause because it disproportionately hurt Latinos and was motivated by prejudice against them. The Court held that the claims of a prejudicial motivation were weak and that the disproportionate effect was just because illegal immigrants are disproportionately Latino. The Court didn't explicitly say "you can constitutionally make immigration policies that discriminate against illegal immigrants," but that's so obvious that no one seriously thinks otherwise. What the Supreme Court did not rule was that the Equal Protection Clause does not apply to illegal immigrants. They held that it didn't ban this particular policy change, but that's not particularly surprising. They certainly didn't hold that DACA was illegal because it violated the Equal Protection Clause by protecting non-citizens. No one even bothered to address that claim. | In the United States, the constitutionality of a law can be challenged in any court. Unless and until the court is reversed by a higher court, then the law will be considered unconstitutional and invalid. A jury can also theoretically nullify a law for any reason, including unconstitutionality, however, the jury's finding will only hold for that one case that they are trying. | "Discrimination" is in some way treating people differently from other people. Much discrimination is a sound idea. Not letting someone fly a plane who does not have pilot training is discrimination, but not a bad kind. So is not allowing someone to do surgery who has not trained as a doctor. Unlawful discrimination is discrimination that a particular law in a particular country declares to be forbidden. Different countries have different laws for what kinds of discrimination is unlawful under what circumstances. Discrimination on a basis not forbidden by law is legal, even if immoral. For example, a restaurant could, in most if not all countries, ban left-handed people from being served there. This might be immoral, but would not be illegal, because no law has made it illegal. Commonly, discrimination on the basis of religion, ethnicity, national origin, sex, or political opinion is unlawful. In some jurisdictions discrimination on the basis of disability is unlawful. Other bases may be unlawful in some places. There may be exceptions. Employment discrimination may not have the same standards as housing discrimination, and admission to public places or ability to run for public office may be different yet. All this will vary based on the particular laws of particular places. Note that some of these protected classes are things about which people have no choice, such as sex and national origin, others are matters of choice such as religion and political opinion. Laws may create a protected class on any basis. Note also that many things about which people have little or no choice, such as height, handedness, or intelligence, are not protected categories in most places. To the best of my understanding being vaccinated or not is not a protected class in most if not all of Europe, so legal distinctions may be made based on vaccination status. In such jurisdictions, discrimination in favor of those who are vaccinated is legal, although some may think it wrong. A few US states have made it unlawful to restrict various public or private services or access to places on the basis of vaccination status. I am not aware of any country in Europe that has such a law. | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. | An existing law actually prohibits using census data "against" a person, see this recent question. The 5th Amendment ("nor shall be compelled in any criminal case to be a witness against himself") is not interpreted to imply an absolute privilege to not answer, it means that your answer cannot be used against you in a criminal case. You can be compelled to testify "against yourself" if you are granted immunity from prosecution. | Does this mean that all four of the above are "equipotent"? No. The inclusion of these foundational documents in the Front Matter of the United States Code does not indicate anything regarding their legal status. It is more of a political statement, as a preamble to all laws in today's sovereign federal state, describing the foundation of the United States of America and its constitutional order. The only constitutional law in force today in the U.S. is the Constitution for the United States of America, beginning with We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. and the subsequent amendments. The ratification of the Constitution replaced any previous constitutional orders in effect between the States. A new government was created by the Constitution and replaced the old one under the Articles of the Confederation: Both Governments could not be understood to exist at the same time. The New Government did not commence until the old Government expired. It is apparent that the government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the 1st of November, by the successive disappearance of its Members. It existed potentially until the 2d of March, the day proceeding that on which the Members of the new Congress were directed to assemble. Owings v. Speed The States abandoned their old agreement (the Articles of Confederation) and subjected themselves to the new Constitution. Of course, the other documents remain historically very significant and may shine lights on the interpretation of the present Constitution, for example, in Texas v. White, the reference made to the concept of "perpetual union" found in the Articles. The Declaration of Independence is not so much a legal document per se but a declaration of the existence of the States sovereign from the British Crown; but such sovereignty is not a result from the declaration, but from the acts of war. The Northwest Ordinance of 1787, while remaining in effect under the Constitution by Acts of (the new) Congress, is in any case spent as its territorial extent is extinguished by the establishment and admission of states, who enjoy equal status under the Constitution. See for example, Permoli v. Municipality No. 1 of the City of New Orleans and Strader v. Graham. | Like the other rights in the First Amendment, religious freedom is not absolute. For example, you can't use religious freedom to get away with assault or murder (e.g. fulfilling the fatwa to kill Salman Rushdie). The basis of many anti-abortion laws is that the fetus is a person, and thus abortion is murder. So by the same logic that you can't kill a person out of the womb for religious reasons, you wouldn't be allowed to kill an unborn person. So whether the Satanic Temple is a real religion or a parody is moot, because religion cannot be used to justify murder. The RFRA doesn't get around this. It has the following exception: the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. What falls under "compelling government interest" is up to the courts to decide. But in the past they've determined that paying taxes is a compelling government interest (Adams v. Commissioner), and even that getting a social security number is not a significant burden (Miller v. Commissioner). So it seems likely to me that actions that directly harm another person would not be allowed. The basis of most anti-abortion laws is that the fetus is a person, deserving of human rights, and abortion deprives them of the right to life. It's hard for me to imagine that preventing this would not be considered a compelling government interest in states that prohibit abortion. We can't be certain about this, since Roe v. Wade was only overturned very recently, and there's little precedent in how the anti-abortion laws that are now allowed will be interpreted in corner cases like this. But in the current political climate, I think it's almost certain that a question like this would be decided in the pro-life direction. While pro-life conservatives also tend to be pro-religion, they generally restrict this to Christian religious traditions (these same groups were in favor of Trump's Muslim travel bans). A fringe religion like TST would likely not receive favorable treatment. Because of this, perhaps the right place for a question like this would be Politics | It appears that the "leading" source of Freedom of Movement is the Privileges and Immunities Clause (Art. IV, S.2 , Cl. 1) of the US Constitution, that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". See Crandall v. State of Nevada, 73 US 35: "We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states" (quoted from an earlier case); US v. Wheeler, 254 U.S. 281 In all the states, from the beginning down to the establishment of the Articles of Confederation, the citizens possessed the right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom citing the Privileges & Immunities clause as the constitutional foundation. However, this article, sect. IB notes a number of additional constiutional sources: Various Justices at various times have suggested no fewer than seven different sources: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and [sic] Immunities Clause, a conception of national citizenship said to be implicit in the structural logic of the Constitution itself, the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses. Edwards v. California, 314 U.S. 160 relates freedom of movement to the Commerce Clause, Aptheker v. Sec’y of State, 378 U.S. 500 points us to the Due Process clause. The argument hasn't apparently been made based on the First Amendment, since there are better arguments. |
Would you have a recourse if law enforcement listened to your priveledge conversations with legal council? Of course if they listened to your conversation with your attorney the "fruit of the poisonous tree" doctrine would apply, but could you actually sue them if they did it? Do you have a right to privacy when interacting with your attorney? | Yes, one has a right to privacy in such a case This right is clearly established, and so an officer or other government official or employee who listened in or authorized another to listen in could be personally sued under 42 US Code § 1983 often kn own simply as "section 1983). That law provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. The current version of section 1983 dates to 1979, but its hiostory goes much further back. This law derives from the Enforcement Act of 1871 also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or the Force Act of 1871. According to the Wikipedia article about it: The act was the last of three Enforcement Acts passed by the United States Congress from 1870 to 1871 during the Reconstruction Era to combat attacks upon the suffrage rights of African Americans. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts. According to the same article, Section 1983: is the most widely used civil rights enforcement statute, allowing people to sue in civil court over civil rights. According to the same article: A §1983 claim requires according to the United States Supreme Court in Adickes v. S. H. Kress & Co. (1970) two elements for recovery: (1) the plaintiff must prove that the defendant has deprived him of a right secured by the, "constitution and laws," of the US, and (2) the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' (under color of law) | So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the "one armed man" definitely did. Either way, you remain silent during interrogation. At trial, your defense is "It wasn't me it was the one armed man" and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with "Why didn't you say this when you were arrested?" and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting "It was the one armed man" on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the "Miranda Rights" by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called "Standard Cautions" or "Reading the rights". The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood ("With these rights in mind, do you wish to speak to me?" is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read. | Private prosecution is allowed in New Zealand, so one possibility would be to conduct the prosecution yourself. You could either do that as a case of destruction of property, or under the Animal Welfare Act. It is not guaranteed that your charging document will be accepted (for example, if your document lacks the required content). An alternative would be to apply political pressure to the Crown Law Office, to persuade them to pursue the matter. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | There's no privilege. Under N.M. Evid. R. 11-503., New Mexico's attorney-client privilege protects communications that are: confidential; and made for the purpose of facilitating or providing professional legal services to that client; and between a client and his lawyer. The test doesn't ask if money changed hands, so paying a lawyer does not mean your communications are privileged. There are many services a lawyer can provide for money that are not shrouded behind privilege, and courts will routinely compel the disclosure of communications they deem to be "business advice" rather than "legal advice." Bhandari v. Artesia General Hosp., 317 P.3d, 856 (2013) ("Butler provided the memorandum as a mixture of legal and business advice in his capacity as both in-house counsel and a senior vice president of the Corporation. We hold that the memorandum is business advice and thus unprivileged."). And if money were required, defendants with public defenders or pro bono counsel wouldn't have privilege. Under Rule 11-503, there's no privilege for Saul's conversation with Walt and Jesse. Saul is representing Badger, who is adverse to Walt and Jesse, so there isn't an attorney-client relationship. Further, Saul isn't providing legal assistance to Walt or Jesse; he's providing them advice on how to evade detection. You could try to interpret that as a request for legal advice, but the argument would be self-defeating. Because the advice to procure a stand-in defendant would amount to concealing identity, aiding a felon, and compounding a crime, it would fall within the crime-fraud exception, which says that the privilege does not apply to communications made "to enable or assist anyone in committing or planning to commit what the client knew or reasonably should have known to be a crime or fraud." Rule 11-503(D). | Lawyers may break confidentiality with client permission. You can also break your own confidentiality and talk to the prosecutor yourself. The prosecutor's response is up to the prosecutor; however, they tend to not be super excited about giving immunity to a witness for the defense if they might want to prosecute the witness later (and courts often are fine with that), so the more they suspect about your true role the less likely they are to grant it. No. If the feds later find truly independent evidence (they have the burden of showing it's truly independent), they can prosecute. Some states give transactional immunity to witnesses (you can't be prosecuted for crimes you testified about for any reason), but the Fifth Amendment doesn't require it and at least the feds aren't bound by state transactional immunity. It's hard to prosecute, but is possible if prosecutors play their cards right. Yes, it does allow civil liability. There is no right against self-incrimination in civil matters, only criminal liability. If the forced testimony leads to a lawsuit that bankrupts you, too bad. | 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. | Does this prove that the unlicensed attorney is practicing law outside their jurisdiction and is providing legal advice by representing the "client" in legal negotiations? No. Your quote of the email does not prove that the receiver engaged in unlicensed practice of law. Nor does it prove that the receiver/non-attorney is representing, or advising, the attorney's client or the adversary. It is quite possible and valid for the unlicensed lawyer (example: paralegals) to assist an attorney who actually represents the party. |
Did Royal Navy or US Navy courts martial or boards of inquiry ever use a bell as a gavel? In Star Trek (not the best guide to law), a Starfleet Board of Inquiry equivalent is shown with the presiding officer striking a tiny bell to indicate that proceedings were commencing or adjourned (like an American, though not English, civilian judge might use a gavel). Have Boards of Inquiry or courts martial in either the US Navy or the Royal Navy (the inspirations for Starfleet) ever used such bells, and do they use them today? (Also, if these bells are real, do they have a name?) | In the Royal Navy, the current mandated ceremony is: On the day on which a court-martial is to sit, the Union Flag is to be hoisted at the peak or at the yardarm as appropriate and a gun is to be fired when colours are hoisted, or at the time the signal is made if the court is ordered to sit immediately. The Union Flag is to be dipped between each separate court. Should the court sit for more than one day, the Union Flag is to be hoisted and a gun fired each day when colours are hoisted—or at any time previously that the court may resume its sitting. The Union Flag is to be hauled down when the court adjourns for the day. Where local conditions dictate that that the firing of a gun be inappropriate it may be omitted with the permission of the local senior officer. This is paragraph 9143 of Chapter 91, "Standards, flags and colours" in the Queen's Regulations for the Royal Navy, 2017 edition. I conjecture that this comes from the regulation recorded back in the first edition of 1731, which says in its courts-martial chapter: IX. When Sentence of Death is to be executed upon any Criminal, Notice is to be first given from the Ship by a Signal, and firing a Gun; upon which, the Captains of all the Ships present shall summon their companies upon Deck, to be Spectators thereof, and shall make known to them the Crime, for which the Punishment is inflicted. Firing the gun is commonly known as the "rogue's salute". Capital punishment is no longer used in the armed forces, but perhaps some relic of it has survived in the flag-and-gun ceremonial, translated from sentencing to the start of proceedings. In practice, the gun is unlikely to be used these days, since courts martial typically take place in fixed establishments. The centre in Bulford is right next to housing and so those "local conditions" apply. Royal Navy ships absolutely do have bells, which are used ceremonially. Since former regulations called for courts martial to be held in the most "publick Place of the Ship" (paragraph III of the 1731 text), that could mean on deck near the bell, and one could imagine a ceremonial strike of that bell to get everyone's attention. But I don't know if that was actual practice at the time. The miniature bell in the picture is too small to be a real ship's bell, but perhaps it creates an aura of Navy-ness. Military judges in the UK (Navy or otherwise) do not use gavels, just like in civilian courts. They use their voices when it's time to declare something. | The article is public domain. The pictures aren’t If this was first published in the British Empire (as it then was), then The UK is the place of first publication. What follows is its status under UK law, other jurisdictions may have different results. The original article is public domain because H. C. P. Bell died in 1937 meaning copyright on everything he wrote expired 31 December 2007. If he’d lived until 1951 or later it would still be under copyright (in 2021). However, this isn’t the original article because: Text on this page extracted from an original copy of Annual Report. The photographs were taken when I visited the site in 1991, and again in November 1995. The bits that this unknown author added, including the photographs, are their copyright. Since they were clearly alive in 1995 (due to the well known pirate aphorism “dead men take no photos”) the copyright in those is still current. | An interrogation isn't necessarily a sit-down-in-a-room thing. Miranda v. Arizona clarifies what they mean by "interrogation" for the purposes of that opinion: 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. If any post-arrest questioning might happen, it is prudent to inform the defendant of their rights. Miranda also reminds us that: Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. [...] Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today. The police are not required to give a Miranda warning in order to make use of statements that the defendant volunteers while in custody. But, police generally can't predict when they might ask the defendant a question (or otherwise make the defendant feel compelled to answer). | Warrants You say: "Formerly if a person was NOT apprehended in the commission of a felony, but was merely a suspect, then the authorities had to INDICT the suspect to prove sufficient evidence." This is not true. What the authorities had to do was issue a warrant which required no prerequisites or even suspicion that the person was involved in the crime. If I had the power, I could issue a warrant any time I felt like it. The abuse of warrants was one of the grievances that led to the American Revolution and is the primary driver for the fourth amendment to the Constitution and the limit that warrants can only be issued on "probable cause". Needless to say, all Western democracies have similar protections. Statute law In common law jurisdictions, parliament/congress can overrule the common law by passing an act that effectively says "the law is now this". With the rise of professional Police starting with the Glasgow Police in 1800, the statutes that created (or regulated them) extended the power of arrest without a warrant beyond what the common law allowed. For example, in new-south-wales, the police power of arrest without a warrant is in s99 of the Law Enforcement (Powers and Responsibilities) Act 2002. The general power of arrest without a warrant is in s100 (which also broadens the common law power to allow arrest where a person has "just committed" an offence or has committed a serious indictable offence for which they have not been tried at any time in the past) and the power to arrest with a warrant is in s101. | While this isn't a simple and direct answer, it should point you in the right direction. There are countries which like the United States have parallel national and subnational court system, including Australia, Belgium, Brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, and Switzerland. Different rules of procedure for different courts within a larger overall court system for a federal jurisdiction are not that unusual even in nominally unitary court systems. But, the division between them is on something of a continuum with fine shades of differences between them. Only a few are as close to the extreme of power sharing and a "federalist" approach as the United States, however. Also even unitary court systems (in a geographic and federalism sense) often have parallel court systems on subject matter grounds. For example, France has both ordinary civil courts and labor courts whose rulings could overlap, and England historically had courts of law and courts of equity with a complex relationship to each other (and also ecclesiastical courts with jurisdiction of matters now vested in the civil courts of law like inheritance of tangible personal property). Similarly, Northern Ireland has or has had what amount to different parallel legal systems for terrorism and non-terrorism criminal offense. Most countries also have parallel criminal and quasi-criminal legal systems for civilians and soldiers respectively. I've seen this tension between the two systems as a plot point in contemporary English police procedural dramas, for example. On the other hand, systems with a more unitary legal system rarely are so fierce in their defense of protections against double jeopardy as the United States, and the dual sovereignty doctrine in U.S. double jeopardy law can be seen as a safety valve in practice and as applied in cases where the double jeopardy rule as interpreted under the U.S. Constitution is too strong a bar to legitimate second prosecutions. A comparative analysis of double jeopardy concepts can be found here. It is tricky to reduce the subtly differences between the rules in different countries to a clear yes or no kind of answer. A square answer to your question requires detailed examination of a dozen or more court systems that someone felt the need to write a book about to explain. If I can find a more specific answer I will update this one. | In the US at least, there is no mention of "mind reading" in the Constitution. But should such a technology be developed and actually used to read someone's mind and then that information was used against them in court, I can certainly see an appeal on at least 5th Amendment grounds. It's also possible that should such a technology become viable, that state legislatures and even the US Congress passing prohibitions on using it under certain circumstances. | england-and-wales In England, the use of a horn when stationary is restricted solely to advise other road users of your presence "at times of danger". Not spotting that the light has gone green would certainly not fit that description. Use of audible warning instruments 99.—(1) Subject to the following paragraphs, no person shall sound, or cause or permit to be sounded, any horn, gong, bell or siren fitted to or carried on a vehicle which is— (a) stationary on a road, at any time, other than at times of danger due to another moving vehicle on or near the road... The Road Vehicles (Construction and Use) Regulations 1986 The policeman would be well within his rights and duties to provide you with a fixed penalty notice of £30. | The key part of (e) is the National Radio Quiet Zone that covers parts of east-central West Virginia and west-central Virginia. Because of radio telescopes and military intelligence equipment in the area, there are restrictions (increasingly strict as you get closer) on potential radio interference. A radio source that would be no problem in most of the world can be a major problem when you are trying to pick up a radio signal from a few billion light-years away. So if Sally is in the National Radio Quiet Zone, she has to notify the National Radio Astronomy Observatory who will consider the power, location, etc. of the proposed beacon, and determine if it will potentially interfere with the radio telescopes before granting permission. If they grant permission, Sally is fine. Otherwise the FCC will decide what Sally can do. If Sally is outside the National Radio Quiet Zone, then (e) doesn't apply. So more information is needed before we can know if Sally is legal or not, but as a general rule: Outside the National Radio Quiet Zone, probably ok, inside it, will have to ask for permission. |
Would it be legal to build a self driving car? If I wanted to build a self driving car, and had the money, equipment, and knowledge to do do, would it be legal? Could I take my hands off the wheel/feet off the pedals while driving, as long as I still paid attention to the road and could override the computer if necessary? | If you buy a large piece of land, closed to the public, then yes. You would need a license for your car to allow drivers to use it without hands on the wheel, or the driver will get arrested. But first you need a license that allows using the car on public roads at all. That’s what all the car manufacturers have to do. Requires for example crash tests, tests how polluting the car is, and so on. | An affirmative defense is a way of avoiding conviction by acknowledging you did the act claimed, but that such act was among the exceptions provided by the law which makes such acts otherwise an offence. That is, you affirm (acknowledge, admit) your action of using the device, but you are claiming that your use of the device (handsfree as a GPS guide) is okay, and therefore you should not be convicted. For all intents and purposes in this situation, your "2" and "3" are the same thing. The device is supported by something other than you holding it, and you are able to keep both hands on the wheel while using it in this way. Finally, a plain language reading of the definition for "hands-free accessory" suggests that using an object in the car to support the device where it can be seen, or using a feature of the device that speaks directions which you can hear, neither of which requires moving your hands off the wheel, will be considered such an accessory. It is also worth pointing out that such usage of a device (placed in a cradle or on the dashboard or turned up so it is heard) will be well-known to the legislators, and there is a reasonable interpretation of the law that would allow such usage. If this ever went to court, and somebody used this defence for this situation, they would probably be okay. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | The policeman ordered, right as he took a step out of his car "Turn it off!" - which is a lawful demand to prevent the biker from possibly kicking the gas and running. As the driver did not seem to comply (from the policeman's PoV) during his walk over to the bike, he enforced the order himself by turning off the bike and confiscating the key for the moment. Having made it safe that the driver couldn't leg it, he guided traffic around him so he could get to the side of the road. We don't know what happened after the driver reached the curb to be lectured and/or arrested, the bike could be impounded or the confiscation might be temporary. So all we can do here is discuss the action of demanding that a motor vehicle be turned off, the doing of such and taking the keys. Demanding a vehicle to be shut off is standard procedure in police stop, as it is ensuring the safety of everybody involved. In a somewhat recent case (trying to find it again!), a driver did not shut off the car and had to stand on the brake to keep it where it was. As commands came conflicting (keep your hands where we can see them, get out of the car!) and he could not comply or the car would jump forward and ram somewhere, things escalated and the driver was shot. But back to the first step. Was the stop lawful? ACLU in NY tells us: Police may stop and briefly detain you only if there is reasonable suspicion that you committed, are committing, or are about to commit a crime. Don’t bad-mouth a police officer or run away, even if you believe what is happening is unreasonable. That could lead to your arrest. There was a crime committed: Splitting is illegal in NY (among others: Section 1122, overtaking on the right), so the stop was justified under NY CPL 140.50. From my own experience, it is not uncommon for bikers to try to evade police by swerving back into traffic and using their higher mobility to get away. On its face, this makes it reasonable to demand the bike be shut off as the policeman advanced, and I'd like to congratulate the officer for taking the less escalating step and just turning the bike off himself on the noncompliance instead of drawing his gun and possibly escalating it to a use of force. Most lawyers suggest to drivers pulled over to do things akin to "After you brought your car to a complete stop [on the curb], roll down your window and shut off the engine". Like this one. Possibly confiscating the keys might be an overreach by the policeman, but the demand to turn it off clearly is not. | I doubt that you will find an official answer to that question. No law allows you to block passing (even if passing is illegal). Therefore, you must allow passing. There are laws against obstructing traffic. Japanese law addresses this, defining obstructing progress as starting to move or continuing to move in circumstances that would likely cause another vehicle or streetcar to have to suddenly change speed or direction in order to avoid danger You'd have to specify how you intend to "not let" a person pass you, but I can't imagine what you could do that would not be "obstructing progress". A recent anti-road rage law allows license revocation for violation. | If you are producing and selling it, that is an absolute bar to patentability by anyone else (this is known as prior art). So if you are using it very publicly before they file, they can't get the patent. | The person who is changing lanes has the responsibility to make sure that they have space to move into. Suppose there was a person in front of you in the destination lane who hit the brakes suddenly - if you change lanes and rear-end them, that's your fault, because you failed to leave enough distance. I don't see how it's any different in this case, where the person is behind you and accelerates suddenly. A turn signal doesn't give you the right to change lanes at will, you are responsible for making the maneuver safely. It's poor driving etiquette for the other guy to cut you off like that, but it's up to you to ensure there's space as you move over. From your description of the incident, it sounds like your actions initiated the sequence of events, and it was also your actions that prevented the accident. From that, it seems highly likely you'd be found at fault if the accident had happened - in that scenario, your actions would have created the situation, and you also would have failed to take action to avoid the accident. | One issue is whether that left-turn (that's what it's normally for, not a u-turn) has a sign that allows u-turns. If it isn't marked, then I think these rules would control: U-turns are prohibited in these locations (from Oregon's DMV): Intersections controlled by a traffic signal, unless a sign permits the turn. Between intersections in a city. Any location within city limits where your vehicle cannot be seen by traffic coming from either direction within 500 feet. Any location outside city limits where your vehicle cannot be seen by traffic coming from either direction within 1,000 feet. At or on a railroad crossing. Any location where U-turns are prohibited by official signs or markings. I find them a little contradictory, but that may be because my state, California, is more permissive with u-turns. I also live in an area that's too crowded so it's easier to get the space and time to make a u-turn 'between intersections.' |
Is it legal to produce GI tagged products without using the tag outside the tagged region A Geographic Indication (GI) tag gives exclusive rights to use a particular name/tag to certain people/region regarding a product. Does this mean it is still legal for other people/regions to produce these products without using the mentioned tag? And do all countries allow this? | Yes You can legally make a a product with the same method. For example, sparkling wine using the same method as champagne. But it it is not made in the right region, it can not be sold under that region label. Champagne needs also the correct grapes from the Champagne, so the sparkling wine after the champagne method should never to be called champagne. Similarly, a tea may be processed just the same as Darjeeling Tea, but it can't be called Darjeeling in trade if it is not from the right region. Most countries that have marks for geographic origin respect them globally. | You must get opt-in affirmative consent to process personal data, including tracking people's use of your site or providing targeted advertising. The banner on StackExchange is likely in violation of the GDPR. Do not copy it. It does not have an explicit opt-in, only an opt out which is onerous (leave the site, then manually go in and delete any cookies they set, which may be hard to identify if they are from 3rd parties). The sites you mention that have a gateway are a more correct implementation. Consent must be acquired before processing of data begins, and it must be explicit. | 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. | Can he use another commercial product that is copyrighted, e.g. a map of a location (the map is a political map and has nothing to do with trees), for his tree research purposes, if such a map won't be part of the book he works on? Yes. Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves. Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a "derivative work" covered by copyright. | You cannot use the libraries trademarks, but that does not stop you from using your own. For example, you cannot use the name Twitter Bootstrap to endorse, promote or use as the name of your project. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | In order to use a trademarked logo on a product you would need permission of the trademark owner's, just like with any other trademark. However, you don't need permission to use a trademark outside the context of trade and commerce. For example, despite the fact that the Wi-Fi Alliance's own name is a trademark, you didn't need permission to use it in your question. Similarly Wikipedia didn't need permission to use the Wi-Fi Alliance's logo in their article on the organization: However, given your stated use, you'd be better served by not using the Wi-Fi logo on your web page. This logo is designed to be used to identify products that have been certified by Wi-Fi Alliance, not as a generic Wi-Fi symbol. Whether your page would infringe on the trademark or not, the use of logo could cause confusion and not send the message you're intending. |
Does the rebuilding of St Nicholas church building pose a constitutional problem? One of the buildings that got destroyed during the 9/11 attacks was the St Nicholas Greek Orthodox church. It is busy being rebuilt. I'm assuming that some sort of government funding involved. Is there some constitutional concerns over a place of worship being built with government money? I know the rebuild is part of New York's attempt to heal from the scars of a deeply traumatic event but is it actually legal for a place of worship to get built like that? Edit It seems under further investigation the Ports Authority of New York and New Jersey is funding the rebuild. I have also seen that the building will have a secular bereavement room, although I'm not entirely certain I know what a secular room is meant to be. Probably a room that has the logo of the American Secular Humanist Organisation on the wall instead of a cross. Source | Why do you assume "government" funding is involved? From Frequently Asked Questions | Saint Nicholas Greek Orthodox Church The rebuilding of Saint Nicholas is being funded through “The Friends of St. Nicholas", a separate non-profit 501(c)3 that has raised the funds to complete the construction. Individual donations are welcome, and every donation will be permanently recorded in the Church. 501(c)(3)'s are perfectly legitimate: 501(c)(3) Organization Definition investopedia.com | An anti-BDS law may be invalid in some circumstances, but this has nothing to do with the establishment clause of the First Amendment. Boycotting or not boycotting Israel is not an inherently religious question and isn't justified as such. More often the issues will be pre-emption by a higher level of government's laws, lack of legal authority to enact such a law under an authorizing statute, or possible the "dormant commerce clause." The linked material in the OP refers to the First Amendment freedom of association and possible the First Amendment freedom to petition, not to the establishment clause. | For the same reason that states require doctors to be licensed Surely, if I want an unqualified, unlicensed surgeon (or a person that says they’re a surgeon) to crack open my cranium and poke my brain, that’s up to me? There is no doubt that requiring people to attend medical school for half a decade and then spending a similar period as an intern and a resident is a large barrier to entry compared to handing high school graduates a scalpel and a bone saw and telling them to learn on the job. The same applies to engineers, lawyers, plumbers, electricians, builders etc. I mean if a building falls down because the engineer or builder didn’t know what they were doing, it can’t kill that many people, can it? Even drivers for that matter - it’s a large cost to individuals and businesses to learn to drive, pass a test, maintain a license and a relatively clean record, register a car, keep it roadworthy etc. Surely it would be simpler to let anyone drive anything and if they cause someone harm, like dying, for that individual to seek redress through the courts? We’ll, there’s a reason why states mandate things and it’s economic rather than legal. When people don’t trust each other transaction costs go up. These costs are usually borne by the consumer as the suppliers engage in a “race to the bottom” - whoever provides the worst service at the lowest cost wins. Further, these costs are borne unevenly - most consumers are fine, some are very severely damaged; possibly with no real redress. By imposing minimum standards, the state places these costs in the hands of the people who are best positioned to manage them - the supplier. Once a user has given their data to the supplier they have no control over it. Therefore the economical optimal solution to maximize economy-wide output is to make the supplier legally responsible for managing the data in accordance with minimum standards. Extraterritoriality In an ideal world, there would be universal privacy standards. There would also be universal standards for training doctors and engineers. But there aren’t. Therefore, countries and states impose their own standards on organizations that operate within their jurisdiction. The threshold for the GDPR (and most other privacy laws) is whether you are targeting users within their jurisdiction. If so, they have the power under international law to assert sovereignty even if you are located elsewhere. A state has power where it says it has power. Otherwise, you could plan a terrorist attack on the USA from the UK and not have to fear prosecution. That’s what extradition treaties and honoring other nation’s civil judgements is all about. A website or similar platform operates in each and every jurisdiction it is accessible from. Like a surgeon with unlimited plane tickets. Therefore, it must comply with the law in each and every jurisdiction it’s operating in. Countries have adopted one of 2 solutions - China’s is to simply block all external sites, everyone else has said you can operate here but you have to follow our rules, just like every other business has to. Now, you may not like this but there is no doubt they have the legal power to do it. | As far as I can tell, one can hold any beliefs or lack thereof, and there is no need to register your beliefs with the government per se. However, there are laws where religion is relevant, such as the Hindu personal laws such as the Hindu Marriage Act, 1955 or the Hindu Succession Act, such as stating who gets your stuff if you die intestate. These laws apply to Hindus, and since Jains, Sikhs and Buddhists are treated as legal Hindus (!), it applies to them; and to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. and don't ask me to interpret that "unless clause". That is, the Hindu laws do not apply to Muslims, Christians, Parsis or Jews. On the face of it, that would mean that Yazidis would be treated as Hindus, w.r.t. the subject matter of those laws. Registering a religion isn't relevant to the question: what matters is that the Indian Government decided to create these particular laws, and they have not created any Yazidi-specific laws. There are currently no national laws prohibiting religious conversion, and I can't find the state laws. This article discusses such laws, noting that some states require a person to register their conversion. I seems that the restriction is on A converting B, and not on B converting sua sponte. | Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS. | Your school can compel you to pray, if it is a private school. I assume you are asking about a government school. As a limited public forum, the school can limit content (can forbid discussion of a topic), but cannot limit viewpoint (cannot allow only pro-abortion speech while prohibiting anti-abortion speech). If they allow the Godly pledge, they must allow the Satanic pledge (as well as allowing silence). See Good News Club v. Milford Central School, 533 U.S. 98. "The power to so restrict speech, however, is not without limits. The restriction must not discriminate against speech based on viewpoint, and must be reasonable in light of the forum's purpose". While it is true that schools are allowed to limit disruptive behavior, declaring "disruption!" does not automatically suspend the First Amendment. A reasonable person would not find find replacing a few word to be a disruption. If you scream "Satan!", that is disruptive, if you just say "Satan" instead of "God", that is not a disruption. | 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. | It is legal. What would be illegal is for a public school to promote or inhibit a religion. You can teach all sorts of facts that touch on religion (millennia of Western history) and you can e.g. survey the major religions of the worlds as a cultural phenomenon. You can use circumlocutions or proper names. It's not illegal to confess to having personal beliefs. This is about public schools, which is an arm of the government. A person who is in a school, for example a student, is not prohibited from promoting or demoting a religion, therefore a student who clearly and openly advocates the Pastafarian faith is not to be sanctioned, except insofar as the conduct is objectively disruptive. This is because the student is clearly not acting as an agent of a government institution. Things are a little murky when it comes to teachers and guest speakers. Teachers do not lose their First Amendment rights when they enter the classroom. Here is a summary of pertinent court rulings. The main principle that comes from such cases is that school districts can direct teachers to refrain from certain actions when there is a reasonable belief that the actions would run afoul of the Establishment Clause. Individual teachers have been ordered to not engage in silent reading of prayers in school (Roberts v. Madigan). Case law on guest lecturers is probably close to zero, since guest lecturers don't have the same kind of property right to be at the school expressing themselves as teachers do. |
After buying from a brick & mortar shop they've contacted me to say buying things from them is consent to arbitration. Is this legal? A few days ago I bought over-the-counter goods from a shop. There was no signature involved in this purchase. I walked up to the counter with off-the-shelf items, was asked for a phone number, paid in cash, then left. They just sent a text message claiming that buying anything from them constitutes waiver of right to sue them and consent to binding arbitration. Is the shop violating any law? The shop was in Ohio, United States of America. | They cannot force a contract on you after the fact. You should leave these numbskulls alone, they are clearly up to something that makes them likely to be sued. I am adding the following: it's not illegal as far as I know to declare anything you want to a person as long as it isn't a threat. "You are now beholden to give me your firstborn makle child." lol, no. | Can a moderation team in a game extend a ban that you have just because they want to TL;DR Yes and no. It's their platform and you broke the rules that you agreed to. Therefore, you forfeited your right to use the service for as long as they deem appropriate up to and including forever. In exercising this power they must act reasonably which, in the absence of anything in the contract (and I can't see anything) means that their response must be proportionate and offer you procedural fairness. It's possible that they haven't done this - it may even be likely. However, in order to have this overturned, clause 24 of the EULA requires you to take the dispute to arbitration. Clause 24.4 sets out how to initiate this. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | In the United States, is it required by law for a company offering a long term service contract to include an option to opt-out of their arbitration agreement, if the customer chooses to exercise that option? No. (There may be isolated exceptions to this principle for very particular kinds of services, but the exceptions are rare and this is not the general rule.) Does it benefit the customer to use arbitration over the regular courts or is the arbitration clause in place purely for the benefit of the company? It almost never benefits the customer to use arbitration in lieu of regular courts. This is put in place primarily to prevent consumers from bringing class action lawsuits and because arbitration forums are routinely biased in favor of the company. Usually, an arbitration clause has the practical effect of denying the consumer any legal recourse whatsoever, and the consumer almost never actually utilizes this right. Also, an arbitration decision can't be overturned by a court even if it clearly and obviously misstates the facts and applies legal rules that are clearly contrary to the law. | 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. | The agreement linked in the question seems to be or to purport to be, for a non-final, non-production version of the board. I have seen such agreements used, both for hardware and software, used when beta-test versions of products are being distributed to those who agree to do such testing, often in exchange for a reduced price on the final product, or an early look. I have also seen similar language used when an evaluation version of a product is provided free, or at a much reduced price. In such a use, it would be a reasonable contract, it seem to me, and I see no reason why if it were agreed to by both parties in such a situation, it would not be binding. Often such agreements also include a non-disclosure aspect, but this one does not seem to do so. I cannot see how such an agreement could be made applicable automatically, without both parties having chosen to agree to it, and indicated this by signing, clicking, or in some other positive way. I doubt that it could be made automatically applicable, on an "by using this product you agree" basis. I don't know of any physical consumer product, or appliance, sold with such an agreement in ordinary commerce. I am not sure what would happen if a manufacturer wanted to require all purchasers to sign such an agreement. I don't know if it would be binding. I would think that the purchaser's rights under the First Sale doctrice, could be modified by a valid contract agreed to by the purchaser. I do not think that they could simply be revoked by a contract of adhesion, which the purchaser had no choice to decline before making the purchase. As the OP says this was not signed or agreed to in any way, I can't see how it binds the OP. | Under U.S. law, this is only actionable is you make this statement knowing that it would not "support the continued creation of X" and that instead, you had already completely abandoned that product and you were, for example, planning to change lines of work and become a lumberjack instead. Even in that case, common law fraud is hard to show, because you would need to show how that statement which related to how the profits will be used, rather than what you are actually receiving, could cause you damages in that narrow transaction. But, many states have deceptive trade practices acts that protect consumers by allowing the attorney general, local prosecutor, or a private individual or class of plaintiffs to sue if representations such as these are made when they are known to be false. Typically, these lawsuits provide for minimum statutory damages, attorneys' fees award, and when cases are brought by a public official, injunctive relief (ordering the advertising with that pitch to cease) are authorized. For example, saying this when it is false would be actionable in California and Colorado. A fairly common fact pattern is that someone will sell stuff at an above market price saying that "profits will help me pay for my cancer treatments" when in fact the person doesn't have cancer. This could even constitute criminal wire and mail fraud, for example. Sometimes, competitors can also sue you under the Lanham Act (which primarily governs federal trademarks), for false advertising about something that could unfairly undermine their sales if what you are saying isn't true and is causing their sales to drop. On the other hand, if you sincerely believe that what you are saying is true when you say it, and your belief is not so unreasonable that no reasonable person could believe that under the circumstances, then what you are saying is legal. Usually this is true, and if it is, ultimately, you will be fine. Although nothing can prevent you from being sued on a non-meritorious basis. In between are cases where this is true (you will be supported, but perhaps only get 5% of the profits while the rest are garnished for a lawsuit), but your statements were still misleading at the time you made them and you knew it. Those cases get resolved on a case by case basis. Outside U.S. law, your mileage may vary. Legal regulation of commercial speech varies significantly from one country to another. These statements might not be O.K. for example in a Communist regime on the Chinese or Korean model. | Technically the signage implied an agreement, and allowed you to infer one. But yes, I think that management could not legally insist on more than the posted price, whether for a lost ticket, or for a particular duration. (Unless the sign included "prices subject to change without notice" or something of the sort.) As a practical matter, challenge this is going to be a pain. The employees on the spot probably have no authority to vary the price merely because the amount programmed into the register differs from the posted sign. At least they will claim not to have such authority. And they won't release the car without being paid the $80 that they will insist is the proper price. To challenge this, a person would probably have to pay under protest, and then sue for a refund, I would hope in a small claims court. Most people will not go to that trouble for $10, which perhaps the management counts on. Publicity might be more effective. |
Legal basis of statement by British Food Standards Agency that companies may label as "sunflower oil" what is not sunflower oil? Recently in Britain the Food Standards Agency issued advice that food items may be offered for sale labelled as "sunflower oil" (a product that has become scarcer owing to the Russo-Ukrainian war) which do not actually contain any sunflower oil . See for example this notice at food.gov.uk. What statutory or prerogative authority is the FSA exercising when it allows such false labelling? What public good is served? (I am not asking for opinions. Obviously if a statutory agency sets aside the usual labelling rules - and in particular, the requirement of truth - it must only do so in the public good. What public good is supposed to be being served here? It is stated that allowing items to be labelled "sunflower oil" that contain no sunflower oil "[maintains] the supply of certain food products", but this is nonsensical because replacing a product with another product does not maintain its supply, regardless of whether the replacement product is labelled accurately or falsely. Labelling the replacement as being the product it replaced appears to maintain its supply, but it doesn't actually maintain its supply. That is fact rather than opinion.) | What statutory or prerogative authority is the FSA exercising when it allows such false labelling? As other answers have noted, they have executive discretion to "turn a blind eye" to what would normally be a violation of food safety laws and just decide that, right now, their government-mandated priorities are better served by not enforcing that particular letter of the law in these particular circumstances. In theory, someone could probably challenge that decision and take them to court over it, claiming that they were derelict in their duties or not acting impartially and in the public interest. However, in this case they'd probably have a pretty good defense against and such claims, both due to having explicit authority to make such decisions in emergencies (as also noted in other answers), and also because the decision itself seems pretty fair (it applies to all producers using sunflower oil in their products) and justified by the circumstances (more on that below). What public good is supposed to be being served here? It is stated that allowing items to be labelled "sunflower oil" that contain no sunflower oil "[maintains] the supply of certain food products", but this is nonsensical because replacing a product with another product does not maintain its supply, regardless of whether the replacement product is labelled accurately or falsely. Labelling the replacement as being the product it replaced appears to maintain its supply, but it doesn't actually maintain its supply. That is fact rather than opinion. You seem to be assuming that this advice by the FAS is about allowing someone to sell bottles of "sunflower oil" that actually contain rapeseed oil. It's not. It's not even really about products like crisps (potato chips, for those not in the UK) or pesto sauce or margarine that might contain sunflower oil as a major ingredient. For those products, the news page you linked indicates there are separate rules that apparently require, at a minimum, applying a sticker to notify consumers about the substitution: "where sunflower oil is a key ingredient, such as crisps, retailers will imprint information on substitute oil onto existing labels." However, think about all the other foodstuffs sold in stores that might include sunflower oil as a minor ingredient, like, say, granola, mustard sauce, instant noodles, mashed potato powder, microwave popcorn, frozen pizza, bolognese pasta sauce or just plain white bread. (If you're wondering where the random list of products above comes from, I just looked quickly around in my kitchen for products that had sunflower oil, rapeseed oil or some other neutral vegetable oil listed as a minor ingredient. There are surprisingly many.) I assume you would agree that all of these products would still be substantially the same product regardless of which kind of vegetable oil was used in them. The companies making all those products, and many others besides, typically order their product packaging in bulk, often from overseas, getting a new shipment of boxes or wrappers or labels maybe every few months or years. And of course those will all have the ingredients list printed on them, as mandated by law. If they want to change the ingredients, that means they have to send a new design to the company that makes the packaging and wait however many days or weeks or months it takes for the packaging company to make and ship the new packaging with the updated ingredients list to them. Normally that's not much of a problem, because normally food manufacturers don't tend to change ingredients in a hurry. Usually they'd plan such changes months in advance, order the new packaging well ahead of time and probably use up all of the old packaging they have in stock before actually making the switch so that they don't have to throw it away. (Companies that do need to frequently switch ingredients, e.g. due to seasonal or unpredictable availability, usually plan for that in advance e.g. by making their labels generic enough to accommodate the change or, where that's not allowed, finding workarounds like indicating the exact type or origin of the ingredients in codes that are stamped on the packaging late in the manufacturing process. That's why you occasionally see stuff in ingredients lists like "vegetable oils (rapeseed, sunflower or soybean)" or "produced in EU and non-EU countries" or "see last letter of expiration code for country of origin: A = Spain, B = Morocco, C = Israel, D = China".) In this particular case, however, a lot of companies that had been using sunflower oil in their products, and expected it to remain easily available, were caught short when the war in Ukraine broke out and the price of sunflower oil suddenly went way up, as companies selling the oil realized that there probably wouldn't be much sunflower oil exported from Ukraine this year. At that point, the companies that had been using sunflower oil as a generic cooking oil in their products would normally have a limited number of options, none of them particularly good (for either the companies or consumers): Keep using sunflower oil at whatever cost and transfer the increased cost to consumer prices. (To make things worse, the more companies do this, the higher the price of sunflower oil will rise, as they're basically competing for a limited supply.) Switch to a different type of oil and order new packaging ASAP, hoping that it will arrive before your existing stock of sunflower oil runs out. (This might take longer than usual, since presumably other companies are also in the same situation, so the packaging makers are probably swamped with sudden orders. Also, your stock of old packaging is now useless, and you might have to throw it out.) Order the new packaging immediately and pay extra for expedited delivery. Again, you'd be competing with lots of other companies who also really want to be the first to get their new packaging, so premiums for fast delivery are likely to be high if you can get it at all. All of that extra cost will also likely transfer into consumer prices. Use the existing packaging but apply stickers with updated ingredients lists on top of the old ones. That's not nearly as easy and cheap as it sounds, not only because you still have to get the stickers printed (and the printing companies are probably also swamped with orders), but also because you'll have to apply them to every single box or bag or carton, likely by hand. That's a lot of expensive manual labor that will, again, likely increase consumer prices. Just halt production until you can get new, updated packaging (or more sunflower oil at a reasonable price). That's probably the worst option for both the manufacturers and the consumers, since it results in lots of lost income for the manufacturers and product shortages for the consumers. Still, if all the other options are even more expensive, some manufacturers might be forced to do this. The exceptional decision by the FAS to selectively enforce the food labeling requirements in this particular case basically offers these food manufacturers one more option: switch to an alternative type of oil now, but keep using the old packaging until you can replace it. Practically speaking that's probably the best outcome for almost everyone. There's really very little difference between sunflower and rapeseed oil — both are neutral, mostly flavorless vegetable oils suitable for generic cooking purposes — and most people probably can't really tell them apart, especially not when they're used as minor ingredients among many others. Of course, there may still be people who really don't like the taste of rapeseed oil (assuming they can taste it) or are allergic to it (which, as the news article you linked notes, is very rare) or have some ethical or religious objection to consuming it (not that I'm aware of any, but I'm sure someone out there has one). Hence the news release, so that those people who might be affected by the substitution can find about it in advance. | The legal standard, evaluated on a case by case basis, when one firm uses a trademark that is similar to another firm's trademarks to market its goods or services in the same industry is whether the trademark is "confusingly similar" and in some cases whether it "dilutes" the first in time famous trademark. Many people writing fictional media, or making academic hypotheticals, make changes to an existing famous mark along the lines of those described in the question, in the hope of making a popular culture reference, while avoiding a feared exposure to trademark infringement and defamation liability. But that fear is mostly misguided. A trademark is not a right to have monopoly use of the mark in writing or other media. "Nominative use" of a mark is legal and does not expose the person making nominative use of a mark to liability. What is prohibited is using the protected mark to market goods or services in commerce, in a market where the trademark one fears being infringed currently exists and is being used to market goods or services of that trademark owner, to give the false impression of an association, affiliation, or endorsement by the trademark owner. The gravamen of a trademark infringement lawsuit is fraud and deception perpetrated on consumers to the detriment of the trademark owner. This is almost never a real risk in a fictional work. To the extent that there is a legal concern at all about distinguishing a fictional firm from a real one, the bigger legal exposure is to defamation liability. In other words, the bigger concern is the risk that the fictional work is viewed as making a thinly veiled false factual statement about the real world firm that damages its reputation (e.g. if it were to depict a fictional analogy of the real world firm "Taco Bell" making tacos out of horse meat as the real world firm has often, falsely, been accused of doing in real life because its prices are so low). | It is legal to be wrong, it is legal to say false things in public (leaving out defamation), and it is legal to buy and manufacture signs that say false things. Moreover, the sign does not make a false statement, in that legal liability is distinct from moral responsibility. In fact, the sign helps to decrease their legal liability. Via this sign, you have been put on notice that the truck may spray a bit of gravel, so by following too closely, you are negligently contributing to the damage. This is what also underlies those disclaimer signs with "not responsible for theft from your auto". There is nothing "official in appearance" about this sign (a legal citation of a statute might have such an appearance). | 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. | Given that this is a UK based company, the most applicable Act would be the Unsolicited Goods and Services Act 1971 A person who, not having reasonable cause to believe there is a right to payment, in the course of any trade or business makes a demand for payment, or asserts a present or prospective right to payment, for what he knows are unsolicited goods sent (after the commencement of this Act) to another person with a view to his acquiring them [for the purposes of his trade or business], shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding level 4 on the standard scale. This law specifically refers to [unsolicited] charges for entries in directories. You also mentioned that they're misrepresenting that a company is already a customer and sending out invoices on that basis. That would be a breach of the Fraud Act 2006 A person is in breach of this section if he dishonestly makes a false representation As to their enforceability, that answer is no. If this came before an actual judge, the judge would throw it out in a heartbeat. No agreement was made to provide a service in return for a payment and these companies rely on sending threatening letters via (seeming) third-parties precisely because they wish to avoid that level of scrutiny. | It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers. | The U.S. FTC gave extensive guidance on this subject in March 2013. (You may have noticed shortly thereafter that conspicuous disclosures of free samples and compensation started popping up in reviews and posts around the web.) The FTC's FAQ covers this question in such detail I would just encourage people to visit it directly. However, as is the custom on Stack Exchange, I will reproduce the most salient content here: If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC (ironically?) refers to 16 CFR §255 as "the Guides." The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make. In addition, the Guides say if there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to tout the product. The reason is obvious: Knowing about the connection is important information for anyone evaluating the endorsement. | Could a phrase "Don't buy from X" with indirectly implied material be considered defamatory? No. The phrase is only an order, wish, or instruction, which is different from making a direct or veiled statement of fact. Even in jurisdictions where a statement of opinion could be actionable, a stated wish of that sort cannot be construed as defamatory. anyone that reads the marketing material would indirectly have a false picture about company X. It depends on the contents of the marketing material, on which you did not elaborate. Persuading the customers on the basis of truthful representations as to why X's product is better than A's does not mean that people have a false image about X. The context and exact wording of someone's statements could amount to omitting and/or juxtaposing facts in a way that conveys some falsity, but your description gives no indications of that being the case here. |
Asking for compensation for a broken job offer in CA I have a family member who had a steady full-time office job in Los Angeles. He wanted a change of pace, so he reached out and got recruited by a well-known transportation company who offered him a position as a long-haul driver. He already has a commercial driver's license from California, but it's been about 8 years since he last drove professionally, so they said he needed a "refresher course". This course is offered and mentioned on their website. So the he and the recruiter reached an agreement: Course is 1-week long It would cost him $1,400 Takes place in Arizona Starts on May 9th These details were discussed over the phone, but there are also e-mails from the recruiter, and corroborated on their website. With these dates agreed upon, he quit his job and his last day was April 29th. He took the next few days off, and when he reached out to go get his physical exam he got nothing but silence from the recruiter. He called, e-mailed, and texted all week long, and didn't hear anything. On May 10th (the day after he was supposed to start training) they finally contacted him to tell him that they cannot offer him the "refresher course", but he'd have to take the full commercial drivers' license training course. This course is: 4-6 weeks long Costs $7,000 Also in Arizona Start date unknown So now he has been unemployed for 2 weeks, looking to pay 5x more money, and spend 6x more time. He cannot take this new offer because he would go broke before the course is completed. If the recruiter hadn't made an unfulfillable promise, he would’ve simply kept his steady job. Is there any type of California labor law that would allow for him to ask for compensation for lost wages? If so, what kind of lawyer should we look for to get advice? | Is there any type of California labor law that would allow for him to ask for compensation for lost wages? Your family member might have a claim of [intentional?] misrepresentation. Simply put, it is unjustifiable for a well-known transportation company to misrepresent for too long the requirements its drivers must satisfy. Assessment of other legal theories such as breach of contract or promissory estoppel requires a detailed knowledge of the interactions and terms between the parties. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 107 (1995) points out that "courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies". Misleading and belatedly avoiding a hiree who relied on the company's conduct contravenes public policy because of the ensuing disruptions and uncertainty the company could and should have avoided. Accordingly, see Robinson Helicopter Co., Inc. .v Dana Corp., 22 Call Rptr. 352, 361 (2004) ("[A] plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future."). Generally speaking, the doctrine known as economic loss rule bars claims of negligent misrepresentation involving no property damage or personal injury. That is in order to preempt a party from sidestepping contract law. However, the extent of the company's conduct as you describe it might forfeit the protections embodied in the doctrine of at-will employment. | I don't know of any federal law that is violated. US labor law is generally favorable to employers, compared to many other countries, and gives employers a lot of freedom in setting policies and rules, The theory is that an employee who doesn't like it can go and work somewhere else, and an employer with unreasonable policies will eventually be unable to get people to work for them. In particular, it surprises some people that employers aren't legally obligated to reimburse travel expenses at all: The FSLA does not have any rules regarding an employer's obligation to reimburse an employee for business-related travel expenses. No federal law requires reimbursement. So it would be perfectly legal for the company to require employees to pay for all their own meals when traveling on business. Given this, I'd expect that the company would have pretty broad discretion to place conditions and restrictions on reimbursement, including what they will and won't pay for. If an employee had a disability or religious beliefs that required them to eat meat, and the company wouldn't grant them an exception, they might have a claim under the ADA or Title VII of the 1964 Civil Rights Act respectively. But if it's just that they happen to prefer meat, I don't think there's a law to guarantee them such a right. Some states could have their own laws that might be violated, though I tend to doubt it. If you have a particular state in mind, please specify. | No, you cannot sue When you signed up to Uber you agreed to their Terms and Conditions. In Section 6, you agreed that disputes should be settled first by Mediation and, if that fails, by binding Arbitration - both under the respective International Chamber of Commerce Rules. These will be have their seat in Amsterdam and be conducted under Dutch law. This does not mean that you will need to travel to Amsterdam - you will be able to participate remotely. Notwithstanding, the Australian Consumer Law (ACL) cannot be excluded by contract or choice of law clauses and will still apply. Of direct relevance here is the consumer guarantee (Part 3-2) that services will be provided with "reasonable skill and care" and that this is a 'consumer contract' and subject to the unfair contract provisions of Part 2-3. The dispute resolution clause 6 is not unfair - Australian law supports alternative dispute resolution and a term is not unfair if it is allowed by law. The Disclaimers; Limitation of Liability; Indemnity Clause 5 is problematical for Uber as, while limitation of liability clauses are not ipso facto 'unfair', when the seek to limit liability for a breach of a consumer guarantee, they must be limited to what can be excluded by s64A. As written, these are far broader and, notwithstanding the savings clause about 'applicable law' they would probably be held to be misleading. A misleading term is ipso facto unfair. You may be able to approach the court to have Clause 5 declared an unfair term under s250 before proceeding to arbitration - the court may defer that decision to the arbitrator of course. You can, of course, sue the driver. Uber maintains that their drivers are contractors and not employees (which may or may not be true). If Uber is right, you have no contract with the driver and are free to bring a negligence suit. | It sounds like you've read about two party consent and public spaces. But while anyone can sue, it's winning a case that's relevant. "My client respects the applicant's beliefs, but choosing to express beliefs in such a way during a job interview indicated sufficiently questionable judgement that my client was unable to consider the applicant further for the advertised position." "It has also become apparent that the plaintiff was not acting in good faith in making an application for employment." Court finds for the defendant and orders the plaintiff to pay costs. | I have already contacted a lawyer and paid all the money I had and they didn't help me resolve anything, the guy just talked to me for a little bit. He essentially just took my $600 and no action was made. He said the best thing to do would be to wait it out because the contracts were never fulfilled by them and they can't claim my inventions etc if I am an independent contractor. To me it just sounded like a bunch of BS and not a real solution to this. You paid $600 for expert advice which told you to do nothing. You think the advice is bullshit and intend to go full steam ahead against the advice given. I'd say it is very likely that the lawyer is a better expert than you, so you should follow his advice. You are in a hole, you were told to stop digging, and you intend to continue digging. Don't. There are times where doing nothing is the best advice. In this case, you intend to accuse someone of breach of contract. That has a good chance of landing you in court. A company cannot afford to ignore such a statement. You claim the contract is void and you want to cancel it - but you can't cancel a void contract. It's void. Listen to your lawyer. | Is a text message legally binding? Yes, but the terms of the message need to be clear enough to ascertain the parties' intent at the formation of that contract or agreement. A contract does not even need to be in writing. There are also oral contracts and implied contracts, the latter referring to contracts which are inferred from the parties' conduct. A contract such as the agreement you describe here is binding regardless of its form. It is just easier to prove the existence of a contract if it is in writing. You did not specify your jurisdiction. If it is in the US, the price tag --rather than the downpayment-- of the object of the contract (i.e., the puppy you intend to buy) determines whether your complaint would need to be filed in Small Claims court. Generally speaking, parties to a dispute in Small Claims court have to represent themselves. Two remarks are pertinent. First, developing writing skills is utmost important not only for litigating a dispute, but also during the process of formulating the terms and conditions of a contract/agreement. Your post indicates that you seriously need to work on that. Second, the end of your post reflects that one of your managers violated labor law(s), which to most of us would be more worrisome than the controversy about the puppy. Legislation in most or all jurisdictions outlaws the act of withholding an employee's compensation regardless of its form (salary, commissions, and so forth). You might want to gain acquaintance with the labor laws of your jurisdiction so you can assess whether or how to proceed (does legislation require the employee to "exhaust administrative remedies" prior to filing in court? are administrative remedies optional? do these exist at all?), even if only to ascertain whether the deadline for filing the corresponding claim has elapsed. | We are tying to determine what an acceptable compensation would be It mostly depends on whether the acts and representations by the broker caused you to pay in excess and/or have made it more expensive for you to restore your previous insurance plan. The gaps in your description prevent us from identifying whether your claim(s) against the broker is (are) meritorious from other standpoints. The broker's advice to buy additional insurance suggests that since 2018 you must have paid more than you used to. In that case, you would be entitled to recover from the broker the excess over the premium paid for the insurance you actually had after the old policy got replaced. In England the statute of limitations for claims of breach of contract is six years. This implies that delaying legal action for another year will reduce the amount to which you are entitle to recover. If insurance similar to the old, "excellent" policy now costs you more than it would had the broker never replaced it, you might be entitled to that difference as well. That is because the broker advised you something and she did the opposite, thereby unjustifiably worsening your position. | if a manager emailed an prospective employee a contract containing the pay rate of $20/hr, if the prospective employee crossed out $20/hr and replaced it with $25/hr, then went to work and gave the manager the contract which he failed to carefully read, continued working for a few months, would the employee be entitled to $20/hr? A party ought to timely alert or notify the other counterparty about any disagreements or proposed changes. This is especially recommendable when evidence suggests that the counterparty's expectation that the party only would sign the contract was reasonable. In the example you outline, the employee's unilateral alteration of the compensation/rate in the contract seems unlikely to favor the employee's position. That is because typically employer and employee negotiate compensation prior to formalizing their agreement. In that case, the employee would need stronger evidence with which to overcome the employer's credible argument that he did not knowingly accept the altered rate. |
What restrictions is a teacher under when they suspect a student of having ADHD? TL;DR; I'm trying to validate my son's teacher saying "As a teacher, I can't even say ADHD." Is a teacher really that restricted? Long version: We have been dealing with a teacher who has (from our perspective) been resistant to getting him tested for academic delays. When we finally called her out on it, she mentioned that she has long suspected he may have ADHD, but couldn't say anything. She actually gave us the above quote. I've got several sub-questions, but the overarching question in the title is the same. What restrictions are on a teacher in regards to a student they suspect of having some disorder such as ADHD? I know a teacher can't diagnose ADHD, they aren't a doctor. Can a teacher mention that they suspect ADHD? Can a teacher recommend that the student be screened for various issues (even avoiding mentioning any particular disorder)? Can a teacher suggest a student be screened by a specialist? | There is no specific statute in Missouri that prohibits a teacher from saying "ADHD". There is a specific federal statute that obligates the school district to make accommodations if a student is diagnosed with ADHD (also a state law). A teacher is not technically qualified to diagnose ADHD. Finally, the teacher is an employee of the school district and is required to follow the policies of the district. Those are the 4 legal cornerstones on which the teachers response must rest. The unquestionably weakest cornerstone is understanding the realities of district policy. There may be district-policy type reasons that motivate reticence to recommend testing, but such "abundance of caution" is not motivated by a legal mandate imposed on the teacher, it is more likely to be the result of a fear of reprisals (for triggering extra expenditures by the district). Such a fear is not legally warranted, except insofar as if you don't know what the law says (many people don't), fear is a kind of reasonable response. But ignorance of the law is no excuse. It might be useful to know that it is not required to get a doctors diagnosis of ADHD, so the teacher's evaluation might carry more weight that you would expect, were that a requirement. | It isn't "illegal" but there are negative consequences to doing so. The civil penalties for failure to file a tax return are a percentage of the tax not paid (5% per month up to a maximum amount, plus interest). There is a small penalty for not filing an information tax return (like a 1099) when you have to file one and don't owe money, but there is usually not such a nominal fine for a personal form 1040. The statute of limitation on IRS efforts to audit a tax return or to impose additional tax for additional amounts owed doesn't begin to run until a tax return is filed. Criminal penalties require an intent to deprive the government of money. If he had more withheld than he owed, he probably isn't subject to any realistic significant civil or criminal consequences, but it is highly risky if he actually owed more than was withheld from his paychecks, and it deprives him of an ability to get refunds if too much was withheld (and possibly also stimulus check refunds) after three years. The issue here is really that it is hard to see that the downsides of not filing a tax return are hard to match to the benefits of filing a tax return, which for a wage and salary earning teacher, are very slight (you could pay someone to do it for $100-$300). Also, the lack of tax returns could hurt the teacher if the teacher ever has to apply for credit or get divorced or file for financial aid for the teacher's own kids to go to college. Of course, if he had lots of unreported side income, upon which he has not paid taxes, then there are serious civil and criminal consequences. | In the US, it stems from some statute, such as RCW Ch. 71.05 in Washington state, which starts by stating the rationale for the law, and which are to protect the health and safety of persons suffering from behavioral health disorders and to protect public safety, and prevent inappropriate commitment of persons living with behavioral disorders and to eliminate legal disabilities that arise from involuntary commitment etc. The various laws in this chapter make it possible to commit a person to a mental institute or to undergo involuntary therapy. There is a separate chapter, RCW 71.34, applicable to minors. In general, this law calls for professional evaluation and treatment, without legislating science. The trigger is generally evidence of a tendency towards serious harm or grave disability, with a requirement that the action be requested by a certain kind of behavioral professional. There are not many hard-coded limits on what can be ordered: while RCW 71.05.215 "has a right to refuse antipsychotic medication", that right is overridden when "it is determined that the failure to medicate may result in a likelihood of serious harm or substantial deterioration or substantially prolong the length of involuntary commitment and there is no less intrusive course of treatment than medication in the best interest of that person". Along with the legislation cited, there are also regulations which don't require legislative action (they are "empowered" by the statutes), which could specifically forbid a treatment, but again choice of treatments are left to the professional. In some other jurisdiction, it's possible that a certain treatment would be explicitly outlawed. | BC employers are required to give workers three days of unpaid personal illness & injury leave per calendar year. However, this protection only applies to workers who have held a job for more than 90 days. If you have not held the job for that long, it does not appear that any protections apply to you. Note that (as of March 2021) there are separate rules concerning COVID-19 exposure & illness. There may also be protections that apply to you if you are a union member, or if you work in a federally regulated job (banks, national trucking companies, airlines, and some others.) | From what I can determine, there has not been a legal challenge to the practice that reached a high enough level to get on my radar, so it's not clearly prohibited or allowed. Turning to the relevant federal regulations, the implementation of the Fair Housing Act, the law hinges in part on an Aggrieved person includes any person who— (a) Claims to have been injured by a discriminatory housing practice; or (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur. In order to sue a university because they offer sex-separated halls, floors or rooms, a plaintiff would have to show that they have been harmed by being given such a choice. Reading the prohibitions in §100.50, there is no obvious "Discriminat[ion] in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities", and it does not "otherwise makes unavailable or denies dwellings". Cases like McLaurin v. Oklahoma State Regents, 339 U.S. 637 (a case putting an end to the "separate but equal" doctrine) include reference to the fact that appellant was harmed ("The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession"). Analogously, the relatively rare black-only residences of UC Davis and Cal State LA might be targeted in a discrimination suit, if plaintiffs can make the required legal argument that there is harm. | This is roughly accurate, but there are nuances. The real US issue with teacher-led prayer is that a teacher's authority can make it effectively coercive, or seem so, even if this is not intended by the teacher. (And in the past it has often been so intended, by teachers and administrators who thought it was good for children to be required to engage in prayer.) There is no ban on a teacher praying privately. Similarly, there is no ban on private prayer by a student. Indeed such a ban (for either teacher or student) might violate the free-exercise clause of the US constitution. Of course a student should not be engaged in prayer when s/he is supposed to be doing classwork, but there are times during the school day available for prayer. However, public, student-led prayer can also be an issue. For example, at some schools it was customary to have such public prayer at the start of football games, or school assemblies. This official designation of a moment or occasion for prayer was challenged as an endorsement of prayer by the school, and as coercive to those who did no want to participate, but might feel strong social pressure to do so. The point is that the school, as an aspect of government, and one where students are required to attend at that, should not make prayer an expected norm, resulting in singling out those who do not conform. But no US law or court decision has ever forbidden private prayer in schools by students, or indeed by teachers. | While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court. | If the DA decides to press charges (we don't know) and if he is convicted (looks like a solid case), the problems are not just the sentence itself. There might be a probation period with conditions like drug tests and counseling, with penalties if he misses them. It is legal to discriminate against people based on prior convictions. While California has some restrictions on when employers may ask, they can make it one part of their assessment. |
What happens if there are multiple suspects but not enough evidence to convict any of them? For example, suppose there are two houses side-by-side. One day someone throws an incendiary device from one house to the other, causing a fire. The facts of the case are: There are four people in the house from which the incendiary device is thrown It must be one of the four that threw the device (e.g. because the device is thrown from the second floor and there is no sign of forced entry into the house) All four people deny that they are the one that threw the device, although none of them can prove that they did not throw the device What happens in situations like this where there's not enough evidence to pin the attack on one of the four people, but there is enough evidence to be certain that one of the four people is guilty? Do all four get convicted (i.e. three innocent people are convicted) or all four get released (i.e. one guilty person goes free)? I feel like this must have happened in the past, but I'm unable to find any Google results for this. The closest is the Prisoner's dilemma, which implies that all four are convicted on a lesser charge. However, the Prisoner's dilemma is a thought experiment in game theory so I am not sure if it is legally correct. | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in "Is this your statement?" "Yes". "Is this your video recording?" "Yes". After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means "I don't know" then say "I don't know". All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is ""Do you feel that a crime has been committed?" - nobody knows if a crime has been committed; that's why we're having a trial. | The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges. | In the USA, you must be found guilty "beyond reasonable doubt". As you describe it, I'd say there is an unreasonable suspicion of guilt, not guilt beyond reasonable doubt. If the magician killed three people that way, then three unexplainable deaths following three spells might get him convicted. A jury might say that even though there is no way to explain how the killing worked, the correlation might be enough to prove guilt beyond reasonable doubt. | Murder Which is the unlawful taking of a life with intent to do so. However, the doctrine of self-defence can make killing lawful: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. if the prosecutor is of the opinion that the force used "is reasonable in the circumstances" they may not lay charges. If they do lay charges the judge may decide that there is no case to answer before going to trial if self-defence applies. If there is a trial this will probably be the strategy the defence employs and they may or may not be successful. If convicted the penalty is life imprisonment. Also, there is no UK law: there is the law of England and Wales, the law of Scotland and the law of Northern Ireland. | In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing. | What the jury must do A jury must follow the law it is given by a judge. A jury cannot "go rogue" and bring back a verdict on something that has not been charged and/or that the jury has not been told to consider. So, whether a jury has the option of convicting a defendant of a lesser included offense - a crime contained within a more serious crime - depends on the instructions the judge gives. Is it up to the judge and the judge alone? Not necessarily. Typically, judges must issue the lesser included offense instructions to the jury if the lesser included offense is part of the charged offense if there exists significant evidence the defendant only committed that lesser crime. So, only if the evidence supports such instructions. Further, at least in some jurisdictions, a trial judge may not instruct jurors on a lesser included offense if there has been no request to do so by the defendant. There appears to be a disagreement over what, if any, power a prosecutor should have in making such a request. One side would argue that a prosecutor would want to ask for it so that a defendant who is getting off on the larger crime doesn't skate completely free on, for example, a technicality. Another side would argue that prosecutors should not have a say because they are in fact who control which charges are submitted to the grand jury for indictment. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. |
Must we show our prenup agreement to the immigration office/officer? If two person want to get marry together, but also like to have a prenup agreement as well, and one of the guys is on a non-immigrant student(F-1) visa, should they also provide their prenup agreement to the immigration office/officer during their marriage/green card application? Or is it possible to office/officer to see their agreement in some website, etc(I mean would it be recorded in somewhere?). I definitely like to have it but a user in one of my other questions mentioned that if an officer sees such a thing he/she may get more believe this is a sham/fake marriage. Is that true? Will the immigration office/officer ask about such an agreement our will find it out in someway? Or maybe we must to provide/submit it via our application? | General Answer I have not found any law or regulation that specifically says that an immigration applicant or the applicant's sponsor (spouse) must disclose a prenuptial agreement if one exists. But immigration officials have broad discretion in interviews, and might well ask about such agreements. If asked, it is very unwise to lie or evade the question. There is no law forbidding a prenuptial agreement in such a case, or making a would-be immigrant who has signed such an agreement ineligible. However, if the immigration officers believe that the marriage is a "sham" designed largely to evade immigration laws, they might declare the marriage invalid for immigration purposes. This is likely to significantly hinder the application, if not end it. If the agreement makes it appear that the parties contemplate that the marriage will be short-lived, and that an end to the marriage will occur in the near future, that makes it look like a sham marriage. If it appears that the prime reason for the marriage was financial, and particularly if the US party has apparently been paid or subsidized for entering into the marriage, that also makes the marriage look like a sham. If the terms of the agreement support either of these assumptions, that may cause a problem. It will be helpful if the agreement is carefully drafted to make it clear that the marriage is one of affection or love, and is intended to be lasting, with the agreement only present to help deal with issues in the possible case of the marriage not lasting. Affirmation of Support (I-864) Also, it is often requires that the sponsor/spouse sign an Affirmation of Support (I-864). This is an agreement by which the sponsor promises to support the applicant at at least 125% of the US Federal poverty level. The sponsor also shows resources sufficient to provide such support. The obligation under this agreement last6s until the applicant has become a US citizen, or has been credited with 40 quarters (10 years) of Social Security earnings credit. Under federal law and case law, a prenup cannot waive or reduce the obligations under an I-864 agreement. A prenup that purports to do so would probably be a significant negative indication for an immigration official. Parties must Understand a Prenup Also if it appears that the non-US spouse (the applicant) does not understand the nature and effect of a prenup, that might also be a negative indication. This is one reason why it is often a good idea that each party should be represented by a separate lawyer in the drafting of a prenup. Such a lawyer should be able to draft the prenup agreement in such a way as not to raise suspicions with an immigration officer. Disclosing a Prenup We here at Law.SE cannot advise whether an applicant should disclose the existence of a prenup at an immigration interview. Such agreements are not normally registered with any government agency, nor are they normally searchable on any web site. But an applicant should probably assume that a question about such an agreement might be asked at an interview, and be prepared with an answer. Sources and Quotes The page "Can a nuptial (prenup) agreement waive rights under the Form I-864?" states: [F]ederal courts have squarely held that a pre- or post-nuptial agreement cannot waive rights under the Form I-864. Even if a sponsored immigrant has signed a document saying that she forfeits all rights under the I-864, that agreement is meaningless in federal court. It is very common for sponsored immigrants to sign a nuptial agreement. Often this happens before the person completes the immigration process. For example, someone might come to the U.S. on a K-1 visa, then be forced to sign a prenuptial agreement before getting married. Usually these nuptial agreements will contain broad language that the immigrant waives all right to “alimony” or spousal maintenance. But sometimes the agreements will also specifically cross-reference the Form I-864. Federal courts see two main problems with nuptial waivers. First, these agreements undermine the purpose of the I-864. Or at least they try to. Congress created the Form I-864 so that immigrants would be guaranteed basic financial support of they need it. More specifically, the I-864 ensures that a sponsor rather than American taxpayers provides the immigrant with support. If nuptial agreements could waive support, it basically leads to the following situation: the sponsor promises the U.S. government that it will provide support, then turns around and creates a document with the immigrant that says, “but I’m not actually going to provide the support.” It would be a bit crazy if a federal statute could be undermined in that way. Here is how one court in the District of Utah put it: To permit a sponsor to unilaterally terminate the Form I-864’s financial support obligation through a separate agreement with the immigrant would ignore the interests of the U.S. Government and the benefits of taxpayers and charitable donors. It would also defeat the Form I-864’s purpose of preventing admission of an immigrant that is likely to become a public charge at any time. Therefore, nuptial agreements will not terminate a Form I-864’s financial support obligation. The second reason that courts disregard nuptial agreements is the text of the I-864 itself. The I-864 contract lists five “terminating events” that ends a sponsor’s support obligation. These include the immigrant becoming a citizen or being credited 40 quarters of work. (You could count the sponsor’s death as a sixth terminating event). But those terminating events are the only thing that ends a sponsor’s obligation. Signing a private nuptial agreement isn’t on the list of terminating events, so that simply isn’t a thing that can end a sponsor’s obligation. The page "Can a prenup protect me when marrying a non citizen?" from Joleena Louis Law reads: One of the most obvious concerns for people marrying non-citizens is how having a prenup will look to immigration officials. You don’t want to give the impression that the marriage is happening for financial reasons and it does help to show co-mingling of assets. However, legitimate marriages have prenups, and a well-drafted agreement that is fair to both parties and makes sense for the situation won’t necessarily give a bad impression. Another thing to keep in mind is that you may need to sign an Affirmation of Support for your spouse, which in which you are acknowledging that you have the means to financially support your spouse at a minimum level of 125% of the federal poverty threshold and accept legal responsibility for their financial support. A prenup cannot absolve you of this obligation and you are not released from this obligation until your spouse becomes a United States citizen, permanently departs the country, or is credited with forty quarters of coverage via the Social Security Act. The page "Do Prenuptial Agreements Affect Spousal Immigration? from Family Law San Diego reads: Federal immigration law provides for a U.S. citizen to sponsor the immigration of their foreign spouse. The married couple must apply for a family-based immigrant visa allowing a spouse from a foreign country to enter the United States and obtain Lawful Permanent Resident (LPR) status—also known as a “green card” holder. Among the various immigration forms that are required to obtain a visa for an immigrant spouse is an Affidavit of Support (Form I-864). By signing and submitting an Affidavit of Support, the U.S. citizen spouse enters into a contractual agreement with the United States acknowledging that they have the means to financially support their spouse at a minimum level of 125% of the federal poverty threshold and accepting legal responsibility for their financial support until their spouse becomes a U.S. citizen or earns credit for 40 [quarters] of work. Importantly, getting a divorce does not relieve the citizen spouse of their obligation to provide the required amount of spousal support to their spouse. Furthermore, the affiant [sponsor] is responsible for reimbursing government agencies for the cost of any “means-tested public benefits” that the immigrant spouse receives. Spouses who have been married for less than two (2) years will receive what is known as “conditional permanent resident” status. This means that the couple must prove that they did not get married for the purpose of avoiding federal immigration laws. If USCIS concludes that a couple entered into the marriage to evade federal immigration laws, their marriage will be deemed invalid for immigration purposes. As a result, the spouse seeking to immigrant to the United States will be denied entry or removed from the United States. The citizen spouse may also be subject to civil or criminal penalties. A prenuptial agreement is a contract into which prospective newlyweds enter, governing their rights and responsibilities as married spouses concerning matters such as spousal support and the distribution of marital assets at the end of their marriage, whether due to divorce or death. The provisions of a prenuptial agreement go into effect when the couple gets married. Although there are few legal requirements to form a valid premarital agreement, the judicial enforcement of its provisions may be questionable depending on the circumstances of each case. Generally, a prenuptial agreement is not enforceable if it was not the product of mutual voluntary assent to its terms. As a result, circumstances that suggest that party did not understand the contract, or would not have reasonably agreed to its terms if they had a meaningful choice, call the enforceability of the agreement into question. Spouses with conditional permanent resident status should be careful about the potential effect of a prenuptial agreement. Evidence indicating that a party did not understand the terms of a contract may endanger the enforcement prospects of its provisions, especially if English is not their first language. Additionally, terms that reduce the immigrant spouse’s property rights may suggest that the couple had a deal to have the citizen spouse sponsor the foreign spouse’s immigration into the U.S. Importantly, provisions purporting to govern the couple’s rights and responsibilities regarding spousal support are effectively superseded by the terms of an Affidavit of Support. This is because a prenuptial agreement is a contract between the spouses, whereas an Affidavit of Support is a contract between the citizen spouse and the U.S. government. The Page "Why Should You Get a Prenuptial Agreement with a Foreign National?" from DiPietro Law Group reads: If your new spouse does not intend to work in the United States, you may need to sign an Affidavit of Support. This contract requires you to maintain a standard of living for your new spouse exceeding 125 percent of the poverty level. You are not released from this obligation until your spouse becomes a United States citizen, permanently departs the country, or is credited with forty quarters of coverage via the Social Security Act. Your prenuptial contract does not automatically absolve you of this support. In a notable 2014 case, the United States District Court for the District of Maryland indicated that prenuptial contracts could not waive Affidavits of Support. Prenuptial contracts can occasionally backfire in green card cases. Immigration officials look for signs that a marriage occurred for financial or citizenship reasons, and not for love. Officers often seek evidence of commingled assets, which may not be available among couples with prenuptial agreements. The pager "How do Prenuptial Agreements Affect Immigration?" by Jared Leung from JCL Immigration Attorneys, reads: A prenuptial agreement is a legal contract that outlines how assets will be divided in the event a marriage ends in divorce. These agreements also discuss the obligations of a spouse to provide financial support for the other party in the event of a divorce. In general, both parties must fully understand all of the terms of a prenuptial agreement in order for the contract to be binding. If a court finds that one party was unaware of what he or she was signing, or if the agreement is so one-sided as to be deemed unfair, the provisions held within can be invalidated. How do prenuptial agreements impact immigration? When a United States citizen sponsors the immigration application of a foreign spouse, the couple needs to file for a family-based immigrant visa, often called a “green card.” Part of this process involves filing an Affidavit of Support, a document that demonstrates that the citizen has the ability to support the other party at a level at least above 125% of the poverty threshold until the applicant becomes a United States citizen. This obligation remains in place in the event of divorce. The provisions of a prenuptial agreement should not give the appearance of a “deal” between parties for the purpose of circumnavigating immigration rules. There can also be challenges if the foreign spouse does not speak English well enough to understand the details of the agreement. However, having a prenuptial agreement does not necessarily casts doubt to the truthfulness of the marriage. Individuals with decent net worth or prior debt may use prenuptial agreements to protect oneself and/or the spouse-to-be. The existence of a prenuptial agreement should be considered with other factors in the marriage to determine whether it would cause problems in an immigration application Case Citations Cases in which Federal courts have held that a prenup does not void an I-864 agreement: [Erler v. Erler 824 F.3d 1173 (9th Cir. 2016). Golipour v. Moghaddam No. 4:19-cv-00035-DN-PK (D. Utah Feb. 7, 2020) (granting and denying in part cross-motions for summary judgment). Anderson v. United States, No. C17-0891RSL (W.D. Wash. Apr. 17, 2019) (dicta). Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.). Shah v. Shah, 4:12-cv-4648, (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (memo. op.) Cyrousi v. Kashyap, 386 F. Supp. 3d 1278 (C.D. Cal. 2019) (holding that waiver is not an affirmative defense available to sponsors) Liu v. Kell, 299 F. Supp. 3d 1128 (W.D. Wash. 2017) (same). | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | Exact wording might matter here, so I looked up the law. It says "a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are physically present in Canada". Immigration and Refugee Protection Act, 28(2)(a). If you visit the Canadian side of the park, you're "physically present in Canada". It would therefore appear that this would meet the requirement. I am by no means an expert in Canadian immigration law, though. | 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. | When a country makes criminal laws, these laws usually apply to anyone present in the country, and acting in the country. But the country is free to declare that some law might apply to its own citizens in a foreign country, or even foreign citizens in a foreign country. Assuming the laws about using marijuana say nothing about the country, that most likely means it only applies to using marjuana in the country itself. But if the US government decided that taking marijuana in Canada is illegal for US citizens, then nobody can stop them. In this case, Canada would not extradite you (unless Canadian law says that it is criminal for Canadians to use marijuana in another country), and Canadian police would likely not collect evidence. So even if illegal, it would be hard to convict you. PS. The "polygamy" case would be interesting, I think you would have to read the exact wording of the laws in every country. Some countries will say that you can't get married twice, and the attempt to get married a second time while already married is bigamy. In that kind of country you wouldn't have committed a crime within that country. Also, you would only be married to the first wife. | There is a relevant rule, the "posting rule", according to which an acceptance is effective once posted (this is a quirk of acceptances). This would be as soon after 7 May 2016 as Bobby sent his letter, presumably well before the deadline. So yes, a professional lawyer would be needed. If Bobby is in Australia, it might be more complicated; if Bobby is in Norway, it's simpler because they don't have the posting rule. | The idea is that, by default, we should assume the payment is a gift, unless we have specific evidence to suggest that it is offered in exchange for something. In the first case, the father-in-law has given no indication as to why he is giving her the money. It could be that he is indifferent to whether she remarries or not, and simply wants her to have a steady income in either case. He may be presuming that, if she remarries, her new husband will be able to provide for her, but until such time, he (the father-in-law) will pay her way. We certainly do not have evidence to show that he actually wants her to stay unmarried and is paying her for that purpose. In the second case, the father-in-law has given us more evidence. His words make it explicit that he does want her not to remarry, and that he is paying her in order to get her not to. Since he is clearly paying money with the intention of getting another party to do something (or in this case, to refrain from doing something), we understand it as a contract. |
Have draft SCOTUS opinions been leaked before? A draft opinion on Dobbs v. Jackson has been leaked. Cathi Herrod of the Center for Arizona Policy has claimed: It is totally unprecedented for a draft opinion to be leaked. Is it unprecedented, or have draft SCOTUS opinions been leaked before? | Politico, who published this most recent leak, also has an article about prior SOCTUS leaks. Most of them were very minor or speculative, along the lines of the following two examples given: In 1972, while Roe was under deliberation, an unbylined Washington Post story detailed the justices’ internal wrangling on that subject. The Post story — which appeared days after the justices ordered a second round of arguments in the case — was attributed to anonymous informed sources and did not quote any draft opinions or internal memoranda, but described them in significant detail. In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court’s rulings was transferred to a different division. The staffer denied leaking any information. A Business Insider article attributes the original Roe leak to a memo written by Justice William Douglas. The Politico article continues listing a few other examples of a similar vein, where convenient coincidences suggested someone had an inside line on how the court was leaning: a passionate Senate speech here, an article predicting case decisions there, etc. When a leak is strongly suspected, the fingers are usually pointed at one or more of the court's clerks. The aforementioned Business Insider article also mentions that a clerk leaked information to Vanity Fair about Bush v. Gore. Politico does mention the following as a more substantive example: The gravest violations of Supreme Court confidentiality came just over a century ago and led to a law clerk being accused of leaking the outcome of cases to Wall Street traders so he and they could turn a quick profit. The Justice Department fingered Ashton Embry, a longtime clerk to Justice Joseph McKenna, with being the source of leaks in business-related cases handed down in 1919 related to a wartime ban on liquor distilling and so-called patents allowing railroads to use particular lands. The case suffered a number of setbacks, including a lack of any insider trading laws at the time and a disappearing witness, and ultimately Embry was never convicted of anything, or even brought to trial. And it ends with an extremely recent example from a few months ago: During oral arguments on a Trump-era immigration policy this February, Justice Stephen Breyer mentioned that red states’ claim of standing to defend the policy was “pretty similar to what we had just allowed” in a case involving who could defend a Kentucky abortion statute. But the high court had not yet ruled in the Kentucky case. It did so eight days later, ruling 8-1, as Breyer and many less-informed others had predicted. A full leak of a decision does not appear to have occurred before now. Leaks that appear to have been based in substantial part on (draft) opinions do appear to have occurred before, just not as a complete document. But insofar as the Embry incident may have resulted in actual and intentional profiteering off of leaked information it stands as a rather serious and consequential breach. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | Not in this case First, we are having an appeals court case that is filed against the dismissal of the real case - there had been no trial. It's a research into if there was a clear error of the court, not who would have won. The Appeals court decided to send it back to the district court with pretty much a direct order to have a trial and solve the issiue, as the very last paragraph of the file shows: We conclude that Schwake stated a Title IX claim against the University because he plausibly alleged gender bias. Accordingly, we reverse and vacate the district court’s order and judgment dismissing the claim with prejudice, and remand for further proceedings. Now, back to your quote. As this is an appeal case, the standard is different than in the district court. In this case, it tries to see if there might have been a case, which was dismissed erroneously. Page 15 and 16, where you cite, states (emphasis mine): Schwake’s allegations of a pattern of gender-based decisionmaking against male respondents in sexual misconduct disciplinary proceedings make that inference plausible. He alleged that “[m]ale respondents in student disciplinary proceedings involving alleged sexual harassment and misconduct cases at [the University]” “are invariably found guilty, regardless of the evidence or lack thereof.” Schwake further alleged that he was “aware of recent [University] disciplinary cases against male respondents in alleged sexual misconduct cases who were all found guilty regardless of the evidence or lack thereof.” The district court was not free to ignore this non-conclusory and relevant factual allegation. [your quote] The absence of this level of detail from Schwake’s complaint does not render Schwake’s allegation conclusory or insufficient. There is no heightened pleading standard for Title IX claims. See Austin, 925 F.3d at 1137 n.4. That point is particularly apt here. It may be difficult for a plaintiff to know the full extent of alleged discrimination in decisionmaking before discovery allows a plaintiff to unearth information controlled by the defendant. This sheds much more light upon the situation of the case: Schwacke sued and alleged something. The University alleges the contrary in their reply brief and asks the court to dismiss the claim. The court dismissed in March 2018. This was before any discovery has taken place: nobody was subpoenaed, nobody had to testify in court, nobody had to turn over any documents. We have only statements from either side. As the next step, Schwacke appealed the dismissal, and the 9th Circuit Court of Appeals reversed and remanded, as it found clear error in the handling in dismissal, as one can see in the last paragraphs from each claim's section: Here, we are satisfied that Schwake’s allegations of contemporaneous pressure and gender-based decisionmaking establish background indicia of sex discrimination relevant to his Title IX claim. Considering the combination of Schwake’s allegations of background indicia of sex discrimination along with the allegations concerning his particular disciplinary case, we conclude that sex discrimination is a plausible explanation for the University’s handling of the sexual misconduct disciplinary case against Schwake. This is sufficient for Schwake’s Title IX claim to proceed beyond the motion to dismiss stage. Now it is up to Schwacke to get into discovery, subpoena the information from the university and go into the courtroom trial... Unless the parties settles. Sidenote By the way, the quote of the university refers to a different case from the 6th Circuit (where Ohio is), which they try to pull up as a model standard. This case is not binding for the 9th Circuit (where Arizona is) but could have been used as a model. Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018) is somewhat similar to Schwacke, as it had been previously dismissed. However, the Title IX was restored by the Court of Appeals for the 6th Circuit and it was sent back to the lower court to have a trial. Here too, the standard was reasonable expectation or plausibility: Plaintiff “allege[d] facts showing a potential pattern of gender-based decision-making that ‘raise a reasonable expectation that discovery will reveal’ circumstantial evidence of gender discrimination.” | There is no higher court which can overturn a SCOTUS decision, so in theory (or, imaginarily) they can rule any way they please. The ruling could then be overturned by a later court, as happened in these cases. However, justices of the Supreme Court can be impeached (impeachment is not subject to judicial review), so the individuals responsible for such a ruling could be impeached. Or, if the sitting president is favorable and the enabling legislation has been passed, additional members of the Supreme could be added, as was unsuccessfully attempted during the Roosevelt administration. The court could not write specific enforceable statutes defining the crime and imposing a penalty. They could rule that there is such-and-such right which is protected by the Cconstitution, and that that right must be protected by the states (for instance, a state may not pass a law that prohibits practicing the Pastafarian religion). It would be unprecedented, though, for SCOTUS to order a legislature to pass particular legislation. That would not mean that a ruling could not be written which mandated that, but it would be a huge break from tradition and a clear breach of the separation of powers. Legislatures could respond "they have made their decision; now let them enforce it". Decades ago, existing state death penalty laws were declared unconstitutional as defective with respect to the 8th Amendment, meaning that there was no death penalty in many states for some time. Homicide statutes could likewise be struck down en masse, perhaps as an Equal Rights violation, which would means that either homicide is now legal, or the Equal Rights violation in those statutes must be eliminated. All that SCOTUS would have to do is rule that a fetus is a person. Recall Roe v. Wade: If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. A model for how this might take place is McCleary v.Washington, where the Washington Supreme Court ordered the legislature to act to fund public education, on constitutional grounds that the legislature has an obligation to do certain things. The leverage imposed by the court was a large daily contempt fine that went up to over $100 million. However this was symbolic (lifted when the legislation was passed), and it took 3 years to implement the order. | Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy). | 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. | Yes. This is treated as time served as several media accounts of sentencing hearings in these cases have demonstrated. See, e.g., this account in The Atlantic magazine, and this one in the newspaper USA Today, and this one in the newspaper the Houston Chronicle. I also saw a similar account in the L.A. Times but can't provide a link because my non-subscription access limit has been exceeded. | First of all, as noted in the comments, Babylon Bee is SATIRE. It's not intended to be news, just entertainment. But the real question is whether or not a President COULD do such a thing. Or perhaps better, could a President attempt to do something like this. If a President did attempt to do this, it would be totally without precedent and also without any constitutional authority. Since the US Constitution enumerates the powers between the branches and gives the President only the authority to appoint, with the advice of the Senate, a SCOTUS justice, trying to change things by giving an existing justice 2 votes would almost certainly be immediately challenged by the Senate. It also seems unlikely that such an action would be upheld as constitutional. Of course this is all speculative since nothing of this nature has happened. |
Can you charge someone with perjury during a traffic stop If a dashcam shows one party is 100% at fault, but they tell the officer at the scene another story and tells it very loudly (like volume vindicates their guilt or innocence), can we charge the driver with perjury? I've witnessed a few accidents where someone didn't stop and yield at a 4-way stop. The party at fault is yelling very loudly both at the person they hit and later at the responding officer that they were in the right, etc. If I (or someone else) had dashcam footage of the accident that showed who they didn't stop, could the officer also charge them with perjury as well as being 100% at fault of the accident? If I was a party in this accident, could I use the footage to show who's at fault and who's committing perjury? EDIT: Just to clear up, I'm not saying because someone is loud, they are innocent. I am saying some people, when they are at fault, yell their case very loudly and declare that they are innocent. And when the cops come to sort things out, even with logic, common sense, and witnesses stating they were 100% guilty, they continue yelling that they are innocent. I've had this happen to me before and luckily the authorities and witnesses backed me up. It was very annoying having someone yelling in my face when myself and everyone else knew they were 100% wrong. | 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. | Maybe. In many but not all situations, the police have a certain latitude in how they charge an incident. In many but not all socieities, speeding is seen as less morally repugnant than, say, theft or tax evasion. "Can happen to anyone, oops," the excuse goes. So a credible expression of remorse might cause the police officer to issue a caution or verbal warning instead of a ticket. Unless you are in a place where there is a grossly antagonistic relationship between the police and the citizens, or where the police department relies on fines for funding. | 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. | “Anything you say can be used against you in court.” Is what the police say in the USA. “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales. “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales. And so on. Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead. Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all. | Can anyone help me understand who's liable for any damages that occur? Yes, a judge. Seriously, in almost all cases in a collision between a turning car and a straight traveling cyclist, the car will be held responsible on the basis that the turn should not be commenced unless and until it can be completed safely. If the car has to stop during the turn, the turn shouldn't have been commenced. The only exception would be if evidence could be provided that the cyclist collided deliberately. Does it matter if it's the car that's damaged or the bicycle that's damaged? No | The apportionment of fault will be highly case specific, based on ordinary principles of negligence. In one example, the fault was apportioned with 60% of the fault to the late left turner and 40% of the fault to the driver advancing imprudently into the intersection on a green light. See Pierce v. ING Insurance, 2006 NSSM 31 (my annotations and emphasis): [11] I believe that Mr. Pierce [the left-turning driver] was late in entering this intersection. I do not accept that he could not have stopped on the amber which he asserts. However, I am not prepared to find that he is solely responsible at law for the collision. [12] As stated above, I am unable to conclude with precise exactitude which signal light was on when Mr. Pierce [the left-turning driver] entered the intersection. I can conclude that the amber light had ceased and the green light for Mr. Williams [the through driver] had turned on at some point prior to the collision. The intersection is a well known intersection and given Mr. MacKinnon’s evidence of the relative speed of Mr. Pierce’s vehicle and what I understand to be the distances involved, I cannot accept that the signal light was green and turned to amber as Mr. Pierce entered the intersection. [13] On the other hand I am struck by two inescapable facts. First, the fact that Mr. MacKinnon who was stopped next to Mr. Williams did not proceed through the intersection because he knew it would not be safe to do so. While to some extent I take Mr. Boyte’s point that Mr. MacKinnon was, because of his experience with the intersection “hyper aware” to the prospect of drivers being late, I cannot entirely dismiss the fact that he obviously exercised prudence in not proceeding. The fact that Mr. Williams did not see Mr. Pierce’s vehicle is not an answer. In fact, just to the opposite in my view. [14] In my opinion, there is clear a duty on drivers stopped at an intersection to ascertain that the intersection is clear before proceeding once a light turns from red to green. Had Mr. Williams discharged this duty, the collision could well have been avoided. Your scenario is even more stark—not just a single late left turner, but an entire line of late left turners, readily apparent as an obstacle to safe advance. I would not be surprised if a judge were to attribute even more than 40% fault to the driver entering on the green. The Court of Appeal for British Columbia has even said (Pirie v. Skantz, 2016 BCCA 70, para. 14): ... where a through driver ... should have become aware of the left-turning driver’s own disregard of the law in circumstances that afforded him a sufficient opportunity to avoid the accident through the exercise of reasonable care, the through driver may be found wholly or primarily at fault for the accident. | Assuming that this wasn't a planned murder or assault, the most serious charge would be vehicular homicide. In the US, this is governed by state law, but states are not radically different in whether this is a crime. In Washington, under RCW 46.61.520, vehicular homicide is a class A felony, punishable by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than fifty thousand dollars, or by both such imprisonment and fine The crimes is defined as causing death while driving (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or (b) In a reckless manner; or (c) With disregard for the safety of others. and such speeding is highly likely to be found to constitute the element of recklessness. There are also hit-and-run charges, which is a class B felony (10 years and $20,000). A person can be found guilty of both charges, and the judge can apply the prison sentences consecutively, meaning you add them up, rather than serve the jail time at the same time (in this case, essentially dispensing with the hit-and-run term). The law is written so that a killing is a crime, and if you kill two people that could be two charges (the question is whether there is a single act or two – most likely there was a single act in this particular case). There is no state where recklessly killing a person while driving is legal. First degree murder could be considered under 9A.32.030 if a person "Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". That kind of charge was applied to the Charlottesville driver, but it is highly unlikely to be applied to even the most extreme speeding. The actual penalty imposed depends on the sentencing laws of the state. In Washington there is a complex calculation based on the severity of the crime (16 degrees – vehicular homicide is level 11), prior criminal history, whether there are multiple convictions (vehicular homicide and hit-and-run). Aggravating and mitigating circumstances can also be considered to compute the actual sentence; I don't see any way for a non-specialist to guess what the actual penalty would be in this case. | You (probably) did not commit a crime in Colorado. The answer to your question though is probably Driving an unsafe vehicle Colorado Revised Statutes Title 42. Vehicles and Traffic § 42-4-202 (1) It is unlawful for any person to drive...on any highway any vehicle...which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this section and sections... The above is not a crime , it is (5) Any person who violates any provision of this section commits a class A traffic infraction. A class A traffic infraction is a civil violation. Note that some driving offenses are crimes: In Colorado, driving more than 25 mph over the posted limit is a class 2 misdemeanor, and doing so in a constriction zone is a class 1 misdemeanor. Also note that I say probably because it is possible that they charged you with something more extreme- reckless driving? violation of noise or pollution ordinances?- but for a fine small enough that you don't say, 2 points, and you did not have to go to court (you could have if you wanted for the ticket, but not required) it is very unlikely. |
If Congress passed a bill written in a language other than English, would it be valid? Suppose Congress passed a bill written in Spanish and the President signed it. Everything about the bill and the procedures by which it was written and passed were completely normal, other than the language. (Assume everyone in Congress, as well as the President, is fluent in Spanish.) Would the fact that the law is written in a language other than English have any effect on its enforceability, other than the practical difficulties caused by many people not understanding it? | It would indeed be valid and legally enforceable. The Constitution places no limits on what languages bills must be written in. The Constitution specifically allows each house of Congress to make its own rules for how it passes bills, so, even if a house of Congress had a rule requiring its bills to be in English (which they don't, as far as I know,) they could simply change the rules and then pass the bill. From a practical standpoint, though, enforceability would also require courts to be able to discern Congress' intent from the bill. As such, unless we're expanding the assumption to "the vast majority of the U.S., including the courts in all parts of the country, are now fluent in Spanish," then it's exceedingly unlikely that Congress actually would pass a substantive bill in a language other than English. Even without assuming all of Congress were fluent, it's possible that they could pass a resolution in Spanish as a gesture, but they would almost certainly not pass a substantive bill in Spanish (or any other language than English) due to the enforceability problems it would cause with courts (and, if relevant, regulatory agencies, etc.) Aside from the courts needing to be able to understand the normal meanings of the words in Spanish, there would also be the problem of the complete lack of any legal history of Spanish words in U.S. law (or even in common law in general.) Much of legal interpretation is steeped in history of what particular words have meant (and/or been ruled by courts to mean) in past laws. Throwing all of that legal history out the window by switching to another language would be quite problematic when trying to craft a bill on any substantive subject matter. Suffice it to say that crafting the definitions section for such a bill would be quite a task. So, yes, it would technically be legal and it would indeed be the law, but doing it with any substantive subject matter (without assuming that most of the population now understands Spanish) would be so problematic for enforceability in practice that they wouldn't actually consider doing it. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | Your assumption is incorrect -- the Bill of Rights proper does not apply to the states, and pre-14th Amendment only bound the federal government. See Barron v. Baltimore, 32 US 243. States could do whatever they wanted, subject to federal legislation on the matters given to the federal government and subject to their own constitutions. After the Civil War, the federal government was much less OK with so-called "black codes," restricting the rights of freedmen based on explicitly racial distinctions, with not even a fig leaf of justification that it applied to all citizens. The federal government could prevent federal discrimination, but no tools existed to prevent state discrimination. Hence, the 14th Amendment, which bound the states to adopt certain standards in their lawmaking and let Congress take action against those that didn't. | Some jurisdictions do that. Others don't (see, for example, the Dutch national identity card). My New York driver's license is in all caps, and I rather suspect that it's a holdover from the days in which licenses were processed using a computer system that had only upper-case characters. But that's just a guess. The real answer is that the premise of the question is incorrect. | There are a number of areas in which the US states can pass laws only to the extend that they do not conflict with Federal laws passed by Congress. When a federal law clearly says that states may not pass laws on a given subject, the issue is clear. When it specifically invites state laws, the issue is also clear. But when a Federal law imposes certain regulations in a given area, it may not be clear if a state may go beyond the Federal requirements. Sometimes it can. For example, there is a Federal Minimum Wage. But states are free to impose higher minimum wage levels, and some have done so. So when a court decision or legal article says "Congress having occupied the field" it means that a set of Federal laws is intended to be a compelte regulation of a given area, and states may not add additional regulations of their own in that area. I am not sure what rules apply to disclosure of information by the Capitol police. | TL;DNR: Madison, Hamilton, Justice Harlan & Justice Scalia agree with you. Justice Black does not. You raise an interesting question. As you point out, the Qualifications Clause, Art I, § 2.1, (those who vote for the House of Representatives “in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”) gives states the power to establish voter qualifications. Yet 18 U.S.C. § 611, passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (the IIRIRA) makes it illegal for most aliens to vote in federal elections. What gives? First, the IIRIRA is purely symbolic. It literally has no effect on who can vote in the US. For almost a century, every state has prohibited aliens from voting in state elections. Under the Qualifications Clause, this means no aliens can vote in federal elections. (Before WWI, many states allowed aliens to vote.) Second, some people argue Congress has control over voter qualifications under the "Elections Clause," Art. I, § 4.1, which gives Congress the power to regulate the "Times Places and Manners of holding elections." Like Dale M, these people read, "Manners of holding elections” to include the qualifications for voting. This reading of the Elections Clause is inconsistent with several of the sources of constitutional authority Americans typically consult, including the text, the intent of the Founder and precedent. All of these support the “Qualifications Clause” reading of the Constitution. 1) Constitutional Text: Reading the Elections Clause as giving Congress control over voter qualifications, renders the Qualifications Clause almost completely meaningless. Yet everyone agrees the Constitution should be read so that all its parts mean something – no part should be rendered superfluous. 2) Intent of the Founders: When the Founders debated voting qualifications, they were clearly worried that politicians would manipulate the electoral rules to favor them. The Founders believed the Qualifications Clause kept both national and state politicians from stacking the electoral deck. First, by giving the power of deciding who could vote to the states, the Clause prevented national politicians from choosing their own electorate. Secondly, by requiring the states to use the same qualifications for voters in state and national elections, the Clause prevented state politicians from manipulating the rules in national elections. As for the Electoral Clause, in Federalist 60, Hamilton was clear who controlled voter qualifications: “The qualifications of the persons who may choose or be chosen…are unalterable by the [federal] legislature…” 3) Precedent and practice: For most of our history, people acted consistently with Hamilton’s statement. They tolerated a wide variation in who was allowed to vote across states. As noted above, many of those states specifically allowed aliens to vote. (And, starting in 1787 with the passage of the Northwest Ordinance, Congress passed a series of laws allowing aliens to vote in territories.) When Americans did make nationwide changes to voting qualifications, they did so by amending the Constitution. There are only a handful of Supreme Court decisions involving federal control over voting qualifications. In 1970 the Supreme Court upheld a federal law changing the voting age to 18. The opinion of the Court, written by Justice Black, relied on the Elections Clause to say that Congress had the power to change voting requirements. None of the other Justices shared Black's views on the Elections Clause. Instead, they agreed with Justice Harlan, who said, “nothing” in the Constitution, “lends itself to the view that voting qualifications in federal elections are to be set by Congress.” (These Justices used the Equal Protection Clause as the basis for federal control over voter qualifications.) Since then, no Justice has followed Justice Black. Instead, they have followed Justice Harlan. For example, in 2013, Justice Scalia, (in an opinion joined by Breyer, Ginsburg, Kagan, Kennedy, Roberts, and Sotomayor) said, “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” From this evidence, I’d say you were right to be puzzled about the constitutional authority for the IIRIRA. A federal law preventing aliens from voting in federal elections undermines the text of the constitution by rendering the Qualifications Clause superfluous, goes against the clear intent of the Founders, and is inconsistent with 200+ years of history and precedent. It only survives because it has no practical effect on voting in the US. | Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. |
In what language(s) are laws written in Puerto Rico? A comment on the recent question about the possibility of U.S. laws in Spanish mentioned an assumption that Puerto Rican law would be mostly in Spanish. Not being familiar with Puerto Rican law, this comment just made me curious whether or not that assumption is correct. Are Puerto Rican laws indeed written primarily (or entirely) in Spanish? Or are they written primarily or entirely in English? Or are they written in both in parallel? It seems that having them written in Spanish only would be problematic for federal court cases arising from them, since the federal courts (including the one in Puerto Rico) would be conducting any proceedings in the English language - and comparing the Puerto Rican laws with U.S. federal law and existing case law, which are also in English. On the other hand, having laws that much of the local populace couldn't read would also be problematic. (As background for those who may not be familiar with Puerto Rico, it is a territory of the United States, but Spanish is by far the primary local language there.) | It depends on the language used to pass the statutes, but if in doubt then Spanish prevails. See section 13 of the Civil Code: In case of discrepancy between the English and Spanish texts of a statute passed by the Legislative Assembly of Puerto Rico, the text in which the same originated in either house, shall prevail in the construction of said statute, except in the following cases: (a) If the statute is a translation or adaptation of a statute of the United States or of any State or Territory thereof, the English text shall be given preference over the Spanish. (b) If the statute is of Spanish origin, the Spanish text shall be preferred to the English. (c) If the matter of preference cannot be decided under the foregoing rules, the Spanish text shall prevail. | 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. | First, the relevant term is "precedent". You have misstated the nature of "precedent". Precedent is simply the addition of further information about what the law is. A legislature may set forth a law that say "If A, then (if you B, you will suffer consequence C)". But it is not self-evident in a given instance whether A is true, or B is true, or what exactly C refers to. In addition, law is an integrated system, so Law #39 may seem to contradict Law #12: does that mean that Law #39 doesn't apply, or is it that Law #12 (if #12 is a Constitutional provision, #39 is just wrong – laws exist in a hierarchy). Therefore, laws must be interpreted. "Precedent" refers to the creation of a rule of interpretation, one which is logically consistent with existing rules of interpretation (which are arranged in some logical hierarchy). If the Supreme Court establishes a rule that laws penalizing "hate speech" contradict the First Amendment (R.A.V v. St Paul) and therefore cannot be a law in the US, then any similar law is, by rule, also not actually a law. Creation of precedent itself follows rules, though ones that are harder to discern – this is what "jurisprudence" is about. For example, some justices believe that they should appeal to an inherent feeling of justice; others believe that a law should be interpreted according to perceived legislative intent; still others focus on the wording of the legal text (statute, usually). This does not involve appeal to popular sentiment. It does mean (usually) that law is seen to be a system of rules, and not case-by-case feelings. | 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. | The only really authoritative source of answers is a court interpreting the laws on an as applied basis (and there are many U.S. traffic laws, one in every state and sometimes additional local ones, not a single U.S. traffic law). An answer from a government official or police department is not authoritative, although it may be informative of how the official in question would enforce the law. | In the US it is not a crime to be in the country illegally. As a general rule, it is not a crime for a removable alien to remain in the United States. Arizona v US So it's illegal, you get a state induced consequence (deportation) but it doesn't make you a criminal e.g. you don't go to jail for it. I have no idea if that's what's going on over there but it's a plausible explanation. | 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. | "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. |
Should "Prenuptial agreement" be provided while getting marriage licence? If two person want to get married and both are agree with writing a "Prenuptial agreement", should they provide it while they want to get their marriage license or there is no need to provide this agreement anywhere except at the court maybe they want to get divorce a day? If they write an agreement by themselves and sign it together( either before or after marriage), will this paper work at the court in the future when they want to get divorce? | There is no requirement in California to file a prenuptial agreement before obtaining a license. There is a requirement for disclosure of property and finances, 7 days minimum to review the agreement and being represented by a lawyer or waiving representation, specifically: The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed. It is possible for a couple to write their own agreement without hiring separate lawyers, but the law is written so as to presume that if not advised by independent counsel, the agreement is unenforceable. The presumption can be overcome by carefully following the requirements of §1615, for example, the party against whom the agreement is to be enforced was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information. | The first thing you need to do is establish if the arrangement that you have with the person is a contract or not. In summary a contract requires: Intention to create legal relations. Note: social and family agreements are presumed not to have this intention. If you have given money to a friend or relation, then the onus is on you to show that you both intended to be legally bound; otherwise the money is legally a gift. Agreement Consideration Legal Capacity Genuine Consent Legality of Objects If you do not have a contract then your best course of action is to write the money off and get on with your life. If you do have a contract then, depending on the amount of money, your best course of action may be to write the money off and get on with your life. If you decide not to do this then you need to determine what the terms of the contract are. That is, what did you agree to do and when and what did they agree to do and when. If you do not have these written down in a signed document then your best course of action is to write the money off and get on with your life. Verbal contracts are as legally binding as written ones but it is a bugger to determine what was actually agreed. If you can determine what the terms of the contract are; has the other person broken any of them? For example, unless the contract says they must: show you what they've used the funds for show you the progress that has been made, and not live extravagantly (this would possibly be void term anyway for uncertainty or meaninglessness) then they do not have to! If they have (or there is a reasonable belief that they will) breach the contract then you can: Affirm that the contract continues Terminate the contract Repudiate the contract (i.e. there never was a contract) Seek an order for Specific Performance Seek an injunction Seek damages | The language "I therefore place you on notice that" in your proposed missive is superfluous and adds nothing that is legally relevant. Flourishes like that are common among former paralegals, court clerks, common law country notaries, and other non-lawyers who want to sound legalistic but don't really have the relevant legal knowledge. It is common to say "I put so and so on notice that" in a legal opinion or a summary of a case, but mildly uncommon and not necessary to put those magic words in the notice itself in a situation like this where there is no prescribed statutory language that must be used on a specific legal form. In this situation the important thing is that the person is actually made aware of the situation, not that you conform to a statutory form. Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? If they complain of a lack of an opportunity to inspect in a later court case, it allows you to say, "I told you so and I gave you a chance to do something about it" which might be fairly convincing to a judge and would probably overcome any arguments that you engaged in spoliation of evidence. | This depends entirely on which law applies to the divorce. For example, if this happens under Australian law then it falls within the jurisdiction of the Family Court (a Federal court as the Commonwealth has power over marriage, not the states). They say: You can agree and not involve the court. If you agree you can, but are not required to, have the court formalise the arrangement. If you cannot agree, then you can apply to the court for financial orders. In general, the court is happy to allow couples to agree on whatever they want - for your example this extends from "Bob gets everything" to "Alice gets everything" and anything in between those extremes. If the parties don't agree (which is the most common situation) then the court will hear the evidence and make a decision: There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case. Factors the court is required to consider are: working out what you've got and what you owe, that is your assets and debts and what they are worth looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings looking at indirect financial contributions by each party such as gifts and inheritances from families looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn. So, for your example, the answer to how property will be divided up is: Nobody knows until it is agreed or the court rules on it. | Applicable Law A marital agreement can be entered into both before marriage (a prenup) and after marriage (a postnup). And, it will have the same legal effect in either case once entered into by the parties. In practice, marital agreements are usually proposed by a more affluent spouse and are reviewed by a less affluent spouse who will be giving up many of the legal economic rights usually associated with being married because the alternative is to not get married at all and the less affluent spouse thinks that marriage is still worth it even with fewer economic rights. The governing principle of marital agreements is that they must be entered into with the highest level of voluntariness, good faith, and full disclosure. Typically, a prenup with (1) limit the rights of the less affluent spouse in a property division upon divorce, (2) limit the less affluent spouse's inheritance rights, (3) limit the less affluent spouse's right to maintenance (a.k.a. alimony) upon divorce or legal separation, and (4) limit the less affluent spouse's rights to attorneys' fees in the event of a divorce. Often, these limitations are phased in superficially more equal terms, but the agreement only has a practical affect limiting a spouse's legal economic rights in marriage on the less affluent spouse, when it is recognized that one spouse is starting out affluent and the other spouse is starting out less affluent. The question states that: "I have kids so I want to protect them." So, determining precisely what you want to protect your kids from and how, in a manner that your spouse, courts evaluating the agreement in the future, and immigration officials, would consider to be legitimate, would be critical. You should know what impact a death or divorce would have during a short lived marriage for someone in your shoes because you start trying to change the rules, because you might be surprised to learn that the status quo is less unfair than you believe it to be. For example, in many states, property owned by one party before the marriage was commenced is not subject to division as marital property upon divorce and often the right to alimony following a short marriage that does not produce children is quite modest. Also, if you are extremely worried about the possibility that your new marriage could fail and that this would force you to make economic sacrifices that you do not think would be acceptable under the status quo in the absence of a prenup, you might want to think twice about whether getting marriage in the way that you are planning to get marriage is really a good idea. Excessive worries about a break up that is damaging to you may be your subconscious's way of telling you that you have grave concerns about this marriage that could be deal breaking, as well as your outward positive hopes and dreams that may be unrealistic. You had a relationship or marriage that failed once. You may be ready for a more successful relationship now, but you need to be comfortable that the circumstances that caused your previous marriage to fail are unlikely to recur. No prenup will ever make a divorce easy or painless, although it can bring some predictability to the process, if a prenup is well drafted and reasonable. Typically, to prepare a valid marital agreement: it must be in writing; it will contain no invalid terms (e.g., in most cases, terms relating to child support or parental responsibilities, or terms that make marital fault relevant to the economic rights of the parties); both parties will have reviewed a complete disclosure of the other party's financial circumstances; each party will have had an opportunity to consult with a lawyer familiar this these agreements (at the other party's expense if the person agreeing to it can not afford a lawyer of their own); each party will review the terms of the agreement in a language that they can understand, and the circumstances under which the agreement is signed will not be under duress broadly defined (for example, to include presentation of the agreement on the eve of the wedding day without adequate time to consider its terms without undue negative consequences if the spouse does not agree). Typically, the lawyer for each party would sign the agreement to confirm that all formal requirements and counsel regarding the agreement has taken place. A marital agreement that doesn't meet the applicable legal standards (which vary state to state). I have cited the law in Colorado which requires parties to follow what would only be considered "best practices" in many other states, although there would be plenty of states where these legal standards would apply. A marital agreement is still not valid if it is unconscionable to a spouse at the time it is to be enforced, for example, leaving one spouse unable to meet her basic needs and the other spouse wealthy after a long marriage. There is no requirement that a prenup be signed in any particular country or place, so long as the person signing it understands that their signature is intended to be binding. There is no requirement that a prenup be signed by both spouses at the same time, as long as both spouses sign it before it is to become effective. Realistically, as of 2017 in an average cost of living U.S. area, you are probably looking a legal expenses and related expenses involved in making a prenup happen given the need for Chinese speaking legal professionals and logistical issues, at an expense of $7,500 to $15,000 or more to get a prenup done under this circumstances. You would need to decide if this expense was worth the benefit to you. Options It could be signed by your spouse while your spouse to be is in China, if the proper formalities are observed. In terms of the enforceability of the agreement, and the likelihood that it will be executed, this is probably the best option. But, as a practical matter this may be difficult to accomplish this because lawyers knowledgeable about U.S. law who can communicate in the spouse's topolect of Chinese may be hard to find, and Chinese attitudes towards prenups may be different from those of people in the U.S. Negotiating a prenup in the face of a quite new relationship that often doesn't have a lot of depth at the start and is based upon mutual hope and a belief that the couple has shared interests as much as an actual long term relationship prior to getting engaged (which is common in marriages of the kind described in this question) can present a difficult challenge for the couple as they develop a marriage relationship very early on in their process when they don't have a lot of communication and relationship foundation to build upon. Of course, there are exceptions to every rule. Suppose that you've known your girlfriend continuously since she was 14 years old and she is now 24 (you are 25) and both of you are fluently bilingual, because you grew up next to an embassy and she was the daughter of an embassy official and you went to prom together, and then the two of you went to college and graduate school together living together for five of those years. Suppose that she is from a wealthy family and needs the pre-nup to protect her family's wealth, and you are not very affluent despite being the U.S. spouse. Suppose that she's was a paralegal in a family law firm that draws up prenups when she was in college before moving back to China when she finished her studies, while you are a divorce lawyer, and that the two of you have talked about marital agreements for years. This might not be much of a relationship issue and might not pose the kinds of immigration questions raised below. But, if you fell into one of the exceptions to the general rule, you wouldn't be asking this question in the first place in all likelihood. It is possible to obtain a financee visa which allows a foreign spouse to immigrate to the United States with an intent to marry upon arrival. But, in that situation there would be real doubt about whether a marital agreement signed upon arrival would be truly voluntary because failing to agree to the prenup and not getting marriage as a result would result in the financee's immediate deportation and terminate a wedding that the wife had already moved half way across the world and given up everything to participate in. It is possible to execute a post-nup, but in that case, if it was truly voluntary, the wife probably wouldn't sign it because it would mean that she would be giving up rights that she had already acquired as a result of the marriage for nothing in return, and if it was involuntary, then it wouldn't be valid. (There are circumstances when a post-nup can make sense for a spouse to voluntarily enter into after marriage, for example, to make rich relatives comfortable including a person in their Will or making a large gift to one of the spouses that is intended to stay in the family but will benefit the spouse during the marriage and the couple's children, but the facts in the question don't naturally suggest any of those circumstances.) Immigration Concerns Unlike an ordinary marriage, which is presumed to be valid and in good faith, marriages which afford a spouse the right to immigrate to the U.S. and in due course, to become a U.S. citizen if certain other requirements are met, are carefully scrutinized for signs that it is a "sham marriage" and immigration judges can be quite skeptical in determining whether or not a marriage is a sham. Couples go to great lengths to prove otherwise, and the burden is effectively placed upon them to show that they are not engaged in marriage fraud and instead actually married for love. If a marriage with an immigrant is found to be a sham, the immigrant's visa will be revoked, the immigrant's citizenship application will be denied, and the immigrant may become deportable. There may also be sanctions for the citizen or permanent resident spouse who sponsored the immigrant. One factor among many that can be considered when determining if a marriage is a sham marriage or not is the existence of a prenup or postnup, and even more importantly, its terms. The more unfavorable the terms of the prenup or postnup are to the immigrant spouse, the more likely it is that an immigration official will conclude that a marriage is a sham for immigration purposes. There isn't a hard and fast rule, but it is one factor that is considered among others in reaching that determination. The key factors in evaluating a prenup for immigration purposes are the terms of the agreement. The more the immigrant spouse's legal rights in the marriage are limited, the more likely immigration officials are to view the marriage as a sham and the couple as engaged in marriage fraud. On the other hand, if all a prenup does is to insure that a new spouse and children from a former relationship have equal inheritance rights and no rights upon divorce are modified at all, immigration officials may view the prenup as relatively innocuous. Conclusion There are a lot of good reasons not to get a prenup in the circumstances you identify if most of my hunches about the usual circumstances involved when someone asks a question of the kind that you have are true. Before taking this step, you would be wise to consult with a lawyer to see what the likely economic and legal consequences of a divorce or death in the absence of a prenup would likely be in your case, as I suspect that your fears may be exaggerated or may involve issues that a prenup can't address. It could be that once you are well informed it is still clear to you that a prenup is a good decision. But, given multiple indications that this may not be a good choice for you, I would strongly suggest thinking twice about this decision after conferring with a lawyer about your individualized circumstances before going forward with this plan. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | Usually I would think one answer to a question is enough. But since your edits have transformed a reasonable procedural question into what appears to be a rant about unfairness of the sort which any bankruptcy court has heard hundreds of times before, I will give another piece of advice: Focus on one thing at a time. The judge at the hearing of the application will be deciding (if your question is accurate) the single point whether a house should be sold. The submission "There is an application to annul the bankruptcy to be heard on XXX; if it succeeds this application is a waste of money and if it fails there will still be time for this application before the time limit, so you should adjourn till YYY" is a reasonable one that he will take into account. Saying "The bankruptcy order should never have been made; it was a mistake by my accountants and HMRC, and a High Court Judge joined in the conspiracy" will get you precisely nowhere. Even if the judge believed you rather than the written evidence, it has no bearing on the point he is being asked to decide. More generally; besides casting your arguments into proper shape, there is another good reason to consult a professional, namely that he can tell you when to give up. The courts are bound by laws and regulations; however unfair you may think the result, at some point it is necessary to accept the reality rather than wasting time and money making points that the law cares nothing about. (And no, I see no point discussing this further in comments. This answer can be upvoted if you think it helpful or downvoted if you think it "not useful"; it isn't something to argue against.) | Whoever signed the loan owes the money to the bank for the truck. So, in this case it is probably both your husband and his ex girlfriend. Whoever is listed on the title of the vehicle as the registered owner has the full exclusive use of the vehicle. That is probably your husband. Any person who co-signed for a loan owns nothing and has rights to nothing. Co-signing a loan just means that the signer agrees to pay off the loan. In this case the girlfriend does not, nor has ever owned the vehicle. If payments are not made on the vehicle, the owner of the loan (probably a bank) will repossess the vehicle and take ownership of it. At that point they will become the registered owner. Your main options are: Refinance the car. You take your own loan and buy out your husband and his girlfriend. Both of them and the bank would have to agree to this. You would become the registered owner of the car. Make a set-off agreement. In this case, you offer your husband a deal: you will make the payments on the car, if you get the use of the car and a percentage of the sale price in the event the car is sold. Try to get a judge to award you the car in the divorce. In this scenario, the judge would order that you become the registered owner of the car, but the girlfriend and your husband would still be responsible for paying the loan. The risk here is that both will default on the loan and the car will get repossessed. |
If holding a photograph is permitted can a company use facial recognition? If I've given a company permission to hold an image of me - for a photo ID card, for example. Do they need any extra permissions to use facial recognition software? The facial recognition software need only use the reference photograph I've already given them permission to and any CCTV is already recording all visitors/customers anyway. As a little background as to why I wondered about the legal issues behind this: There is plenty of regulation around other methods of identification ( see Protection of Freedoms act which covers fingerprints and DNA), with facial recognition being an automated, silent version of these forms of identification it made me wonder if any similar regulations covered the use of photographs. Edit: Initially I was only interested in the UK but I would be interested to hear about regulations within other countries | The company would likely require explicit consent for using facial recognition algorithms. The GPDR considers certain activities to be processing of “special categories” of personal data (Art 9 GDPR). One of these categories is “biometric data for the purpose of uniquely identifying a natural person”. Such processing activities are prohibited unless an exception applies. Facial recognition uses biometrics to identify a person, so it's prohibited by default. There are, of course, many exceptions. Art 9(2) GDPR contains a list of general exceptions which allow special categories data to be processed. In UK law, specific conditions for these situations are given in Schedule 1 of the Data Protection Act 2018. Whether any exception could apply depends a lot on the purpose for applying facial recognition, e.g. if it is necessary in a medical context or if it is truly necessary in an employment context. The most interesting exception in the context of video surveillance would be Art 9(2)(f): processing is necessary for the establishment, exercise or defence of legal claims However, necessity is a fairly high bar to clear. This exception cannot be used to pre-emptively scan a database of images in the hopes that it might find something. In contrast, it might be permissible to use facial recognition to confirm a suspicion. But here, there's a big caveat in that most facial recognition software cannot provide reliable results for less than ideal pictures (i.e. anything other than a well-lit frontal portrait of the face), and that such software is known to produce biased results. Thus, the use of facial recognition by private companies is still questionable. If none of the exemptions in the GDPR/DPA clearly applies, then only the Art 9(2)(a) exception is left over: the data subject has given explicit consent to the processing of those personal data for one or more specified purposes A notable example of a company illegally performing facial recognition is Clearview AI. Multiple data protection authorities have announced fines, including the UK's ICO: in late 2021, the ICO announced the intent to issue a GBP 17M fine for, among other things, failing to meet the higher data protection standards required for biometric data. This answer applies to private-sector data controllers, i.e. ordinary companies. Different rules can apply in the public sector, in particular for law enforcement agencies. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | You could, but how should the companies that want to handle your data know this? If they have no affirmation from you that you allow them to process your data in any way, other than those they are already allowed to because of the exceptions, they have to - under GDPR - assume you don't want them to process your data, and thus have to ask you. | You acted illegally in assaulting your fellow student. When you are in public, a person can legally take your picture, and you are not allowed to assault a person because you do not like their legal actions. Any degree of force is excessive except in certain responses to illegal fource, and even the threat of force is excessive. You also have no right to demand that a person prove that they didn't take your picture, and certainly no right to enforce that demand with physical violence. | Great question - I work for a London based company who use a large amount of location data. The process for deletion of data is not as simple as it first sounds. We recently had a deep dive with our legal team and as a result actually created a product to process deletions. Personal data from users/customer is carried for lots of reasons, not just marketing. What if you're asked to delete data that is needed to bill customers, information that may be relevant to a legal case or information that needs by law to be retained for the purposes of audit? GDPR does not make it illegal to carry personal information, it simply needs you to justify why you are keeping the information - inform the named person about this and provide them with a timescale for deletion. For example if you are required by law to store a record of emails to document the work done, but the user asks you to delete that information. You would be entitled to keep that information but only for the purposes of maintaining that audit trail. You would delete all associated customer data that was unnecessary such as CRM info, payment details etc.. but could keep the audit trail. The proper way to respond to the user's deletion request would be "your data will be kept in a secure server for the purposes of maintaining an audit trail for x amount of time. Once this time has elapsed it will be deleted. If you are unhappy with our use of this data please contact our data officer". GDPR isn't designed to catch you out - if you have a legitimate reason to keep that information then you are entitled to. The law was designed to stop marketers and advertisers hoarding huge amounts of information, as well as undermine Google/Facebook's duopoly on our personal information. | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... | Yes Companies can own companies - that’s what subsidiaries are. On a practical level, you know this is true because you actually have an example. Companies House would not have allowed its registration (barring error) if it was illegal. Why can’t it open a bank account? Banks (or any other business) can choose who they will and won’t do business with. Unless it’s discrimination on the basis of a protected characteristic, it’s not illegal. Since juridical persons don’t have protected characteristics (apart from nationality) it’s virtually impossible to illegally discriminate against them. | Most likely yes if you are subject to UK or EU laws: The EU ePrivacy directive and implementing laws such as PECR in the UK require that you obtain consent before accessing information on a user's device, unless that access is strictly necessary to perform a service requested by the user. Cookies and similar technologies such as LocalStorage are stored on the user's device. Analytics are not strictly necessary to display a website. Thus, you need to obtain valid consent before setting any analytics cookies. GDPR and ePrivacy/PECR have some interactions: Even though the cookies might technically be set by GoSquared, you as the website operator are responsible for compliance. You are the data controller, the third party analytics are usually a data processor who only process data on your behalf. You must ensure that the data processor is compliant. Even if they were a joint controller you'd be responsible for what happens on the website (relevant precedent is the Fashion ID case). While ePrivacy originally had a fairly weak concept of consent (e.g. “by continuing to use this site, you consent …”). However, the GDPR updated the definition of consent, so that valid consent must be freely given, informed, actively given, and specific. If you set cookies for different purposes in addition to analytics, users should be able to give or withhold consent for analytics independently from other purposes. Since consent must be actively given, consent is never the default, e.g. pre-ticked checkboxes are not compliant (relevant precedent is the Planet49 case). Like Google, GoSquared stores data in the US. You are causing personal data to be transferred into the US, which is an international transfer. Before it was invalidated earlier in 2020, such transfers were easy to do under the Privacy Shield adequacy decision. Now, such transfers are only legal if you sign SCCs with your data processor, and your risk assessment indicates that your user's data is sufficiently safe there, despite your processors potentially being legally unable to comply with the SCCs. Fortunately for you the UK's ICO has taken a more industry-friendly stance on this matter than other countrie's data protection agencies. Why do so many websites use Google Analytics (GA) without requesting proper consent? A variety of potential reasons: They are actually non-compliant. After all, GA is not GDPR-compliant in default settings, and Google doesn't do a good job of providing essential information. Many data protection agencies have indicated that cookie consent enforcement is not their focus. GA can be used without using cookies/LocalStorage/…, and thus without requiring consent under ePrivacy or PECR. The websites might not be subject to EU or UK laws such as ePrivacy. |
How to express copyright when you use a pen name I am about to self-publish my first novel using a pen name. I will be registering the copyright this week. My question is, on the first page of the novel where you put all the publishing/copyright info, should I say that the novel is copyright of my pen name, in order to protect my true identity? Example, let's say my real name is Jane Smith and my pen name is Denise Smithers. I will register the copyright with the copyright office using my real name (but will also write what my pen name is), but I don't want to put that on the book as I want that kept private. If I write (c) Denise Smithers, will that imply that the copyright belongs to the actual person behind the pen name? I know that the copyright belongs to me anyway, but I still want to add that copyright line to my novel. | In the U.S., you are not required to include your real name on a copyright registration: If you write under a pseudonym and do not want to have your identity revealed in the Copyright Office’s records, give your pseudonym and identify it as such on your application. You can leave blank the space for the name of the author. If an author’s name is given, it will become part of the Office’s online public records, which are accessible by Internet. [...] In no case should you omit the name of the copyright claimant. You can use a pseudonym for the claimant name. But be aware that if a copyright is held under a fictitious name, business dealings involving the copyrighted property may raise questions about its ownership. Consult an attorney for legal advice on this matter. Therefore, a pseudonym seems like a perfectly legitimate name for a copyright notice, considering that it is also a legally valid name for an official registration with the U.S. Copyright Office. As noted above, this may complicate your ability to prove your right to litigate against copyright infringement, but it does not actually diminish your right to do so if you can successfully validate your identity as the copyright holder. | All the CC licenses permit anyone to use the licensed content, and to make copies of it for others. Some of them permit using it for commercial purposes, others (the ones including the -NC- clause) do not. Some CC licenses permit creating modified versions of the original work (derivative works), others (the ones including the -ND- clause) do not. I do not know of any standard license which allows users to create and distribute derivative works, but not to distribute the original. The license used by Project Gutenberg permits re-use and re-distribution, but if a fee is charged beyond recouping expenses requires the removal of the PG name and logo. One problem is that if derivative works are allowed, this would include works which are only trivial modifications to the original, which would have the effect of allowing distribution of the original. If the main concern is about commercial sales, possibly a CC-NC-SA license would effectively serve the purpose? That allows redistribution, including of derivative works, but forbids commercial reuse or distribution without separate permission, and requires all redistribution to be under the same license. Otherwise a new license for this situation might have to be created. It is often a good idea to have the assistance of a lawyer with IP expertise in creating a new license, or the wording chosen may have unexpected effects or include unintended contradictions. Or one could simply place a basic copyright notice along with text such as "Modified versions may be created only with permission from the author. Request permission at [email protected]". However, if the work proves popular, there might be a large volume of requests. | No you don't. There are two copyright holders regarding the derivative work: yourself, for creating the original. the other artist, for creating the modified version. The other artist has received the right to use your original through the CC-BY license, under the condition that they attribute you appropriately. However, you have not received any rights to the other artist's work. | It means that the scholar (presumably you) and the guarantor/surety should each write their initials in that space, i.e. the first letters of their first and last names. John Smith would write "JS". This is a common way of acknowledging that you have read and understood the text on the page. | A copyright notice like that could mean the authors are claiming copyright in different portions of the work, or claiming a joint copyright. With the former, standard copyright law applies with respect to each part, so I'm going to examine the joint copyright aspect. Broadly speaking, joint works tend to be an unclear and internationally inconsistent area of copyright law and you haven't specified jurisdiction. Since this is an English language site and the US and UK are polar opposites on most of these issues, those will be the jurisdictions I examine. US Definition: To qualify as a joint work, each author's individual contribution must be inseparable or interdependent, and the authors must intend to be joint authors (17 U.S.C. s 101, Childress v. Taylor, Erickson v. Trinity Theatre, Inc.). Rights of use: Joint authors can independently exploit and license a work without consent of other co-authors, but have a duty to account profits to co-authors (House Report No. 94-1476 (1976), Goodman v. Lee, Community for Creative Non-Violence v. Reid, etc.). UK Definition: To qualify as a joint work, each author's individual contribution must not be distinct, they must work towards a common design, but no specific intention of joint authorship is required (Copyright, Designs and Patents Act 1988, Art. 10(1), an 11-factor test was articulated in Martin v. Kogan para. 53 by the E&W Court of Appeal). Rights of use: Joint authors must seek consent of the co-authors in order to exploit and licence a work (Cescinsky v. George Routledge & Sons, Ltd., Hodgens v. Beckingham). For further information, see this excellent paper by Elena Cooper comparing how US and UK law diverged on this point. | In general, the output of a program is not copyrighted by the author of the program. When you write a novel in Word, Microsoft doesn't own any copyright in your novel. When you prepare financial statements with Excel, Microsoft doesn't own any copyright in those either. There can be exceptions. Some programs (like GNU Bison, a parser generator) actually do output parts of their own source code, and their source code is copyright to the author. To clarify things, GNU made a statement in the license for Bison that officially says they don't have copyright to what it outputs. You should expect programs of this type to have such an exception, and if they don't, maybe ask the author or don't use them. | Copyright includes authorization of derivative works such as translations, so you must have permission of the copyright holder to create a translation. You could be sued for creating the unauthorized translation for your friend. If you attempt to further distribute the book, the chances of getting sued increase substantially. That path probably includes your legal obligation to foot the bill for the publisher and distributor having to defend themselves in court, since your contract with the publisher or distributor probably includes an indemnification clause saying that you indemnify them (pay their costs) against damages for your infringement. So your are at risk, and it increases if you do anything to distribute the translation. | You don't need to "publish" your song to obtain copyright protection. Original works are protected by copyright at the instant they are fixed in a tangible medium. This means that if you type the lyrics, write an arrangement of notes, or record yourself playing the song, the song is copyrighted. |
Can NH physicians order an end to parental rights for refusal of treatment or evaluation? If you would like a concrete example, consider parents of a healthy infant who was born premature and ill but is no longer in any apparent need of medical treatment. The hospital staff asks the parents to drive hours to get evaluations done, which the parents no longer want to submit to. Often the medical staff recommend unnecessary or dangerous procedures and treatments which are denied. If the parents simply deny the request to bring the infant child to these apparently unnecessary evaluations that would obviously deprive the hospital of money and not make friends of the staff. Can the physicians declare the parents unfit with any legal backing? | No To declare that a parent is "unfit" in the US requires at least a decision by a government agency (often called "child protective services" or "child welfare" depending on the state) usually confirmed by a judge. Medical testimony may be persuasive, but neither doctors nor hospitals may make such determinations. | 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. | The Fifth Amendment would not apply, because nothing in the testimony would incriminate the doctor. Indeed nothing would be at all likely to incriminate the President either, it is not a crime to be unable to carry out Presidential duties. It is likely in such a case that the President would waive confidentiality. In that case the doctor could testify freely. If the President insisted on confidentiality, and attempted to prevent the doctor from testifying to Congress, there would be a conflict between the power of Congress to compel testimony, in this case on what is clearly a vital national issue within the scope of the needs of Congress, and traditional doctor-patient confidentiality, let alone the requirements of HIPAA. I am not sure how this conflict would be resolved. There might be an emergency application to the Supreme Court, but the SC does not usually do very well with truly urgent issues. The Pentagon Papers case and Bush V. Gore indicate some of the problems that can arise. If the doctor was prevented from testifying, that might incline members of congress to think the testimony would not be favorable to the President, and thus tend to suggest that they should not approve the President resuming or continuing his or her powers and duties. But that is rather speculative. The 25th has never been invoked, and the detailed procedure that would be followed if it were is not very clear. I am not aware of any similar situation in which medical testimony has been demanded to deal with an urgent issue, but the patient has attempted to block it. I think this case must be considered to be undecided until it actually arises and a court rules. | She can't force him, but the court can. This would be a court ordered paternity test. If one parent can't give blood for some reason they could do something else like a cheek swab. | Such sad and tragic circumstances, my sympathy to all involved. General I do not know the specifics of English law as it applies but I believe it is similar enough to New South Wales, Australia that the general overview that follows is not likely to be far wrong. Before a court intervenes there has to be a dispute and someone with standing must bring an action to the court. We can surmise that a dispute arose about the best medical treatment for the child between the child's parents and the child's medical professionals - if there was unanimity there would have been no legal proceedings. Ultimately this is an issue of the welfare of the child. Medical professionals are under a legal obligation to report issues of child welfare to the relevant authorities. In the UK, the government authority responsible for child welfare is the Department of Education. We can presume that they intervened in accordance with their policies and procedures and their understanding of the law and the dispute could not be resolved. It is likely the DoE that brought the matter to the courts or the parent's disputing a DoE decision. The court will decide such issues in the best interest of the child. In deciding what that is, they will consider all the evidence including the parent's wishes, the child's wishes (not relevant in this case but it can be for older children), other relatives, medical opinion etc. They will also consider what the law is, including precedent and make their decision. If you read the linked article about the high court trial the judge is quoted as saying: “It is with the heaviest of hearts but with complete conviction for Charlie’s best interests that I find it is in Charlie’s best interests that I accede to these applications and rule that GOSH may lawfully withdraw all treatment save for palliative care to permit Charlie to die with dignity.” “I dare say that medical science may benefit objectively from the experiment, but experimentation cannot be in Charlie’s best interests unless there is a prospect of benefit for him.” “Charlie’s parents have sadly but bravely acknowledged and accepted that the quality of life that Charlie has at present is not worth sustaining, for he can only breathe through a ventilator, and although they believe that he has a sleep/wake cycle and can recognise them and react to them when they are close, they realise that he cannot go on as he is lying in bed, unable to move, fed through a tube, breathing through a machine.” “Understandably, Charlie’s parents had grasped that possibility, they have done all they could possibly have done, they have very publicly raised funds. What parents would not do the same? But I have to say, having heard the evidence, that this case has never been about affordability, but about whether there is anything to be done for Charlie.” “But if Charlie’s damaged brain function cannot be improved, as all agree, then how can he be any better off than he is now, which is a condition that his parents believe should not be sustained?” This decision was reviewed by the European Human Rights Court who “endorsed in substance the approach” taken by the British courts and declared “the decision is final”. Is it "symptomatic of a Single-Payer healthcare system" Probably not. Almost universally, child welfare cases are decided on the "best interests of the child". This judge in this case within this legal and cultural system decided as he did - and I do not doubt that it was a difficult and emotional task. Change the judge, change the case, change the law and change the culture and you may change the decision but, then again, maybe not. Perhaps in a place with a different culture towards health care, the medical practitioners would not have formed the opinion that the experimental treatment was not in the best interest of their patient and there would have been no dispute that required government intervention. Legal basis Governments can pass laws that impact the people in their jurisdiction. The UK government has passed laws that allow them to interfere in the normal relationship of parental authority. The UK government is not unique - all countries have such laws. Further, the UK government controls who enters and leaves their borders and in what circumstances. Did the NHS (or the hospital) take custody of the child away from the parents? Almost certainly not - this was not a custody battle. Or does the NHS get to decide upon the welfare of its patients once they are in the system? Of course. Every medical professional/hospital/clinic everywhere in the world has a legal and moral responsibility to provide treatment in the best interests of their patients. They will get sued if they don't. Why were the parents not able to take Charlie away on their own recognizance, like (presumably) adults can refuse treatment and leave the hospital? Because an adult can decide for themselves, a child cannot. Other people have responsibility for deciding for the child and when, as here, people with overlapping responsibilities (parents and medical professionals) have divergent views, the government intervenes through executive or judicial action. | 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. | But even then, to my understanding, a contract can't prohibit a party from seeking legal remedies. You are mistaken. A contract settling a bona fide dispute regarding people's legal rights can mutually (or unilaterally for that matter) release or waive their legal rights. In fact, a waiver or release of rights is routinely a part of a settlement agreement. Hundreds of thousands, if not millions, of such agreements are entered into every year and they are almost always enforced. Sometimes, but not always, a settlement agreement will also call for a dismissal of a case with prejudice, which (roughly) means a dismissal that prohibits refiling a case involving the same subject matter. | The husband of the mother of a child is presumed to be that child's parent until that presumption is disestablished. In New York State, when a child is born to a married mother, a court may decline to consider DNA evidence when it is not in the best interests of the child to do so. In substance (although not exactly from a legal perspective), a failure to promptly contest the paternity of a child of a married mother gives rise to a de facto adoption. Article 5 of the New York Family Court Act in its definitions section, § 512, makes clear that it applies only to children born out of wedlock (and it too has an equitable paternity term at § 532). So, the statutory deadline in Article 5 allowing a child with no legally determined father to have a determination made at any time before the child turns age twenty-one does not apply to this case. Instead, this case is governed by New York Family Court Act, Article 4. New York Family Court Act § 418(a), which governs paternity cases where a child is born during a marriage provides that: (a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act. If DNA evidence is considered, the biological father will be determined to be the father, but if it is not considered, the husband will continue to be the legal father. A leading case exploring when the best interests of the child test prevails over DNA evidence from New York is In the Matter of Shondel J., v. Mark D., 853 N.E.2d 610 (N.Y. July 6, 2006). In a key passage, it states: Equitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 2 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division dismissing a paternity petition in which a mother sought to compel her husband to submit to a blood test as a means of challenging his paternity. We agreed with the Appellate Division that the mother should be estopped. As that court pointed out, the mother expressed no question about her child's paternity until some two and a half years after the child's birth. She had held the child out as her husband's, accepted his support for the child while she and her husband lived together and after they separated, and permitted her husband and child to form strong ties together. Estoppel may also preclude a man who claims to be a child's biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man. The rationale is that the child would be harmed by a determination that someone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy's biological father who did not seek to establish his paternity until more than three years after the child's birth, and who acquiesced as a relationship flourished between the boy and his mother's former husband, was estopped from claiming paternity. The courts "impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship" ( In re Baby Boy C., , 84 NY2d 91, 102 n [1994]). Finally, the Appellate Division has repeatedly concluded that a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity.2 Where a child justifiably relies on the representations of a man that he is her father with the result that she will be harmed by the man's denial of paternity, the man may be estopped from asserting that denial.3 . . . Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings -- to serve the best interests of the child. This continues to be good law. See, e.g. In the Matter of Thomas T. v. Luba R., 148 A.D.3d 912 (March 15, 2017) (paternity by estoppel established when child at age four did not know biological father's name and had established a strong father-child-like bond with mother's currently partner citing Shondel). Under the circumstances, if any of the three parties: the mother, the husband, or the biological father, sought to prevent consideration of DNA evidence after ten to fifteen years of marriage during which paternity was not denied, it is very likely that the Court would agree and not change the legal paternity of the child. In this case, the biological father would not gain legal visitation rights and would not owe child support, and neither the husband nor the mother would lose their presumed parent status, nor would they be entitled to child support. If the husband, mother and biological father mutually agreed otherwise, the paternity by estoppel argument might be overcome and any issue of support would be governed by the mutual agreement (although a guardian ad litem for the child might be appointed sua sponte by the Court and have standing to object to the agreement on behalf of the child notwithstanding the mutual agreement of the other three parties). This would terminate husband's status as a parent and entitle biological father to visitation. But, otherwise paternity by estoppel would prevail. Incidentally, this statute and case law position is constitutional. The U.S. Supreme Court has held that a man who conceives a child with a married woman does not have a due process right in establishing his paternity of the child, so any right that the biological father may have arises from statute and the common law, rather than from the U.S. Constitution. Michael H. v. Gerald D. (U.S. 1989). |
Is there a Constititional right to medical care other than an abortion? tl;dr version: I have a Constitutional right to pay for an abortion from a willing medical provider, even if a local statute purports to forbid it. Do I have an analogous general Constitutional right to pay for and obtain other kinds of medical care despite local statutes or are my rights limited to abortion? So, the landmark US Supreme Court case Roe v. Wade, 410 U.S. 113 (1973) found that there was a Constitutional right to abortion under many situations even if apparently banned by state law. In other words, many state abortion laws are unconstitutional. Is abortion the only medical procedure that people in the US currently have a Constitutional right to, or are there other medical procedures or interventions that are similarly protected under the US Constitution? If other medical procedures are protected, what principles apply to determine which interventions are Constitutionally protected and which are within the police power of states to ban or allow at their discretion? For example, suppose Maine passes laws banning laser eye surgery, appendectomies, skin grafts, and all forms of addiction therapy. Is there precedent to indicate whether these laws would necessarily be Constitutionally infirm under the principles upholding Roe v. Wade? In other words, is abortion exceptional among medical procedures in being Constitutionally protected or is there a general Constitutional right to reasonable health care despite statutes attempting to restrict it? Restated, I know that I have a Constitutional right to an abortion. Do I also have Constitutional rights to open-heart surgery, tumor removal, and Cognitive-Behavioral Therapy, or are my Constitutional health care rights limited to abortion only? This is not an abortion debate thread. Please keep all answers within the scope of present Constituional law and principles, regardless of what might or might not happen later this year. To be clear (and addressing user253751's comment), I am omitting provider willingness and patient ability to pay from this question. So (hypothetical), my doctor is willing to perform laser eye surgery, I am able to pay, but state law makes all eye surgery a felony. Is this law Constitutional? Discussion: It is interesting that access to abortions is Constitutionally protected while access to medical cannabis is, apparently, not, even though both qualify as health care and are controversial enough to have been banned by statutes in more than one jurisdiction. What's the principle that determines why abortions are protected but cannabis is not? user6726's mention of the right to refuse vaccines is the opposite of what I am asking. I'm asking more about the right to receive a vaccine despite the legislature or the executive saying I'm not allowed to. If I want the vaccine, I can find a provider willing and able to give it to me, and I can pay, do I have a liberty interest in getting the vaccine despite local law saying that the vaccine is only for small children? | 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. | 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. | It is generally understood that governments do have the right to quarantine citizens in case of epidemic outbreaks. In nations with a rule of law, the extent of quarantine regulations may be challenged in court. A challenge against the app has been filed, and trying to second-guess the court by reading sections of the constitution seems to be pointless. | "Could Maine pass a law making New Mexico corporations and LLCs legally nonexistent in Maine (and removing the corporate veil in cases where Maine courts have jurisdiction)?" No. The full faith and credit clause of the U.S. Constitution, and the dormant commerce clause doctrine of U.S. Constitutional law would both invalidate a Maine law to that effect. One might think that the privileges and immunities clause of Article IV, Section 2 of the U.S. Constitution (as opposed to the privileges and immunities clause of the 14th Amendment) might also invalidate this law (e.g., it also prohibits residents of another state from obtaining occupational licenses in a state). But, this is not the case, because the U.S. Supreme Court held in Paul v. Virginia, 75 U.S. 168, 180 (1868), that corporations are not protected by the privileges and immunities clause. See generally, here. This doesn't mean that Maine couldn't regulate foreign corporations in some manner that doesn't unduly discriminate against out of state corporations. For example, most states require out of state corporations that do business in that state to pay a small fee and make a simple filing with the Secretary of State of that state authorizing them to do business in that state as a precondition to filing lawsuits or counterclaims seeking relief in their state's courts. But, this is far from a denial of the very existence of the out of state corporation and doesn't, for example, prohibit the out of state corporation from defending itself against suits brought against it in that state's courts. Likewise, it does not prohibit an out of state corporation from owning property or from affording limited liability protections to its owners. | There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright." In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones. | This is indeed an area of law where the answer does depend on the jurisdiction. As a 2015 article on the subject noted (and I am loathe to refer to less current sources as this is a rapidly changing area): The United States has no national laws or regulations governing assisted reproduction. However, many states have piecemeal legislation. Some aspects are regulated, while others are not; some states have strict laws or regulations whereas others are looser. As a 2017 American Bar Association article with citations notes, this isn't entirely true. There are some national laws that apply, but they aren't comprehensive and probably don't control the situation described in the OP. It also notes that: Certain states, like California, have created a legislative environment supportive of surrogacy by providing for the validity and enforcement of commercial surrogacy agreements and enacting legislation to define the resulting nontraditional parental relationships.10 Others, like New York, explicitly prohibit commercial surrogate parenting contracts,11 requiring most residents and potential surrogates in the state to seek desirable surrogacy arrangements in other states. However, so many aspects of ART are simply not addressed by the states:12 there is no state regulation of the number of children that may be conceived by an individual donor, no rules regarding the types of medical information and updates that must be supplied by young donors as they age, no standards regarding genetic testing on embryos, no limits on the age of donors, and virtually no regulation of the gametic13 material market. (Gametic material means sperm and eggs.) The American Bar Association has more resources on related issues here. A 2014 article surveyed the issue broadly. Colorado has a law that permits arrangements like these and makes them enforceable if the formalities of the statute are followed. It is not easy to figure out exactly which states do and do not allow this because: (1) there is a model act to authorize this but many states that allow it crafted their own legislation rather than following the model act (Article 6 of the Model Act is the part relevant to the OP), and (2) some states have allowed this kind of arrangement via case law rather than statutory law. There are also states with no statutes on the subject and no clear case law one way or the other. As of 2010 all but a handful of states had some kind of legislation, but as noted above, some of that legislation disallowed rather than authorized certain practices or only address some issues and not others. This article reviews in detail the facts and rulings in several cases that are on point to this issue, for example, from California, Minnesota and Montana. | In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another. | Probably Or they could pass a law prohibiting bans. Since the provision of abortions is a commercial enterprise that affects interstate commerce, the Federal government probably has jurisdiction through the Commerce Clause. |
Would a botnet be illegal, even if the terms of service state everything it will be used for (assumming that all uses will be legal) Basically the title. Will a botnet be illegal, even if users consent to everything the botnet will do, and everything the botnet does is legal? (In the US, Colorado) | "Botnet" refers to an illicit collection of remotely-controlled computers taking commands from a C2 (Command and Control server) and is thus by definition always illegal. However, there is no law against releasing or using software which accepts commands of various types from a central server, and this is quite common for remote access tools, as long as the user consents. It is only called a botnet if the users do not consent to its presence. If they do consent, it's not a botnet. One example is DarkComet, which includes features such as remote file editing, screen viewing, and keylogging. All of these features have legitimate uses, and a network of computers controlled with this software would not be considered a botnet unless it was created illegally in the first place. It's like the term "battery". Battery is never legal, but that doesn't mean that boxers are breaking the law by participating in that sport and punching each other. If you consent to being punched, then it's not battery. Likewise if you consent to running a remote access tool, it's not a botnet. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea. | ...due to the international registration of multiple domains to generate ad revenue by recycling stories across sock puppet networks, giving the impression of multiple, independent companies. None of that is illegal on its face. Internet domains are freely registerable by anyone, anywhere (with the exception of some laws in some nations that restrict such Internet-related activity), and registered privately or publicly, and websites can be hosted anywhere. Writing articles and "spinning" and copying articles (even if that writing is sales gibberish in broken English) among the same copyright owner is legal, and using the same design and layout for a network of sites is legal. The formation of multiple, related companies and shell companies to give the impression that companies are separate and independent is legal (again, with the exception of some business and corporate laws in some nations that restrict such activity). These are all common business practices. Some business practices may appear to be unethical - trying to fool customers in order to make money and get clicks and sell ads. And what you may be feeling is that such activity is unethical. And that's OK. But feeling that they are unethical doesn't make the practices illegal. Many common activities that are considered to be unethical are illegal; but not all. Buyer beware. One way some of that activity may be illegal is if those articles are factually incorrect and promote quack medical treatments, are financial scams requiring payments, are gambling sites or promote other clearly illegal things. But then you get into the complexity of exactly how they are illegal, which jurisdictions are involved, and on and on. | People running web servers are generally liable for contributory culpability, when some user breaks the law by putting the material on the server. There are legal mechanisms for relieving the server guy from this burden. The best-known mechanism is "DMCA takedown", where you publish contact information so that an offended person can serve up a proper legal claim that you are distributing material that they own copyright to. If you follow the rules, you may enjoy "safe harbor" protection against contributory liability: one of the requirements is that you have to take infringing material down. The specific requirements can depend on the nature of the liability and jurisdiction, but generally involves a "hands off" involvement where the person has no knowledge of what's going on on his server. So just disclaiming responsibility does not work. There are other more serious violations, such as distribution of child porn or transmission of top secret information. Jurisdiction is not totally central to internet questions, and I could sue you (the server guy) in US courts, or (depending on the offense: copyright infringement of a particular item) in UK courts. Nailing this down specifically to Sweden is harder, but recall that The Pirate Bay had a whopping judgment against them. | You cannot run MacOS legally on any computer that is not Apple-branded. It is a DMCA violation. There are technical measures in place that check that the OS is running on an Apple branded computer. These measures are easily circumvented, but they need to be circumvented, which makes it a DMCA violation. A company selling computers with MacOS installed (Psystar) was ordered to pay $2,500 per computer for the DMCA violation (they never paid Apple, they didn't even have money to pay their lawyers). In practice, Apple will ignore you as long as you don't make claims that what you do is legal. Buying a Mac with legally owned version of MacOS and not using is makes absolutely no difference. And it would never be fair use. It is either copyright infringement or it is not, bue it is never fair use. "Fair use" is not about "being fair". It is about a very specific set of excuses that you can have why your copyright infringement shouldn't be punished. You are not using MacOS for parody, or just tiny extracts. For example, if you copied ten lines of source code from MacOS, Linux and Windows to demonstrate in a computer science course how different operating systems handle the same task in different ways, that would quite likely be "fair use". | You haven't specified a jurisdiction. In the United Kingdom† this is a clear violation of section 3 of The Computer Misuse Act 1990 (1) A person is guilty of an offence if— (a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies. (2) This subsection applies if the person intends by doing the act— (a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; [F2or] (c) to impair the operation of any such program or the reliability of any such data; [F3or (d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.]] Deleting the data is unauthorized (3.1.a) The ethical hacker knows it is unauthorized (3.1.b) Deleting the data prevents access to the data (3.2.b and hence 3.1.c) † This is one of the few Acts that apply to the whole of the UK. | There is nothing illegal with doing this (absent specific contractual terms or industry regulations to the contrary in particular cases, e.g. in the case of export controlled high technology products). This is called operating a wholesale business or operating as a broker. Lots of legitimate legal businesses have this business model. |
US exclusionary rule - are there limits? Inspired by this question related to admissibility of evidence obtained from an unlawful search and seizure: At an unlawful traffic stop, police searches the car and find the weapon used in a recent murder Suppose the following facts: A uniformed police officer Al pulls over a car Bob for no lawful reason. The unlawful nature of the stop is not disputed. Al proceeds to search Bob's car without reasonable suspicion or probable cause. The unlawful nature of the search is not disputed. In the trunk of the car, Al finds the dead body of Cal. Cal has been stabbed to death with a knife (also in the trunk) covered in Bob's fingerprints. There is a full account of the murder signed by both Bob and Cal which describes Bob murdering Cal. There are polaroid photos of Bob murdering Cal, also in the trunk. There is no other evidence tying Bob to Cal's murder; no prior history, no eyewitness testimony, no missing persons reports, no indication of where Cal was murdered or why (other than the signed document) and Bob lawyered up and has refused to answer any questions on the grounds he fears self-incrimination. Given these facts are not disputed: would we expect any of this evidence not to be ruled inadmissible if challenged in a criminal trial? assuming the evidence described is ruled inadmissible, what would the law require be returned to Bob? the knife? the pictures and document? the clothes Cal was wearing? Cal's body? would Bob be required to claim ownership of these items to have them returned, or would returning them be the default action? if Bob is required to claim ownership of the items to recover them, and does claim ownership, can that claim of ownership be used in a new trial against Bob? | The Likely Ruling Assuming points 1 and 2 in the question, all the evidence from the trunk would be inadmissible, and if there really is no other evidence against Bob, then Bob would go free. This is highly improbable; the prosecution would find some grounds to dispute the unlawful nature of stop and search, even if ones the court would not accept. A better version might be "The judge rules that the stop and search were unlawful, and is upheld by the appellate court". That is more realistic and has the same result. Inevitable Discovery The only grounds I can see for any other result is "inevitable discovery". If other police were, say, already staking out Bob's house with a warrant to search the car, and Bob was on the way to that house at the time of the stop, then the prosecution could argue that they would inevitably have conducted a legal search of Bob's car and found the same evidence. The conditions for invoking this doctrine rarely occur, but it is possible. After the Trial There is no way that Cal's body can be Bob's property, so it would be released to Cal's next of kin or legal executor. Unless Bob was Cal's next of kin, it is hard to see any way that the body would be handed over to Bob. Cal's clothes are almost surely part of Cal's estate, although it is in theory possible that they are Bob's property. No claim of ownership can be used against Bob in a later trial, because any later trial would be barred by double jeopardy. In any case, while evidence from the trunk would all be inadmissible in a trial of Bob, it might be admissible in a possible later trial of Joe, Bob's alleged accomplice. Therefore the police might well retain all the items (except the body) as possible future evidence. Terminology This is actually about the exclusionary rule itself, not about the "fruit of the poison tree" doctrine. What is the difference? If an unlawful search finds evidence, that evidence is inadmissible under the exclusionary rule. If an unlawful search merely finds a lead, evidence later found via the lead is considered as "fruit of the poisoned tree" and is therefore inadmissible. For example, if the murder weapon is found in Bob's car after an unlawful search, the exclusionary rule applies. But if a note saying "stuf at 1234 Elm" is found during the unlawful search, and the police visit 1234 Elm Street, and find the murder weapon there, that is "fruit of the poisoned tree". Why does it matter? Because if the police find a different lead to 1234 Elm, so that the investigation or search at that address is not based solely on the results of the unlawful search, then the evidence found at 1234 Elm may be admissible, while corroboration will not save the evidence actually found by the unlawful search. It is a subtle but sometimes important distinction. | It's generally correct in the American system that everything not forbidden is permitted. But the law you're looking at isn't really an exception. You have the legal right to tamper with evidence if tampering is not illegal, but this statute makes it illegal. The language you've highlighted merely says that the law does not apply to those who have some other affirmative grant of authority to do so. So if you stab someone to death in your kitchen, you can't remove the body or other evidence, but the detectives investigating the case can, because they have the legal authority to process the scene and maintain the evidence for trial. So the law is similar to the "speaking in public" hypothetical, but that doesn't make it meaningless. Because of the First Amendment, that law doesn't actually outlaw anything, but the tampering law faces no such legal barriers. You had the right to tamper until the government said you didn't. Now that it says you don't, you can only do it on the government's terms, which require an affirmative grant of authority. | Police reports are treated as "Business Records" and are therefore not excluded by the hearsay rule, regardless of the availability of the declarant. Federal Rules of Evidence, Rule 803: Exceptions to the Rule Against Hearsay Business Records Exception The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. I suppose a valid defense in this case would be to bring into question the "trustworthiness of the preparation" (via 803(8)(B)), but it is still admissible. Admissibility of Police Reports A number of courts have held that a police report otherwise excluded by Rule 803(8) is admissible under the hearsay exception for recorded recollection in Rule 803(5). On the other hand... At least one court has held that the recorded recollection exception does not allow the admission of a police report that is excluded by Rule 803(8). Offering another reason for the exclusion, the court observed that such reports, particularly when they concern on-the-scene investigations, are considered less reliable than records prepared by other public officials because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and the likelihood of the report’s use in litigation. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1086–87 (9th Cir. 2000); see also State v. Harper, 96 N.C. App. 36, 40–41(1989) (recognizing this rationale in finding police report inadmissible under Rule 803(8); court did not address admissibility under other rules). Recognizes the conflict of interest police have when recording evidence against a defendant, so it may be possible to argue admissibility in that way, but it seems most courts do not follow this line of thinking. | The wording is a little confusing, but I interpret it as saying the following: Normally, discovery in a court case allows either party to demand documents from the other, to be used as evidence. However, our courts have exceptions; certain documents might be 'privileged against discovery', meaning they couldn't be demanded in that way. If one of those exceptions would apply to a document under court rules, then you can't request it under Freedom of Access either. To know what those privileges are, and how broadly they apply, you'll have to consult the rules of court procedure for your state. | 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." | Huge difference between a car and a house. For example, at least in Pennsylvania no warrant is required to search a vehicle on public roads. In other states there are so many easy pretexts that you practically have little protection from a full vehicle search (although the pretext will have to withstand strict scrutiny if evidence found in a search is used to charge you with a crime). Your house, on the other hand, still enjoys very strong fourth-amendment protections: One of my favorite U.S. Supreme Court cases on the subject is Florida v. Jardines, in which SCOTUS ruled that even approaching the front door with a drug-sniffing dog without a warrant constituted an illegal search. (The majority opinion is worth reading for its illumination of current law on this question.) | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | It is probably illegal, just not pursued. In the case of something like bank robbery, you'd have a victim that filed a police report. A murder would need to be discovered somehow - either a missing person report or a dead body. If the porn shoot happened somewhere that a member of the public saw it and subsequently filed a police report, the video could be used as evidence. Absent a report, the police simply have no reason to look into it (unless the police catches them in the act, but we probably don't see those videos posted online). Why would these public offenses go unreported? Perhaps nobody sees it. Perhaps the bystanders in the video are paid extras. Maybe they're filming in what appears to be public but is actually private property. Perhaps they have a permit to use a public space for this purpose. Perhaps they just got lucky. Again, there might be some confirmation bias here - you're not going to see as many videos of folks they catch breaking the law, since they will either be interrupted and stopped or (maybe) have their videos ordered taken down. |
What to do at a road crossing with only one traffic light in german traffic law? There is a weird traffic situation in Berlin, Germany (here), which consists of a crossing with only one traffic light like this: The traffic signs indicate that AC is the main road, so traffic coming from B or D has to wait until it's clear. Pedestrians can activate the traffic light, which stops traffic from A and C. Imaging following situation: y wants to go from A to C, but has to wait before the crossing because the light is red. x wants to go from D to C. How should x behave? Go: At a normal crossing when A<->C has red light, B<->D would have green light, so x could go. (It would have to wait on the crossing for B->D-traffic or pedestrians to pass and then go.) But x has no way of knowing that A<->C has red light. or Wait: As there is no traffic light for B<->D, x has to abide by the traffic signs. The signs say: wait for y to pass and then go. But this would mean, there is a lot of pointless waiting. What would be the right option according to the law? Thanks for your help. | The nuisance of potentially waiting for all the traffic on the main road is a notion alien to the law. Seeing the red light, y correctly does not enter the intersection, because it would block the intersection, § 11 Ⅰ StVO. Keeping intersections clear is a general consideration, say for emergency services. Nevertheless, if safely stopping required entering the intersection, it’s not an issue here, § 4 Ⅰ 2 StVO. Stopping before entering the intersection is not a hard requirement, because the traffic lights do not regulate the intersection but an “isolated” pedestrian crossing. § 37 Ⅱ StVO concerns traffic lights at intersections. x has to yield traffic as indicated by the sign, § 8 Ⅰ StVO. Making a U‑turn or right-hand turn would be no issue, since this would not interfere with traffic (assuming properly dimensioned streets). Going straight is permissible if done with caution, § 8 Ⅱ StVO, but I would not recommend that. y might decide any moment “Eff it! I’m taking B street [Am Falkplatz].” and boom! Going left, however, is not allowed, since x had to stop short of the traffic light, which is frowned upon (blocking the intersection), but moreover it would take y’s right of way. | england-and-wales s161 Penalties for causing certain kinds of danger or annoyance, Highways Act 1980 ... (3) If a person plays at football or any other game on a highway to the annoyance of a user of the highway he is guilty of an offence and liable to a fine not exceeding [F3 level 1 on the standard scale]. ... (See also the s137 offence of wilful obstruction.) Some places may also have their own related bylaws, e.g. No person shall on any land adjoining a street play any game in a manner likely to cause obstruction to any traffic or to cause danger to any person in such a street Made under s235 of the Local Government Act 1972, for the prevention and suppression of nuisances. Traveling further back in time, the Highway Act 1835 provided for penalties on persons who "play at Football or any other Game on any Part of the said Highways, to the Annoyance of any Passenger or Passengers" and, in London, the Metropolitan Police Act 1839 similarly made it an offence to "any Kite or play at any Game to the Annoyance of the Inhabitants or Passengers, or who shall make or use any Slide upon Ice or Snow in any Street or other Thoroughfare, to the common Danger of the Passengers." I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems. It seems possible that the authorities turned a blind eye or your behaviour didn't come to their attention, or your street was designated as a 'play street' (introduced by the Street Playgrounds Act 1938, currently provided for by sections 29 to 31 of the Road Traffic Regulation Act 1984 as amended by the New Roads and Street Works Act 1991). Also, many alleged offenders might be younger than the criminal age of responsibility. According to TJ Miller MP (Colchester) in Hansard, speaking in 1860, in 1859 44 of London's children were sent to prison for playing games in the streets, and by April 1860 25 had been sent to prison - apparently Manchester had imprisoned none. In my youth we played in the street although we didn't put up basketball hoops, football goals or other such objects. These stories in the media seem to be rare and involve circumstances where the local authority received too many complaints, particularly when there is damage to homes, cars or flowerbeds - which may amount to criminal damage. Blackpool in 2006 Glenfield area of Leicester, 2007 Newark, Nottinghamshire, 2008 Manchester, 2010 - although this seems to be based on one complaint Hat-tip Pedestrian Liberation for the information about the older legislation and arrests of children. | As a linguist who reads laws for a hobby, I would say that "and" legally means what it was intended to mean. There are often interpretive statutes which say that "and" can be read as "or" or vice versa, when necessary (as in ORC 1.02 "And" may be read "or," and "or" may be read "and" if the sense requires it. Delaware doesn't have that as a rule, but it is a rule employed by courts "as required". One approach to interpretation is to discern intent from surrounding text, so we would look at the whole code. The general context is the rule that "A building or land shall be used only for the following purposes". Following Article XXVII of the code, other uses could be permitted because "§115-32. Special use exceptions may be permitted by the Board of Adjustment and in accordance with the provisions of Article XXVII of this chapter and may include...". That section ends with "C:Other special use exceptions as follows", and includes "Private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district". From the list of things enumerated in §115-32, there is no coherent pattern – some things are in the list of special exceptions, some things are in this list, some not. So the "surrounding text" approach doesn't help in this case. Scrutiny of legislative debate is sometimes invoked, especially at the federal level, but there is negligible chance that there is any such evidence here. The almost-final approach is to spell out the competing interpretations, and see if anything jumps out as ridiculous (because it is assumed that lawmakers do not pass ridiculous laws). The two interpretations are "both must be true", versus "one must be true". Since the general rule is that you can go ahead unless it is restricted, then with the "both" interpretation, you need a special exception permit if you simultaneously plan to have more than 4 automobiles (which means, 5+, so 4 is allowed) and floor area greater than 900 sf. Thus if you plan for only 4 cars, or can fit the 5 cars into 900 sf, then you would not require a permit (on the "both" interpretation). Which btw is the literal interpretation of "and". This is not an absurd scenario (using a generous 10'x18' space, which I derived from parking slot regulations in Danbury CT). So it is reasonable to think they meant "both". The "either of these" interpretation says that they are being even more restrictive – you need permission to have a 5+ car garage (regardless of size), and you need permission to have a garage larger than 800 sf (even if there were only 1 car in it). This seems a bit specific since there isn't generally a size restriction on structures in the code – except that playhouses are limited to 150 sf. and can't be tall enough for an adult to stand up. Since the literal meaning of "and" is "both at once", and since no facts about the code say otherwise (i.e. that interpretation does not result in an absurd nullification of some other provision), an objective court should interpret this rule to mean "both at once", thus the government imposes the fewest restrictions on your property. No way to know what they will do. | U-turns are prohibited in certain circumstances (Highway Traffic Act Paragraph 143). It does not say that U-turns are prohibited at intersections controlled by traffic lights. By the principle of expressio unius est exclusio alterius, U-turns at intersections controlled by traffic lights are generally allowed. However, in determining fault for insurance purposes in Ontario, The driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for an incident that occurs, [...] when automobile “A” is making a U-turn [...] (Insurance Act Paragraph 19.) | Can I refuse, turn around, and just not enter the USA ,get back on a plane, turn around and drive back, or do I have to give over my devices just because I showed up? In theory you can refuse and turn around. At a highway check point or in a private boat disembarking context, that is fairly feasible. If you turn around before you are searched and get back across the border, the border control officers can't pursue you. In a commercial airplane or commercial boat disembarking context, this is as a practical matter, not a very feasible thing to do, because you can't as a practical matter, turn around and even if you plan to return, the only way you can make it to a return trip without passing through customs is if the border control officer refuses to admit you. The law is that non-probable cause searches are permitted at border checkpoints (and indeed even near a border checkpoint on the in country side), but this isn't much clarity about when that authority ends (short of returning across an international boundary) when deciding not to enter at a border checkpoint. Also, there is also a split of authority over whether a cell phone search is allowed in the first place. The Second Circuit in the U.S. has held that it is not, but the law is unresolved in many U.S. states at this time. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. | One widely-used book on the topic is Brown's Boundary Control and Legal Principles. I have the 4th edition published in 1995, and the relevant chapter is 8, "Locating Easements and Reversions". The law varies from state to state. In New England, it is likely for interstate, US, and state highways, the state will own the roadbed in fee. Smaller roads are likely owned by the adjoining private owners, with the public holding a right-of-way that allows the government to build and maintain a road; the adjoinders are restricted from using the right-of-way in any manner that would interfere with the transportation use. The meaning of "right-of-way line" depends on context, but is likely to be the line between the pubic's right of way and the portion of the adjoining private property that is exclusively under the control of the private property owner. If the public records do not reveal the width of the road, there is likely to be a statute that states a default width of the road. This is discussed, for Vermont, in The History and Law of Vermont Town Roads by Paul Gillies | There are only two rules I am aware of that apply to rear-end collisions on a roadway (in which all vehicles are properly headed in the same direction): The first vehicle that hits another in the rear is at fault for the collision, and any collateral collisions. The preceding rule is always true unless there is evidence that the vehicle that was struck did something reckless or intentional to cause the collision. For example, "cutting" in front of a truck and decelerating unnecessarily and faster than the truck can brake. (Before dashcams became widespread this was a common tactic of fraudsters, who would subsequently sue the "rear-ender's" insurance company for "whiplash" injuries.) You seem to be asking whether there is a law or rule against coming to a stop too close to a vehicle in front. Tailgating is generally illegal, but I have never heard of the concept being applied to vehicles that are not moving. (Clarification on your question: "Stop far enough behind the car in front of you so that you can see the bottom of their back tires" is a safety heuristic that allows you to pull around the vehicle in an emergency without shifting into reverse. It's a "rule" of defensive driving, but I have never heard it written into law.) |
Can Casey White be held accountable for the death of Vicky White? Can Casey White be held accountable for the suicide / death of Vicky White? https://abcnews.go.com/US/escaped-murder-suspect-extremely-violent-medication-sheriff/story?id=84590527 In Texas, if one of two bank robbers dies in the course of robbery, I understand that the survivor can be held accountable. | No Felony murder in Indiana is limited to participants in the following criminal activities only: Burglary Child molest Arson Rape Kidnapping Robbery Carjacking Drug Dealing/Manufacturing AFAIK, the pair were not doing any of those. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | 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? | The criminal case will only punish the perpetrator, it will not give any compensation to the victims. So if you are the victim of a crime, and the perpetrator is capable of paying compensation, you would go for a civil case to get compensation. There's also the fact that in a civil case, there is less evidence required, so the perpetrator may win the criminal case (not found "guilty beyond reasonable doubt"), but lose the civil case. In many cases, the perpetrator is not wealthy enough to make a civil case worthwhile. If some lowlife stabs you in the street, you might very well win a civil case, but would end up getting nothing because the person has no money. So taking them to court would only cost you money. | 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. | All Four of them! Double Jeopardy is not in play if a jurisdiction can lay claim to your criminal action, so if you stand on the Four Corners and shoot a man in any of the four states, each state has a right to charge murder. In addition, the Federal Government can have a go at you because you crossed state lines while in comission of a crime. Plus the Navajo Nation, which controls the reservation land the border is on. So that six separate charges. That said, the state the dead body occupied at time of Murder would have the best case for action and the other three would likely let that state try you first. The Feds would only step in if each of the four states failed to convict, though they can step in whenever they want (they are just watching to see if you'll serve time first). Not sure at which point Tribal jurisdiction applies, but given that this is a fairly common Jurisdiction issue, I'm sure it's been worked out. | It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator. The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide unless that person intended that the person who committed suicide do so, which is almost certainly not true in this case. As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable. And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial. This is not accurate. It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University. It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit. Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion. Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud. UPDATED RESPONSE TO EDIT 2: there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings. Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect. There is a reason why we don't handle rapes (for example) in civil courts. Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions. In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment. In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist who is prosecuted in the criminal justice system isn't capable of paying meaningful compensation to a victim, although there are always exceptions. Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option. So back to the main question, what, if any, criminal charges can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true? In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern. Each of the offenses is a misdemeanor under Texas law. The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states: (a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined. (c) An offense under this section is a Class A misdemeanor. Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts: Sec. 39.01. DEFINITIONS. In this chapter: (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs the conduct of the public servant. . . . Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment . . . (b) An offense under Subsection (a)(1) is a Class A misdemeanor. . . . 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: . . . (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor . . . Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. |
Can double jeopardy be circumvented by something other than the separate sovereigns doctrine? It has been answered here that using the separate sovereigns doctrine, the same person can be convicted (or at least tried) twice for the same offense or crime, in the United States. Is there another way to do that? For example, say the circumstances surrounding a crime are blurred enough so that it's unsure whether it's a murder or an involuntary manslaughter. Let's assume the absence of dual jurisdictions. Given that a murder and an involuntary manslaughter are two different offenses, could a jury be asked to adjudicate on both counts? Could it find the defendant guilty of both? Could the DA even accuse the defendant of both during the same trial? What about in different trials? And what about murder and attempted murder? If the answer to the previous questions is no, why is it possible between murder and "conduct unbecoming of an officer of the military" (or something), as depicted in the movie A Few Good Men, or between murder and mutiny, as presented in this question, but not between these two specific crimes? Where do you draw the boundary? Is there a nominal criterion? | Given that a murder and an involuntary manslaughter are two different offenses, could a jury be asked to adjudicate on both counts? This happens routinely. Could it find the defendant guilty of both? Only for certain offenses. See lesser included offense. Could the DA even accuse the defendant of both during the same trial? Yes, which is how juries are asked to adjudicate multiple offenses as noted above. What about in different trials? All the crimes associated with a given act have to be tried at once. If you've been acquitted of murder in connection with one act, you can't subsequently be tried for involuntary manslaughter for the same act, nor vice versa. And what about murder and attempted murder? I don't think it's possible to be tried for an attempt when the crime has been successful; certainly, the opposite is true. But again, if the charges are based on the same act (i.e., we know you tried to kill the victim, and we know someone succeeded, but we don't know whether it was you) then the charges would have to be tried at the same time. | This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called "assault" in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The "Legal Issues" Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes "negligence" that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a "question of fact" to be determined by a judge on a case by case basis, rather than a "question of law" which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar "reasonable person" standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a "legally correct" way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a "question of fact" that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed). | The distinction is a question of culpability, not just the harm caused. The law, at least in the criminal law context, is not fundamentally consequentialist in its philosophy. The end consequence of an act for which someone is at fault in some way isn't the only thing that matters in criminal law. Instead, there is basically a two dimensional grid. On one axis is the seriousness of the harm caused on the "eye for an eye" theory of proportionality between punishment and the harm caused. Thus, homicide is more serious than causing serious bodily injury or raping someone, which is more serious than causing bodily injury that is not serious or sexual in nature. Grand theft is more serious than shoplifting. It doesn't make economic sense to spend $70,000 a year to incarcerate someone for many years to prevent people from stealing $15 items, unless very extreme aspects of the person's criminal history suggest that this seemingly minor incident demonstrates a high risk of future offenses that are far more serious because it proves that a hardened criminal hasn't reformed himself or herself. On the other axis is basically a measure of how evil and malicious someone would have to be to do such a thing which is called culpability. At once extreme, first degree murder, for example, is calculated, premeditated harm to another. At the other extremes are completely non-culpable conduct (either due to lack of any fault-worthy conduct or because someone is mentally incapable in the eyes of society of engaging in culpable conduct like a baby or someone with dementia or someone having hallucinations relevant to the conduct that kills someone, ordinarily negligent conduct that kills someone, and criminally negligent conduct that kills someone. In between the extremes is conduct that is reckless or is impulsive or carried out in the heat of passion or by someone with diminished capacity. Only moderately culpable conduct is punishable only by a civil lawsuit for compensatory damages, and non-culpable conduct isn't even punishable in a civil lawsuit in the absence of special circumstances in which strict liability is imposed in lieu of proof of culpability. Less culpable conduct commands less serious sentences, and more culpable conduct commands more serious sentences. Why single out culpability? Basically, this is a crude way a predicting, based upon someone's past actions, the risk that the pose in the future. (Our evaluation of culpability is further refined and adjusted by factors related to the individual defendant and not the particular offense involved, like a criminal defendant's status as a juvenile or adult, and the individuals history of prior criminal convictions.) Conduct that constitutes first degree murder corresponds more or less to psychopathy, an incurable psychiatric condition in which someone lacks all empathy and takes selfish delight in harming others out of boredom or for personal gain. Psychopathy is a technical term that is modern abnormal psychology's closest synonym to saying that someone is unredeemable and evil, and conduct for which the death penalty is available, mostly in conduct that is most highly diagnostic of psychopathy, since the usual goal of incarceration, to return someone to the community once they are no longer an appreciably elevated threat to it, can never be achieved in the case of someone who is unredeemable and evil, because their condition is an incurable part of who they are as a person and their lack of empathy makes them incapable of emotionally distinguishing between right and wrong or feeling guilt. This intuition bears out. The more culpable an offense is, the more likely it is that the offender scores high on standardized measures of the extent to which someone displays signs of psychopathy that are exemplified in serial killers and the worst con men. Intermediate levels of liability correspond more or less to impulsivity that can turn violent (which is associated with a variety of incurable psychiatric conditions and also with the developmental states of adolescence and young adulthood and with instances of excessive intoxicant consumption, especially in men), in which someone knows what they are doing is wrong but lacks sufficient self-control to prevent themselves from acting until it is too late and they have calmed down, at least until they "age out" or or take steps to treat the symptoms of the conditions or addictions or intoxicated excesses. Their lack of self-control makes them a potential risk to others even though they empathize and feel guilt, but not like the risk associated with a psychopath who just doesn't care at all if they are doing something that violates intuitive moral codes of conduct. Negligence, i.e. inattentiveness and carelessness pose even less of a threat to the community and while it could be due to something like attention deficit disorder, could also be due to extenuating circumstances like sleep deprivation or being overwhelmed with too much at once to keep track of everything at once. Negligence harm generally isn't even momentarily malicious due to loss of control and the person who harms someone negligently will often immediately regret the harm that they caused and will try to refrain from doing so again and will try to make things right. Such a person is far less of a future threat to society, but still more of a threat than someone who doesn't harm others in the first place in any manner in which they are at fault. Who decides? Reasonable people (and even reasonable judges) can and do have differences of opinion on the relative importance of seriousness of harm and culpability in determining a sentence for a conviction of a particular course of illegal conduct. The difficulty in balancing the apples and oranges factors of seriousness of harm (which, in part, reflects a person's capacity to inflict serious harm in the future and also reflects society's judgment about how serious it is to do something with ill intent) and culpability. To insure that these factors are balanced in a predictable and fair way, we embody the weighing of those two factors in a collective legislative judgment codified in a state or national penal code, rather than a case by case decision making process by judges. The modern trend towards giving more weight to culpability. If anything, the tendency at the present is for legislative judgment to give more weight to culpability than it has in the past as social science methods in criminology have demonstrated that culpability demonstrated in criminal conduct actually carried out by a person is indeed highly predictive of that person's future dangerousness to society For example, cruelty to animals is an offense which reflects very high levels of culpability despite often involving relatively modest amounts of harm viewed in a human-centric way. But, cruelty to animals is increasingly being upgraded from a misdemeanor to a felony, because it is a very diagnostic litmus test for psychopathy in an individual and very frequently eventually escalates to causing serious harm to humans. Similarly, drunk driving when it is charged based upon a traffic stop, rather than an accident that occurred while someone was driving drunk, is a very low harm offense, just like any other traffic offense, and historically has only been a misdemeanor. But, in cases where someone is repeatedly convicted of drunk driving, the culpability is high and the conduct tends to reflect a very difficult to self-regulate addiction and substance abuse problem that is highly likely to recur and to eventually result in a high harm accident. Repeated convictions are what distinguish an incident where someone is basically just criminally negligent in driving when they should have known that they shouldn't, from the far more serious case where someone recklessly and with indifference to the well being of others drives drunk knowing full what the risk that they are exposing other people to. And because repeat drunk driving convictions are more culpable and reflect a personal character of the offender that shows a high likelihood of causing future harm to others, many states are starting to upgrade repeat drunk driving from a misdemeanor to a felony even though the actual harm from the specific incident of drunk driving that only gives rise to a traffic stop is still just as low the fifth or sixth time someone is convicted as it was the first time. Conclusion So, in sum, assigning different penalties to different levels of culpability is a way to allocate limited correctional and punishment resources in a manner proportionate to the future risk of dangerousness that the current conviction provides undeniable evidence of in a non-arbitrary manner. Indeed, most people simply internalize the notion that more culpable conduct deserves more serious punishment because it is wrong, without conceptualizing in the more theoretical abnormal psychology informed and utilitarian framework in which I have described it above to demonstrate the implicit logic and wisdom behind the gut instinct that more culpable conduct should be punished more seriously, especially when its cause is not a passing incident that is unlikely to recur. | No. It means the existence of reasonable doubt is in doubt... One cannot conclude the question of guilt in either direction, so one must try again to see if a different jury can answer the meta-question, to then answer the legal question of guilt. ... or is not being addressed If only one person is voting against the consensus, or as many as are allowed by the jurisdiction, they are overruled. That's the allowance made for bias that has somehow reached the jury despite the filtering done beforehand. If more people are voting against the majority so that consensus is not possible, it is potentially because someone has made up their mind on the question of guilt regardless of what (some significant part or the weight of) the evidence indicates, defeating the purpose of the trial and providing all the evidence. A person not accounting for all the evidence can't be said to have reasonable doubt of guilt, since the doubt may be excluded by the remaining evidence. Similarly, guilt beyond reasonable doubt cannot be supported by only partial evidence, as exculpatory evidence may be among the part not accounted for. ... or cannot be addressed by that jury at all. Finally, a jury split on the decision of how to weigh the evidence cannot claim either to have or to have dismissed reasonable doubt, because they cannot agree on what a reasonable doubt is, in the first place. | Murder Which is the unlawful taking of a life with intent to do so. However, the doctrine of self-defence can make killing lawful: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. if the prosecutor is of the opinion that the force used "is reasonable in the circumstances" they may not lay charges. If they do lay charges the judge may decide that there is no case to answer before going to trial if self-defence applies. If there is a trial this will probably be the strategy the defence employs and they may or may not be successful. If convicted the penalty is life imprisonment. Also, there is no UK law: there is the law of England and Wales, the law of Scotland and the law of Northern Ireland. | Intent matters here, but yes. Alice could be considered guilty of either Second-Degree Murder or Manslaughter, though the latter is far more likely. Texas has no laws condoning assisted suicide that could absolve Alice. Second-degree murder requires the following: The defendant intentionally and knowingly caused the death of another person The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual This is tenuous, but it could be argued this way if Alice intended to cause Bob's death. It certainly meets the second criteria: shooting oneself constitutes serious harm and giving a firearm to someone who has stated an intent to kill themself is reckless. It's more likely that Alice would be charged with manslaughter. The only definition is: A person commits an offense if he recklessly causes the death of an individual. As discussed above, giving someone who has announced an intent to kill themself a loaded gun is reckless. Alice's actions resulted in Bob's death. | 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. | In the U.S., one trial can be held for multiple co-defendants, though prosecutors and defense attorneys will have reasons for seeking separate trials (If only to avoid having a scene similar to the on in Dark Knight where Harvey Dent has about 50 mobsters caught in one RICO violation plus their lawyers and the judge's simple question of "How do you plea?" is met with a din of responses.). The Defense's reason for this is that an individual may not have been a part of every step of the collective guilt and thus some charges might not be appropriate if it's an individual's guilt compared to a groups guilt. For example, the six police officers involved in the 2015 death of Freddie Gray at trial were all tried separately. The first trial was declared a mistrial over the hung jury, and two subsequent trial's resulted in findings of not guilty by a judge during a bench trial. The remaining individuals had charges dropped (The three officers who had yet to have trials plus the one officer whose trial resulted in a mistrial). One of the findings a running theme of the officers as individuals did nothing wrong, though had they been tried collectively, the results may have been different, since the individual trials meant certain facts couldn't be brought up as they didn't apply to the individual but did if they were tried as a group. From a prosecutor's standpoint, separate trials mean that you can use one suspect against the other and make a deal for lighter charges in exchange for testimony against a partner in crime. The U.S. legal system does allow for plea deals between the defense and prosecution (and while it's not the only nation that allows this, it's one of the few where plea bargaining is not viewed as a "dirty" tactic and is openly embraced (U.S. attorneys tend to hate going to trial and will try to avoid it.). Prosecutors are not above offering immunity or granting lighter sentences in exchange for help in other cases, often in the form of testimony against the big fish. For a criminal who believes "snitches get stitches", an offer of flipping on your co-defendant for a sentence of 10 years, with parole in 5 is nothing to sneeze at when you're looking at 25 to life without parole for what you did. It's not immunity for testimony (typically, witnesses in plea bargains are not allowed to take the 5th with respect to questions on the stand because they will typically plea before the trial, and thus can't be prosecuted for the same crime.). |
Does a non-commercial software project constitute an outside activity and does declaring it to my employer risk any transfer of IP? Background I am based in the UK, and about to enter into a new full-time job as a software engineer at a UK-based software company. I have been asked to declare my outside activities. I have several non-commercial, personal software programs that I write for myself, and hope to continue to develop, outside of working hours and with my own materials. These software programs are not related to the company I am about to work for, or its areas of interest. These programs will never use IP produced by the company, and me working on these programs is unlikely to threaten my job performance because I have no contractual obligations to maintain them. Question Do outside activities have a legal definition and does software like this constitute an outside activity? If software like these do constitute outside activities, is there any risk that their approval by the company could constitute any kind of transfer of IP? | There is no fixed definition in the law of "outside activities" that is applied generally. This will depend entirely on how the employment agreement defines it, and/or how the management of your company defines it. There may be a useful definition in the agreement, ideally there will be. In the far too common case that the agreement leaves this key term undefined, you will have to ask them how they define it. While it is true legally that when they draft the contract and it is ambiguous, you may adopt any reasonable definition, as a practical matter, if you do not disclose something and they consider it an "outside activity" They may claim this is grounds for discharge. If the employment contract requires you to disclose outside activities, you must disclose them or be in breach of that contract, which is surely grounds for discharge, and possibly grounds for a breach of contract suit. Even if it is not part of the contract, saying that you have no such activities when you in fact do is arguably fraud. Saying that you decline to inform management of your outside activities is probably legal, but might well cause them to cancel the offer of employment. If you do inform management, and the activities are approved, there would be no automatic transfer of any existing IP rights. No transfer could occur without an agreement saying so. Some companies, in their employment agreements (or other related agreements) demand that an employee transfer the IP of any project created or worked on using company resources (such as a company computer or network). Some demand a transfer for any project worked on during the employee's working hours. Some demand a transfer for any project done during the period of employment, but they must clearly specify this for it to be effective. That last is unusual, because many employees dislike it enough to go elsewhere as soon as they can, which tends to be bad for the employer. But in no case can a transfer of IP for a project unrelated to the employer's business, not using company equipment or resources, and not done during work hours, be effective without a specific agreement to this effect. | It should contain one of the following two clauses: A clause that explicitly lists all of the side projects you are working on at the point of employment, that will not be transferred to the employer's ownership under Section 11 of the Copyright, Designs and Patent Act 1998 ("the Act") which states (1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. (3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations). This would mean that your existing side projects are protected, but any future side projects would transfer to your employer under S11(2). This might be fine if you don't intend on doing any more side projects during your employment and simply want to protect your existing work. A clause that explicitly rejects S11(2) of the Act in relation to work undertaken outside of your employment and not on company resources, that is specifically defined as "side projects" (including a non-exhaustive list of examples) and the rebuttable presumption that any such work is outside S11(2) unless proven to the civil standard in a court of law. This provides balance to both sides: the employee is free to pursue their side projects outside of work, but in the event that they work on them in company time and on company resources (e.g. a laptop) the employer is free to rebut that presumption in court and have the work transferred to them. Generally, the second clause seems to be what most employees would want in a contract to protect their side projects. Whether it can successfully be inserted depends on the negotiation between both sides. Most reasonable employers would not refuse it. The leading case on the matter of S11(2) is Penhallurick v MD5 Ltd [2021] EWCA Civ 1770 (02 December 2021) which future courts of first instance are presently bound to follow, unless the Supreme Court issues a different decision. What does "in the course of employment" mean? Per Penhallurick mentioned above, "in the course of employment" is generally held to mean doing things that you are paid for as part of your employment. For example, if you are a baker and you write a novel in your free time, it is clear that has nothing to do with your employment: you are not being paid by the bakery to write novels. However, if you were to write a baking cookbook that incorporated recipes that you developed at the bakery, that could be held to be done "in the course of employment" because the bakery could argue that you are paid to develop new recipes for them. The development of side projects in relation to software development is fraught with peril. A lot of employers will try and advance the argument that, although you did not develop the work using company resources and time, your work is still "connected" to the area they operate in. Well known examples of this include Google asserting ownership of software development side projects that, on the surface of it, aren't done on company time and resources and don't appear to have been done "in the course of employment" as you are not being paid specifically to work on, e.g. game development when you are employed as a website backend engineer. If the employer can present enough evidence that what you are/were working on is "connected" to their business in some fashion, that is (at present, in England and Wales) sufficient for ownership to transfer to them under S11(2) even if the work wasn't done in company time and/or using company resources. An example of a clause that seeks to protect side projects Both Parties agree that Section 11(2) of the Copyright, Designs and Patent Act 1988 ("the Act") does not apply to any and all Side Projects started prior to the commencement of employment. Both Parties also agree that S11(2) of the Act does not apply to any and all Side Projects started after the commencement of employment, specifically where said Side Projects are unrelated to the Employer's business of area of business. For the avoidance of doubt, "unrelated" has the ordinary meaning that a reasonable person would assign to it. For example, since the Employer operates in area of business, a Side Project regarding the development of an online video game is clearly unrelated to the Employer's business. This ex post presumption is rebuttable on the provision of clear and compelling evidence presented in a competent and validly constituted court of law in England and Wales that the Side Project was developed on company time and/or using company resources (e.g. a laptop) or that it validly infringes upon a business domain the Employer operates in. Both Parties agree that it will not be sufficient to adduce that the Employer "could" seek to operate in the Side Project's domain. For ownership to transfer under S11(2) of the Act, the Employer must demonstrate that they operated in that domain prior to the creation of the Side Project or that the Side Project has taken advantage of company resources that were not legitimately available outside of the company. For example, confidential company know-how that is specific to the Employer and not an industry standard or widely known thing. For the avoidance of doubt, use of open-source software (used in compliance with the licence and regardless of whether that software was created, released, or maintained by the Employer or someone else) does not constitute taking advantage of company resources. The Employer agrees to pay the Employee a sum of special damages assessed and awarded appropriately by a court of law in England and Wales for any attempt to subvert this clause or sue the Employee for a Side Project contrary to this clause. In the alternative, at the Employee's absolute discretion, a permanent injunction enforcing this clause may be awarded against the Employer. | 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. | Links are in French. As the author of a work, you would generally hold copyright unless there's a contract otherwise. L113 of the Code de la propriété intellectuelle determines who is the rights holder of a given work and I don't see anything there that changes things for you as a contractor. Even if you assigned some rights to your employer through a contract, France has moral rights which can never be ceded. In fact, even if you were a salaried employee, you still hold the rights by default, unlike the US. There are a few exceptions to that though: software, inseparable joint works, and works where the creative process was purely directed by your superiors. | Yep, you are. You still need to keep the LICENSE and NOTICE files in the repository, if there were any in your copy of the project. These files contain the terms and conditions for the project, and provide attribution to the original developers. If you're trying to attribute in the UI of your application, you probably should. It's considered courteous and in the spirit of open source as well. This is also related: Do I need to include the full text of the MIT license in the UI of my app? | The UK Government released an article last year that explains some of the issues relating to ownership of copyright This article is informative. The headline point: Ownership of literary, dramatic, musical, artistic and film works created by an employee during the course of their employment, automatically vests in their employer by virtue of section 11(2) of the Copyright, Designs and Patents Act 1988. The meaning of during the course of their employment has been interpreted by the courts to mean during the course of normal or specifically assigned duties, and that these duties include the creation of intellectual property for the employer. Patents are similarly affected - if the role does not specify or would not imply the creation of patents and other IP, it may not vest in the company automatically. This is a standard clause and is designed to protect the interests of the company, in the event that you create intellectual property as part of your role. Bear in mind here that there's no real need for this property to be created during work hours. That is, if part of your role is to design new software, ownership of that software vests in the company, whether you spent substantial amounts of work hours making it or not. Conversely, if your role does not include, or would be expected to include, the creation of intellectual property, then if you do so - even if it is during work hours - ownership may not necessarily vest in the company. IP you create in the course of your employment will vest in the company in the course of your employment will probably mean: if you are employed to create IP generally, all any IP resulting from your work, or; if you are employed to create a specific work, that work and possibly related works. This is a fairly standard clause, for most companies - I have had several jobs (though none of them technology-related) and they all include some clause to this effect | Can you locate your license (generally not a trivial task)? It may appear under Help-About and a click to view EULA. The EULA specifically addresses redistribution of parts of the software and number of installations you can make with a single license. They do not say what uses you make make of the software, except that "You may not rent, lease, lend or provide commercial hosting services with the Software". There is no express prohibition against commercial or non-commercial political use of the product: anything not prohibited is allowed. The fact that they say nothing about the content that you create with Word means, they have declined to have a say in the matter. (I am not sure about the wording of the "Educational" versions of Office: those are somewhat negotiated between the institution and MS). | You should probably get a lawyer, but my reading is this: The company whose SDK you use owns their SDK, owns their code, and is free to take any of your ideas how to improve their code without paying you. But they say that ideas are ten a penny, so this is mostly there to prevent pointless lawsuits. On the other hand, it says that everything you do with your product is yours. I might be completely wrong, that's why you should get a lawyer. |
What is the nature and purpose of the UK highway code? What type of instrument is a "code"? There seems to be an underlying statute, the Road Traffic Act, that it implements but what is the purpose of having a separate code? | The Highway Code is a Ministerial Direction that brings together in one place for easy reference legislational requirements (by the the use of "must" and "must not") and general guidance (by the use of "should" and "should not") for all road users. It's origins are section 45 of the Road Traffic Act 1930: Issue by Minister of directions for guidance of users of roads. (1)The Minister shall as soon as may be after the commencement of this Act prepare a code (in this section referred to as the " highway code ") comprising such directions as appear to him to be proper for the guidance of persons using roads and may from time to time revise the code by revoking, varying, amending or adding to the provisions thereof in such manner as he thinks fit. (2)The highway code and any alterations proposed to be made in the provisions of the code on any revision thereof, shall, as soon as prepared by the Minister, be laid before both Houses of Parliament, and the code or revised code, as the case may be, shall not be issued until the code or the proposed alterations have been approved by both Houses. (3)Subject to the foregoing provisions of this section, the Minister shall cause the code and every revised edition of the code to be printed and issued to the public at a price not exceeding one penny for each copy. (4)A failure on the part of any person to observe any provision of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings. This Direction remains in force to this day by virtue of section 38(1) of the Road Traffic Act 1988: 1)The Highway Code shall continue to have effect... | I'm not a lawyer; I'm not your lawyer. Victoria The Road Safety Act 1986 (Vic) s 73A makes the obstruction of the operation of a safety camera or speed detector an offence. It is likely that the obstruction of a mobile speed camera would fall within this offence. The law does not restrict the operation of the device to police, and so it may not be relevant whether the car was marked or not. New South Wales Certainly, the obstruction of an authorised officer is an offense as per the Roads Act 1993 (NSW) s 240 and the Road Transport Act 2013 (NSW) s 173 Obviously these apply to NSW and Victoria only; I haven't researched the other states yet. It's possible, though not definite, that other states will have similar laws. It is also likely, though not definite, that people who attempt to obstruct it may be charged with obstruction of traffic in some way, as most states require you to not obstruct the normal passage of traffic unreasonably. (eg Road Obstruction (Special Provisions) Act 1979 (NSW) s 4) | I doubt that you will find an official answer to that question. No law allows you to block passing (even if passing is illegal). Therefore, you must allow passing. There are laws against obstructing traffic. Japanese law addresses this, defining obstructing progress as starting to move or continuing to move in circumstances that would likely cause another vehicle or streetcar to have to suddenly change speed or direction in order to avoid danger You'd have to specify how you intend to "not let" a person pass you, but I can't imagine what you could do that would not be "obstructing progress". A recent anti-road rage law allows license revocation for violation. | 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 :-) | england-and-wales What would realistically happen to this person, legally speaking? Nothing The most common speeding offence is at section 89(1) of the Road Traffic Regulation Act 1984 A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence. And, section 1(1)(c) of the Road Traffic Offenders Act 1988 requires a Notice of Intended Prosecution (NIP) be served to the car’s registered keeper within 14 days of the offence, but as the car had false plates there is no way to identify who this was. If that 14 day deadline is not met, then the driver cannot be prosecuted regardless of any confession. | england-and-wales In England, the use of a horn when stationary is restricted solely to advise other road users of your presence "at times of danger". Not spotting that the light has gone green would certainly not fit that description. Use of audible warning instruments 99.—(1) Subject to the following paragraphs, no person shall sound, or cause or permit to be sounded, any horn, gong, bell or siren fitted to or carried on a vehicle which is— (a) stationary on a road, at any time, other than at times of danger due to another moving vehicle on or near the road... The Road Vehicles (Construction and Use) Regulations 1986 The policeman would be well within his rights and duties to provide you with a fixed penalty notice of £30. | It is true that in the US, valid Federal law supersedes state law or regulation when there is a conflict. Precisely because of this, state laws and regulations are normally carefully written to avoid such conflicts. It is very unusual for a federal law issue to apply in traffic court. The question does not say what Federal law issue you think will apply to your case. Most issues where Federal law might plausibly affect a state court process, such as a fourth amendment violation on a search and seizure issue, would not apply in traffic court, although they might apply in a criminal court proceeding. Federal law does not generally deal with traffic issues, nor does it preempt state traffic laws, because there is normally no conflict. There is a group of people, who often call themselves "sovereign citizens" who have a habit of making wildly invalid legal claims, and trying to claim that much of the law does not apply to them. Such people often assert elaborate theories about why certain laws do not apply, not infrequently involving the Federal Supremacy Clause. Such claims are invalid, and will not be received well by a court. A claim that one travels by "conveyance" rather than by "car" and thus state laws do not apply is such an invalid claim. The argument made in this answer is such an invalid claim. Chapter 18 of the US code does regulate commercial vehicles to some extent. Therefore in that chapter "motor vehicle" does mean "commercial vehicle" because those federal regulations do not apply to private vehicles. This does not mean that state regulations that apply to private vehicles are preempted or otherwise invalid. If you think a Federal Issue will apply during a traffic court session, it would be wise to consult a lawyer in advance. Many lawyers offer free or low-cost initial consultations. If you think a relevant legal issue is not being addressed, politely, briefly, and clearly explain the issue that you think applies. Do not yell at the judge or other court personnel. Do not try to "make up your own rules". You will be given a chance to indicate your side of the issue. Response to recent edit, and related comments Without a record of the actual court hearing you describe, there is no way to determine if the judge was acting correctly or not. Even with the record there might well be no way to determine what the judge had in mind, or why s/he acted as s/he did. I maintain that any argument that state traffic codes are in fact preempted by federal law, or apply only to commercial vehicles, or that an ordinary personal car is not a "motor vehicle" because of a definition in Blacks or any other dictionary, is legally unsound and frivolous, and could well subject a person who makes it in court to penalties for contempt. A particular judge might not want to bother with the matter, of course. I think i have answered the question as asked, in a way likely to be most helpful to people in general. Others may have other views. | Can anyone help me understand who's liable for any damages that occur? Yes, a judge. Seriously, in almost all cases in a collision between a turning car and a straight traveling cyclist, the car will be held responsible on the basis that the turn should not be commenced unless and until it can be completed safely. If the car has to stop during the turn, the turn shouldn't have been commenced. The only exception would be if evidence could be provided that the cyclist collided deliberately. Does it matter if it's the car that's damaged or the bicycle that's damaged? No |
Can a Supreme Court Justice be recalled? Hypothetically, an individual has been nominated by the President to fill an open position on the US Supreme Court. The Senate has held committee hearings, the entire Senate has advised and consented, and the new Justice has been sworn in and started work. Then, it becomes absolutely certain that the new Justice has acted in the past in a reprehensible (possibly criminal) fashion, and has lied about his behaviour to Congress. is there anything that any part of the government (President, Congress, or balance of Supreme Court) can do to remove the new Justice? | SCOTUS Justice Samuel Chase was impeached though not convicted by the Senate. Here is a list of federal judges investigated for impeachment, and a list of federal officials impeached. The first federal judge to be removed from office was John Pickering, and the most recent is Thomas Porteous. Only Congress has the power to impeach: SCOTUS cannot review an impeachment, and the presidential pardon power does not extend to impeachments. Article 3, Section 1 of the Constitution states that "... The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..."; Article 1, Section 2, Clause 5 says "The House of Representatives ...shall have the sole Power of Impeachment", and Article 1, Section 3, Clauses 6 says "The Senate shall have the sole Power to try all Impeachments". The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Article 2, Section 4 says "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors". Taken together, one might think that a civil officer can only be removed for criminal conduct while in office. This is by no means guaranteed, since it does not say that explicitly, and it is up to the Senate to determine whether, for example, lying during a confirmation hearing about previous conduct would satisfy the requirements of Article 2, Section 4. In order for them to make that determination, the House would have had to also previously decided that the alleged situation does constitute the conditions in that clause, since an official has to be both impeached and convicted, involving both houses. The conviction furthermore requires a 2/3 majority of the Senate ("no Person shall be convicted without the Concurrence of two thirds of the Members present"). | If the spouse of the US president filed for divorce, would a) the President have any claim of immunity from any litigation that followed (e.g. the division of assets in the matrimonial pot, child custody etc.), The President could claim it, but the President wouldn't win. Notably, a number of state governors and mayors have divorced while in office, and other foreign heads of state have been divorced while in office. For example, a U.K. court recently handled the divorce of a UAE monarch (over his objections to jurisdiction on sovereign immunity grounds), applying the same common law principles of head of state and sovereign immunities that exist in U.S. law and concluded that it had the authority to move forward with the case. Also, any Presidential divorce would take place in state court, not in federal court. Federal courts do not have subject-matter jurisdiction over divorce and custody cases (under the "domestic relations exception" to federal jurisdiction), so the civil action could not be removed to federal court, unlike federal criminal cases involving the official duties of the President and unlike civil cases over which the federal courts have jurisdiction. b) would all the proceedings be fully held in private, This would be in the reasonable discretion of the judge. It would not be a matter of right, but it is quite plausible that a judge might close the proceedings, especially if minor children were involved. c) could the President themselves be compelled to take the stand and Yes. A party to a lawsuit may always be compelled to take the stand, at least if no other person can provide a full substitute for the party's testimony. In ordinary civil lawsuits against the President, a President is usually compelled to testify only if an underling involved in the same matter cannot provide equivalent testimony. In many civil cases naming the President in his official capacity, the President has no personal knowledge of the facts and so can't be compelled to testify. But that would rarely be true in a divorce case, and would never be true in a divorce case where custody was an issue. This said, a state divorce court judge would almost certainly be very deferential to the scheduling concerns of the President for that testimony, and might allow that testimony to be provided remotely via videoconference so as to minimize the interruption this would pose to affairs of state and to address the security concerns of the Secret Service (i.e. the President's official bodyguards). d) what would happen if the President refused to do so? The judge could hold the President in contempt of court, which is punishable by fines and/or incarceration. But a more likely outcome, tailored to minimize interference with government business, is that the Court would sanction a President who defied an order to testify by assuming as a matter of law that any testimony from the President would have been unfavorable to the President and make a conclusive adverse inference on the evidentiary issues about which the President was asked to testify against the President. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | Part of the problem you'll find is that there are so few impeachments in U.S. History (Only 21 articles of Impeachment have ever been drafted, of which only 8 resulted in convictions) and SCOTUS is so selective on cases it chooses to hear, that only one case has ever been heard and that was upheld (Nixon v. United States). In that case, SCOTUS ruled that it did not have jurisdiction to rule on the legal question before it (was the new trial format a proper trial by the senate), but did not have an opinion one way or another to suggest that SCOTUS could not review other cases that come before it. One of the reasons they also haven't is in order to have a legal case in the U.S., the plaintiff must suffer actual harm. More impeachments ended without a conviction than with either acquittal (8), resignation before trial conclusion (4), and expulsion from senate (1, and will never occur again as Congressional office holders are not impeachable following this particular case). Since no harm was caused and courts do not rule on hypotheticals, a case with actual harm (conviction) must occur in order for SCOTUS to even consider hearing the case. Nixon does not bar SCOTUS from hearing more appeals resulting from Impeachment, it only bars those relating to the manner in which the senate chooses to hold the trial. | Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office. | If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | If the Supreme Court is the final authority The Supreme court is not the final authority. The Supreme Court is the court of last resort, but that does not prevent its case law from possibly being superseded or invalidated by constitutional amendments or the enactment of legislation. Wouldn't past and future courts be of equal authority No. Whether in the form of statutes or court decisions, laws are supposed to preserve ordered liberty. That entails the need to keep up-to-date with the state or evolution of civilization. If the Supreme Court case law --aka authorities-- were deemed inexorably perpetual, the entire judicial system would become imminently useless due to its inability to respond to new challenges [in the civilization] which are (1) encompassed by prior SC authorities, and yet (2) not properly assessed therein. |
Is prohibiting possession of obscene publications unconstitutional? In the Supreme Court Case Stanley v. Georgia, 394 U.S. 557 (1969), the Court declared that the "mere private possession of obscene matter cannot constitutionally be made a crime", at 559. However, it has been made clear by the Supreme Court that obscenity is not protected by the First Amendment. For example, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court noted that "pornography can be banned only if obscene", at 240. Aren't the two statements in Stanley and Ashcroft contradictory? What am I missing? | Overview The two statements, properly understood, are not inconsistent, and cannot be taken to mean that the Court has overruled Stanley, although the US Supreme Court can and does reverse its own prior decisions when it sees fit. Cases The five most relevant cases here are, in chronological order (which is significant): Roth v. United States, 354 U.S. 476 (1957) Stanley v. Georgia, 394 U.S. 557 (1969) Miller v. California, 413 U.S. 15 (1973) New York v. Ferber, 458 U. S. 747 (1982) Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) Note that Stanley refereed to the definition of obscenity from Roth, not the later (and still current) Miller standard. Roth covered two cases, one about mailing allegedly obscene publications, and one about possessing such publications with intent to sell them. Miller was about the unsolicited mass mailing of ads for works of erotica. It was alleged that the ads themselves were obscene, as well as the works advertised. Ferber dealt with a bookstore distributing child porn that was allegedly not obscene under Miller. Ashcroft dealt with laws attempting to extend the child pornography rules to images created using adults who appeared to be minors, or using computers to create images when no actual person had been involved as a model or subject. The law in question purported to prohibit such images whether or not they were obscene under Miller (or indeed under the earlier Roth standard.) Only Stanley dealt with the purely private possession of allegedly obscene images that were not alleged to be "child porn". Stanley The Stanley opinion states (at 560) that: Georgia concedes that the present case appears to be one of "first impression . . . on this exact point," ... That is, that the issue had not previously been addressed in case law, and so was not included in the Roth decision. The opinion goes on to state (at 560-563): It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e.g., Smith v. California, 361 U. S. 147, 361 U. S. 152 (1959); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 186-187 (1964) (opinion of BRENNAN, J.); Ginsberg v. New York, supra, at 390 U. S. 635. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute. The defendant in a companion case, Alberts v. California, 354 U. S. 476 (1957), was convicted of "lewdly keeping for sale obscene and indecent books, and [of] writing, composing and publishing an obscene advertisement of them. . . ." Id. at 354 U. S. 481. None of the statements cited by the Court in Roth for the proposition that "this Court has always assumed that obscenity is not protected by the freedoms of speech and press" were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. Indeed, with one exception, we have been unable to discover any case in which the issue in the present case has been fully considered. In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. In short, statements in Roth, and later cases that rely on Roth prior to Stanley that obscenity is not protected by the First Amendment were obiter dicta (comments by the way) as far as purely private possession was concerned, and were not binding precedent. Ferber In New York v. Ferber the Court held that teh Miller standard does not apply to child pornography. It wrote (at 756): The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. ..., however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. ... The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment. Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. [Footnote 10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Based on this reasoning, Ferber held that laws against child porn may prohibit content that is not obscene under Miller Ashcroft Now we come to Ashcroft v. Free Speech Coalition. That was a case about alleged child porn. The laws in that area are different. Existing law makes criminal the mere possession of child porn. The Child Pornography Prevention Act of 1996 (CPPA) sought to broaden this to include "virtual child porn" where no actual child was involved in the production process. The Court wrote: By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U. S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U. S. 15 (1973). Ferber recognized that "[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." 458 U. S., at 761. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U. S. C. §§ 1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value. The principal question to be resolved, then, is whether the CPP A is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber. Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual minors. 18 U. S. C. § 2252 (1994 ed.). The CPP A retains that prohibition at 18 U. S. C. § 2256(8)(A) and adds three other prohibited categories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture," that "is, or appears to be, of a minor engaging in sexually explicit conduct." The prohibition on "any visual depiction" does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called "virtual child pornography," which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a "picture" that "appears to be, of a minor engaging in sexually explicit conduct." The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor "appears to be" a minor engaging in "actual or simulated ... sexual intercourse." § 2256(2). ... Congress may pass valid laws to protect children from abuse, and it has. E. g., 18 U. S. C. §§ 2241,2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959) ("Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech" (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it"); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) ("In evaluating the free speech rights of adults, we have made it perfectly clear that '[s]exual expression which is indecent but not obscene is protected by the First Amendment''') (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989)); The Ashcroft decision held that "virtual child porn" which affected no actual child could not be treated in the same way as actual child porn, and could not be banned if not obscene under Miller. It did not deal with purely private possession. Conclusion In short, the statements in Ashcroft, Miller, and Roth that obscene content is not protected by the US First Amendment do not deal with laws prohibiting purely private possession of such content, with no intent to distribute or sell the content. Thus they are not inconsistent. | Of course it is protected by the first amendment. Everyone in the US is protected by the first amendment. It's possible that some statements published on the site might fall afoul of any of the well established exceptions to first amendment protection, but in general the site is protected. | Short Answer "An obstruction conviction cannot stand when it is based on speech protected by an individual’s first amendment right to criticize on-duty police officers" Source: Amicus Brief to Supreme Court of the State of Washington in State of Washington v. E.J.J. I agree with @DaleM's answer. And I want to add to it by picking up on a nuance of the question I don't think DaleM's answer addresses specifically. This question might be about obstruction, not slander. Although the OP specifically mentions slander in their question, I think the context suggests the question actually concerns something different. Like perhaps, obstruction. For example, The question title specifically says, "curse [at]... an officer..." and the OP characterizes their behavior as follows: "I belittle them..." "...and make them really think about what they're doing" "...what if I really embarrass an officer with something I say..." My read of the question suggests (to me) the OP is describing "name-calling" or "insulting" the police by saying things like: "You're an X." (where X is an insulting term or label) A case involving facts similar to what the OP describes has recently been tried, appealed and resolved by a state supreme court. State supreme court ruled in favor of First Amendment protection. The Washington state supreme court ruled as recently as June 25, 2015 on a case that dealt with this issue. [The Seattle Times reports here][3] that the [Washington State Supreme Court has ruled in the case of State of Washington v. E.J.J.][2]: "First Amendment protects profanity against police" A teenage boy convicted of obstruction after yelling and cursing at three Seattle police officers while they were investigating a disturbance at his house had a First Amendment right to behave the way he did, the Washington Supreme Court said in an opinion Thursday. Citizens who curse at police and call them abusive names while they’re investigating a crime are protected from arrest by the First Amendment’s guarantee of free speech, the state Supreme Court ruled Thursday in a case out of Seattle. | Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment. The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business. If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner. And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all. In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech ("I am vaccinated") in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment. That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest. The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it: Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact. And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated. (N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.) Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause. The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce. When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state? A "yes" answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required: Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities. Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument. | The US flag is not protected by copyright. Nothing as old as the flag is protected by copyright under US law. Indeed no work published in the US prior to 1925 is now protected, except for works of non-US origin protected under the Uruguay Round Agreement Act (URAA) 4 USC sec 8 purports to PRESCRIBE the treatment of the flag, and paragraph (g) says: (g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature. However, as this Wikipedia article points out, 4 USC 8 and related sections are advisory, not binding, and no penalty is provided for violating them. 4 USC 3 provides a $100 fine: or 30 days jail time for: Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature; or who, within the District of Columbia, shall manufacture, sell, expose for sale, or to public view, or give away or have in possession for sale, or to be given away or for use for any purpose, any article or substance being an article of merchandise, or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached, or otherwise placed a representation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court. The words “flag, standard, colors, or ensign”, as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America. 18 USC 700 was a criminal statute punishing anyone who: mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States But 18 USC 700 was struck down by the US Supreme Court as a violation of the First Amendment in United States v. Eichman, 496 U.S. 310 (1990) Se also the full text of the decision. The decision said, in relevant part: The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, Brief for United States 28; see Johnson, 491 U.S., at 405-406, 109 S.Ct., at 2540, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This we decline to do.4 ... Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related 'to the suppression of free expression,' " 491 U.S., at 410, 109 S.Ct., at 2543, and concerned with the content of such expression. The Government's interest in protecting the "physical integ rity" of a privately owned flag5 rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way. ... As we explained in Johnson, supra, at 416-417, 109 S.Ct., at 2546: "[I]f we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be . . . permitting a State to 'prescribe what shall be orthodox' by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity." Although Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact. The above quotes without acknowledgement West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) where the majority opinion includes the often-quoted passage: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Any legal device to prohibit modified versions of US flags, particularly when these are in fact being used to make or symbolize political arguments or positions, would fall under the same rule, and would be equally unconstitutional. | SCOTUS suggests in Townsend v. Sain, 372 U.S. 293, that a subject's confession was constitutionally inadmissible if it was adduced by police questioning during a period when petitioner's will was overborne by a drug having the properties of a "truth serum." In Miranda v. Arizona, it is held that If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U. S. 478, 490, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 (1938), and we reassert these standards as applied to in-custody interrogation. Subsequently in Colorado v. Connelly, defendant suffered from psychosis that "interfered with his ability to make free and rational choices and, although not preventing him from understanding his rights, motivated his confession." The court found that Coercive police activity is a necessary predicate to finding that a confession is not "voluntary" within the meaning of the Due Process Clause. Here, the taking of respondent's statements and their admission into evidence constituted no violation of that Clause. While a defendant's mental condition may be a "significant" factor in the "voluntariness" calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness." In the Massachusetts case Commonwealth v. Hilton, 443 Mass. 597, the Mass. Supreme Court (in the first ruling) said that We see no error in the judge's finding that the defendant's mental infirmities were such that she did not understand the Miranda warnings, and we therefore conclude that statements made after the interrogation did become custodial were properly suppressed. On remand and after in a second appear, in Commonwealth v. Hilton, 823 N.E.2d 383, the Massachusetts Supreme Court ruled that a finding that the defendant was unable to make a knowing, voluntary, and intelligent waiver of her Miranda rights is not enough, standing alone, to support the finding that her statements were involuntary. The court found that the defendant was competent to stand trial contrary to the trial judge's determination, and said that because we are unable to determine if the judge would have allowed the supplemental motion to suppress without the erroneous findings, we vacate the order for suppression and remand for further consideration. The point here is that being mentally disabled is not per se proof that a confession is involuntary. Turning specifically to intoxication, in Colorado v. Jewell, the trial court suppressed a confession while intoxicated "based on its finding that Jewell was too intoxicated to knowingly and intelligently waive his right to remain silent." The Colorado Supreme Court reversed the suppression [b]ecause the facts do not support the trial court's determination that Jewell's intoxication was so severe that he was demonstrably unable to knowingly and intelligently waive his Miranda rights which leaves open the possibility that there is some such degree of intoxication. The court determined that Intoxication only invalidates an otherwise valid Miranda waiver if the court finds through a preponderance of the evidence that the defendant was incapable of understanding the nature of his rights and the ramifications of waiving them. Subsequent discussion partially fleshes out how one might determine whether a waiver is unknowing or unintelligent. Citing Colorado v. Kaiser, the court suggested considering whether “the defendant seemed oriented to his or her surroundings and situation; whether the defendant's answers were responsive and appeared to be the product of a rational thought process; whether the defendant was able to appreciate the seriousness of his or her predicament, including the possibility of being incarcerated; whether the defendant had the foresight to attempt to deceive the police in hopes of avoiding prosecution; whether the defendant expressed remorse for his or her actions; and whether the defendant expressly stated that he or she understood their rights.” One issue was raised regarding "cases where, as here, the intoxication is self-induced." A fundamental result of the mass of Miranda case law is that coercive actions by police invalidate a confession. Getting a suspect drunk(er) would be a clear case of a coercive police action, and presumably would be inadmissible under Townsend v. Sain. | In the united-states, those actions would be fully protected by the First Amendment. Andy has a constitutional right to speak freely about essentially whatever he wants -- including Mary's criminal conduct -- unless his speech falls into one of several narrowly defined categories, none of which would apply in this case. And because Mary has already put this information out on the Internet, it is likely not sufficiently private to support an invasion-of-privacy claim. However, the unfortunate reality is that complainants, police, prosecutors, and judges frequently ignore First Amendment protections. Indeed, many states have laws against "cyberstalking" and "telecommunications harassment" that are incredibly broad, and that clearly apply to conduct protected by the First Amendment. For instance, Ohio's telecommunications harassment statute makes it a crime to send an e-mail "with purpose to abuse, threaten, or harass another person." This means that many people who engage in First Amendment-protected speech end up getting prosecuted anyway. If they pay for a good lawyer who knows how to properly raise a First Amendment defense, they may escape any penalties. But because most defendants do not have those resources, and because many lawyers are unaware of the First Amendment implications of such prosecutions, most defendants in such situations likely end up being convicted despite behaving perfectly legally. In the united-kingdom, though, the situation is very different. Even if Mary is breaking the law, and even if Andy limits himself to strictly factual information about what's he's learned about her conduct, he may still be held civilly liable. Mary may also be able to pursue Andy criminally for harassment if his e-mail causes her substantial emotional distress, and civilly for "harassment by publication." The fact that this information is already public is likely not going to go very far in changing the analysis. Andy's best course of action is therefore to play it safe by keeping his mouth shut. Doing so has both legal and nonlegal benefits: He avoids exposure to the hassles of defending himself from criminal charges and he gets some time to examine the resentment, jealousy, paranoia that makes him want to humiliate his "friend." | In general this is protected by the first amendment. It is not in general a problem describing how one can one can do something illegal. But there are special cases to be careful with. You might want to do some research into the limits on free speech. It would be hard to provide an answer that fully covers all your different cases and you would need to be more specific about what illegal activity you want to describe. In describing how to do something illegal, you might accidentally share information that you are not allowed to share. When you post things online, this can be considered as publishing or exporting. Therefore certain export restrictions might apply. Also, It is illegal to publish bomb making manuals, with the knowledge or intent that this information be used to commit a federal crime of violence. See https://www.law.cornell.edu/uscode/text/18/842. There are restrictions on publishing material relating to cryptography without having an export license. Granted, this isn't necessarily related to publishing things that are illegal, but just to give an idea about how publishing/exporting knowledge can causes problems. See https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States ITAR (International Traffic in Arms Regulations) sets restrictions on what you can publish about arms. What you publish can't be “directed to inciting or producing imminent lawless action.” See for example https://en.wikipedia.org/wiki/Brandenburg_v._Ohio. One might imagine that you could get into trouble if someone interprets what you do as inciting or producing a lawless action. It might sound obvious, but you want to make sure that you have the right to share the information that you have. The information that you are providing might be copyrighted in some way. |
What is a binary form in software BSD license (and other licenses that didn't define it)? BSD license says (emphasis mine): Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met... It sounds "binary form" refers to the form of software in which the content is just an array of 1's and 0's, which are, after all, "binary". But what about the output form that is not exactly 1's and 0's? For instance, JavaScript files get minified/uglified in a "bundling process" (a usual step in website and JS library building), the output isn't exactly 1's and 0's, but very-difficult-to-read files, for example: !function(a,b){"object"==typeof module&&"object"==typeof module.exports?module.exports=a.document?b(a,!0):function(a){if(!a.document)throw new Error("jQuery requires a window with a document");return b(a)}:b(a)}("undefined"!=typeof window?window:this,function(a,b){var c=[],d=a.document,e=c.slice,f=c.concat,g=c.push,h=c.indexOf,i={},j=i.toString,k=i.hasOwnProperty,l={},m="1.12.4",n=function(a,b){return new n.fn.init(a,b)},o=/^[\s\uFEFF\xA0]+|[\s\uFEFF\xA0]+$/g,p=/^-ms-/,q=/-([\da-z] Are these output files covered by the definition of "binary form" of the BSD license? Another example is raw HTML, CSS, and textual files - after "bundling", they usually stay more or less the same as the source. Are they covered by the definition of "binary form" in the BSD license? This is a hypothetical question to test the robustness of the license's wording. | Ultimately, these terms would have to be interpreted by a court in order to get clarity. But the phrasing “source or binary form” should likely be understood as “not just source form, but any form of the software”. The BSD license family does not have different conditions for different forms of the software, so it is not necessary to understand what precisely a binary form is – just whether a software is in “source or binary form”. As far as I can see, minified or bundled software are a “source or binary form”. The BSD licenses' attribution requirements will apply. There are licenses that do make a distinction. For example, the Boost license is BSD-like with respect to the source code, but exempts binary forms from its attribution requirements. But Boost provides a clearer definition: “machine-executable object code generated by a source language processor”. The GPL family also makes a distinction, because it always requires the source code to be made available. The GPLv3 defines the source code as the “preferred form for making modifications”, and object code (binary form) as any non-source form. | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | The GPL does require you to keep any existing copyright notices: You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you [...] keep intact all the notices that refer to this License and to the absence of any warranty [...] The GPL also recommends adding a notice to each file: Copyright (C) yyyy name of author - This program is free software[...] From my reading of the GPL, if the software you modify contains such notices, which is likely, you must preserve them. This effectively attributes the original author. However, as far as I can see, there is no requirement to have a list of acknowledgements (as is customary in scientific papers), which lists all the software you used. How to attribute parts that are integrated in source form? (Where licence information is given in the file header) If you keep the original file header (and possibly add to it), that should be enough. How to attribute parts that are integrated in binary form? As far as I can see, there is no additional attribution required for distribution in binary form. The GPL requires you to supply the source code along with the binary form, so the attribution in the source code will be available. | As you've presented them, I doubt the functions are protected by copyright in the first place. Originality is one of the threshold requirements for copyright protection, and it demands that the work in question be independently created by the author, and that it possess some minimal degree of creativity. If you're talking about programming at a level so basic that the function truly must be created in a particular way, there is no originality in simply following the instructions. And even if there's some wiggle room, but the language you used has likely been independently replicated by many programmers, that's still not original enough to be copyrightable. What you want to watch out for, though, is the possibility that they've been combined into an original arrangement that is protected. I don't know enough about how copyright law is applied to code to say where or how that line is drawn, but my instinct would be that it could be a fairly low threshold. | Yep, you are. You still need to keep the LICENSE and NOTICE files in the repository, if there were any in your copy of the project. These files contain the terms and conditions for the project, and provide attribution to the original developers. If you're trying to attribute in the UI of your application, you probably should. It's considered courteous and in the spirit of open source as well. This is also related: Do I need to include the full text of the MIT license in the UI of my app? | The Organization Does Not Own the Copyright As you were clearly not an employee of the organization, and did not have a specific contract with them, this was not a "work-made-for-hire" (WFH). Therefore, the copyright initially belonged to the author, in this case the programmer, that is you. That being so, it would require a written document to transfer the copyright to another during your lifetime. In future there should be a written agreement in such a case, spelling out just what rights are to be retained by whom. It can save lots of trouble. The organization would have an implied license to use the software. The terms of this would be defined by the conduct of the parties, and might be a matter of dispute. Probably there would be a non-exclusive license without any fee or ending date. Probably there would be no license to distribute to others unless you explicitly grant one. Specific US Laws 17 USC 101 defines a WFH: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (emphasis added) 17 USC 201 provides that: (a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire. — 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. ... (d) Transfer of Ownership.— (d) (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (d) (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. 17 USC 204 provides that: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. |
How is it legal to marry and impregnate a female under the age of consent? https://www.youtube.com/watch?v=VB-BNlauWUs How is it legal to marry and impregnate a female under the age of consent? How can the guy not get arrested if he impregnated a female under the age of consent in the United States? Is there some kind of legal loophole that allows something like this to happen? The video shows a short (47 sec) scene in which a young woman, said to be 14, is in apparent pain while being treated by two medical caregivers (whether doctor or nurse or what is not stated nor obvious). She is accompanied by an older man, apparently in his late 40s or 50s. He is refereed to as "Reverend" and says that he must be in another town at some distance to preach at a revival meeting the next day. It is said that the young woman had a "spontaneous miscarriage" the next day. As the caregivers examine her and ask her questions, she seems to look to the older man for permission to answer. At the end the caregivers refer to the woman as "your daughter" and the older man looks surprised and insistent and states that she is his wife, and the clip ends on that statement. It is not clear if this is part of a drama or a dramatized report of real events. | "Age of consent" is a legal meme that refers indirectly to different criminal statutes, for example in Missouri under MO Rev Stat § 566.034, A person commits the offense of statutory rape in the second degree if being twenty-one years of age or older, he or she has sexual intercourse with another person who is less than seventeen years of age §023 also states that "It shall be an affirmative defense to prosecutions under sections 566.032, 566.034, 566.062, 566.064, and 566.071, that the defendant was married to the victim at the time of the offense". MO Rev Stat §451.090 allows marriage with parental permission to those aged 16 and 17 (by prohibiting licensing of marriage to those younger) No recorder shall issue a license authorizing the marriage of any male or female under sixteen years of age nor shall a license be issued authorizing the marriage of any male or female twenty-one years of age or older to a male or female under eighteen years of age. Combining these legal parts, you get the result that a man may marry and impregnate a woman whom he could not legally have intercourse with (irrespective of pregnancy) were they not married. It just depends on what the specific law says. | Can you always ask for an independent genetic testing when you are asked by the court to support your wife's or your partners children? No. Only sometimes. (Literally, you can always ask, but sometimes the answer will be clearly "no", as a matter of law.) Some presumptions of paternity are conclusive (either immediately or after a statute of limitations to contest paternity expires) and can't be overcome by contrary genetic evidence. Other presumptions of paternity are rebuttable. The specifics vary in important details from state to state. The theory behind the conclusive presumption is primarily that the presumed parent in those circumstances becomes the psychological parent, and it is not in the best interests of the child to dislodge a psychological parent, even if that parent is not a biological parents. Put another way, a conclusive presumption is really part of the definition of what a father is under the law. Several other answers at Law.SE have addressed this in the context of specific U.S. states. An answer here considers California law and another answers the question under New York law. | Is there any state where someone doing this would potentially face manslaughter or murder charges, due to some variant of a 'life starts at conception' anti abortion law? Not really. Those laws are currently unconstitutional. A state could certainly prescribe some criminal punishment in a case like this one, but punishing under existing manslaughter or murder laws would almost surely not be upheld under existing law (subject to change without advanced notice by the U.S. Supreme Court). If someone knowingly and intentionally destroyed an embryo conceived via IVF but not implanted yet what kind of consequences do they face? Is the potential life treated differently or is this just destruction of property? This is a tough question that probably doesn't have a uniform answer under the law of all U.S. states. For one thing, it isn't clear who, if anyone, has property rights in the embryo. It is certainly conceivable that a state might instead conclude that the donor receiving the IVF treatment has only contract rights in it (and breach of a contract is not a crime). It might be viewed as a property destruction case. There might be a specific statute on point. There might be a civil lawsuit remedy. In most states, this would be an issue of first impression and a court would look a competing ways that cases had been handled in other jurisdictions to decide what to do in its case. | Can Alice still get child support, or will she be denied because she can not definitively prove which man is the child's biological father? The legal standard is a preponderance of the evidence (i.e. more likely than not) and there is plenty of evidence that can be offered in addition to DNA evidence, such as testimony under oath from people in a position to know who was having sex with whom at the relevant times. Contrary to a common misconception, testimony under oath is still solid evidence that can support a verdict on appeal. Alice had neither a long standing romantic relationship with Bob nor anyone that was a witness to the sexual act, thus making the question of who she slept with difficult to prove. It isn't that hard to prove. Q to Alice's physician: Based upon an ultrasound, when did Alice conceive? A: April 5-8, 2021. Q to DNA expert: Based upon the DNA test, who could the father be? A: Billy or Bob. Q to Alice: Did you have sex with Billy between April 5-8, 2021? A: No. Q to Alice: Did you have sex with Bob between April 5-8, 2021? A: Yes. Q to Billy: Did you have sex with Alice between April 5-8, 2021? A: No. Q to Billy: Why not? A: I was at the Shuffleboard World Cup in Tibet, I have time stamped pictures. Q to Bob: Did you have sex with Alice between April 5-8, 2021? A: -- if Yes, judge says he believes Bob and Alice and the case is over. -- if No, the judge decides who among Bob, Billy, and Alice the judge believes based upon other evidence. Ultimately, the judge has to rule between the two based upon non-genetic evidence and resolve credibility disputes just as in any other case that doesn't involve DNA evidence (which is the vast majority of cases). Also, the edge cases are few are far between. Identical twins are rare to start with, and few women have sex with more than one identical twin in the several day period when she could have conceived or didn't know which twin she had sex with. It has happened at least once in history (post-DNA testing), but you can probably count the number of times that it has ever happened on one hand. For example, presumptions from cohabitation, marriage, and claims of paternity often resolve paternity disputes without DNA evidence. Further, to the extent that there is good faith uncertainty (perhaps everyone agrees that the mother has sex with both twins on the only possible day of conception and nobody really knows), the downsides to a mistake in the larger cosmic sense of the overall paternity law system are minimal, as identical twins very rarely become deeply alienated from each other and instead tend to be close and intensely cooperative once they discover each other, and tend to be similar to each other in almost every respect depriving the child of little if the court gets it wrong. Realistically, identical twins are particularly likely to settle out of court so the judge doesn't have to decide. In one of the only two actual cases I could locate that went to trial (in Brazil), both twins were ordered to pay child support because the evidence showed that they actively conspired with each other to confound the mother and the court regarding who the father was, and conspiracies can support joint and several liability. The other case reported in a news story had convincing circumstantial evidence supporting one identical twin over the other that probably establish a presumption of paternity for one twin and not the other. One of the twins, who cannot be named for legal reasons, went to court last summer in the hope of forcing the mother to grant him access to the child. Although his name is not on the birth certificate, he claims he is the only father the boy has known, cared for him every other weekend, provided financial support and was even known to him as 'papa'. But then the man's relationship with his girlfriend broke down and the visits halted. When he began legal proceedings to prove his paternity, the mother made her claim that she had been sleeping with his twin at around the same time. The twins have said they knew they were both having sex with the woman, but argue that only one had sex during the period of conception. Both refused to undergo a DNA test: the complainant refused to pay the £335 charge while his brother, who has since married and fathered children, does not consider himself involved in the dispute. Now, however, Judge Jolin has asked the complainant to take a DNA test by 1 December to ensure he can claim even possible paternity, while his brother may also be tested. (The second case is in Quebec and the cost of the test in pounds is apparently a currency conversion value.) (It is possible in principle to distinguish even identical twins from each other with high coverage whole genome tests that would reveal a few random mutations in each twin out of billions of possible mutations, but it is currently prohibitively expensive to do so.) Can she even get a paternity test given that it would not be definitive proof which man was the father? Yes. This rules out all 4 billion men in the world minus two of them. It has great probative value, narrowing the list of possible fathers down to two. | There are several reasons people wish to get a marriage annulled. I'll try to list them in order of frequency -- though I'm unaware of any statistics that confirm that my ordering is correct. Money. As per Nij's comment, when people are divorced, their property is subdivided 50-50. If one person can get away with an annulment, and keep the property which he earned, then it will be in his interests to do so. Religious reasons. As per SJuan76's comments, several churches, including Catholic, Mormon, and Russian Baptist, do not allow a person to marry if his previous spouse is still alive. An annulment is a way around that. Fraud marriages. This is rare, but under Trump it happens more often then you might think. People (usually women) come to the US illegally, marry someone (generally significantly older), and after the wedding day they are never again seen by their spouse. They use their marriage certificate to ensure permission to stay in the US -- but, they were never interested in marrying that person in the first place. When found, often such people are living with another illegal alien "as a boyfriend", with kids born before the fraud marriage even took place. It is in such cases, that their new spouse often tries to attain an annulment of the marriage -- to make sure that the illegal alien doesn't get rewarded for cheating them. Personal reasons. For some people, having never been married means it's easier to get a spouse who also has never been married -- and being able to check the "Single -- Never married" box on a form is always a plus in such cases. Now, don't ask me why people prefer to marry someone who's never been married, over someone who's been divorced. :) Incest. Under the US law, if you marry someone who's your close relative, then you are guilty of a felony -- even if you didn't know they're your close relative at the time of marriage. However, if you annul the marriage, then you can avoid prosecution. | Socially the woman has become a "kept woman". It would not be rape, at least in most jurisdictions, because the officer is using neither force nor threats of force. The duress is from her economic and general circumstance, and most jurisdictions would not consider that to be rape. At least technically, this is a form of prostitution, but a form very rarely prosecuted. Maryland maryland is a not untypical jurisdiction as US law goes in such matters. § 3-303 of the Naryland Criminal Code (Rape in the first degree) provides that: (a) Prohibited. -- A person may not: (a) (1) (a) (1) (i) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; or (a) (1) (ii) engage in a sexual act with another by force, or the threat of force, without the consent of the other; and (a) (2) (a) (2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; (a) (2) (ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime; (a) (2) (iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; (a) (2) (iv) commit the crime while aided and abetted by another; or (a) (2) (v) commit the crime in connection with a burglary in the first, second, or third degree. Section 3-304 (Rape in the first degree) provides that: (a) A person may not engage in vaginal intercourse with another: (a) (1) by force, or the threat of force, without the consent of the other; (a) (2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or (a) (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim. Sections 3-306 thru 3-307 have similar provisions but they mention "sexual act" rather than "intercourse" and they do not define the crime as "rape" but as "sexual offense". But the emphasis on force or threat of force, and lack of consent is much the same. So it seems that under Maryland law, at least, the situation described in the question would not be legally "rape" nor a "sexual offense". Maryland Criminal code § 11-301 (2018) defines prostitution in subsection (c) which reads: (c) Prostitution. -- "Prostitution" means the performance of a sexual act, sexual contact, or vaginal intercourse for hire. Whether the provision of food, shelter, and protection by one person to another in return for sex would be considered "for hire" is arguable. In practice such arrangements, even if they also involve cash payment, are rarely if ever prosecuted. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even "inappropriate for children". Which are so classified depends on the laws of the particular jurisdiction. |
Does Mens rea need to be concious? Mens rea or "guilty mind" is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes. Consciousness is a tricky concept, but most/all of us recognise it in ourselves. It is uncertain exactly how much effect it has on our behaviour, with the famous Libet experiments indicating that in some situations at least it may not be involved in decision making that is otherwise assumed to be conscious. One thing we can agree on is that it is a function of the higher brain, the cerebrum, rather than the lower and more primitive parts of the brain that control things like our heart. Does a Mens rea need to be a conscious guilty mind to be found responsible for a crime, or does an unconscious mind have the capacity to be guilty? The case that I was thinking about was abortion, and the criminal liability that between elective and spontaneous abortion. If we regard the implications of the spontaneous abortions that occur following traumatic events, and we assumed that certain currently unknown scientific facts were determined: Consciousness does have an effector role on behaviour The spontaneous abortions that occur following traumatic events are mediated by the brain stem, ie. defiantly in the subconscious part of the brain This effect can be triggered consciously, perhaps by thinking about stressful things every few hours for a few days Given that causing an abortion is illegal in the jurisdiction considered, what would constitute a guilty mind in this situation? An abortion triggered by an extraneous stress (such as 9/11 as in the study), because the mind was involved? An abortion triggered by an internal stress, perhaps the decision to change jobs or move house? An abortion triggered by intentional stress, generated for the purpose of causing the abortion? | england-and-wales Automatism If a defendant ... can show that they committed a crime as the result of an involuntary act they may be able to plead the defence of automatism. Note that: It is up to the jury to decide whether the defence is made out and that the defendant was acting involuntarily due to an external factor. | There are numerous what-ifs. Society’s moral values and thus laws may change. Or the unlikely death of your wife makes this question moot. (Let’s hope not.) Yes, failure to render assistance is punishable under § 323c Ⅰ StGB. Everyone can commit this crime (Allgemeindelikt). However, this section concerns accidents, contingencies or other unplanned adverse events. In your specific case there is no element of “surprise” though, quite the contrary. Your wife does not even need to be aware of the circumstances; the assessment “is there an accident” is made objectively. Having said that, unfortunately there’s a difference of opinion how courts judge (case law) and how “legal scientists” (at law school) think. Ultimately it depends on what evidence investigators find. Frankly, § 323c Ⅰ StGB is a “minor issue” here. You can get at most “just” a one-year-sentence. And there’s the option to consider one’s own spouse’s death as poena naturalis, thus refrain from imposing any penalty because the grieving widow “won’t learn anything” from that, § 60 1 StGB←§ 153b StPO. I’d worry more about §§ 211 ff. (murder, manslaughter, etc.): To kill someone means, a) any short‑term shortening of lifetime through action, or b) in the case of § 13 StGB, any failure to potentially prolong the lifetime. § 13 StGB, Garantenstellung, also applies to spouses, cf. § 1353 Ⅰ 2 BGB. It could be argued that failure to take, say, a loaded firearm away from you constitutes manslaughter. Or, worse, maybe you’re particularly wealthy and she’ll inherit your assets. This could be construed as greed, an aggravating circumstance. At any rate it’s necessary that the omitted action makes a difference, i. e. prevents or at least inhibits the crime’s success (your death). At some point, with terminally-ill patients, you might say “he’ll die tomorrow anyway”. Then your wife could attend your suicide. Finally, for a legally airtight plan I’d seriously consider to change the jurisdiction though, e. g. by going to Switzerland. Everything happening here is subject to German criminal law, § 3 StGB. PS: Marriage can be viewed as a kind of contract. In principle you are completely free in formulating its terms. However, you cannot make provisions concerning termination of life (nichtdisponibles Rechtsgut). | The specific elements of the crime in question are going to be defined by Maltese law, which appears to be a blend of a European-style civil code with English-style common law. However, under ordinary Anglo-American standards, the alleged acts do seem to meet the legal definitions of these terms. At common law, an "assault" consists of placing someone in fear of an unwanted touching, and a "battery" is a completed assault; that is, an actual unwanted touching. If Mr. Suda, as alleged, took the victim's hand and touched it to his own genitals, without her consent, he committed an assault and battery. Any touching can constitute a battery, from a tap on the shoulder to a bullet in the head. Likewise, at common law, "violence" is any degree of physical force. If he tricked her into touching his genitals, that would not be a crime of violence; if he physically moved her hand to his genitals with his own hand, then he used physical force, or violence, to commit the crime. Again, what actually needs to be proven will depend on specifics you would need a Maltese lawyer to go into--but under general common law principles, neither "assault" not "violence" are particularly surprising. | canada The law "The [Criminal] Code requires 'ongoing, conscious consent' to 'each and every sexual act' and can be revoked at any time." See R. v. Sweet, 2018 BCSC 1696, citing R. v. J.A., 2011 SCC 28. "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance." R. v. J.A., para. 66. The Supreme Court has explicitly declined to decide "whether or in which circumstances individuals may consent to bodily harm during sexual activity" (R. v. J.A., para. 21). However, in the context of a non-sport fist fight or brawl, one cannot consent to another intentionally applying force that causes serious hurt or non-trivial bodily harm: R. v. Jobidon, [1991] 2 S.C.R. 714.1 And at the provincial appellate level, it has been held that "consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm" (R. v. Quashie (2005), 198 C.C.C. (3d) 337 (Ont. C.A.)). Consent would be irrelevant in a charge of criminal negligence or manslaughter, if the activities were to escalate this far (R. c. Deschatelets, 2013 QCCQ 1948, para. 175-77). The content of advance negotiations is not relevant to whether the complainant was consenting to the impugned conduct, however, it may be relevant as evidence of expectations about how consent would be communicated between the parties throughout the conduct. See R. v. Barton, 2019 SCC 33, para. 93 (citations omitted): For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.” These “negotiations” would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. See also R. v. Sweet, 2018 BCSC 1696, para. 141: ... consenting adults may enjoy the personal autonomy to establish rules such as “no means yes”. If so, in my view, this passage suggests a corollary requirement to establish an alternative “safe word” or other mechanism to ensure that each party is also able to maintain their personal autonomy to put an end to unwanted sexual activity. Application A contract cannot provide advance consent, therefore it is irrelevant as to proof of consent during the acts. However, advance agreements can (and several courts suggests should) set out the expectations about how consent will be communicated. Any evidence of such agreements would be relevant to establishing the defence of "mistaken belief in communicated consent." None of this would assist an accused in the circumstance where a court finds that any consent was vitiated because the accused deliberately inflicted pain or injury that gave rise to bodily harm (this position has not been confirmed by the Supreme Court). If you are simply asking how to prove a fact in litigation, see this Q&A. 1. Since this is a judicially-developed limit, the conception of "bodily harm" used here does not necessarily have to match that codified in the Criminal Code. But: "The common law definition of 'bodily harm' has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling'" (R. v. Martineau, [1990] 2 S.C.R. 633). | 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. | Intent would greatly factor into the case. As mentioned, possession of child pornography is illegal. There was a case, where a man had inadvertently downloaded such images. In the case, it was shown that there was sufficient evidence that it was accidental and without his knowledge. Presumably, if you by happenstance created an identical code through encryption/compiling, there would be a lack of evidence of intent or evidence of your intended use. For example, your stored password manager file happens to store data identical to an illegal image. The password manager output is provable and repeatable to show that it was simply circumstantial. If you have hundreds of such outputs that all "just happen to be illicit images" you would probably fall on the wrong side of reasonable doubt. As to whether you can keep the data, the programmers for the password manager would probably update their system to modify the output to avoid bad press. The general idea is that the "illegal number" is so incredibly specific that accidental cases are very unlikely to occur, and if it did, that there would be forensic evidence indicating intent and use. | In law, there is a distinction between mistake of fact and mistake of law. If the law prohibits X, and you think you're doing Y, that's a mistake of fact. If the law prohibits X, and you know you're doing X, but you think the law prohibits Y, that's a mistake of law. Mistake of fact is generally a defense (although that principle is being eroded), but mistake of law is not. In your hypothetical, you clearly had the intent to sell coffee, so you had mens rea. Mens rea refers to the intent to perform the act that is illegal, not the intent to break the law. If you intend to follow the law, but intentionally perform an act that is against the law, it is the latter that forms mens rea; mens rea refers to your intent regarding the act you are performing, not your intent regarding the law. | 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. |
Can a married couple be charged with a traffic infraction? In the state of Washington USA, my daughter and son-in-law were joint recipients of a red light camera ticket. The law clearly states that the "operator of the motor vehicle" is responsible for the fine, so it would seem to me that the burden of establishing who that operator was is on the state. (they are both registered owners of the vehicle in question) What is the legal basis for the state charging two people with an infraction and leaving it up to the accused to determine who is at fault? ADDENDUM: There are some good and thoughtful answers here, and I appreciate the effort. However, most center on describing the camera ticket process or explaining response options, which isn’t what I was asking. I was asking how two people can be both accused, (actually found guilty in absentia…) of an infraction for which it is physically impossible for both of them to have committed because there can be only one operator. Like the classic story of murder on a snowbound train; one of the passengers must have done it, but you can’t simply declare them all guilty! (Yes, I understand the traffic infraction isn’t a crime, but still it must follow a legal, and logical process to determine fault.) Perhaps this is more a philosophical debate without a single correct answer, but several comments have led me to consider the following: If instead of the camera a police officer had pulled the car over after observing that it failed to come to a complete stop before turning right, a citation would be issued that I believe would need to comply with RCW 46.64.015. The name and driver’s license number of the operator would be recorded, and as a moving violation I believe that points would be assigned to that person’s driving record. If during the course of this same traffic stop the passenger asked that the officer instead issue the citation to them to keep the driver from accumulating more points I don’t believe that would be allowed. If either the passenger or driver asked the officer to accept the fine directly on their behalf to avoid a ticket resulting in points, I believe that would be considered bribery. If the officer winked and suggested that they pay him/her directly to avoid points, that would also be illegal. If we agree with and accept as truth the points in the paragraph above, how is a redlight camera ticket that promises no points in exchange for cash functionally, ethically, or morally any different? | Note: I am not familiar with Washington law, but I can make an educated guess as to what is happening here. I am guessing that the couple in question are the joint registered owners of the motor vehicle. In many jurisdictions, motor vehicles are treated differently from "normal" things, they are treated as inherently dangerous and thus ownership carries a certain set of responsibilities. (Similar to e.g. owning a firearm, which carries with it certain restrictions on how it can be stored, for example.) One of those responsibilities is to keep track of who is operating the motor vehicle. Therefore, unless the operator of the motor vehicle can clearly be identified without incurring unreasonable cost, tickets for traffic violations are generally addressed to the registered owner, who can then forward them to the responsible operator. (Note that "unreasonable cost" does not have to be monetary. It could also be an invasion of privacy: it is less invasive to just ask the owner to identify the operator than to e.g. surveil the owner's property to find out who is using the vehicle or run facial recognition against the owner's family, friends, and colleagues.) In many jurisdictions, there is a form attached to the ticket (or downloadable from some website) which will look something like this: I accept the ticket: [ ] I do not accept the ticket [ ] because … I was operating the vehicle, but I did not run the red light [ ] I was not operating the vehicle [ ] … the vehicle was operated by: name ___, address ___ … I do not know who was operating the vehicle at that time [ ] If you claim not to know who was operating the vehicle at the time in question, that might have other consequences. In some jurisdictions, you can then be ordered to keep a logbook, for example. If the vehicle then gets caught again and you again claim to now know who was operating it, or you cannot produce the logbook, you might get fined for violating the court order to keep a logbook. | england-and-wales NO Unlike some other jurisdictions, there is no requirement for an officer to have "probable cause1" or suspect an offence as the police can stop a vehicle for any reason under section 163 Road Traffic Act 1988: (1) A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform or a traffic officer. (2) A person riding a cycle on a road must stop the cycle on being required to do so by a constable in uniform or a traffic officer. (3) If a person fails to comply with this section he is guilty of an offence. There is no associated power to search the vehicle or its occupants but under section 164 and section 165 the driver must produce inter alia their licence, name, date of birth, address, insurance details and other relevant documents as the case may be. Note that although vehicle stops can be random, police officers are subject to the public sector equality duty under section 149 Equality Act 2010 and not permitted to stop a vehicle solely based on the occupants' protected characteristics. 1The term "probable cause" is not used in the UK, but roughly equates to somewhere around reasonable suspicion / reasonable belief | Is there a way to accept civil liability without admitting a criminal violation? Are you allowed to tell the police, “I accept full responsibility for the accident, but I don’t wish to discuss what happened”? You can allow a default judgment as to liability to enter in a civil case (and then possibly even have a contested adversarial hearing on damages), or you can reach a settlement dismissing the case with prejudice in exchange for payment of a certain settlement without admission of liability. Indeed, this is what actually happens in about 90%+ of car accident cases that aren't resolved at trial or in a motion for summary judgment (something that is quite rare in a car accident case). Likewise, you can plea "no contest" or even being convicted following a trial of a traffic violation in connection with an accident, without the outcome of the traffic case having a binding effect on the outcome of a civil case, even though this seems contrary to the logic of how results in one case determine issues in other cases (called "collateral estoppel"). Basically, this rule has been enacted in most U.S. jurisdictions (usually by statute but in some rare cases by judicial decision), in order to prevent local traffic trial cases from turning into expensive high stakes battles that are really about liability for huge economic damages, in a traffic court process designed to efficiently deal with disputes in the tens to thousands of dollars at stake, rather than the tens of thousands to millions of dollars that are at stake in a personal injury case where there have been serious injuries. However, while the outcome and plea in a traffic case in not binding in a civil lawsuit involving a related accident, any testimony given under oath in one case can be used in the other case in almost all circumstances. | There are two separate questions here, it seems to me. First: are law enforcement officers required to respect your house rules and avoid making a mess? At least in the United States, the answer is unequivocally no. If the only "damage" suffered is that you need to sweep the floor, or put your clothes back in drawers, that's not the police's problem. You have not suffered any damages that a court is going to reimburse, and your best case scenario, even if you win a suit against the police, is an award of one dollar as nominal damages. Second: are law enforcement officers required to reimburse you for any physical damage they caused while executing the search warrant? The answer here is tricker, and depends on the search warrant. If the warrant is invalid, then the answer is yes. But remember: just because, for example, the cops are looking for the guy you bought your house from, who moved out a month ago, that doesn't mean the warrant is "invalid." Just because the cops got a bad tip, or suspected you wrongly, or were in some other way wasting their time--as long as the warrant is technically proper and they were able to convince a judge it was reasonable, the warrant is valid. Even if the warrant is invalid, you may need to sue the police to get anything reimbursed. If the warrant is valid, in practical terms, you will almost certainly need to sue the police to recover anything, and you will have to show the Court that the police's actions that damaged your property were so extreme that they were outside the reasonable scope of the warrant. For instance: the warrant is for a large item, like a stolen car: the police cannot smash holes in your walls to make sure the car isn't hidden inside. If they're looking for drugs, they may be able to. If the officers' actions are consistent with the scope of the warrant, then you are not going to recover anything. The warrant is, basically, permission from a judge to enter your home and perform those actions, and they will not be liable for them. A number of relevant cases are discussed in this article: http://www.aele.org/law/2010all01/2010-1MLJ101.pdf | Using two states as examples: In California, emergency vehicle operators are exempt from pretty much the entirety of the rules of the road (VC 21055). They can pass you on the right if they want to. Department policy might say no, but that depends on department policy and the details of their emergency vehicle operation course. However, California law requires all drivers to pull to the right when an emergency vehicle approaches (VC 21806). Even though an ambulance driver legally could pass you on the right, you are required to pull right. According to the BLM's emergency response policy for fire personnel in California, this means passing on the right is heavily disfavored: the emergency vehicle operator doesn't know that the driver (who is clearly not paying much attention) won't suddenly notice them and comply with the vehicle code, cutting them off or running into them. Other policies/things which seem to reflect policies say similar things, and all make it clear that operators need to be careful that the car they're passing won't drive into them. In Maryland, the law is a bit different. Section 21-405 of the Maryland Code obligates drivers to move to the edge of the roadway. This means either edge, so on a divided highway you might pull left. On a non-divided road, you obviously pull right. In this case, the vehicle may end up passing you on the right, but again: they are going to be careful about it, and would rather you get out of their way so they don't have to worry that you'll suddenly see them and drive into them. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | The Ct. driver's manual p. 44 says that "Solid yellow lines may be crossed to make a left turn to or from an alley, private road, driveway, or street", and also "A double solid white line prohibits lane changing" (turning left is not the same as lane changing). In Washington, there is a fine of $136 for crossing a double white line, but this is related to the hyper-limited access pay lanes on the freeway. I have not found anything in the Connecticut code that indicates an analogous absolute prohibition against crossing a double white. In lieu of a statutory prohibition, you may succeed in arguing that it was a legal turn, as long as the turn was in compliance with the rest of the law, e.g. you signalled, you yielded right of way (which essentially means he was driving so fast that he appeared after you started to turn). His speed may be contributing negligence that prevents you from being liable, so it just depends. | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. |
If Marbury v Madison was overturned, would this eliminate Judicial Review in the United States? Background Marbury V. Madison established the practice of Judicial review in the United States, though the principle existed before the case. This gave the Supreme Court power to invalidate laws, or portions of laws, that it found unconstitutional. By the same token, it limited the Supreme Court to a court of appeals with respect to writs of mandamus and not as a court with original jurisdiction on the matter. Marbury v. Madison, like any other Supreme Court case, is subject to being overturned either by the Supreme Court, or by amendment to the constitution. If this were to happen, that means the Judicial Act of 1789 regains full force of the law, and presumably the power to issue writs of Mandamus with original jurisdiction. But there is another part of the case that led me to ask this question... Question If Marbury v Madison was overturned, thereby reinstating in full the Judicial Act of 1789, does this also mean that the Surpeme Court loses the power of Judicial review? And, if so, does this loss of power apply to all cases where it has been applied? | Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist. All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell. I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply "overruling Marbury V. Madison" As #78 of The Federalist said: By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added) The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . . [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. | 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. | The U.S. Supreme Court, given the discretionary nature of its customary appellate jurisdiction, has adopted the practice of not considering complaints filed with it in its original jurisdiction until leave to do so is granted. As the highest legal authority in the land, there is no other court in which this procedure can be litigated. A complaint filed without leave would either be rejected, or would be deemed a request for leave to file it, and evaluated on that basis. Without the grant of leave to file the complaint, it will not be considered by the U.S. Supreme Court on the merits. | The Declaration of Independence is often cited (along with the Federalist Papers) when the court is attempting to justify a particular interpretation of The Constitution by looking at the intent of the drafters. For example, in Arizona State Legislature v. Arizona Independent Redistricting Commission 576 U.S. ____ (2015), in establishing that the people have ultimate sovereignty quoted the Declaration of Independence: Governments are instituted among Men, deriving their just powers from the consent of the governed... Following that (after also quoting some text from the Constitution), Justice Ginsberg concludes: In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in... As a second example, Justice Scalia, in his dissent in Obergefell v. Hodges 576 U.S. ___ (2015), refers to the Declaration of Independence: This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. | The place to begin thinking about this question is to understand the foundational question of what a "writ" is. A "writ" is a court order directed at another government official, often, sometimes, a government official who isn't even a party to the case, although sometimes the government official is a party to the case. A writ of mandamus, is a writ directing a government official to carry out a non-discretionary duty. An injunction is a court order (not necessarily a writ, although some writs are injunctions, indeed writs are usually a subset of injunctions directed at government officials) which directs a person who is a party to lawsuit, or is contractually or organizationally connected to a party to a lawsuit, to take some sort of action or to refrain from taking some sort of action. Most injunctions are not writs. The usual remedy if a government official does not obey a writ of mandamus or an injunction is to hold that government official in contempt of court, for example, by personally fining or incarcerating that government official. How did judicial review develop out of this two writs, exactly? As a footnote, there are a lot more than two kinds of writs. There are actually maybe half a dozen in regular use, including writs of prohibition (ordering public officials not to do something), writs of certiorari (reviewing discretionary decisions of lower courts and public officials acting in a quasi-judicial role on legal issues), writ of quo warranto (resolving disputes over who holds a public office), writs of attachment (ordering public officials to seize property, especially tangible personal property, to satisfy a money judgment), writs of restitution (ordering a public official to restore possession of real property to someone), writs of execution (ordering public officials to carry out court orders, usually money judgments rather than death penalty orders), writs of assistance (authorizing a public official to trespass on someone's real property in furtherance of some other purpose), and writs of garnishment (authorizing a public official to seize property owned by a money judgment debtor from someone other than the debtor who is in the possession of the debtor's property like a bank or an employer, if they don't comply in turning over that property), and more. The modern trend is to replace historic common law writs (which are statutorily authorized in the federal system by the All Writs Act which was one of the first acts passed by the first Congress in 1789), with court rules with plain English names that confer equivalent authority. To appreciate what a big deal this is, you need to compare the powers of common law legal system judges to the powers of civil law legal system judges such as the ordinary court judges of France, Spain and Germany. Civil law judges don't have the contempt of court power. They have some resources to enforce their orders, but no tool nearly so powerful or sweeping. The ordinary courts of civil law countries, unlike those of common law countries, historically have not had the power to rule on questions of "public law" (i.e. disputes involving governmental agencies and officials apart from issuing sentences in criminal cases). Instead, civil law judges in ordinary civil law courts only have jurisdiction over disputes between private parties and over criminal prosecutions. Separate public law tribunals, sometimes called administrative courts and sometimes called something different, handle public law cases (in France, for example, these cases are handled by the "Council of State" which is run by elite civil servants whose upper levels are populated almost entirely by graduates of France's top university). In the 20th century, when Europeans (and people in other civil law countries) started to imitate the vibrant U.S. constitutional individual rights jurisprudence mostly arising under the federal Bill of Rights, the bureaucratic inertia of centuries was too great to copy the common law model, so instead, civil law countries instead tended to create stand alone "constitutional courts" outside the ordinary court system, with the authority to enforce their newly enacted human rights protections in their national constitutions instead, handling this special and important subset of public law in the same manner that non-constitutional public law questions had always been handled by a separate set of courts in those countries. This divide emerged because in post-Norman invasion England, judges are successors to feudal aristocrats who personally held courts and resolved disputes between their subjects and had life and death power over then and a direct command authority over all public officials. Professional judges in the common law system were originally courtiers who volunteered to substitute for the aristocrats themselves in doing this job (which required lots of skill and was more boring than training to sword fight and ride horses and commanding soldiers), who as agents of local lords had all of the authority and power of the lords themselves for whom they were trusted inner circle advisors. The core contempt power is actually the power to summarily fine or incarcerate someone who disrespects the judge or aristocrats in the presence in open court, without a trial, which was broadened to include include defiance of and disrespect for the court outside of its presence by disobeying its orders. In contrast, if someone is disrespectful or disorderly in a civil law court, the judge calls the cops just the way anyone who wasn't a judge would if someone got out of control in their office or board meeting. Civil law judges, following the classical Roman tradition, were appointed specialized civil servants, rather than delegates of aristocrats, from the state in continental Europe and in countries that followed the continental European model. (In Rome, most cases were decide by judges who had a role closer to modern private arbitrators than today's judges.) As courts in England became more bureaucratized and divorced from the aristocratic model, the ordinary English courts drifted in the direction of civil law courts, but then, the English Chancellor (an official most similar in role to the Secretary of Treasury in the U.S.) who was a top cabinet level official of the Prime Minister and the King, developed a parallel set of courts that rather than being public law courts, handled what was called "equity", basically providing legal remedies in cases where the bureaucratic civil law style courts of law in 18th and 19th century century England couldn't do anything since they had only narrow jurisdiction. The courts of chancery, a.k.a. judges of courts of equity in England, led by an aristocratic high cabinet official, took over the tradition of contempt of court authority previously wielded by aristocrats holding court over their subjects. And, when England decided to be efficient by merging the courts of law and the courts of equity into one unified system in the 19th century, the judges of the new combined system were granted to combined powers of judges in courts of law and judges in courts of equity, restoring to them the power to issue a wide variety of writs and to hold public officials in contempt of court if they disobeyed, something natural for the top government official holding the purse strings over all other government officials in England. Now, originally, in England, writs weren't used for the purpose of judicial review of legislation. Under the doctrines of royal absolutism and parliamentary sovereignty, courts in England until very recently, didn't have any authority to invalidate a law. But, rather than creating a separate set of public law courts, the English gave the ordinary judges of their ordinary courts the authority to force civil servants to obey the laws that Parliament enacted with royal approval. Once judges are used to bossing around civil servants for not doing their jobs in accordance with the law (which English judges had already been doing for centuries), it becomes second nature, in a complicated governmental system like that of the United States with federalism and the separation of powers, for judges to order state officials not to disregard federal laws that conflict with state laws (under the supremacy clause), which they did on a regular basis starting in the early 1800s, and to order federal officials to disregard federal laws that conflicted with the U.S. Constitution, which they did much less frequently until after World War II. The other piece of the story that is important to understand, is that there were no direct appeals of federal criminal convictions until the late 1800s when the intermediate federal courts of appeal were created, and this was also true in many states. Prior to that, the only form of judicial review of a criminal conviction was a writ of habeas corpus, which is why this takes such a prominent role as a protected writ in the federal constitution even before the Bill of Rights was adopted. The general rule was that a writ of habeas corpus should be denied any time that someone was incarcerated pursuant to a criminal conviction of a court with jurisdiction, or was in the process of facing trial on a criminal charge by a court with jurisdiction. But in the absence of any other form of judicial review of wrongful criminal convictions except the executive branch pardon power, courts read their mandate to find that criminal convictions were jurisdictionally deficient expansively to cover a multitude of procedural irregularities in a criminal conviction. So, even the review of law enforcement discretion now handled (a form of bossing around government employees) mostly through direct appeals of criminal convictions and pre-trial appeals of key rulings by trial courts in criminal cases, was historically done through writ practice. I personally learned this piecemeal, but one of the leading histories of law in the United States is A History of American Law by Lawrence M. Friedman. | What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied. | The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress. | Could the acceptance of the pardon then have any bearing on the case in the other jurisdiction? Possibly, but not much. There is very, very little case law on this point since: (1) pardons are rare (especially federal ones), (2) people who are pardoned generally do so because everyone in the criminal justice process in the prior case agrees that the person is reformed and they are usually correct, (3) the statute of limitations has often run on a new prosecution, and (4) many cases where these issues arise, are probably not appealed (either because the neither parties attempts to, or because a defendant is acquitted and there is no appeal), but an appeal is necessary to give rise to binding precedents. Can the admission of guilt be used in the new case? The criminal collateral estoppel effects of a pardon flow from the adjudication on the merits which is vacated. Also, comity between sovereigns and public policy mitigate such a rule. The pardon power would not be very interesting if it routinely resulted in a new prosecution that was conducted on a summary basis via a preclusion doctrine such as collateral estoppel. In many cases, the statute of limitations will have run on the original crime or there will be no parallel state law crime, but this is not always the case. Also, I would disagree with the statement that a pardon always implies an admission of guilt to the crime for which a pardon was granted, even though that statement is often used rhetorically. For example, one important use of the pardon power is to commute the sentence of someone who asserts that they are factually innocent but have been convicted of a crime, potentially in a manner that is not subject to further judicial review, and treating that as an admission of guilt doesn't make sense. As the Wikipedia entry on Burdick notes in the pertinent part: Legal scholars have questioned whether that portion of Burdick [ed. about admission of guilt] is meaningful or merely dicta. President Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974. However, said reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders. I would read this as dicta, as this portion of the holding was not necessary for the court to reach its conclusion and the fact pattern in Burdick was a typical fact pattern where guilt was not disputed. It didn't raise the concerns present when a pardon is requested based upon a claim of innocence, and granted following a conviction. Instead, the holding of Burdick was that there was no pardon because the pardon was rejected (in a manner very similar to a common law disclaimer of a gift), so its holding didn't need to reach the effect of a pardon that is accepted to resolve the case. Can it be used as "reasonable cause" for various actions? This is a bit too vague to know what you are getting at. I suppose that a pardon could constitute reasonable cause for some things favorable to a defendant who is pardoned (e.g., potentially in a motion seeking to reopen a termination of parental rights entered on the basis of the conviction). I suppose it could also be used in a manner potentially unfavorable to a defendant (e.g. showing a pattern of past conduct that demonstrates modus operandi in connection with a prosecution for a new crime). I don't think it could be used as grounds to deny an occupational or business license for bad character. Still, without more clear context it is harder to know what you are really looking for in this regard and I'm not confident that my examples address that. Does the defendant lose their right to refuse to testify in the new case? I haven't reviewed the case law, but my intuition is that if it has never been waived before, it wouldn't be waived by the pardon, but that if it was waived in a previous proceeding resulting in a conviction that was then pardoned, that the prior sworn testimony might be admissible evidence in the new action since it is not hearsay and isn't itself evidence of a prior conviction. The context of the prior testimony might have to be concealed from the jury. As noted by @Putvi, the defendant could not claim risk of conviction for the federal crime as a ground for invoking the 5th Amendment if a pardon is accepted (something that is implied in Burdick), but if there was an overlapping state law crime, risk of conviction for the state crime could constitute a grounds upon which to invoke the 5th Amendment. Burdick does stand for the proposition that a pardon not solicited by the defendant, that is rejected, cannot provide a basis for removing the 5th Amendment protection with respect to a risk of conviction for federal crime. I would also be inclined to think that matters disclosed in an application for a pardon might be admissible evidence as a non-hearsay statement of a party-opponent, if the statement was stripped of the pardon application context (which would be unduly prejudicial since it would imply a prior conviction which otherwise wouldn't be admissible). |
Does a squatter's executor have tenant rights after the squatter's death? In California, "Bob" was living rent-free for years in exchange for caretaking and minor repairs. There wasn't any written contract. Six weeks ago, Bob's sister "Sue" began to spend substantial time at the residence during Bob's terminal illness. Now Bob has died, what statute or cases support Sue's claim to have rights as a tenant or squatter? What if Sue is the heir? Does Bob's tenant right pass with the estate possibly? | There are no squatters Neither Bob nor Sue are squatters: Bob was there with the owner's permission and Sue was there with Bob's. Adverse possession requires possession that is, well, adverse: against the wishes of the true owner. Bob was almost certainly a tenant, paying rent in services rather than cash. Clearly, the terms of that tenancy are unclear and may not be legal but that is more likely to rebound against the landlord rather than the tenant. So long as the rent (whatever it is) continues to be paid the estate’s tenancy should continue. However, the landlord could start procedures to end the tenancy (probably requiring 1 months notice) at any time. | California Civil Code 1946.7(a) says that A tenant may notify the landlord that the tenant intends to terminate the tenancy if the tenant, a household member, or an immediate family member was the victim of an act that constitutes any of the following... (3) Stalking as defined in Section 1708.7 and stalking is "a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff", with various other conditions also being applicable. It is not sufficient to just allege such harassment, you must attach documentation in the notice to landlord. This means that you must first serve proper notice to terminate the tenancy – you can't just walk away. There has to be some qualified third-party documentation, such as a written police report. It is not required that the victim actually sue and win a case against an alleged stalker. | Sadly, her assets will go into probate, and a judge/probate master will have to rule on how they're disbursed. Typically someone will be appointed as Administrator to the mother's estate. The administrator will contact all creditors, assemble and inventory/appraise the assets (i.e. furniture, car, house, bank accounts, etc.) and pay funerary expenses. Since she died intestate, there will be certain specific rules about who inherits the proceeds. The best avenue for the OP is to petition the court to appoint her as administrator of the estate. | What would be the best course of action now? It has been six months with no communication from him or his estate lawyer, and no will has been filed with the court. Since it's not entering probate, is there any guarantee that he has to faithfully execute the conditions of the will at all or notify any of the beneficiaries? Without probate, can he simply choose to not execute the will? A will has no effect or validity until it is admitted to probate. You can't do anything with a will outside a probate proceeding. Usually state law requires that a will that is in someone's possession be lodged with the court, whether or not they plan on opening up a probate estate, but this requirement is widely ignored. Unlike a will, a trust can be administered without court supervision, without being admitted to probate, although usually, the trust is required to file a notice of its existence with the court if it has become irrevocable (a requirement that is also widely ignored). The trustee of a trust has a fiduciary duty to administer the trust in accordance with its terms and to keep the beneficiaries of the trust reasonably informed about it. Again, sometimes the notice to the beneficiaries is overlooked. Also, it wouldn't be unusual for someone to inaccurately say that a will provided that a certain thing happen, when, in fact, that was a provision in a trust. People are sloppy in ordinary conversation about the distinctions between wills and trusts. If a trust was drafted to avoid probate, the will is probably just a "pour over will" which states that if there is any property that is not in the trust as her death that it is hereby transferred to the trust. Normally, a person would not have both a trust designed to avoid probate and a will with substantive provisions at the same time. If you suspect that you know who the trustee is, the first step would be to write a formal letter that you can prove was sent and received (e.g. via certified mail or FedEx), asking if there is a trust, and if there is one, if you are a beneficiary of that trust, and asking for the trust agreement (or at least the parts of it pertinent to you status as beneficiary). If the person that you suspect is trustee is a trustee, he has a legal duty to let you know these things (which doesn't mean that he necessarily will do so). If you fail to receive cooperation or a response after this initial inquiry, you may need to hire counsel to attempt to obtain this information through the courts. | Yes, they seem to have broken the law. In California, notice must be given for an eviction. This can be a 30/60/90 day notice with no reason needed (typically because the landlord wants the property for something else) or a 3 day notice with cause- the most typical being not paying the rent. Note that COVID exceptions exist, though I don't believe they apply to you. Even after that time, a landlord cannot physically remove a tenant or attempt to drive them out through the destruction/removal of property, locking them out, or cutting off utilities. They are liable for damages suffered as well as penalties. There are lawful procedures in place for this. The removal and destruction of your belongings could constitute either larceny or vandalism. Either way, by unlawfully removing your possessions, they are liable for the damages caused. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. | It is generally illegal in all US states for a landlord to change the locks on a tenant. Given your description of the facts, this person (henceforth "squatter") is a tenant, lack of forms and lease notwithstanding. When a person violates the terms of a lease, the landlord's recourse is to sue the person for damages and to petition for eviction (where the sheriff removes the person from the premise). Penalties for illegal lockouts tend to be very severe, however the tenant on the lease is not the one at risk on that point. The squatter can't win in a court case against the former tenant, but he can still file paperwork which the tenant must respond to. If the tenant of record doesn't show up in court, summary judgment will be entered against him. The landlord can sue you for the rent owed. | Absent any new agreement with the tenant, a purchase is normally subject to any existing lease, so you would be renting to the existing tenant until that lease expires, under its original terms, with you having all the rights and duties under it that the previous owner had. In effect, by signing the purchase agreement, you accepted a version of the original lease with your name in place of the former owner's, but with no other changes. You are entitled to the same rent that the previous owner was entitled to, and must make any repairs or perform any services that the previous owner was required to do. |
Is each version of a software considered a "derivative work"? Originally asked in Software Engineering but a user raised it is more a legal question than an engineering one. Let's suppose there is a software at version a1 in code repository A on an online code hosting website. Let's suppose the original author updated it and made a version a2, then a3. Another person comes along, forked a1 to another code repository B, then modified it resulting their own b2, then modified b2 again and resulted in b3. All versions are available online - a1, a2, b2 are available in the code commit history, and a3, b3 are available on the home page. a1 -- a2 -- a3 `-- b2 -- b3 Question: how many derivative works of the software exist in this scenario? My initial instinct is one, because there is the original code repository A, and a forked-and-modified repository B which is the derivative work. But I realized the answer might be four (that is, a2, a3, b2, b3 all count as derivative works of the original code -- but not sure), given that in the copyright law (using US copyright law as an example): A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The definition given in the Apache 2.0 license is more direct: "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. I think a key point a software is different from a book/painting/movie is that software is very much a "live" thing - that is, software is constantly being updated after being "published". Especially, each small iteration (commit) of an open source project is accessible publicly, instead of periodically being made public after accumulating a few months' works behind the scene. | Four Yes, each version is a derivative work, as mentioned in https://www.copyright.gov/circs/circ14.pdf The following are examples of the many different types of derivative works: ... A new version of an existing computer program | Impressum Requirement Wow, based on your citations, you've done a lot of research on this topic. I'm just going to add one more reference, which is from the same site as your first German citation and has incredibly detailed and judicially referenced information on almost everything related to the Impressum. All my non-GitHub links are to sections of that page. Based on your research, I'm going to take it for granted that you understand that according to the Telemediengesetz (TMG), an Impressum is required on a web page if it is "business-like" (geschäftsmäßig), or if it helps, I prefer to word it as "potentially commercial." I would have to argue that open source projects have to be seen as inherently "business-like" for the purposes of the TMG for two reasons: Some other legal person may have similar software as part of their business and might have the need to serve legal notifications to the owner of a GitHub project (TMG § 8 gives competitors the right to sue). Think potential copyright violations here. It is possible to build a more traditional commercial business around open source, for example what Canonical is doing around Ubuntu. Additionally, the common legal advice is to even include an Impressum on a personal blog, though I'm not aware of any court case having occurred at that level yet. In my opinion, a GitHub account can be seen as more "business-like" than a personal blog, and would follow that advice out of caution. I'll note that the XING situation you bring up is complicated. It centers over whether the content of XING pages is "business-like" according to the TMG. It may well turn out that some pages will need an Impressum and others won't. As for placing it in the project's readme.md, that might work but I have two concerns: The courts have essentially stated that the text of the link must imply that the required information under TMG § 5 is located there. For example, the words Impressum and Kontakt work, but the word Information does not. To me, "readme" is not sufficient, but this concern might be negated by the fact GitHub by default renders the readme.md directly on the project home page. While it has been ruled that the Impressum does not necessarily have to be directly on the home page (for GitHub, that would be the company's/users profile page), it must still be readily available in an intuitive location. I don't know if putting it in a project page satisfies the legal requirement. If it was sufficient, it's also likely that each project would have to have an Impressum so that it can't be missed. Examples The dominant pattern that I could find1 on GitHub is an off-site link to the Impressum contained in the profile page's byline right underneath the title. Examples: https://github.com/sedadigital, https://github.com/comsysto, https://github.com/znes, https://github.com/eSagu, https://github.com/TIBHannover. I'm almost certain this meets or exceeds the legal requirements. Example screenshot: Additionally, I found a few that had a repository specifically for an Impressum. Example: https://github.com/johsteffens. Since these repositories were clearly visible on the user's main page (either because there weren't enough repositories to make them span multiple pages, or because it was specifically pinned to the main page), I would argue these also meet the legal requirement for being readily available. While I didn't find any examples of it, another possibility would be to combine the above two approaches, having a link in the byline that links to an Impressum repository or some other page within GitHub. This would be useful if you didn't otherwise have an Impressum hosted elsewhere. There were also scattered examples of people placing an Impressum on a project wiki page or on an impressum.md file at the top level. However, none of the users I looked at were consistent in doing this across all their projects. Also as previously mentioned, it's questionable whether not having it on the main user profile page meets the legal requirement. The Wiki page in particular I don't think meets the requirement that it can easily be found. Found using the following Google search: site:github.com impressum -impressum.php -impressum.html -impressum.jsp -impressum-manager -github.io -issue. Exclusions meant to filter out a lot of false positives, mostly projects for websites that had their Impressum in code format meant for deploy and not for display on GitHub itself. | The cost of filing a copyright for an updated filing would generally be the same as the original one. The amount of work isn't much different and there are good reasons why every new version of software sold on a large volume commercial basis should always have a new copyright registration for a new version of the software, which are essentially the same reasons you copyright the original version of the software in the first place. As noted by @DavidSiegel in a comment: A work is protected the moment it is "fixed in tangible form", but one cannot sue for infringement unless the work is already registered under 17 USC 411. Statutory damages, often important, are not available unless the work is registered before the infringement occurs, or within 3 months of publication, under 17 USC 412. $2,000 is on the high side for the work in the Colorado market where I do most of my work, but it isn't unheard of or terribly beyond the norm. I can think of at least five plausible and defensible reasons for a fairly high charge for a fairly simple job. This said, sometimes people just charge more than the going rate for work for no good reason, and in a free market, people are allowed to do that, at the risk that someone will go to the competition instead at some point. One reason: value billing Many lawyers do that kind of work on a flat fee basis, spreading the significant costs they incur in putting together an efficient system over many cases. They can do the work efficiently but want to charge a rate competitive only with lawyers who aren't so efficient and have to figure things out from scratch each time. A second possible reasons: diseconomies of scale Part of what may be going on is that if you have a big bureaucratic law firm, there are significant firm wide costs to every new matter (which, for example, has to be cleared through a conflict check firm-wide and involves quite a few administrative set up costs), especially if the firm charges high hourly rates. In firms with those kinds of economics, even a project that only takes two hours at $400+ per attorney hour to do the core legal work, would be hard for the firm to make a profit on, because there might easily be $1,200 in anticipated setup and shut down, and tail case monitoring costs. While some of those costs could, in theory, be streamlined when doing repeat work like the job suggested in the question, large or high cost bureaucratic firms aren't necessarily bothered to provide discounts in those circumstances to repeat customers because they see that kind of job as nickel and dime work that distracts them from working on their core competency of high-end big litigation cases, and big transactions like mergers of medium and large sized companies. It would probably be possible for a small, more nimble firm that doesn't see this kind of job as a distraction to get the fee for this down to $500-$1000. This cost issue with small transactional matters is one of the reasons that it is quite common to see the intellectual property department of large firms break off from the large firm bureaucracy (I recall it taking immense efforts just to requisition new office supplies when I worked in one because there was so much red tape involved), to form vastly smaller "boutique" intellectual property speciality law firms (e.g. 5-25 lawyers breaking off from a 100-500+ lawyer law firm) to prevent that kind of cost creep for smaller matters. The economics of high end intellectual property transactional work is different than a lot of big law firm work because a lot of intellectual property transactional work is high volume, low dollar transactions for repeat clients, which makes the friction associated with big law firm bureaucracies outweigh their benefits. A third possible reason: price for this job doesn't matter much in the context of a larger attorney-client relationship On the other hand, if you have a big company that normally uses a big inefficient law firm for its work (since most of its legal work involves life or death of the company grade issues where winning is much more important than keeping legal fees to a minimum), and it has a low volume of intellectual property filings, it may be more efficient for that big company to simply pay a bit more than it could if it really tries to get its costs down to a bare minimum, to just continue to use its regular law firm for this bit of work. The cost of vetting an alternative law firm may not be worth it for a big company. Bidding out the small project might save a few thousand dollars a year of legal fees, but if the big company normally has hundreds of thousands of dollars a year of legal fees anyway, this may not be a big deal for that big company client. A fourth possible reason: a bigger ability to make malpractice right Also, keep in mind that if the software has very high economic value, a big part of your $2000 flat legal fee for the work may be paying for the malpractice policy to make the client whole in the unlikely but inevitable event for a screwed up filing that has high stakes to the client in the rare cases where it happens. For example, I recall a malpractice case my office once handled where a big firm failed to file a key document in the real estate records resulting in a $20 million dollar mortgage losing its priority when the borrower default on the loan made by the client due to a miscommunication between a junior lawyer and a paralegal over who was going to get that job done that resulted in neither person doing it. This resulted in an immense loss to the client (they only recovered about $2 million and would have recovered the full amount if this document had been filed on time as the law firm agreed it would). It doesn't happen often, but it happens. In the same vein, if your software product generates $20 million a year in revenues and a small, lower charging firm screws up in a way that materially impairs the copyright protection available for that product (e.g. causing statutory damages to be unavailable when large statutory damages would otherwise almost surely have been awarded), a small law firm's malpractice policy and the responsible lawyer's assets may not even begin to cover the harm done, but a big law firm's malpractice policy, which is far more expensive and makes everything that the big law firm does much more expensive to clients, might easily be able to cover that loss. A fifth possible reason: the lawyer is reluctant to do the work An alternative explanation is that the lawyer could do the work, but isn't really bothered to do it unless its very lucrative, since the lawyer sees it as a distraction or just doesn't like you as a client. If this is the reason, then the lawyer is setting a high charge to encourage you to go elsewhere, without saying anything that would cause you to lose face or that would damage the long term lawyer-client relationship in a future case that is bigger or more in the usual vein of the work that the lawyer is looking to do going forward. | 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. | Gather evidence that the software you are requesting the source code of really is based on, in whole or part, an existing open source project that has a license which requires source code to be made available, and then contact that projects copyright holders. Only they have standing to sue. | Making and sharing and using subtitles for movies is not legal. It is copyright infringement. I paint this statement with a very broad brush. The movies are copyrighted (they are original and fixed in tangible form). (17 U.S. Code § 102(a)) 17 U.S. Code § 106(2) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of derivative works based upon the copyrighted work. 17 U.S. Code § 101 defines derivative work as 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.... So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. 17 U.S. Code § 107 provides some examples of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research If these subtitle files are not used for a fair use purpose (the examples cited are examples only, not an exhaustive list) then translation is infringement. If the files are used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use: (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. | 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 Own The Code To answer your question on whether or not it is copyright infringement: Yes, you do own the rights to the written code but posting it on Github gives Github the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it. To simply put it, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features. This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive your Content. So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward. Things aren’t quite as clear-cut in a scenario where Copilot is trained on code that is hosted outside of GitHub. In that situation, the copyright infringement question would hinge largely on the concept of fair use. If Copilot is being trained on code outside of GitHub, we accept that at least some of what they’re looking at is copyrightable work. So, the question then becomes if it’s fair use. Now, you ultimately can’t conclude definitively that something is fair use until you go to court and a judge agrees with your assessment. But I think there’s a strong case to be made that Copilot’s use of code is very transformative, a point which would favor the fair use argument. There is precedent for this sort of situation. Take the case of Google Books, for example. Google scanned millions of books, provided people who were doing research with the ability to search the book, and provided the user a small snippet of the text that the user was searching for in the book itself. The court did in fact find that was fair use. The use was very transformative. It allowed people to search millions of books. It didn’t substitute for the book itself. It didn’t really take away anything from the copyright holders; in fact, it made it easier for readers to access the work and actually opened a broader market for book authors. And, it was a huge value add on top of the copyrighted corpus. In the latter scenario, a lot depends on the thoroughness and the length of Copilot’s suggestions. The more complex and lengthy the suggestion, the more likely it has some sort of copyrightable expression. If a suggestion is short enough, the fact that it repeats something in someone else’s code may not make it copyrightable expression. There’s also the question of whether what’s being produced is actually a copy of what’s in the corpus. That’s a little unclear right now. GitHub reports that Copilot is mostly producing brand-new material, only regurgitating copies of learned code 0.1% of the time. But, we have seen certain examples online of the suggestions and those suggestions include fairly large amounts of code and code that clearly is being copied because it even includes comments from the original source code. |
How is an animal defined as in rule 286 of the UK highway code? This came up in the comments thread of this question so it was suggested to ask it. Is a fly an animal? Perhaps it must be one that is kept and thus keepable as chattel? | Is a fly an animal? Not in the context of the Highway Code Rule 286, as the underlying legislation at section 170 of the Road Traffic Act 1988 states: (8) In this section “animal” means horse, cattle, ass, mule, sheep, pig, goat or dog. | england-and-wales The law on this point in England and Wales has recently changed. The main statute here is section 4 of the Animal Welfare Act 2006, amended in 2019 to add an exception relevant to police dogs. Under subsection (1), you commit an offence if you cause a dog (as an example of a "protected animal") to suffer unnecessarily. The necessity conditions in subsection (3) include the example of protecting yourself or someone else, in (3)(c)(ii), but this list is not exhaustive. Nonetheless, that specific defence is excluded by the new subsection (3A) in the case when the dog is a police dog being used by an officer "in a way that was reasonable in all the circumstances". This exception was added precisely to cover the example of a police dog being used to apprehend a suspect, to stop people from claiming self-defence; it's known as "Finn's Law" after a police dog who was stabbed in those circumstances. If this came up in practice, for the scenario you suggest, then the court would have to deal with (among other things): Was the officer's conduct reasonable in all the circumstances? Could the person have avoided harming the animal? Was the level of harm to the animal proportionate? The answers would depend on the exact facts involved, so it's not possible to say in a vacuum whether the elements of the offence could be proved. Note that the Dangerous Dogs Act 1991, which might otherwise apply to the officer in charge of the dog for letting it be "dangerously out of control", actually does not by virtue of section 10(3) so long as it is being used "for a lawful purpose". Meanwhile, as a civil matter, there is a strict liability provision in the Animals Act 1971 which might catch police dogs. That Act distinguishes between animals of a dangerous species, where the liability always applies, and others where it only applies if the animal meets certain conditions. These have attracted some criticism by senior judges over unclarity in their drafting - see for example Ford v Seymour-Williams [2021] EWCA Civ 1848 and Mirvahedy v Henley [2003] UKHL 16 - but on the basis of those decisions, one could argue that the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species in the case of a police dog specifically trained to attack on command. However, on the other side, whether the claim is under the Animals Act, or for battery, etc.: The police may argue that the damage was due to the suspect's own fault. An example I found cited in Street on Torts is Dhesi v Chief Constable of West Midlands Police [2000] WL 491455. A claimant bitten by a police dog was held to have accepted the risk of sustaining damage when he refused to come out of his hiding place, after being warned a dog would be sent in to flush him out; this engaged section 5(1) of the Animals Act and defeated strict liability. The police can argue that their use of force was reasonable for the purpose of preventing crime and/or arresting a suspect. (The same argument by which human officers can use force.) The police can argue that the dog was no more dangerous than an ordinary dog, that the officer did not know it could cause such severe damage, etc., thus removing it from the category of animals where strict liability applies. The police have some protection from civil suit, known as "Hill immunity" after the case Hill v Chief Constable of West Yorkshire Police [1988] UKHL 12, which is not absolute but is very likely to defeat claims where officers were not unusually negligent, not acting outside the bounds of their duties, exercised reasonable care and skill, or did the best they could in a fast and confusing situation. See the recent judgements in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, a case where officers arresting a suspect accidentally hurt an elderly lady, for a very thorough discussion of duty to bystanders and police negligence in general. So again, it all depends on the fact pattern in the specific case, but you may or may not be able to win a civil claim against the police based on the harm done to you by a police dog, even when you didn't hurt the dog. | 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. | You could almost define a country as, "an entity that can defend itself against invasions." Non-sovereign entities are indeed generally prohibited from deploying lethal autonomous defense systems like booby-traps. But governments and state-like actors, as a matter of practice, choose their own rules. laws-of-war and international-law are not like "regular" law: When it comes down to it, states only follow international conventions and treaties to the extent that they consider it to be in their own interest to do so. If you start mining your property, you will probably be forced to stop by local law enforcement. If a warlord starts mining his borders, he's going to get away with it until someone with more power convinces or forces him to stop. Was it "illegal" for Turkey to shoot down a Russian military aircraft? One could cite all sorts of laws and conventions to answer that question. But in practice the consequences of that act are limited to whatever Turkey allows, or to what Russia and its allies can impose on Turkey. | I think you are very likely wrong in believing that if you return the water further downstream it doesn't count as illegal abstraction. Government guidance says: If you want to build a new hydropower scheme, you need to apply to the Environment Agency for: an abstraction licence - if you divert or take water from a river or watercourse Admittedly, guidance isn't law. However, your position is quite close to arguing that taking and borrowing are two different things, and I wouldn't want to try to argue it. | The statement that cats cannot commit trespass is technically true, but is also a misreading of ss.4 and 4A of the Animals Act. Those sections replace a common-law doctrine called "cattle trespass", which was a specific tort (a civil wrong) concerning what happens when my cattle stray onto your land. Both old and new rules apply only to livestock, so not just cows but other kinds of farm animals as well - but not to dogs or cats. Horses are a special case (s.4A). Since cats are not livestock, they cannot be the subject of cattle trespass and are not covered by section 4. Further, since they are animals, they cannot commit the tort of trespass at all. Animals themselves are not liable at law. As the keeper of cows, it would be me who was liable in a case of cattle trespass, not the cow. The point of s.4, and its predecessor in common law, is to make me liable for damage done to your property by my cows, regardless of whether I was negligent in the way I looked after them (it is a "strict liability"). The mere fact that they've strayed onto your land and done damage is enough. Because cats are not cows, this particular rule does not apply. That does not mean that cats can't be the subject of other torts. In particular, cats could be involved in the tort of nuisance, which covers all sorts of potential scenarios - noise, smells, etc. This has typically happened when there are lots and lots of cats. And under the Animals Act, the keeper of any animal may be liable for damage that it does, including physical injury or damage to property. Section 2 of the Act establishes a statutory distinction between whether I am liable for the damage, or strictly liable. In a scenario where I am strictly liable, you do not have to prove that I was negligent in my management of the animal. Broadly, that applies if the animal belongs to a dangerous species, or is unusually dangerous in itself. (There has been very complex litigation on this point which I am not discussing here.) If my cat is not a real vicious bastard of a cat, but just a regular cat, then I can still be liable for damage that he does: it's just not automatic. Following Rachael Mulheron's Principles of Tort Law (CUP, 2nd ed., 2016), for an action in negligence there are several key points - Proving that D, the owner/keeper of an animal, owed C a duty of care, where C was injured by that animal, has been a straightforward task. The court must be satisfied that a reasonable person in the position of D, the keeper of the animal, would foresee a real risk of injury to C arising from D's particular acts or omissions in dealing with the animal. Otherwise, in the absence of that foreseeability, a reasonable D would have done nothing different in response to the risk posed by his animal. To fall below the standard of reasonable care as a keeper of an animal, D must have failed to do that which a reasonable keeper would have done (to supervise/fence/control, etc, the animal), or have done something which a reasonable keeper would not have done. In damage-by-animals cases, C must prove that, as in the usual negligence action, D's failure to supervise/handle/care for the animals caused C's injury on the balance of probabilities. As in other negligence cases, there are various defences; if you hassled my cat and it scratched you, then that's your fault and not mine. From the material quoted above, we can see that for a normal cat in the UK, where the owner is not doing anything unusual by letting it roam freely outdoors (as is typical for UK cats), it is going to be hard to meet the tests. Things may be different if D knows that C is allergic to cats, or that the cat has been eyeing up C's delicious prize goldfish, or has a bone to pick with D's own cat and is likely to attack her, or something. Most of the big cases under the Animals Act have involved animals who are more likely to cause damage, such as dogs, horses and cows; a cat is only legally different because (1) unlike for dogs, horses and cows, there are no special rules applying to cats, and (2) factually, most cats don't do much harm. To that point, even if D is liable in the way described, C may not get very much out of them by way of damages. Defecation in C's garden is not pleasant, but is probably not worth a lot of money either. | The article is public domain. The pictures aren’t If this was first published in the British Empire (as it then was), then The UK is the place of first publication. What follows is its status under UK law, other jurisdictions may have different results. The original article is public domain because H. C. P. Bell died in 1937 meaning copyright on everything he wrote expired 31 December 2007. If he’d lived until 1951 or later it would still be under copyright (in 2021). However, this isn’t the original article because: Text on this page extracted from an original copy of Annual Report. The photographs were taken when I visited the site in 1991, and again in November 1995. The bits that this unknown author added, including the photographs, are their copyright. Since they were clearly alive in 1995 (due to the well known pirate aphorism “dead men take no photos”) the copyright in those is still current. | This is a duck You can label it a chicken if you like but you won’t fool anyone who knows about ducks. The FDA knows about diagnostic devices; calling it something else isn’t going to fool them. |
Are copyright licenses as binding as some particular rules stated by the creator of intellectual property? I have a somewhat general question about copyright licenses but that can be more easily understood with an example. Imagine that I wished to apply a Creative Commons license (CC) to work that I publish in a website. From my research the only thing that is need is to state somewhere in the website that a specific CC license applies to it. Is there anything actually binding in a Creative Commons license (or others like Mozilla Public License or Free Art License, etc)? Would it be equally binding if I for example had a page in the website with my own set of rules regarding my work? The question is if known copyright licenses are equally binding as some particular rules stated by the creator of some intellectual property? Thank you for any answer. | In principle, every single copyright license allows someone to do something that plain copyright law wouldn't allow them to do. Very often there are conditions: They are allowed to do X, which plain copyright law wouldn't allow them to do, but only if they fulfil some condition Y. The consequence is that if they do X without fulfilling the condition Y, then they are committing copyright infringement. Details are different from country to country. In the USA, you cannot force someone to do what the license asks the, to do, but if they don't, it's copyright infringement, and you can sue them and ask for damages. Other countries see it as a contract, where by doing X they agree to do Y as well, and not doing it would be breach of contract. Often with the interesting effect that you as the copyright holder cannot prove that they accepted the license, so in court they can tell the judge whether they were committing copyright infringement or whether they are in breach of contract. You can of course use your own license - however, one of the standard licenses mean the license was likely checked by a better lawyer than you would want to pay, and is much more likely to achieve what you want to achieve. If there were any problems say with the Creative Commons license, people would have found those problems and fixed them a long time ago. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | To apply "All rights reserved" to a song, you write the three words "All rights reserved" in your copyright notice (see the "PS" below for the rationale for doing this). To apply a Creative Commons public license to a song, you use the Creative Commons License Chooser to generate a license for your song. Then you add the HTML-code generated by the License Chooser to the web-page where the song is available to the public (for streaming or for download). PS: Since the year 2000, adding the string "All rights reserved" no longer has a legal effect in any jurisdiction. According to the Berne convention, all rights are automatically reserved as soon as you create a song or any other creative work. However, I recommend that you assert your rights with this notice. I've come across people who believe that it is perfectly legal to use a work for non-commercial purposes if there is no assertion of rights attached to the work. They are wrong, but adding the notice may avoid some misunderstandings. | It depends on the game and what you copy. Games are an utter nightmare when it comes to IP law as so many parts of them cannot be copyrighted. Game rules for example cannot be copyrighted, nor can the concept itself. Some things can be copyrighted or trademarked. You cannot use the following: Names Written elements- while the rules themselves can't be copyrighted, rulebooks can Artwork and other visual elements Miniatures designed for the game Original characters Try to avoid these and the Hasbro lawyers should leave you alone. | The notification that you saw is not useful legal information for you: stuff always belongs to whoever owns the stuff. It might be interpreted as saying "it doesn't belong to us", but you can't count on that (it's virtually guaranteed that at least some of the content there is owned by the website owner). A more informative statement would be "You will have to get permission from the content owner to copy their stuff", and "We're not going to spend time figuring out who owns what". You could read the terms of service (try this with Stack Exchange) to see what the site tells people. The TOS here says that if you contribute anything, it "is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license". You can then look up what that license says and learn what that allows. Websites are kind of tricky, though, because it's not hard to change the wording of a TOS, and you need to know what specific TOS was promulgated at the time a particular contribution was unleashed. Usual practice is to think it through carefully and not frequently tweak the TOS, but it's not illegal to change the TOS. Note that copyright law does not prohibit you from using other people's stuff, it prohibits you from copying. The distinction is clearer when you see a post that explains an algorithm with actual code, you read and learn and make use of that, but write your own code. As a user out there, if there isn't a clear indication that stuff posted is there for the taking, under some public license (as is the case with SE), then getting specific permission to copy, from the owner of the content (possibly untraceable), would be necessary. Now assume that you're a moderator or site-owner of some forum: presumably (hopefully) you have a TOS that addresses that situation, which says that moderators have the right to edit or delete content at their sole discretion, and also you say what kinds of posts are prohibited. Such an statement is not absolutely mandatory for all things, but it may be necessary to avoid litigation over some acts. One one end of the spectrum, it would be illegal for a forum to host child porn, stolen credit card numbers, or protected digital content. If a user were to post such stuff, the site would need to eliminate that stuff, and the poster could not legally rely on an argument of the type "That's my stuff, you have no right to mess with it". On the other hand, if a forum actually requires paid membership, then there may be a strong contractual expectation that the user is getting something of value, so you would have to watch for statements that could be interpreted as broad permission to put stuff out there without any interference. (For instance, a file-hosting service would have only minimal restrictions on content, aimed at protecting their own legal interests; whereas a political-advocacy site would have maximal interest in prohibiting the expression of views counter to the cause). Thus the SE TOS has you "grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works", which allows moderators to correct typos, delete offensive wording, and obliterate entire posts. If a site fails to have any such clauses in their TOS, then it might be a matter that has to be settled in court, whether they have the right to eliminate "spam" (i.e. advertising for a service, especially if the reason for getting an account was to provide an advertising platform). In light of the limited use sanctioned by the TOS, per the below comment, legal copying will be quite limited. However, "fair use" a situation where copying is allowed, regardless of what the TOS may say. (You could be banned from the site, but you could not be sued for infringement). Fair use was invented precisely so that people could make comments like "Jones advocates an absurd law, saying '...[quote from Jones]...'". Thus you can comment on a post and quote the relevant part ("The lines '[... quoting the code ...]' results in an infinite loop"). See the Fair Use FAQ for more details. | how would this differ between say ArXiv which is open access, and a publication that is pay-only, like Elsevier or Nature? It wouldn't. But if the equation is the creation of the author of some publication, as in the author is expressing some unique mathematical expression, obviously the publication should be referenced. But is referencing enough? Are there additional rights one must obtain from the publication and/or author in order to show this content? Laws of nature, including purported laws of nature, are not protected by copyright. So, usually, key equations in an academic paper aren't protected by copyright law. Referencing the work is important as a matter of academic ethics, but is legally irrelevant. Copying of exposition by the author beyond laws of nature is permitted as fair use if it is limited to quotations necessary for academic discussion and criticism, but copying of an entire work would not be permissible fair use in most cases and would constitute copyright infringement. Of course, there is a large gray area between those extremes. | 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. | The GPL does not explicitly specify a time within which the source code must be provided, which probably means a "reasonable time" is allowed. What is "reasonable" would eventually be evaluated by a court, if the matter ever got that far. But please note that only the copyright holder (or the holder's authorized agent) can sue for infringement. The license does not give other people a right to sue for infringement, and I doubt that any license could grant such a right. One could inform the copyright holder who could sue, but the holder need not sue, and undertaking such a suit would involve expense, time, and effort. Whether the offer to provide the source constitutes a binding agreement is not clear, and may well vary in different jurisdictions. The question does not state any particular jurisdiction. |
Are gameplay mechanics subject to copyright? I'm willing to remake an old video game, first as a hobby project, but in the future I'd like to publish it online, for free or as a commercial project. I've been reading for a while about copyright infringement, and despite not copying any artistic assets, lore, names, or things like that, I'm afraid I could run into copyright infringement. The reason why I think so, is because I would be using some very specific mechanics that are key to the gameplay, and I suspect those mechanics can be subject of copyright. Without entering into much detail, are there any kind of rules that apply to gameplay or game mechanics regarding copyright? | Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Link https://www.copyright.gov/registration/other-digital-content/ | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | License to use does not mean license to create derivative works These are different rights under copyright. If you want to make a derivative work, which your animations are, you must have a license to do so. | 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. | 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. | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. | copyright will cover the names and graphics of games The names of games are not protected by copyright, nor by patent. The names could be protected by trademark. Note that trademarks are specific to a country: what is trademarked in one country may well not be in another. Almost all countries have a way to search their trademark registries, often online. However in some countries, including the US, use of a name in commerce will confer some protection even without registration. What will be considered a "mechanic"? for example MTG have specific mana system, if someone will be creating a game with same idea but will refer to it with other names such as "Ember" instead of "Fire" will it violate the patent? Game mechanics are not protected by copyright. This includes all the procedures and rules of the game. The text used to express those rules may be protected, but often it is not if it is the most obvious way to describe the mechanics. For example, in chess there are different pieces with different moves. That could not be protected by copyright, even if chess were a new game. In bridge the winner of each trick leads to the next. That could not be protected by copyright either, even if bridge were a new game (and contact bridge is just new enough that it could in theory be under copyright still). How do i know if certain patents are applied and when they expire? Most games are not protected by patent, but some are. Patents, like trademarks, are specific to a country. Each country has a way to search its list of active patents. Note that patents have a strict tiem limit, and they normally cannot be extended or renewed. I believe that the limit of a patent is currently 20 years in most countries. (It used to be 17 years in the US.) If a game is patented in Country X and someone is printing the same game but with different art and names in country Y, will the one who print in country Y could be exposed to a lawsuit? Unless the game is also patented in country Y, there will be no grounds for an infringement lawsuit inn Y. But importing the game into X may be patent infringement, and could expose the importer to a suit. |
What possible penalties can there be for failing to comply with rule 286 of the UK highway code? Rule 286 requires one to give one's name and address to another party in the case of an accident, but what is the penalty range for non compliance? | Rule 286 states: If you are involved in a collision which causes damage or injury to any other person, vehicle, animal or property, you MUST stop. If possible, stop in a place of relative safety (see Rule 275) give your own and the vehicle owner’s name and address, and the registration number of the vehicle, to anyone having reasonable grounds for requiring them if you do not give your name and address at the time of the collision, report it to the police as soon as reasonably practicable, and in any case within 24 hours. This mirrors the underlying legislation at section 170 of the Road Traffic Act 1988: (2) The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle. (3) If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident. (4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence. The penalty for this offence depends on the particular circumstances, and, as per the Sentencing Council' guidelines, it is: Triable only summarily: Maximum: Unlimited fine and/or 6 months Offence range: Band A fine – 26 weeks’ custody A Band A fine is: 25 – 75% of relevant weekly income The Offence Range has three Categories to determine the appropriate sentence depending on the: Level of seriousness | It isn't uncommon to interlineate contract language, or to cross out contract language, with the initials of the parties to the contract. This is normally only done with smaller businesses, however, where there is someone who has the authority to do so. Some contracts, such as insurance contracts, for example, have to have their language approved by state regulators before they can be used and can't be modified in that fashion. | Setting aside kidnapping, child-endangerment, etc., there are a host of laws requiring the bus and the driver to have special licenses (ie, a commercial drivers license), inspections (including a physical and regular drug tests), training, insurance and so on. Breaking any of these laws is a crime. In most states, these crimes are treated as misdemeanors or gross misdemeanors, so the largest penalty will be something like a year in jail and/or $5,000 fine. In other words: Even before the prosecutor gets to the serious stuff, the driver is in trouble. For those of you who want to dig into the details, this page breaks out what you need to do to become a school bus driver in CA. This page links to the manuals for drivers and buses in WA, along with a list of all of the specific laws and administrative codes involved. | 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. | I can't prove a negative, but it seems quite clear from my research that providing name and badge number is policy, not law. i.e. Many departments have a policy that their officers will provide name and badge number on request, but the punishment for failure to do so would be at the employment level not the legal level. This site has a fairly good selection of various police department policies I will note that Massachusetts appears to be an exception as mentioned by jimsug in his comment to another answer, they do require police to carry and show ID upon legal request (I did not look up what a "legal request" is) | From Rule 170 of the Highway Code: watch out for pedestrians crossing a road into which you are turning. If they have started to cross they have priority, so give way If this was indeed the case, then it suggests that the OP had right of way, and the driver was at fault. In any case, the driver should have indicated before turning. | Can an employer be required to provide an escort from office to vehicle? No, at least, not on the theory articulated in the question. I can imagine some circumstances where it is conceivable that there might be a duty arising from some other source, like an OSHA regulation applied to a firing range business, or an express contract with the employee (some employers provide an escort as a matter of right in the evenings or at other high risk times, as an employee benefit, especially college and university employers, in part, because they have worker's compensation liability while an employee is still on a large campus, in part because it helps attract employees who may feel vulnerable, and in part because of an attitude that the employer wants its employees to be safe at dangerous times of day and this shows that the employer cares about them), or a court injunction related to a labor-management dispute where the employee is a scab. There is no such employer duty, but an employer does have strict liability in almost every case (there are some minor exceptions for very small employers and criminal conduct by an employee who is injured when the criminal conduct is clearly outside the scope of duty of the employee) for injuries and death in the course of employment from any cause whatsoever pretty much (including criminal actions of third-parties) which is generally fully insured by worker's compensation insurance. The exact details of when someone ceases to be at work for worker's compensation/employer liability is buried in case law and regulations (for overtime and minimum wage purposes, the standard is "portal to portal" but workers compensation/employer liability need not be identical, although once you are clearly no longer on the employer's premises and commuting after a day's work is done or before a day's work starts, you are clearly not covered). But, any place where there is employer liability at all, it would be worker's compensation covered. Usually, if the employer is required to have worker's compensation but doesn't, the employer likewise has strict liability for the same harms, but the damages that may be awarded are not limited to those that worker's compensation policies would cover. This leaves the employee with at risk travel between the office and the vehicle. It seems reasonable as well that as the employer prohibits the employees self defence, they would be responsible for the employees defence between office and some safe location (i.e. vehicle). This theory pretty much always loses. An employee walking in an ordinary, non-wartime environment without a firearm is not "at risk" in a meaningful sense, any more than someone who didn't choose to carry a firearm who goes about their daily life (or is prohibited from carrying one due to past conduct such as a felony or a domestic violence protection order or a domestic violence misdemeanor or a condition of parole, probation or bond pending criminal charges). Also, the employee is not being prohibited from engaging in any kind of self-defense or protective action whatsoever (or from asserting self-defense rights if a firearm is carried contrary to an employer rule) just from carrying a firearm at that particular moment (on pain of losing a job, not forfeiting a legal affirmative defense under criminal statutes), which is one of many means by which a person can protect themselves from crimes. | 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. |
It is true that character classes are stock characters? It is true that character classes from a game are considered "stock characters" and therefore excluded from copyright protection? If they are not considered "stock characters" what makes them (somewhat) free to use? The concept of character classes was introduced with Dungeons & Dragons in the 1970s. Examples of character classes found on video games and tabletop RPGs: cleric, druid, warrior, paladin, rogue, shaman and mage. | Arguably not (or, the example terms are not restricted by copyright, but not for the reasons given, which means this protection may not extend past the examples given in all cases). The protection for "stock characters" comes from the "Scènes à faire" doctrine, which protects elements that are elementary and near-required to be part of a genre. For example, a fairy tale is "obligated" to start with "Once upon a time" and end with "And they lived happily ever after". Character classes, by virtue of being character classes, do not qualify under this doctrine to me, simply by virtue of being "character classes". What matters are: a) the terms used for the classes are generic b) there is prior art to any claimed copyright, with uses of such terms in fantasy fiction stretching back at least hundreds of years and predating, for example, modern English. Note that the above is not universal to all character classes. For example, if you had classes whose names that directly related to various other copyrighted works IP (e.g. "Jedi Councilor", "Yogo Wardmaster", "Grey Warden", "Aes Sedai", "Asha'man" "Eversor Assassin"), those could still be infringing copyright. | Udemy claims that all the videos and course content are copyrighted, but does that also hold for the material of the course? Yes, all the material is copyrighted. Ideas are not, material and content is. it would be really useful to me if I could take a large part of that code ... I want to know if I am allowed, by the law, to use this code for commercial purposes, or is it protected as the intellectual property? Yes, it is protected, specifically it has copyright applied and you may only use it if the license it is distributed under allows you to - in some cases this may be a permissive license, or the code may be obtainable legitimately from another source under a permissive license, in which case its usable. But in many cases, it may not be distributed under a permissive license or indeed any license, and in such cases you will not be permitted to use it. The license under which the code is released depends on the individual course, and in many cases the source code repository or download site for the code for the course. Check their for a license. | Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe. | In Germany, there is no concept that corresponds directly to public domain. You automatically hold the Urheberrecht (~ copyright) for all creative works that you make, and it can't be given up or transferred (§29 UrhG). The work only enters the Gemeinfreiheit (~public domain) 70 years after your death. You can however license Verwertungsrechte (economic usage rights). When you make creative works in the course of employment (see §43 UrhG), your employer automatically gets the Verwertungsrechte necessary in the context for the work, which is typically an exclusive right (no one else, not even you, can use the work). Your are not in an employment relationship with your school, so it has no rights to your works and cannot prevent you from publishing them on copyright grounds. When you see advice on the internet to check with your school first, that is U.S.-specific advice. Since you're still a minor (7–17), you only have limited capacity to enter contracts or legal transactions (bedingte Geschäftsfähigkeit). While you are able to make transactions involving your own means (e.g. buying something with your pocket money) or make transactions that are only to your benefit (such as accepting a gift), other transactions are schwebend unwirksam (~ pending ratification), until your parents agree. The relevant law is in §107 and §108 BGB. This is a problem with open source licenses. If you publish software under a license, this license is schwebend unwirksam. Someone might start using the software under the license. But then if your parents refuse ratification, the license would be invalid, and everyone would have to stop using your software and destroy any derivative works they made. This is a bit of a problem, especially since open source licenses are otherwise assumed to be irrevocable. So if you want to offer a license (including open source licenses), please give legal certainty to the recipients of the license and ask your parents for their consent first, possibly even in writing. Per §107 BGB, the license you offer with their consent will be valid. | Copyright never protects ideas or processes, it only protects expression: words, images, and sounds, some of which may describe ideas. But when a work is nothing more than a translation of an idea into words, with no independent originality -- when almost anyone would use more or less the same way to describe the idea, then the work will not be protected by copyright at all, as it is not considered an "original work". Computer code that implements an algorithm often falls under this rule. It is my belief that the code shown in the linked SE thread would fall under this rule, and would not be protected by copyright at all. If this is correct, then anyone may share such a program with no copyright concern. | No. Copyright does not have exemptions for obsolete works, use with credit, or non-commercial use. Depending on the purpose for the distribution, this could be fair use, but it is unlikely that a court will consider this fair use when the only reason is for other people to be able to play games. Perhaps you could try contacting Adobe; it's possible that they will give you a license to distribute the Flash Player. This isn't directly relevant to the legal aspect of copying Adobe's Flash Play, but to answer the underlying issue of legally playing Flash games, perhaps you/others could try Gnash, a libre reimplementation of Flash. I have not used it, but apparently Gnash can run some Flash software without using Adobe's player. | 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. | Monopoly is a trademark of Parker Brothers. You would need to get permission to use that trademark. The artwork of the game is copyrighted and cannot be duplicated without violating that copyright. In general, the labels meaning phrases like "Go to Jail" and "New York Avenue" are probably copyrighted and some court decisions have decided that labels are a copyrightable element. However, there is some gray area. The game mechanics are not copyrightable and can be duplicated. What this means is that if you clone the game and use new labels (like new property names and card titles) then you are probably fine. You would have to make a novel board design. If you clone the game, but use the game's labels, then you could potentially lose in court. Of course, remember that corporations will sometimes sue just to intimidate people, even if they have a losing case. Just because your clone is non-infringing doesn't mean they won't sue you. It costs them money to sue people, so if your clone is obscure or not used by many people it could fly under the radar and be ignored by the company. If your clone was a success and became widely used, that would significantly increase the chance you could get sued. In most cases a company will threaten infringers before they sue them, because it is a lot cheaper to threaten somebody than sue them. Therefore, you could make your clone and just plan on discontinuing it if they threaten you. Of course, there is a small risk they would sue you anyway. If you made no money then you are probably safe because it would be a lot harder for them to argue that you commercially damaged them if you made no money. |
What would happen if I set up an amateur radio station in Canada without entering Canada? I have a US amateur radio license. I do not have a passport or Canadian amateur radio certificate. If I went near the border but stayed on the US side, set up an amateur radio station on a wheeled cart, enabled VOX (so I could talk on the radio without touching it), used a stick to push the cart into Canada, and began talking on the radio, am I subject to either US or Canadian amateur radio regulations? | A little poking around amateur radio sites will find (from the second link): In 1952, Canada and the United States signed a Reciprocal Operating Agreement treaty. In the terms of the agreement, visiting Amateurs may operate in the host country in accordance with the rules and regulations of the host country. You might want to check out https://ham.stackexchange.com/questions for further questions. | In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful? | See Article VI of the Constitution: 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This seems to me that it pretty clearly establishes the Constitution as taking the place of any previous laws. In particular, Article XI of the Articles is in conflict with Article IV Section 3 of the Constitution ("New States may be admitted by the Congress into this Union"). The Constitution says that Congress's action is required to create a new state, and doesn't mention any exceptions. The Constitution's terms presumably take precedence. If Canada wanted to become a state, it would have to be admitted by Congress under Article IV Section 3. | Yes, if it works. FCC regulations allow operation of interfering equipment (for tests and experiment) provided the interference is fully contained in a Faraday cage. You must still "comply with the general prohibition against causing harmful interference to other spectrum users". | Contract law involves a number of parts, the most relevant here being the formation of a contract, and the enforcement of its terms. There are various rules about formation, such as that you cannot hold a gun to a person’s head to force them to say yes (the courts would then say there was no contract), and then under other conditions a term in a contract might be illegal, for instance the courts will not order a person to commit a crime as one of the conditions of a contract. In the scenario that you propose, no term of the contract involves an illegal action, the only presumed illegality is in the circumstances surrounding formation of the contract. Duress is illegal, because there is no voluntary mutual assent. That’s not the case here. So there is no established legal impediment to finding that a contract was formed. There are ample opportunities to test the theory that an element of illegality in the formation of a contract makes the contract void, for example if a physical instrument used in creating or transmitting the contract was used illegally (the paper was stolen, the paper was used without permission of the owner); the assent was made while trespassing; the contract language infringes copyright. Given the court’s very strong commitment to recognizing and enforcing contracts, it is highly unlikely that the courts would reject a contract over a technicality of this type §97.113 of the FCC rules states the prohibited transmissions, the two relevant clauses being that the prohibited list includes (2) Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules; (3) Communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer, with the following exceptions… (2) is not clearly applicable, since the communication is not for material compensation (e.g. A is not paying B to make a transmission). (3) is more likely applicable, since the parties each have a pecuniary interest in the communication. The exceptions involve being compensated for making a communication, or one can on an irregular basis offer amateur radio apparatus for sale or trade. Since the FCC regulations only provide bare languages and no explanatory texts, and they decline to provide any examples (this seems to be a policy thing), and there is substantial unclarity as to what the restrictions mean, see this analysis. A finding of letter-of-the-law violation in this case cannot be made by the court in which breech of contract would be litigated. Instead, the FCC would have to first make a finding of law-breaking, then a party would have to prove in a separate cause of action that because of illegality in the circumstances surrounding formation of the contract, there never was an agreement. | You are subject to the laws of the jurisdiction that you are in. However, some of the laws of the jurisdiction you reside in or are a citizen of have extra-territorial applicability, so you have to comply with those laws too. | There is no law against lying in these circumstances. In fact, for a very modest sum, security companies sell dummy CCTV cameras to make this lie more convincing. However, trespass only happens if people have been warned so this works for literate people who speak English and see the sign. That leaves a very large group of people who would not be trespassing even with the sign. A further problem with a sign on the house is that people have no idea how far away they have to get in order to stop trespassing. In addition, legitimate visitors (uninvited or not) are not trespassers. It seems that people are coming onto your property because they are thirsty. A better way to deal with this is go to your local hardware store and replace the tap with a vandal proof tap that has a removable head. Keep that inside and put a sign next to the tap saying "Refrigerated Water $2 - knock on front door". | All residents in Germany need to have a registered address. The reasons for that are numerous: no need for a separate voting registration, it gives a place to deliver legal notices, it helps enforcing tax regulation (though tax law has another definition of "residence"), certain taxes are assigned to the municipality where you are registered, no need to do a utility bill or credit report dance when trying to prove your address to third-parties, it was always done like that. The last is reason enough as far as bureaucracy is concerned. As far as your question goes, there are a few wrong assumptions. First, nobody is trying to limit or deny registrations. Municipalities actually get money for every resident they have registered through tax allocation. Second, if you (semi-)permanently live at some place you are not considered "officially homeless" but as someone has didn't properly register themselves (which could result in a fine). Third, multiple people can be registered at the same address. How else could people register themselves in huge apartment buildings? Or even a family living together? If there is a suspicious amount of people registered they might want to check whether other regulation (such as minimum space per person) is adhered to. Fourth, to register somewhere you need proof that you actually live there. This is where you probably ran into problems. This proof is usually a letter given by the person allowing you live at a place. Note that this is not necessarily the owner of the place but literally the person allowing you to stay (the authorities can check with the owner though). Often subletters won't sign that piece of paper, either because they think they are not allowed to or they don't have permission by the owner to sublet the place to begin with. If that happens you are supposed to tell that to the authorities (§ 19 Abs. 2 BMG) who then can choose to fine the one providing the place for refusing to sign the paper. (The need for proof was recently reintroduced after it was noticed that there was a huge amount of people who registered at an address where they didn't actually live.) Fifth, if you never have been registered before you can't actually properly pay your taxes as you need a tax ID for that. This is automatically assigned when you – surprise – register for the first time. If you are not an EU/EEA/CH citizen you also need to register yourself before they can change anything about the residence permit within Germany. To end with an answer to your question if taken literally: German citizens can register themselves as homeless (ohne festen Wohnsitz) if they really are. For foreigners this is a bit more complicated. EU citizens usually don't have freedom of movement rights if they can't properly support themselves, a living space is supposed to be part of that. Other foreigners likely violate their residence permit. |
Sexting with a minor overseas Suppose that a person who is 22 years old and is an Algerian citizen has been sexting a minor who is 16 years old living in the UK. Can the Algerian be prosecuted, and if so for what? | The legal age of consent in the United Kingdom is 16 years old, and the legal age of consent in Algeria is also 16 years old so "sexting" itself would not be against the law. However, it is illegal in the UK "to take, or permit to be taken [..] any indecent photography of a child". This counterintuitively also applies to a child (under 18 years of age) taking a photo of themselves, as the photo is considered "Indecent". Within the UK prosecution of possessing, distributing, showing or making of indecent images of children isn't binary. Determining factors in potential prosecution are based on if (amongst other things): There is reason to believe that a child or young person has been coerced, blackmailed or groomed, or there are concerns about their capacity to consent (for example, owing to special educational needs). Source: gov.uk If the adult was trying to repeatedly solicit a picture from the minor then it could come under the Protection of Children Act. It's a legal grey area where it really depends on if the minor was pressured into sending pictures for the purposes of exploitation, malicious intent, persistent behaviour. 'Outcome 21' allows police in the UK discretion to determine if such behaviour occurred and whether to take action against those involved. | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. | 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. | The offences found in the Computer Misuse Act 1990 are criminal offences. The Limitations Act 1980 deals with civil offences and is thus not relevant. Apparently, there is no general statute of limitations for criminal offences in the UK (though for summary proceedings, the limit is in general 6 months). | 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 | If I were a DA (District Attorney) looking out "stamp out" statutory rape, I would make the rounds of the hospitals, identify women who gave birth, or were impregnated when underaged, and go from there. But few, if any DAs, do this. No, you wouldn't. First, you have neither the time nor the budget to do this. Second hospitals are not public property, you would need a warrant which the court won't give you because you don't have probable cause to believe a crime has or is being committed. As a DA, I would of course, follow up on any complaints lodged by the victim, or even by her/his parents. And maybe I would prosecute a case where people were "caught in the act, or there were nude pictures, etc. May even an especially egregious PDA (public display of affection). No, you wouldn't. You would follow up on complaints to the extent that you have the time, budget and manpower to do so and you would prosecute cases where you believe that you have a reasonable prospect of getting a conviction and where prosecution is, in your opinion, in the public interest. In the real world, that means where the police hand you a brief of evidence that is a lay-down misere and (for statutory rape) where there is a real power imbalance between the perpetrator and the victim - giving 2 willing 15 year old kids the label of 'sex offender' for life is probably not in the public interest. But suppose there were no complaints or smoking guns. Could someone investigate based on something like a teenager "holding hands" with someone much older? To make the question objective, what has historically caused DAs to prosecute people outside of the above parameters? With some exceptions, it is not the role of the DA to initiate or conduct investigations of criminal actions - that is the role of law enforcement officers, usually for this particular crime, police officers. Notwithstanding, the general rule in western, liberal democracies (which the United States, with a certain generosity of spirit, can still be considered) is that citizens are allowed to get on with their lives without day-to-day interference from the state. That is, law enforcement officers do not 'go fishing' for crimes, they investigate crimes that they have a probable cause to believe have actually happened, either because they themselves saw it happen or someone has reported it to them as having happened. The term for having a law enforcement officer following you around waiting for you to break the law is 'harassment' and may itself be illegal. A law enforcement officer can initiate an investigation based on anything but as no law enforcement agency has unlimited resources, they tend to follow only those investigations that might lead somewhere. For example, it has been known for parents to hold the hands of their children and even to publicly display affection towards them and parents are often "much older" then their children - this would not generally be grounds for initiating a statutory rape investigation. | The relevant US law is 18 USC Chapter 110. The law forbids minors depicted as engaging in "sexually explicit conduct", or forbids "child pornography", the latter section also defining "sexually explicit conduct". A minor appearing in a movie containing porn is not prohibited. | In the U.S. Those stories could constitute "obscenity," in which case they could violate all sorts of federal and state laws. I was surprised to discover on this DoJ page: 18 U.S.C. § 1465 and § 1466: It is illegal to sell and distribute obscene material on the Internet. Convicted offenders face fines and up to 5 years in prison. It is illegal for an individual to knowingly use interactive computer services to display obscenity in a manner that makes it available to a minor less than 18 years of age (See 47 U.S.C. § 223(d) –Communications Decency Act of 1996, as amended by the PROTECT Act of 2003). It is also illegal to knowingly make a commercial communication via the Internet that includes obscenity and is available to any minor less than 17 years of age (See 47 U.S.C. § 231 –Child Online Protection Act of 1998). Under some state laws merely authoring or possessing obscene material is a felony. However, if the material is not obscene then it is actually protected by the first amendment. In fact many public schools (at least when I was growing up) required us to read "literature" (e.g., The Color Purple) that included descriptions of child rape and sexual abuse. Descriptions of purportedly actual sexual abuse of minors are also common in the testimony and published biographies of abuse victims. In the U.K. Such obscene stories are also illegal in the U.K. The relevant law is the Obscene Publications Act 1959. The Crown Prosecution Service provides information on the specific application of that and related laws. |
What happens if a Supreme Court member dies before a decision is announced? Suppose that the Supreme Court has finished hearing oral arguments to a case, the Justices are in the process of writing up their opinions, and one of them suddenly dies (or resigns, or becomes incapacitated) before the opinion is officially made public. Does his/her vote still count? If not, and the surviving Justices are split 4-4, what will the Court do? Affirm the lower court decision? Reargue the case? | 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. | It's complicated. Rule 53 states Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. This is applicable not just to the Supreme Court, but to all federal courts. Rule 53 applies to criminal cases, not civil suits. Over time, Rule 53 has been expanded. It has changed from merely "photographs" to include television and related cameras. Furthermore, The Judicial Conference of the United States prohibits the televising, recording, and broadcasting of district trial (civil and criminal) court proceedings. Under conference policy, each court of appeals may permit television and other electronic media coverage of its proceedings. Only two of the 13 courts of appeals, the Second and Ninth Circuit Courts of Appeals, have chosen to do so. So courts have the ability to choose whether or not they want to have their proceedings broadcaster/televised. It is technically allowed in the Supreme Court by all other legislation . . . but the decision ultimately rests in the hands of the justices. In the 109th Congress, five bills appeared that would change existing rules, at some level: H.R. 1751 H.R. 2422 H.R. 4380 S. 829 S. 1768 H.R. 4380 and S. 1768 would apply to the Supreme Court; the others would apply to federal district and appellate courts. Both bills would make television coverage is mandatory, unless the justices collectively vote against it. So, once more, the power rests in the hands of the Court. H.R. 4380 is brief, and would be merely an addendum to Chapter 45 of title 28, United States Code. S. 1768 is also brief, and would amend the same statute. Title 28, in all its glory, can be found here (Chapter 45). The proposed additions are noticeably absent, as § 678 is not there. So, addressing some quotes from your question, Are there any reasons against cameras restricted to the Supreme Court, but that don't apply to courts that already allow cameras (such as the UK Supreme Court)? There are no special laws, no. To wit, does the allowance of cameras in other highest courts refute arguments against cameras in the Supreme Court of the United States? Nope. It's purely the decision of the Court. The rationale of the justices themselves against cameras is outside the scope of the law. | The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of "potentially relevant" to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with "strict scrutiny" for protection of Constitutional rights or else discernment of a "rational interest" in government taking a certain action. Either of these kinds of judicial review require a comparison of law to "the facts". Hence "the facts" can be legally relevant. | The appellate court reviews based upon the trial court record. To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is de novo. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed de novo. So are procedural question, like whether an evidentiary hearing should have been held. But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record. Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, in this case and in this case, an appellate court often does engage in de novo review. But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled. While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in this document quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact. Appellate courts "review de novo the trial court's judgment dismissing the complaint and compelling arbitration." Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). "Under N.J.S.A. 2A:24-7, either party may move to confirm an award within three months of the date of its delivery. Once confirmed, the award is as conclusive as a court judgment. N.J.S.A. 2A:24-10." Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N. Haledon, 158 N.J. 392, 398 (1999). N.J.S.A. 2A:24-8 provides a court may vacate an arbitration award for: 1) corruption, fraud or undue means; 2) evident partiality or corruption in the arbitrators; 3) misconduct in refusing to postpone the hearing, upon sufficient cause being shown, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; or 4) the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. "Judicial review of an arbitration award is very limited." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "To foster finality and 'secure arbitration's speedy and inexpensive nature,' reviewing courts must give arbitration awards 'considerable deference.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02 (2013)). "[A]n arbitrator's award resolving a public sector dispute will be accepted so long as the award is 'reasonably debatable.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). "An arbitrator's award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set "strict limits on the appeal of an arbitration award." Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). In support of a contrary view that even the findings of fact of the trial court are subject to de novo review are statements like this one (from this case): The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., L.L.C., 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely dicta as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2). Hirsch was decided in motion practice without an evidentiary hearing (see page 184) and the case itself says (at page 186): Orders compelling arbitration are deemed final for purposes of appeal. R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011). We review those legal determinations de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (“A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). The decision in Frummer was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in Frummer said at page 13: We review the denial of a request for arbitration de novo. See Alfano v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div. 2007). "A `trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 573, 925 A.2d 22 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995)). See also this case stating that: The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). Again, however, I would question whether this holding is dicta because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing. | You are quoting standards that are applicable during an appeal. So in this case, the defendant was brought to trial, was found guilty by a jury, and is now appealing that conviction. During that initial trial, the evidence was supposed to have been weighed neutrally. In an appeal, the appellate court is not attempting to re-litigate the entirety of the case. That would be costly and slow in addition to burdensome on witnesses that might have to be called again to testify. Instead, it defers to the trial court for things like the determination of facts. The standards you quote show that an appellate court is only going to overturn a lower court's verdict as insufficient if the lower court's ruling is manifestly unjust. The prosecution and the defense presented evidence on a particular element of the crime at trial. The jury determined that the prosecution met its burden, and proved the element beyond a reasonable doubt. The appeals court is not going to substitute its judgement for that of the jury particularly when the jury had the opportunity to assess the credibility of different witnesses that may not be possible from a simple text-based transcript. If the trial court convicted and the appeals court determines that the conviction was reasonable if the evidence was viewed from the standpoint most favorable to the prosecution, then the sufficiency standard would be met and the appeal would be denied. The appeals court would only overturn the verdict as insufficient if no reasonable juror could possibly have concluded that the state met its burden of proof given the evidence presented. | The Supreme Court of the United States is our apex court. Its decisions on constitutional questions are binding throughout the country. It is not, however, limited to considering constitutional issues, as it may also consider appeals addressing questions of statutory interpretation and rules of procedure. In very limited cases, it may also sit as a trial court in cases where it has original jurisdiction. | If you have something to say, you should have said it before now When a judge is about to hand down a decision the case is all but over. Just like figure skating at the Olympics, the points are scored even if nobody but the judges know what they are yet. The onus is on the parties to bring forward all the evidence and make all the submissions on the law that they want the judge to consider before and during the hearing. If they didn't then that's their fault and they can't introduce new stuff now. Now, it's not uncommon for a judge to share their thoughts during the hearing or in writing when considering written submissions. This is because their thinking on the law is at variance with what the parties are contending. The plaintiff says the law is X, the defendant says the law is Y, the judge thinks they're both idiots and the law is clearly Z. They will usually call for submissions on this because the judge's role is to decide the dispute between the parties on the evidence the contend -not to impose the judge's interpretation on them; by doing this the parties may relies the judge is right and a lot of the dispute disappears or they may convince the judge that they are wrong (it's not unknown) and move on from a clear agreed position. | Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely. |
Can I expense rental costs for tax purposes? I currently own a property in the UK, which is where I currently live and plan on living most of the time. However, I have recently accepted a job in France and will need to rent accommodation for this purpose. Q: can I expense the cost of the accommodation in France, and also the cost of my travel back and forth from France? On the one hand, these are business expenses in the sense that I would not incur them if I were not doing this job. So one might think they can be expensed. On the other hand, people cannot generally expense rental costs even if they have moved to an area for the purposes of work. Perhaps the fact that my primary residence would remain in the UK could make the difference? | If it is a business expense, yes It depends on the nature of the "job". If you run a business based in the UK and the job is a contract to your business, then the costs involved in performing the work are tax deductible. If you are an employee and the base location of your job is in France, then these are personal expenses and not tax deducatable. | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | Not as such. As the contract author, you must clearly and specifically identify risks that you want to other party to accept. Your whims i.e. "our own discretion" are not a clearly identified risk. The trivial solution is to state that there are two payments, €150 up front and €850 afterwards. Then, you claim the right to waive (at your sole discretion) part or whole of the second payment. It should be noted that the tax implications of such a contract could be non-obvious. You probably have to claim the whole €1000 as income when the contract is signed, and any waived payment as a discretionary expense. You're unlikely to get a VAT refund on that €850, I suspect. So given that you'd have paid €187 to the Irish government, refunding €850 would be hard. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. | They almost surely have no liability to you for the loss of, or damage to, your property, as the standard rental agreement that you signed almost certainly relieves them of this responsibility. If you have insurance (even though you didn't provide them with proof of insurance) that would probably cover your loses. If not, you are probably just screwed and have no recourse. | According to https://www.moneyadviceservice.org.uk/blog/stamp-duty-for-first-time-buyers-your-questions-answered: To be classified as a first-time buyer you must never have owned a residential property in the UK or abroad. This includes freeholds and interests in leaseholds. Being a guarantor on a mortgage is not "owning a property", having your name on the deeds at the Land Registry is. However, your brother should get his own solicitor (the mortgage company may insist on this), who can confirm my understanding is correct. More importantly, the solicitor can explain the risks of being a guarantor to him - he may decide to back out. (Having said which, I acted as guarantor for my son when he rented as a student.) | For a definite answer, Bob should ask his tax advisor. German freelance status ("Freiberufler") is a bit difficult to navigate, because legally speaking, this status can only be applied to contract work that requires a university degree, everything else is a regular business ("Gewerbe") that is taxed differently and requires you to join the chamber of commerce. This has become a bit murky as there are freelance software developers without a degree (who should be careful about using the word "engineer") and the tax office seems to accept that, but I'm not entirely sure they are as lenient towards entertainers (which YT would fall under). The way I understand the Blue Card FAQ, freelancing is not allowed for Blue Card holders, I'd consider that the bigger problem (but that's an immigration issue, not a tax issue). | As far as I know, no jurisdiction in the US relieves a person of their contractual lease obligations when they are required by law to leave the country. However, many (perhaps most) states require the landlord to make an effort to re-rent an abandoned unit, which reduces the size of the tenant's liability. Unless the landlord just gives up on the claim for $8K, you would have that liability, which could be collected through legal process. The landlord might do this in her jurisdiction, which would no doubt result in a default judgment (because you won't show up). Theoretically, she could also pursue you in your home country, but that is much more complicated, expensive, and subject to whatever discretionary dim view the local courts have of US immigration law, or other tenant-related laws (the courts would have to conclude that there was a wrong by the standards of that country). A variant of suing you in your home country is suing you in the US and having the judgment enforced in the foreign country, but that against depends on the legal system of that country and treaties between the country and the US. Since visitor visas are a highly discretionary legal entitlement, it's impossible to say "won't" w.r.t. the question of whether a visa application will be denied because of an unpaid monetary judgment. It's also impossible to say "won't" because the law can change at any time. With those caveats, there does not appear to be any concrete reason to believe that a visitor visa will be denied because you skipped out on a lease. A visa can be denied and one can be perma-banned for lying on interview questions, so the hope is that there isn't a question "do you have any money judgments against you in the US". |
Trading Card Database - Copyright Infringement or Fair Use? I would like to create a text-only database for collectible trading card games. The database would contain card names, ability text, flavor text, etc. Images would not be included. This project would be non-profit, open source, transformative (having been removed from the original graphic context), and non-competitive (the raw data has no use in and of itself). The purpose of the database would be integration with third-party computer applications. Uses could include documentation, product info, search, analysis, etc. Abuses could include creating proxies or replicating gameplay online. Would a DMCA takedown request of such a database be warranted? Why or why not? Which US laws apply? Which Supreme Court rulings apply? Game Copyright Document FL-108 by the United States Copyright Office states that "Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game...". Does this apply to individual cards or just rule books? In most cases flavor text is expressive and original content. Referencing the Wikipedia article on Fair Use, the Text Mining and Internet Subsections seem relevant. I also read the NOLO article on Fair Use. Hundreds of websites already contain card text and images. I suspect that most sites have not received permission to use this content. Sites are often created to generate revenue or are community-driven projects. For example: Trading Card Database, Scryfall Magic (formerly magiccards.info), Sets — PkmnCards, Category:Card Gallery | Yu-Gi-Oh! Wiki . | Fair Use is determined on four traditional factors: 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. A recent example analyzing Fair Use in a similar situation would be Author's Guild vs Google (which came out just before this question was asked), regarding Google Books. Plaintiffs, authors of published books under copyright, filed suit against Google for copyright infringement. Google, acting without permission of rights holders, has made digital copies of tens of millions of books, including plaintiffs’, through its Library Project and its Google books project. The district court concluded that Google’s actions constituted fair use under 17 U.S.C. 107. On appeal, plaintiffs challenged the district court’s grant of summary judgment in favor of Google. The court concluded that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer. Accordingly, the court affirmed the judgment. Thus, in this situation, the author of such a database would have a decently strong argument for Fair Use. But, it may be easier to just get a license to use the data instead of risking court. That decision should be made while consulting an attorney. | I agree that you have a very strong copyright fair use case. Although the logo is creative and you're using the entire thing, your use is for a nonprofit educational purpose and does not affect the value of the work. The logo is also probably trademarked. But you aren't using the mark in commerce, so I don't think that will be a problem for you. | Yes. This is infringement. This infringement might be excused by a "fair use" defense but it probably isn't. At a very small scale tailor to a very specific educational program, for example, for just members of a thirty person English class that they are currently taking, it might qualify as educational fair use. But I get the impression that the contemplated translation project is far more ambitious than that. The underlying content of the events reported in the news are not protected by copyright, but the language used to report those events and any translations of that language, is protected. The only reliable way to solve it is to get permission to do so from the holder of the copyright of the source of the new reports you are translating. | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. | Video game copyrights are really not significantly different from book or movie copyrights. One of the most basic principles of copyright is that one cannot copyright an idea only the words and images used to express an idea. The question quotes 17 USC 102(b) which is the US law establishing this distinction. A Similar plot point or device is not a copyright infringement. Such common tropes as "budding romance obstructed by differing values" is not protected by copyright. Neither, I would think is this device of auto-generated characters in a video game. One cannot lawfully copy or closely imitate the actual words or images or sounds in someone else's protected work (without permission). That is the essence of copyright. (There are limited exceptions such as fair use / fair dealing.) What complicates this and confuses many is the concept of a derivative work. When a character or setting is described in significant detail, a detailed, point-by-point imitation of that setting may be enough to make the newer work "based on" the older work, and thus a derivative work. Unauthorized sequels are often held to be derivative works, for example, or unauthorized "guest appearances" in which a well-know or clearly established character from one work is used in another. If a modern detective goes into partnership with Sam Spade, say, or if Spiderman should be an important supporting character in a newly written novel. Similarly a new fantasy set in Tolkien's Middle-Earth or a new comic in Gotham City would probably be derivative. One of the things protected by copyright is the right to create or authorize derivative works, and courts have held that use of a distinctive character an make a work derivative. But for this to apply the character must be distinctive and recognizable. A general type, such as a detective or superhero (or a large city) is not enough; there must be sufficient imitation to make it clearly the use of a character or setting from a copyrighted work, with a detailed, point-by-point similarity would be needed. A game feature such as this "mercenaries" concept would not make another work using it a derivative work, or at least I don't think it would. But ultimately such decisions are made by a court when and if a copyright holder sues an alleged infringer. Whether a work is derivative or not is a very fact-based decision, and so the exact specifics of the case may well matter. If one is considering imitating some general feature of a previous work, it may be wise to consult a lawyer with IP expertise. I am confident that a major game developer or book publisher would have a staff lawyer to review such questions. | Copyrights don't apply to the names used. You mean trademarks. You copyright your game and you trademark the name. http://www.reddit.com/r/gamedev/comments/11v69k/using_a_guns_name_in_your_video_game/ Basically, it wouldn't be wise to use trademarked names in your game. Even though it's unlikely you would be sued and even if you were, you could possibly fight it under Fair Use, but do you want to take the chance? If some gun company decided they didn't like how you used their name, even if they have little to no grounds for a case, they can STILL sue. Anybody can sue for pretty much any reason where there is doubt. If they have enough money to throw around, they can drag you through the mud, ruin your business and then just lift their lawsuit. They don't need to win in court, just destroy you. Keep in mind that even if you don't use the name, if the gun in your game is an accurate replica of the real thing, it could still be a trademark issue. EDIT: Something you could consider though is asking permission. You never know. They may simply not care. You might even try propositioning them to pay YOU to have their gun showcased in your game. It's not entirely uncommon for companies to be willing to pay for a bit of endorsement advertising. | In general, a gameplay video would be either a partial copy or a derivative work, and in either case an infringement if created without permission. Such a video might be covered under fair use in US copyright law, particularly if made for the purpose of commentary on a game or instruction in how to play or design a game. In general, a fair use defense is more likely to succeed if only the minimum amount of the work required for the purpose is used, and sound tracks might not be required for such a purpose. Thus a maker of such a video might choose to omit the sound to improve the fair-use case. Moreover, when the sound track contains licensed popular music it would be subject to a separate copyright, and many music publishers are notoriously litigious, so prudence would advise omitting the sound. All that said, fair-use is a case-by-case determination, and if the makers of such videos have not been sued, they (and we) can only guess how a case would turn out. As to why game makers refrain from having such videos taken down (if they in fact do refrain) one can only speculate. Game publishers may consider the videos good advertising. Questions based on the absence of legal proceedings are inherently speculative, unless a copyright holder has announced a policy of not taking action and the reasons for it. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. |
What are the Legal obligations of a bicyclist who accidentally scratches one’s empty parked car? What are an uninsured bicyclist’s legal liabilities and responsibilities in England who accidentally runs into thus leaving a minor scratch on an empty parked car? In case of a motorist who is required to maintain insurance it is a criminal offence not to exchange insurance details, but what are the legal responsibilities of an uninsured cyclist for avoiding criminal liability? Surely the criminal statutory requirement most typically of motorists to exchange insurance details doesn’t apply… is this in fact correct? Or are there requirements to leave a means of contact or service and corresponding criminal offences that apply? And then what are the ultimate civil obligations? Is one civilly liable for the cost of repair? | According to Rule 286 of the Highway Code then the actual legal requirement doesn't mention an exchange of insurance details. If you are involved in a collision which causes damage or injury to any other person, vehicle, animal or property, you MUST ... give your own and the vehicle owner’s name and address, and the registration number of the vehicle, to anyone having reasonable grounds for requiring them While you clearly can't provide the registration number of a bicycle, the other details still appear to be legally required. Note that the section on Rules for cyclists specifically states that These rules are in addition to those in the following sections, which apply to all vehicles (except the motorway section). | 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. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | The Kentucky restriction against "hit and run" is KRS 189.580, which says that The operator of any vehicle, whose vehicle…is involved in an accident …shall immediately stop and ascertain the extent of the injury or damage and render reasonable assistance Notice that the legal requirement is for the operator to do something: the law requires nothing of the vehicle itself. Supposing that you are correct that the vehicle was operated by someone who hit and ran, then if the police gain suspicions that such is the case, and if those suspicions are reasonable, then then could obtain a warrant to obtain evidence from the vehicle, which could be used against the operator. The fact that you (might) now own the vehicle would not transfer legal responsibility to you – responsibbility goes with the actor, not the instrument. | I assume you're talking about this case: Bus lane camera mistakes woman's sweater for number plate. No he couldn't just ignore it - because that doesn't actually result in it getting put in front of a human (judge or otherwise). Instead the fine would escalate and ultimately be passed to a collections agency. Only challenging the Penalty Charge Notice (as this person did) would get a human involved. As a bonus, if the automated fine happens to come with a S172 notice to identify the driver ignoring that is an offence in of itself (irrespective of the original alleged offence), and in many cases carries a worse penalty (£1000 and 6 points IIRC). what if this item of clothing became fashionable and was therefore causing this person to receive hundreds of these fines every week? While it's unlikely to get to that stage - the item of clothing on its own wouldn't do it, there needed to be a specific partial-obscurement of the garment as well, it's not impossible, after all perhaps it's their favorite sweater, they always carry their bag like that and cut across the bus lane on their way to work etc. In those circumstances there's nothing legally that changes, I'd expect the poor vehicle owner to be on first name terms with the people at the council enforcement call centre in question sooner rather than later. Re edit: Suppose I want to annoy somebody as much as possible, what's to stop me from printing a t-shirt with their actual number plate on it, then walking around past all sorts of cameras, knowing that they will receive multiple fines every day and have no choice but to keep calling and explaining. After all, the council has no duty to make it easy for someone to get through on the phone, so, potentially, I could walk around bus lanes and car parks all day. I could get some friends to do this all over the country in different local authority areas and the victim could - literally - have not enough hours in the day to have to keep fighting false fines. Would they not have some recourse to sue for harassment or "vexatious litigation"? In all honesty I don't know for sure what would happen in this scenario - I can't think of a similar enough case. But I would expect targeting an individual in this manner would qualify as harassment pretty easily and for which there are both criminal and civil actions that can be taken. I suppose hypothetically you could argue that the "number plate shirt" is effectively being used to make false allegations that the car's registered keeper had committed crimes, which opens up avenues to prosecution for Perverting the Course of Justice or wasting police time. But I have no idea how likely that would be to be pursued. | Such "warranties" are generally subject to separate laws, and they are not treated as a subcase of "car insurance". Whereas homeowners insurance, vehicle liability insurance and so on are regulated in all states, extended warranties are regulated in over half of the states. There is a model law which tends to inspire state legislators in writing their own laws, and here is an instantiation in Washington state. At the outset, the law says that certain things are not covered, including warranties, maintenance agreements and service contracts (what then is covered??). There may be "required content", for example Service contracts shall state the procedure to obtain service or to file a claim, including but not limited to the procedures for obtaining prior approval for repair work, the toll-free telephone number if prior approval is necessary for service, and the procedure for obtaining emergency repairs performed outside of normal business hours or provide for twenty-four-hour telephone assistance. There are sections specific to motor vehicles, which could be relevant, for example "A service contract provider shall not deny a claim for coverage based upon the service contract holder's failure to properly maintain the vehicle, unless the failure to maintain the vehicle involved the failed part or parts". At the bottom of the Model Act document is a list of statuses in the various states: it's status in Connecticut is nonexistence, as of July 2014 (and no signs of such a law having been subsequently passed). There is a general law about express warranties, which doesn't impose any content restrictions on such contracts. So in CT, it depends on what the contract says. | Barring manufacturer negligence (and even this is a dubious theory, given that recovery would be for pure economic loss), there is probably no legal theory that would allow recovery of any loss of resale value. I am assuming that the promise to replace/repair the engine if it fails is part of the contract of sale. This is typical for a warranty that the manufacturer will repair certain failures. Assuming the manufacturer fulfils what it agreed to in the warranty, then the buyer is getting exactly what they contracted for and there is no contractual theory that would support any further recovery: there is no breach. The buyer bought a car that included a warranty to repair. I cannot imagine that they bought a car that included a promise that it would not fail. | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. |
Must the USCIS abide by the Code of Federal Regulations (CFR), or is the CFR just a set of guidelines that aren't legally binding? I wonder whether the United States Citizenship and Immigration Services (USCIS) must abide by the Code of Federal Regulations (CFR) or the CFR is just a set of guidelines that aren't legally binding (i.e., the USCIS may take actions/decisions that contradict the CFR without potentially facing legal consequences). I'm mostly interested in the part of the CFR that pertains to the naturalization process, if that matters, e.g. 8 CFR 316.5(b)(5)(ii): (ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in § 316.2(a)(5) when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization. The naturalization applications are handled by the USCIS. Since I read on https://www.uscis.gov/policy-manual: The [USCIS] Policy Manual contains the official policies of USCIS and assists immigration officers in rendering decisions. The Policy Manual is to be followed by all USCIS officers in the performance of their duties but it does not remove their discretion in making adjudicatory decisions. The Policy Manual does not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. I wonder if, unlike the USCIS Policy Manual, the CFRs are legally enforceable. | Much of the Code of Federal Regulations consists of restatements of statutory provisions found in the United States Code. In the case of Title 8, CFR, these provisions are largely to be found in Title 8, USC, which codifies the Immigration and Nationality Act. To the extent that anything in the CFR duplicates a statute, it's legally binding, because it is in fact a statutory provision. That case is not particularly interesting to your question, of course. There is another law that governs the CFR, which is the Administrative Procedure Act. In short, this law requires the executive to abide by its promulgated regulations and not to change them without following certain procedures, and it gives the courts the power to enforce this. Therefore, the answer to the question Must the USCIS abide by the Code of Federal Regulations (CFR)? Is basically yes. If you believe they haven't, you can take them to court. | The police are mistaken because they don't understand immigration law. Usually, the first step to resolve this problem would be to explain the situation in a letter to or telephone call with the town attorney, elevating it from a police officer who has no training in citizenship and naturalization paperwork, to an attorney, who should either know better, or should be able to find out more easily. | As a US Citizen, you don't get a I-94 recording of entries and exits but : The FOIA site of the CBP, mentions Information Regarding Entry and Exit Note: CBP does not have records on the entry and exit of persons arriving or departing the U.S. before 1982. To be filled with CBP However, this doesn't mentions if this is only applicable to Aliens or US Citizens are included or not. But this CBP help page mentions travel records for US Citizens | Shapiro v. Thompson was overruled in part by Edelman v. Jordan, 415 U.S. 651 (1974). See the Wikipedia article. In Vlandis v. Kline, 412 U.S. 441 (1973), the court notes and did not object to durational residence requirements imposed by states to qualify for the benefits of lower university tuition. In Vlandis the Court wrote: Like many other States, Connecticut requires nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled. Conn. Gen.Stat.Rev. § 1329(b) (Supp. 1969), as amended by Public Act No. 5, § 122 (June Sess.1971). The constitutional validity of that requirement is not at issue in the case before us. What is at issue here is Connecticut's statutory definition of residents and nonresidents for purposes of the above provision. ... The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligating nonresident students to pay higher tuition and fees than do bona fide residents. The State's right to make such a classification is unquestioned here. Rather, the appellees attack Connecticut's irreversible and irrebuttable statutory presumption that, because a student's legal address was outside the State at the time of his application for admission or at some point during the preceding year, he remains a nonresident for as long as he is a student there. This conclusive presumption, they say, is invalid in that it allows the State to classify as "out-of-state students" those who are, in fact, bona fide residents of the State. ... It may be that most applicants to Connecticut's university system who apply from outside the State or within a year of living out of State have no real intention of becoming Connecticut residents, and will never do so. But it is clear that not all of the applicants from out of State inevitably fall in this category. Indeed, in the present case, both appellees possess many of the indicia of Connecticut residency, such as year-round Connecticut homes, Connecticut drivers' licenses, car registrations, voter registrations, etc.; and both were found by the District Court to have become bona fide residents of Connecticut before the 1972 spring semester. ... In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. ... Our holding today should in no wise be taken to mean that Connecticut must classify the students in its university system as residents for purposes of tuition and fees just because they go to school there. Nor should our decision be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status. We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis. | It is likely that you don't owe any taxes even though you have worked for many years in Brazil. Earned income that is earned outside the U.S. by natural persons who are U.S. citizens (as oppose to entities like corporations) up to a certain amount that is indexed for inflation is excluded from taxation under Section 911 of the Internal Revenue Code. The cut off is $104,100 U.S. per year in 2018 (about 347,000 Brazilian Reals per year). Also, unearned income and any excess earned income can benefit from the standard deduction and personal exemption from U.S. income taxation unburdened by your foreign earned income up to the threshold. This can be quite substantial. Similarly, if you have children, they would benefit from the child tax credit which would reduce your income tax obligation. And, any U.S. federal income tax due on your unearned income to the extent that it exceeds the standard deduction and personal exemption from U.S. income taxation is reduced by any Brazilian taxes you paid on your Brazilian income as a result of the foreign tax credit. The bottom line is that unless you are very affluent and have significant unearned income, it is unlikely that you owe any U.S. income taxes. Even if you do owe U.S. taxes after these considerations, they wouldn't arrest you. You have to be "willfully" violating U.S. tax laws for it to be a criminal offense and this is one small corner of the law where ignorance of the law is an excuse. And, the Internal Revenue Service would first have to send you several notices by mail setting forth the amount that they think that you owe, allowing you to dispute that amount, and the declaring that you owe it, before you have a potentially criminal tax violation that is well defined enough and communicated to you well enough that you can willfully fail to file a tax return or can willfully fail to pay. So no, they will not arrest you and make you pay, at least not until they send you lots of notices which you ignore. On the other hand, if you do owe any U.S. income taxes there is no statute of limitations on collecting those taxes for years in which you were required by U.S. tax law to file a tax return but did not (basically, years in which you owed U.S. taxes). So, if you, for example, won a big lump sum payment playing the lottery when you were 20 years old and owed U.S. income taxes as a result (even though you didn't know it), those taxes could still be collected by the IRS when you are 40 years old since you did not file any U.S. tax return for the year in which you had taxable U.S. income. Finally, under the Tax Cuts and Jobs Act of 2017 enacted in December last year, U.S. taxation of the foreign income of U.S. persons was reformed in the most significant way in the last seventy years or so, and the taxation of U.S. persons on foreign source income is greatly curtailed for 2018 going forward. This is not retroactive, but could mean that as you come into your higher income earning years in middle age, that the taxation of U.S. citizens on their worldwide income is no longer a serious concern for you, even if it would have been under U.S. tax law before then. Enforcing laws that have since been repealed is also rarely an administrative priority for the IRS. It is also hard (to the point of being economically not worth it) to enforce U.S. tax laws against someone who has no U.S. assets. It is also possible that even though you were a dual citizen at birth, that you could have taken an act (e.g. voluntarily serving as an officer in the Brazilian military) that could cause you to lose your U.S. citizenship. So, even if you were a U.S. citizen at birth, it is not 100% certain that you are a U.S. citizen now. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. | It's not possible to marry the US citizen until the first marriage is terminated, and the F-2 status ends when the marriage is terminated. It's not the F-2 status that prevents the marriage to the US citizen; it's the continued existence of the previous marriage. It might be possible to file for change of status (to B-2 perhaps) in anticipation of the termination of the marriage, but it seems unlikely to be accepted by USCIS. It would certainly be unwise to attempt anything like that without the advice of an immigration lawyer. |
Find out if "Further reproduction prohibited without permission" document is original There are many documents containing "Reproduced with permission of copyright owner. Further reproduction prohibited without permission". I'd like to read those which were legally uploaded. However I am unsure about how I can determine if the uploaded copy on a webpage is the original, the single reproducible copy or a further-copied pirate copy. Do you have any tips? If it's not possible to determine this, would the legally wiser choice be to read the document or to assume that it's an illegal copy? | It does not matter whether the document is authentic, because it is true, by law. Under copyright law, you must have permission of the copyright holder to copy any protected work (original creative work not created as a work of the US, as an example under US law). This is true whether or not the copyright holder tells you that copying requires permission. A matter for more concern is "false permission", where a person without the right to grant permission utters something that the courts would usually interpret as being "permission", for example releasing a Harry Potter book under CC-0. The legal requirement is that you have actual permission, not that a prohibition was not communicated to you. It is in your interest to know whether the actual person making available a work under some license actually has the right to grant a license. But there is no way to know for certain who holds copyright. You can, however, attempt to determine that a work has been registered with the US copyright office, looking here. Works are still protected when not registered, so failing to find a copyright registration does not guarantee that the work is "open access". It would tell you who the registered copyright holder is. There is no "innocent infringement" defense, but under §504(c)(2), your liability for statutory damages can be reduced to as little as $200, if you can prove that there were no indications that the work is protected. | Copyright law regulates copying of protected material. In the US, there are no laws that specifically prohibit reading anything. It may be illegal to be in possession of something (classified material), but if it is legal to be in possession, it is legal to read. (Do not confuse "read" with "read aloud to an audience" a.k.a. perform, which is a separate copyright protection). It is not illegal to be in possession of material that was copied without permission. | No, you cannot ever legally use copyrighted property without a valid license from the copyright owner. It is understandable that when government restrictions prevent people from licensing intellectual property, people will turn to piracy and black markets to obtain them. However, whenever you find yourself in a region where you can legally license the property, you are (presumably) also in a region where intellectual property rights are respected, and it is illegal to use the property without a proper license from the owner. I.e., the fact that you paid a pirate for a copy – even where that was the only option to obtain one – does not give you a license. You have to obtain a license from the owner. | If you copy copyrighted material without permission or another exemption, you are at risk It doesn’t matter if you know the material is subject to copyright, it doesn’t matter if you think you have permission but don’t, it doesn’t even matter if you knowingly make the copy or if it is some background process you don’t know about. Copyright law is really simple: if you make an unlawful copy, you broke it. If this seems unduly harsh, remember you are dealing with a law with its roots in the 18th century that was internationalised at the beginning of the 20th century. Making copies then was a hard, deliberate process - you couldn’t “accidentally” or “inadvertently” make a copy of a literary or artistic work. Now you can - the world has changed, the law hasn’t. | These files are not public domain Read it carefully, it only says “public domain musical compositions in a MIDI (Musical Instrument Digital Interface) file format.” The compositions are public domain, the MIDI files aren’t - they are a derivative work (a translation) covered by their own copyright. Specifically, “© Copyright 2001 University of Arizona. All rights reserved” right next to a big “Contact us” link. Literary and artistic works that are derived (legally) from existing works have independent copyright even if the original no longer does. Mozart, for example, did not write his compositions in MIDI format. Now, it may be the intention of the University of Arizona that you can use it but, if so, they have not made this clear. It’s possible that the authors (mistakenly) thought that because the originals were public domain, their derivatives would be too. The music school should have talked to someone from the law school. All of the purposes that they talk about on the “Purpose” page are equally applicable to widely licensed (e.g. everyone) or narrowly controlled (e.g. staff of the University). Overall, a prudent person would assume that these works are copyright of the University of Arizona and can’t be used without permission or a fair use exemption. Your proposed usage is not fair use. However, there is a big “Contact us” link on every page so you can always ask for permission. | The copyright owner is whoever first put the material in fixed form. It is most likely that that is the note-taker (you). It is possible (and highly unlikely) that the lecturer read (had memorized) a prepared script and you copied that script mechanically, and if that were the case, he would hold copyright and you infringed by making a copy. Typically, a note-taker follows the logic of a lecture and expresses those ideas in his own words (the notes do not match a plausible verbatim class lecture). Since expression is protected and ideas are not, that makes it most likely that you would prevail in a suit. The equations are almost certainly not protected. | Of course. Copyright law prevents you from making copies, and prevents others from making copies. It doesn’t oblige you to take extreme precautions against vague possibilities that others might break the law. And reading is not considered “copying”. So you don’t have to prevent others from reading your books at all. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. |
Can a f-2 visa holder request for status termination to re-marry a US citizen? If someone came to the US with F-2 visa while she and her husband (F-1 visa holder) are not US citizens nor permanent residents, and their marriage happened in their home country, can she (F-2 visa holder) request to terminate her F-2 status and just after that marry with a US citizen? Is it needed to get a legal divorce either within the US or their home country embassy before she can marry a US citizen even if she has terminated her F-2 status? | It's not possible to marry the US citizen until the first marriage is terminated, and the F-2 status ends when the marriage is terminated. It's not the F-2 status that prevents the marriage to the US citizen; it's the continued existence of the previous marriage. It might be possible to file for change of status (to B-2 perhaps) in anticipation of the termination of the marriage, but it seems unlikely to be accepted by USCIS. It would certainly be unwise to attempt anything like that without the advice of an immigration lawyer. | In the USA, at least, it has never, to the best of my information, been legally mandated to add a name on marriage, or even for husband and wife have the same last name. It has long been customary in the US for a woman on marriage, to adopt her husband's surname. This is no not nearly as common as it once was -- it was once almost invariable, but some women did not do so, or kept a pre-marrige name for professional purposes, even many generations ago. When a woman married, in some social sub-groups it was common to simply drop her former surname and replace it with her new husband's surname. In others, the new surname was added to her existing name, potentially leading to the kind of long series of names mentions in the question. In the 1990s Judith Martin, writing as "Miss Manners", wrote that the first of these was the more "traditional" but both were not uncommon. When I was married, the clerk asked my wife and I what name each of us would be known by after the marriage, and that constituted a legal change of name. But we were free to make any choice we wanted. I think this has been the usual procedure in the US for a long time now. On divorce, a woman in the US (and the UK and Canada) traditionally kept her former husband's last name, although some returned to a pre-marriage surname. On remarriage, some added a new husband's surname, others replaced the former husband's name. Some said that keeping the former husband's name was a statement that the woman had been without fault in the divorce, or want to remain associated in some way with her former husband's family. There were, of course, also women who remarried after a former husband's death, rather than a divorce. In any case, I do not think any of this was legally required, but custom can sometimes be as strong as law. Other cultures had and have different customs on marriage and divorce. But in most places these are not a matter of law. I do not know of any country that legally mandates a change or modification of name on marriage, but some may. | If the passport that was stolen is a U.S. one, you should report it by any of the channels outlined on the State Department's page Lost or Stolen Passports. The paper-reporting option is via form DS-64, which asks, among other things, whether you filed a police report; so it might be good to do that first. Form N-565 is a similar form for requesting the reissue of a naturalization certificate, and it, likewise, asks about any police report. Withholding someone's ID documents, knowing that they are necessary for travel, would be "false imprisonment" under both state and federal statutes. Also, 18 USC §§1426 and 1427 cover the crimes of "Reproduction of naturalization or citizenship papers" and "Sale of naturalization or citizenship papers"; a 10-year felony for a first offence. "Whosoever unlawfully ... disposes of a ... certificate of naturalization, ... shall be fined under this title or imprisoned not more than ... 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime)," If the police take your report but don't scare the possessor of your documentation into immediately returning it, you could sue him or her for the actual expenses of obtaining replacements in Small Claims court. If the mispossessed passport causes big enough damages, I guess you could sue in any court that has jurisdiction. | Your children may have automatically become US citizens at birth, depending on how long their mother lived in the US before they were born. US law says that any child born abroad to an unmarried US citizen mother is automatically a US citizen, as long as their mother had lived in the US continuously for at least one year before the child was born. There is a clear discussion of the legal requirements in Chapter 3 of the USICS Policy Manual: US Citizens at Birth . Your specific situation is covered by § C.2: Child of a US Citizen Mother (also at the bottom of the page!). (The underlying statute, §1409 of the Immigration and Nationality Act, is here. Like most of the INA, §1409 is not reader friendly.) | There are several reasons people wish to get a marriage annulled. I'll try to list them in order of frequency -- though I'm unaware of any statistics that confirm that my ordering is correct. Money. As per Nij's comment, when people are divorced, their property is subdivided 50-50. If one person can get away with an annulment, and keep the property which he earned, then it will be in his interests to do so. Religious reasons. As per SJuan76's comments, several churches, including Catholic, Mormon, and Russian Baptist, do not allow a person to marry if his previous spouse is still alive. An annulment is a way around that. Fraud marriages. This is rare, but under Trump it happens more often then you might think. People (usually women) come to the US illegally, marry someone (generally significantly older), and after the wedding day they are never again seen by their spouse. They use their marriage certificate to ensure permission to stay in the US -- but, they were never interested in marrying that person in the first place. When found, often such people are living with another illegal alien "as a boyfriend", with kids born before the fraud marriage even took place. It is in such cases, that their new spouse often tries to attain an annulment of the marriage -- to make sure that the illegal alien doesn't get rewarded for cheating them. Personal reasons. For some people, having never been married means it's easier to get a spouse who also has never been married -- and being able to check the "Single -- Never married" box on a form is always a plus in such cases. Now, don't ask me why people prefer to marry someone who's never been married, over someone who's been divorced. :) Incest. Under the US law, if you marry someone who's your close relative, then you are guilty of a felony -- even if you didn't know they're your close relative at the time of marriage. However, if you annul the marriage, then you can avoid prosecution. | If the spouse of the US president filed for divorce, would a) the President have any claim of immunity from any litigation that followed (e.g. the division of assets in the matrimonial pot, child custody etc.), The President could claim it, but the President wouldn't win. Notably, a number of state governors and mayors have divorced while in office, and other foreign heads of state have been divorced while in office. For example, a U.K. court recently handled the divorce of a UAE monarch (over his objections to jurisdiction on sovereign immunity grounds), applying the same common law principles of head of state and sovereign immunities that exist in U.S. law and concluded that it had the authority to move forward with the case. Also, any Presidential divorce would take place in state court, not in federal court. Federal courts do not have subject-matter jurisdiction over divorce and custody cases (under the "domestic relations exception" to federal jurisdiction), so the civil action could not be removed to federal court, unlike federal criminal cases involving the official duties of the President and unlike civil cases over which the federal courts have jurisdiction. b) would all the proceedings be fully held in private, This would be in the reasonable discretion of the judge. It would not be a matter of right, but it is quite plausible that a judge might close the proceedings, especially if minor children were involved. c) could the President themselves be compelled to take the stand and Yes. A party to a lawsuit may always be compelled to take the stand, at least if no other person can provide a full substitute for the party's testimony. In ordinary civil lawsuits against the President, a President is usually compelled to testify only if an underling involved in the same matter cannot provide equivalent testimony. In many civil cases naming the President in his official capacity, the President has no personal knowledge of the facts and so can't be compelled to testify. But that would rarely be true in a divorce case, and would never be true in a divorce case where custody was an issue. This said, a state divorce court judge would almost certainly be very deferential to the scheduling concerns of the President for that testimony, and might allow that testimony to be provided remotely via videoconference so as to minimize the interruption this would pose to affairs of state and to address the security concerns of the Secret Service (i.e. the President's official bodyguards). d) what would happen if the President refused to do so? The judge could hold the President in contempt of court, which is punishable by fines and/or incarceration. But a more likely outcome, tailored to minimize interference with government business, is that the Court would sanction a President who defied an order to testify by assuming as a matter of law that any testimony from the President would have been unfavorable to the President and make a conclusive adverse inference on the evidentiary issues about which the President was asked to testify against the President. | For the US, the Uniformed and Overseas Citizens Absentee Voting Act provides that just about any US citizen living abroad who has previously resided within the US is entitled to vote in federal elections as though they still lived at their last US address, provided they'd be eligible to vote if they still lived at that address. If you're overseas on duty in a uniformed service of the United States or as a spouse or dependent of such a person, it's based on your legal residence instead. This is a right of US citizenship; dual citizenship doesn't affect it. This State Department website has details; there's a special process you can generally use instead of the state absentee process. UOCAVA applies to all federal elections (including primaries); state and local election eligibility is up to the state. For Canada, citizens of Canada living there seem to have the right to vote regardless of any possible loyalty issues with another country. Canadians living outside Canada for over five years can't vote, but if you live there it seems as though it is allowed. So, the answer is seemingly "yes." For a definitive answer, contact the US consulate and Canadian election officials. | Foreign citizens are just as entitled to Fourth Amendment protections against search and seizure as American citizens are. The case you cited was, in fact, a South Korean citizen who successfully had evidence suppressed from an unjustified border search. |
Why aren’t anti-abortion laws unconstitutional since they force women to carry a pregnancy against their will? If we are afforded the right to self-determination as well as protection against the actions of others that may threaten bodily integrity, wouldn’t it be unconstitutional for the state, by denying access to abortion, to force a woman to carry an unwanted pregnancy against their will and without their consent? | The problem is that the Constitution does not provide a freestanding right to "self-determination," to self-defense, or to bodily integrity. To the extent the courts recognize any of these as implied rights, they are subject to balancing against other rights or governmental authority. Analogizing to the Second Amendment can be helpful. There's a lot of gray area in Second Amendment law, but it's pretty clear that I have a right to keep a knife on my bedstand, but not to build a nuclear arsenal in your backyard. Why not? Because you have a right to keep people off your property, and because the government has an interest in protecting its citizens, infrastructure, and natural resources from the risks associated with my incompetent exercise of my Second Amendment rights. So what interests are at stake in the abortion question? Roe held that women have a right to privacy that protects access to abortion, but it also recognized that the government has an interest in protecting potential life. The question was how to balance the privacy interest against the interest in protecting potential life. Roe said the woman's rights generally outweigh the government's interests up until the point of viability, at which point the government's interests begin to outweigh the woman's privacy interests. But Dobbs appears poised to change that by saying that the woman's right to privacy does not exist at all. Dobbs likewise rejects the idea that the right to due process or any other constitutional right protects the right to abortion. Therefore, it concludes, a woman has no rights that can outweigh the state's interest in protecting the potential life she is carrying. Dobbs also recognizes -- but does not take a position on -- the argument that a fetus is actually a person itself. If a legislature were to adopt that position, and the courts were to accept it, we would find ourselves in a position where whatever rights a woman has to self-determination and bodily integrity would have to be balanced against the fetus's rights to self-determination and bodily integrity. | No australia You seem to be labouring under the misaprehention that the male and female parents are the only people involved and only their needs and desires are relevant. Child support, as the name implies, is for the support of the child. The law is that that parents are responsible for the wellbeing of the child and, barring of removal of the child by the state, this is not an obligation they can avoid. | I know of no specific provision of the Constitution that would forbid it. I know of no court case in which it has been found unconstitutional. There's no "irony" clause in the Constitution. Taxation without representation may have been a grievance, but there's no inherent reason why the framers would have had to forbid it. US citizens do still have the "freedom to expatriate" (and avoid taxation) if they renounce their citizenship. There are already other examples of "taxation without representation" in US law (e.g. District of Columbia), which also have not been found unconstitutional in court, as far as I know. In many cases, expatriates can still vote for federal offices, including Congress (e.g. in a state where they used to live, or where a parent used to live). See https://www.fvap.gov/citizen-voter/registration-ballots. The Sixteenth Amendment gives Congress the power to "lay and collect taxes" with few limitations. There is certainly no explicit exception for expatriates. As far as I can tell, it would be constitutional if Congress were to impose an income tax on everybody in the world, regardless of residency or citizenship; it would just be hard to enforce. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | For the record, factual impossibility is rarely a defense to a crime. In United States v. Thomas the court decided that men who believed they were raping a drunken unconscious women were guilty of attempted rape, even though the woman was dead at the time. In this case there is no facts that made the offense impossible to commit. The suspect clearly submitted a false prescription and obtained the drugs he or she wished to obtain. There is no impossibility. Instead the police officer, as the saying goes, has the suspect "dead to rights". This is not legal advice. Consult an attorney for that. | There is no parallelism between the Texas decision and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a petition procedure whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation. As argued here, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal. | Sure: No Constitutional rights are totally unencumbered. Even natural rights like the "right to life" are legally "infringed" through various theories (e.g., self-defense, capital punishment, warfare). The Second Amendment has been interpreted as a right to keep and bear weapons that would reasonably be used in self-defense or in military service. You don't have to go to strategic weapons like nukes to find "reasonable infringement" of that right. For example, even though the military and even police routinely use explosives, individuals are absolutely subject to the whims of a federal regulatory agency (the BATFE) as well as state restrictions if they want to keep and bear detonators. Also, I'm not aware of an absolute prohibition on the possession of nuclear devices by non-government entities. E.g., various government regulators oversee private entities that operate commercial and research nuclear reactors and other activities that put them all-but in possession of nuclear arms. If an individual really wanted to legally keep and bear a nuclear weapon it could probably be done with enough money and oversight. (Amendment: Except, as cpast points out in the comments, that there is a law against private possession of nuclear weapons in the U.S. Which just goes back to the broad answer to your general question: In practice there are no unencumbered rights. Constitutional "rights" might better be called things that require "strict scrutiny" and "narrow tailoring" of government infringement.) | No rights are absolute. In particular, Charter s. 1 specifies rights are "subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Generally speaking, when rights are infringed the courts will consider it a justifiable infringement if it serves a substantial purpose while proportionate, rational and minimally infringing (Oakes test, though there's a heap of subsequent case law refining the test). While the exact order text isn't yet available, determining constitutionality would typically be a detailed analysis a judge would have to perform after hearing arguments from parties to a case (I assume the order will eventually be published here). In my own opinion, I would imagine such an order without appropriate medical exemption would be unconstitutional. It would seem to be disproportionate to deny freedom of movement to a presumably very small number of persons who could do little to remedy their medical condition. As a similar example from another province, a Quebec court ruled that a Covid-19 curfew requiring people to remain inside at night would not apply to homeless people due to discriminatory and disproportionate effect. Assuming the order to be similar in nature to existing BC orders on gatherings and mask-wearing, I would imagine lack of religious exceptions to be constitutional, as those orders have already been challenged and upheld against religious objections (though I believe appeals are still possible). The nature of the identified infringements against religious groups was considered reasonably proportionate, rational and minimal enough when weighed against the legitimate governmental need to contain the spread of Covid-19. P.S. The Canadian Bill of Rights has in practice been largely superseded by the Charter. Furthermore, it is completely inapplicable here as it is a federal statute with no effect on provincial matters. |
Is it a war crime or act of war for a noncombatant "neutral" third party in a war to share information with either of the warring factions? There is some discussion from fringe Twitter users that Ukraine's artillery strike on a Russian forward command post that killed Russian senior leadership was a war crime, based on an entirely incorrect reading of international warfare laws concerning "treacherous killing", a situation which covers assassination through deception or ruse and doesn't apply here. After that was pointed out, the user in question pivoted to "The location of this forward command post was shared with Ukraine by the USA, which is an act of war or a war crime in certain circumstances", circumstances which were not expanded upon. However, I'm skeptical of this claim as well. Is it an act of war or a war crime if, during a war between country A and country B, country C with friendly relations with country A but not officially involved in the war shares intelligence about country B with country A? | Sharing intelligence is an act of war inconsistent with neutrality However, so is supplying arms to a belligerent. A neutral State must never assist a party to the armed conflict, in particular it must not supply warships, ammunition or other war materials directly or indirectly to a belligerent power, but otherwise its trade with the belligerent States remains unaffected. However, it’s not a war crime. | The international laws of war are generally much easier to apply in the context of a group of people claiming to be a state, than in the context of a group of people who do not claim to be a state. For example, one of the critical questions for classifying an individual under the laws of war is whether the enemy combatant is publicly identified as a soldier of the entity against which a country has declared war. In the context of an entity that claims to be a state, like Daesh, the distinction between identified soldiers, civilians, and covert combatants is relatively workable to apply. There are actually tens of thousands of people who personally identify themselves as regular soldiers loyal to a particular Islamic State with a defined territory, chain of command and political leaders, and there are millions of people who personally identify themselves as civilian subjects of Daesh who are not soldiers, and there are probably even people who personally identify themselves as covert combatants for Daesh - like some of the European terror incident perpetrators we've seen over the last couple of years. People applying the laws of war still need to do their best to accurately determine who fits in which category, but the categories in question are bona fide meaningful categories that are mutually socially agreed to by everyone involved that are reasonably well defined. Recognition of something as a "state" for law of war purposes is also something quite different from recognition of something as a state for diplomatic purposes. Inherent in the laws of war is the understanding that one side may believe that the other side is an usurper or illegitimate government. In contrast, in conflicts with many organized groups that are clearly non-state actors in the eyes of all involved, the distinction between publicly identified soldiers of a state and covert combatants is often ill defined. Calling people citizens or subjects of that non-state group is likewise hard to analogize to the kinds of situations contemplated when the laws of war were devised. Does one have to be a "member" of the organization to qualify as a subject? Does one have to provide "material support" or conspire to carry out some specific acts? Or, does subjective support or a bare public statement of allegiance on a facebook page or bumper sticker suffice that did nothing material to aid the cause suffice? This matters because, under the laws of war, subjects of an enemy can be interned humanely even if they are not combatants, and the lawful treatment of public and covert combatants is very different under the laws of war. | The new decree of November 14, 2022 contains an amendment (bottom of p2) to the Federal Law 53-FZ originally enacted on March 28, 1998, concerning military service. The former version of the text contained separate provisions in Article 2 about different kinds of military service that could be performed depending on nationality. This allowed Russian citizens who also held another nationality, or foreign citizens, to serve in the Russian armed forces under contract, and only in non-officer ranks. Russian citizens without other allegiances were able to serve voluntarily, or be conscripted, and were additionally eligible to serve in the state intelligence apparatus and other bodies, as well as in the main armed forces. The amendment is slightly differently organised, but the key part is the text which extends service "по призыву" (on demand) to "гражданами в том чсиле имеющими гражданства (подданства) иностранного государства" (citizens, including those who have citizenship (nationality) of a foreign state). Draftees under this section are again only for the non-officer ranks of the regular armed forces. The option is retained for Russian citizens without other allegiances to volunteer, in which case they might become officers or serve in the broader military/intelligence establishment, or for non-Russians to volunteer for the regular forces. Russia's original law was fairly generous in exempting holders of other nationalities, as most countries with mandatory military service or registration do not make the distinction. For example, Israel and the USA are two countries where holding additional nationality is not a barrier. (Though in both of those cases, there are other exemptions which might be in play. The USA is also not currently operating actual conscription, just a registration system.) And there are plenty of countries without a draft at all. In the context of the overall pipeline from "you are a regular person minding your own business" to "you are in uniform pointing your weapon at your country's designated enemy", militaries also have several opportunities to discard draftees or volunteers who they genuinely don't want, for whatever reason. It may be that even a country which obliges dual citizens to register and attend an assessment, would then choose not to make them train and fight. Or they may be channeled into different roles. It might depend on the conflict in question (e.g. you are a citizen of A and B, and A is at war with C, so you have to fight; if A were at war with B then your fate would be different). Regarding Why should they care whether someone also has citizenship of some other country? they may be anxious about you having divided loyalties, or about angering the other country. These concerns would be more acute if the country is engaged in an actual conflict. There are several treaties that allow multiple citizens to avoid having to serve multiple terms of military service in each country. The details depend on the countries involved, but the general idea is that if you are (for example) both Austrian and Danish, and live in Denmark, then you do your military service there and Austria does not mind. In that case, it's helpful that neither of those countries is at war, and certainly not with one another. What you cannot generally do is use both of your nationalities to cancel each other out, and avoid military service altogether. Equally, if you are Austrian and British (the UK has no conscription) then the government of Austria still wants you to do military service on their terms. | Yes Providing the attack was otherwise made in accordance with the rules of war, enemy civilian leaders who are directly responsible for the prosecution of the conflict (so, the Minister of Defence, yes, the Minister of Housing, no) are combatants under International Humanitarian Law. | No. Assuming both the Fire Nation and Water Tribes are signatories to the Geneva conventions, the rules only apply to uniformed members of the signatory member nations. Such as the water tribes have uniformed members, Sokka is not (at least not at this time, as its shown that Southern Water Tribe warriors use black and white face paint when in battle and Sokka does don this paint prior to going into key battles. Additionally, the Mechanist is more likely the "pilot" of the balloon and has no uniform that ties him to any Nation's military. Additionally, neither is acting under apparent orders from a higher ranking member of a foreign military. All involved look to be refugees and travelers trying to keep away from the military and would be subject to the Fire Nation Criminal Justice System (In the Fire Nation Criminal Justice System, the people are represented by two separate but equal entities: The military, who capture enemies of the Fire Lord, and the Crematorium who prosecutes them. These are their stories DOING DOING). | TL; DNR: No. Charging the Councilwoman under §2383 for making a speech would violate the First Amendment, and "levying war" in the §2381 means actually fighting, not conspiring to fight. 18 USC §2383 Since §2383 is a statute, it must conform to the Constitution. To charge Sawant for what she said in a speech would violate the 1st Amendment, which says, "Congress shall make no law...abridging the freedom of speech..." Even without the First Amendment problems, §2383 would not apply. The words "rebellion and insurrection" in §2383 are usually read to mean real violence, not vague words that may or may not involve violence. Not even Cliven Bundy, the Nevada rancher who has had several armed standoffs with the government, was charged under §2383. 18 USC §2381 Since §2381 is based on Art. 3, §3, the Treason Clause of the Constitution, the First Amendment does not apply to it. Following the Treason Clause, §2381 has two prongs. To be guilty of treason, one must either: a) Levy war against the United States; or b) Adhere to its enemies. "Enemies" has been interpreted to mean enemies in a real war, so the second prong does not apply. Since Sawant is not actually levying war against the United States, §2381 can only apply to her if it covers a conspiracy to levy war against the United States. The Supreme Court decided it did not in 1807, in Ex Parte Bollman. Bollman was charged with conspiring with Aaron Burr to carve a new country out of the US. The Court ordered Bollman released. In his opinion, John Marshall explained why: However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. Marshall’s narrow reading of the Treason Clause was consistent with the views of the Founders. In Federalist 43, James Madison explained that in the past, “violent factions” had often used “new-fangled and artificial" definitions of treason to “wreck their alternate malignity on each other…” To keep from repeating this sorry history, the Constitution “opposed a barrier to this peculiar danger,” by defining what constituted treason and specifying how it was to be proved. | This is a hard question, but a good question. The following relates to the issue from the perspective of the USA. You ask "...if the US wants to invade France, can they officially declare war by...", You have to make clear what you mean by "can". If you mean whether or not the US has the physical ability to do this, then of course they do. If you mean whether they are allowed, then this is another question. When you ask whether something is allowed, then you have to make reference to a moral code or a law that determines what is and what isn't allowed (legal). Normally each country will have laws that govern what is and what isn't legal for it's citizens to do. That hard part is how this applies to nations. There are two sides to the question. (1) What are the leaders allowed to do under their own laws, (the domestic laws) (2) what are countries as entities allowed to do? (the international laws) It sounds a bit like you are asking about the second thing. Here treaties govern what is and what isn't "legal". However, usually when someone breaks a law, other entities have the power to enforce that law and decide (judge) whether the person has broken the law. The question is: who decides whether a country has broken a treaty or an international law? And if a law is broken, what exactly can be done about it? This is hard to answer. Consider for example the conflict in Ukraine. Here many will argue that Russia has piratically invaded Ukraine. There should be war between the nations. But Russia denies this and other world powers have done little beyond imposing sanctions. This illustrates how hard it is to deal with this question. One question that comes up is what the purpose of international treaties are if a country can just violate them without much consequence. Pointing out two points about this. (1) If, for example, a president wants to convince his/her own congress that the country should engage in war, then it makes a stronger point if you can show how the country you want to engage has violated international trities. (2) After you have won a war, you might want to prosecute the leaders of the loosing power. Here you will stand stronger if you can make references to some international law that existed before the conflict started. This second point is illustrated in the Nuremberg principles. Here it was exactly stated that "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." According to the US constitution "Congress shall have power to ... declare War". That means that historically Congress has the power to decide where to wage war. The War Powers Resolution says, for example, that "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities ...". Note that this doesn't mean that the US has do formally declare war before going to war. Example: The Iraq War was authorized by Congress, but there never was a formal declaration of war. It is interesting that you ask about the timing for when the declaration should be given. The Japanese wanted to deliver their declaration of war just before the attack on Pearl Harbor. But because of issues with decrypting the message from Japan to the Japanese Embassy, the declaration wasn't delivered until after the attack. Remember also in all of this that the winning party to a conflict, usually decides what was and wasn't legal! One good reference for more on all of this is the report by the Congressional Research Service called "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications". Here you can see more on what I have tried (and failed?) to say above. | "Civic obligations" are based on one's personal moral philosophy, best discussed on Philosophy SE. On the legal front, in the US, there is no (existing) legal basis for simply declaring some random thing to be "top secret", even if it has great potential to be used for evil purposes. If this is research conducted under the umbrella of the Dept. of Defense, it might be classified, but a garage inventor is not subject to the laws regarding classified documents. Congress could pass a law prohibiting promulgating research on time travel, but even if such a law were found to be constitutional (unlikely, on First Amendment grounds, see this), one cannot be penalized for breaking the law before it becomes a law. |
Do Corporations enjoy the "Freedom of Speech" right? Citizens are generally protected from being prosecuted by the Federal government over disagreeing with policy. Although the State of Florida (not the Federal Government) has imposed seemingly punitive measures against Disney: Jenna Ellis, a former Trump campaign lawyer, called the new Florida law "vengeful" and pointed to statements from DeSantis and other Florida Republicans that she said made clear they had illegally retaliated against Disney's "constitutionally protected speech." Do Corporations enjoy speech protection? | Yes. The Court has recognized that First Amendment protection extends to corporations. ... This protection has been extended by explicit holdings to the context of political speech. ... Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 342 (2010). | 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. | I would say no, it's not the same. There's a reasonable expectation of privacy that you have in an office that isn't present when you're standing on a roadside or in a city park. In Glik v. Cunniffe, the First Circuit said "The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities" was in the spirit of the First Amendment. And this is not limited to police; an arrest "in the course of filming officials in the hallway outside a public meeting of a historic district commission" was found to be a First Amendment violation in Iacobucci v. Boulter (1st Cir. 1999). But a private meeting in an office is not a "public place" as it is meant in Glik (even if the building is owned by the government.) And the Glik decision says "To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions." | 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. | As far as I know, the leading case on the matter is Hale v. Henkel, 201 US 43. There, the court explains While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, a corporation is a creature of the State, and there is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. There is a clear distinction between an individual and a corporation, and the latter, being a creature of the State, has not the constitutional right to refuse to submit its books and papers for an examination at the suit of the State; and an officer of a corporation which is charged with criminal violation of a statute cannot plead the criminality of the corporation as a refusal to produce its books. The court specifically denies that corporations have 5th Amendment rights: The benefits of the Fifth Amendment are exclusively for a witness compelled to testify against himself in a criminal case, and he cannot set them up on behalf of any other person or individual, or of a corporation of which he is an officer or employe. This contrast with protection against unreasonable searched of corporations, per the 4th Amendment: A corporation is but an association of individuals with a distinct name and legal entity, and, in organizing itself as a collective body, it waives no appropriate constitutional immunities, and, although it cannot refuse to produce its books and papers, it is entitled to immunity under the Fourth Amendment against unreasonable searches and seizures, and, where an examination of its books is not authorized by an act of Congress, a subpoena duces tecum requiring the production of practically all of its books and papers is as indefensible as a search warrant would be if couched in similar terms. Similarly, in Wilson v. United States, 221 U.S. 361, the constitutional privilege against testifying against himself cannot be raised for his personal benefit by an officer of the corporation having the documents in his possession. ... An officer of a corporation cannot refuse to produce documents of a corporation on the ground that they would incriminate him simply because he himself wrote or signed them, and this even if indictments are pending against him. Likewise, United States v. White, 322 U.S. 694 ("The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals") and Bellis v. United States, 417 U.S. 85: Fifth Amendment privilege against self-incrimination held not available to member of dissolved law partnership who had been subpoenaed by a grand jury to produce the partnership's financial books and records, since the partnership, though small, had an institutional identity and petitioner held the records in a representative, not a personal, capacity. The privilege is "limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records." So only natural persons can plead the fifth. | The NYT article implies that she has used social media in the past to get her victims to believe her fake back story. She is being released from detention, and the restriction on her using social media is not tied to her expressing a particular viewpoint. Courts have repeatedly held that the Government can justify incidental limitations on First Amendment freedoms if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest ( U.S. v. O'Brien, 391 US 367 - Supreme Court 1968). One such compelling interest is the effective administration of criminal justice (U.S. v. Spilotro, 786 F. 2d 808 - Court of Appeals, 8th Circuit 1986). For instance, speech restrictions can be tied to the purpose of preventing a defendant from committing further crimes while released. | Yes. The First Amendment protects all speech, outside a few historically recognized exceptions, which include libel, perjury, incitement, and true threats. There is no exception for speech that injures the speaker himself. | The First Amendment generally prohibits the government from taking any actions to limit your speech, the same as adults. There are certain exceptions, particularly if you are enrolled in a public school, which has some latitude to impose speech restrictions to “avoid substantial interference with school discipline or the rights of others” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, (1969). While you are a minor, though, your parents have virtually unlimited freedom to limit your freedom of speech. If they want to punish you for buying a hat or saying things they disagree with, they can generally do that. EDIT: The hat you've linked to probably would not fall within the Tinker exception. A similar case arose in Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018), where a student was removed from class for wearing similar apparel supporting Second Amendment rights. The school made a vague allegation that his shirts were disruptive, but the court found that its concerns about disruptions were largely unreasonable and unsubstantiated. See also N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227, (E.D. Wis. Nov. 6, 2020). |
Has there ever been a legal system without lawyers? Has there ever been a society with a functional legal system but no lawyers? I know “functional legal system” is a bit vague, but basically I’m referring to a society that has something like courts, which decide civil and criminal issues, according to a set of laws. I’m envisioning maybe something like an entire system that works kind of like small claims, where people just advocate for themselves. Has anything like this ever happened? | In the west, the profession of being a "lawyer" came into existence under the Roman Empire, though there were sorta-lawyers in Ancient Greece (orators, who could not receive a fee for pleading on behalf of another). In Egypt, Sumer, Babylon, Persia and so on, there was nothing like a lawyer – you were to plead your own case if you ended up in a dispute / being accused of a crime. As far as I know, there were no lawyers under Chinese traditional law. | 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! | Because the courts or the legislature decide they have them There is no doubt that both the courts and the legislature in common law countries have the ability to find, create, or extend rights and this has been done in the past. This is, in fact, where legal rights were created. The US Bill of Rights was created by the people in 1791. If the people in 2191 want to grant rights to AIs then they can do this. This is legally possible. Whether it's a good idea is a matter of philosophy and politics. | Ensuring that you are compliant with all laws is a notorious problem. For example, nobody has successfully enumerated even the number of criminal laws under the U.S. (federal) code! There's a book that delves into this problem called 3 Felonies a Day. The title alludes to the (unverifiable) suggestion that a typical person unwittingly commits three felonies a day. (There is some discussion of that claim on Skeptics.SE ... and regular amusement published at https://twitter.com/CrimeADay.) In practice, you can look for safe harbors. Obtaining and following the advice of a licensed lawyer offers some indemnification. For example, if you are part of an institution you can vet your planned activities with its ethics and/or legal counsel. If those activities are later found to have violated a law then that approval could conceivably (but not certainly) transfer liability to the institution. | I've never heard the phrase used this way, and it wouldn't make any sense, anyway; "indemnity" is security against a consequence, so the existence of civil and criminal consequences would be a double non-indemnification. Maybe ask the lecturer for a published example of this usage. | The legal system is set up to alleviate the problem or conundrum of intimidation by perpetrators. In the US criminal system, the State is the plaintiff, not the individual. In the extant described situation, very likely all you would have to do is sign an affidavit that the recovered phone is your phone, and that it was removed from your possession by unknown means on or about a certain date. From your description given here you don't know if it was stolen...you appear to have perhaps dropped it or left it somewhere, and someone picked it up/found it. Clearly it didn't belong to them, but this is more like "recovered lost property" rather than "received stolen property." The craigslist poster might be entirely un-chargeable with a crime, though they might have to give up the phone to you. | I'm sorry to deflate what is clearly a very philosophically interesting question, but the law is straightforward here. The truth, essentially, is the set of facts that you believe to be true. Yes. It means that you will not lie by omission, and that you will provide the relevant facts. No, you don't need to recount history since the first instant of the big bang. Only expert witnesses may answer by giving their opinion or evaluation. This is presumed accurate by their experience and where it is not accurate, the other side may present opposing expert witnesses to contest their conclusion or evaluation. Laypeople are permitted to answer only with their recollection of facts. Lawyers may not ask them what their opinion is, although by your definition every question is about opinion, since perception and memory is limited. But the question "What colour was Mr Smith's house?" and "What architectural style informed the facade of Mr Smith's house?" require different amounts of expertise and opinion. "Truth" isn't jargon, or even technical language here. I generally aim to be truthful, and so when someone asks me what time it is, I don't feel compelled to answer to the nano/picosecond. Would you call me a liar? Am I lying by omission? Similarly, if someone asks me what colour a car is, I don't feel compelled to say "I can't possibly know, because my perception may differ from yours. If you honestly feel that when someone asks you to be truthful about something, then you must either be lying, or lying by omission if you don't start your answer with the first instant of the big bang, your problem is not one of law. | 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. |
Can a minor listen to phone navigation instructions while driving in Oregon? If a minor set up (for example) Google Maps voice navigation while parked, then started driving (listening to the phone's instructions), then parked at the destination and turned the navigation off, would he be breaking any laws? Does "using" a device require interacting with it while driving? If I'm reading the relevant law (ORS 811.507) correctly, if merely listening to a device that was already configured constituted using it, an adult could only listen to a radio if it could be controlled by voice. | Listening to navigation instructions coming from a phone would meet the definition of: (1)(e) “Using a mobile electronic device” includes but is not limited to using a mobile electronic device for text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail. The next section goes on to say that: (2) A person commits the offense of driving a motor vehicle while using a mobile electronic device if the person, while driving a motor vehicle on a highway or premises open to the public: (b) Uses a mobile electronic device for any purpose. Later in section (4) it states "It is an affirmative defense to a prosecution of a person under this section that the person:" (b) Was 18 years of age or older and was using a hands-free accessory; Since your minor in question was using a portable electronic device for navigation, and due to their age cannot exercise the "hands-free" defense, it is logical to conclude that your scenario would be a violation of this statute. Silly as it might seem, this apparently wouldn't preclude them from interacting with a permanently installed navigation unit while driving unless it was observed to be causing a distraction since (1)(d)(A) states: “Mobile electronic device” means an electronic device that is not permanently installed in a motor vehicle. | If you buy a large piece of land, closed to the public, then yes. You would need a license for your car to allow drivers to use it without hands on the wheel, or the driver will get arrested. But first you need a license that allows using the car on public roads at all. That’s what all the car manufacturers have to do. Requires for example crash tests, tests how polluting the car is, and so on. | If the cab driver is not a parent or legal guardian too and they verify that the child or ward is accompanied by a parent or legal guardian as passenger, no and there are other exceptions. Quoting Vehicle Code § 27360, (a) Except as provided in Section 27363 a parent, legal guardian, or driver shall not transport on a highway in a motor vehicle, as defined in paragraph (1) of subdivision ( ) (c) of Section 27315, a child or ward who is under eight years of age, without properly securing that child in a rear seat in an appropriate child passenger restraint system meeting applicable federal motor vehicle safety standards. (b) Subdivision (a) does not apply to a driver if the parent or legal guardian of the child is also present in the motor vehicle and is not the driver. Note that (b) is an important clause in some cases. Further exemptions are provided for in Vehicle Code § 27363 do not include anything general related to transport to or from airports; most relate only to the regulations that state that children must be in a rear seat. Here are the main ones: (a) The court may exempt from the requirements of this article any class of child by age, weight, or size if it is determined that the use of a child passenger restraint system would be impractical by reason of physical unfitness, medical condition, or size. The court may require satisfactory proof of the child’s physical unfitness, medical condition, or size and that an appropriate special needs child passenger restraint system is not available. (b) In case of a life-threatening emergency, or when a child is being transported in an authorized emergency vehicle, if there is no child passenger restraint system available, a child may be transported without the use of that system, but the child shall be secured by a seatbelt. (c) A child weighing more than 40 pounds may be transported in the backseat of a vehicle while wearing only a lap safety belt when the backseat of the vehicle is not equipped with a combination lap and shoulder safety belt. (d) Notwithstanding Section 27360, a child or ward under eight years of age who is four feet nine inches in height or taller may be properly restrained by a safety belt, as defined in paragraph (2) of subdivision (d) of Section 27315, rather than by a child passenger restraint system. (e) Notwithstanding Section 27360, a child or ward under eight years of age may ride properly secured in an appropriate child passenger restraint system meeting applicable federal motor vehicle safety standards in the front seat of a motor vehicle under any of the following circumstances: (1) There is no rear seat. (2) The rear seats are side-facing jump seats. (3) The rear seats are rear-facing seats. (4) The child passenger restraint system cannot be installed properly in the rear seat. (5) All rear seats are already occupied by children seven years of age or under. (f) Notwithstanding subdivision (e), a child shall not be transported in a rear-facing child passenger restraint system in the front seat of a motor vehicle that is equipped with an active frontal passenger airbag. (6) Medical reasons necessitate that the child or ward not ride in the rear seat. The court may require satisfactory proof of the child’s medical condition. | Let's be quite brutal here. Inexperienced driver doesn't mean the driver made a mistake. Lots of friends in the car doesn't mean they interferred with his driving. Loud music in the car is totally legal. "Perhaps was distracted" - "perhaps" you were distracted by looking at the passengers of this car instead of yielding? It seems that you drove without due attention. You noticed at the last moment that you had to yield. "Yielding" isn't just stopping right at the last second, you have to drive in a way that it is visible for others that you are going to yield, and you didn't. The other driver was 100% correct to assume that you wouldn't yield. Then you come up with an accusation that a police officer was biased. That's a very, very strong accusation. It's impossible for you to prove. It's the kind of accusation that will cause the judge to believe that you can't accept your own faults, and that you need the maximum possible fine to make you realise your mistakes. That's why you need a lawyer. A lawyer will either make sure that you only say things in court that actually help your case. Or will advise you not to fight this in court at all, if that is better for you. If you go to court on your own, you'll only get yourself into trouble. And if there was bias by a police officer, and a witness lying, and a driver driving without attention, then a lawyer with experience in these things might be able to prove that it court, although that would be a very tough call, but you on your own don't have a chance in hell. You say "the shop owner lied". The shop owner says "no, I didn't". So what's your next step? You don't know. Your lawyer knows. That's why you need a lawyer. | The courts of Washington will not apply the law of Tennessee in an action somehow involving something about Tennessee, they will apply the laws of Washington. If neither end of the conversation is in an all-party state, no party has standing to sue under the laws of some other state. If a person in Idaho calls a person in Oregon and the call is routed through Washington state, neither party can sue under Washington law. In all 50 states, there is an "exception" to the consent requirement when the "interception" is due to routing / switching, otherwise it would be illegal to call from house to house if you don't have a single wire between the houses (never the case). No state has a law that imposes two-party state law in calls that pass through a two-party state. The federal wiretapping law say you may not intercept any wire, oral, or electronic communications without consent, then sets up the definitions to encode the exceptions. For example, "aural transfer" is a transfer containing the human voice at any point between and including the point of origin and the point of reception (anticipating the need for connections), and "intercept" means "acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device" (a hearing aid is a device). But then "electronic, mechanical, or other device" is further defined to exclude a hearing aid, or also they exclude any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties which is a good thing since the telephone is a device, and the switching system is a system used to make a phone call possible, but it intercepts under the ordinary meaning of intercept. Intercept has a specific, narrow meaning. The law of Florida is very similar | 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. | Using two states as examples: In California, emergency vehicle operators are exempt from pretty much the entirety of the rules of the road (VC 21055). They can pass you on the right if they want to. Department policy might say no, but that depends on department policy and the details of their emergency vehicle operation course. However, California law requires all drivers to pull to the right when an emergency vehicle approaches (VC 21806). Even though an ambulance driver legally could pass you on the right, you are required to pull right. According to the BLM's emergency response policy for fire personnel in California, this means passing on the right is heavily disfavored: the emergency vehicle operator doesn't know that the driver (who is clearly not paying much attention) won't suddenly notice them and comply with the vehicle code, cutting them off or running into them. Other policies/things which seem to reflect policies say similar things, and all make it clear that operators need to be careful that the car they're passing won't drive into them. In Maryland, the law is a bit different. Section 21-405 of the Maryland Code obligates drivers to move to the edge of the roadway. This means either edge, so on a divided highway you might pull left. On a non-divided road, you obviously pull right. In this case, the vehicle may end up passing you on the right, but again: they are going to be careful about it, and would rather you get out of their way so they don't have to worry that you'll suddenly see them and drive into them. | Apparently, people are citing these cases for the proposition that there is a right to drive a car without a license (several facebook accounts making this claim have been shut down and a document making this argument is signed with the Biblical name of God). This is frivolous poppycock reserved for conspiracy theory crackpots that also never works. A lawyer who tried to make an argument like this in court would probably be sanctioned by the trial court judge for making a frivolous argument, and might even risk suspension of his license to practice law, unless he made clear that he was arguing for a change in the law that is not supported by any current law. Like all rights, the right to travel, including the right to travel by motor vehicle, is subject to reasonable restrictions which include the requirement that one have a driver's license that is currently valid. No court has ever held that having a traffic code regulating the use of motor vehicles on public roads is unconstitutional, nor has any court every held that the government may not obstruct public roads in a reasonable manner for purposes such as maintenance, parades, and the like. The question in People v. Horton (the correct citation to which is 14 Cal.App.3d 930, 92 Cal.Rptr. 666 and not the one cited that conflates two separate citations in different reporters to the same case), entered by an intermediate appellate court in California on January 29, 1971, is whether a search of an occupant of a motor vehicle requires probable cause under the 4th Amendment as incorporated by the 14th Amendment to apply to the states, and under parallel California constitutional provisions, and it hold that even occupants of motor vehicles have a 4th Amendment expectation of privacy despite the exigent circumstances associated with a motor vehicle. A more complete quotation from the case states: Applying these principles to the instant case, we are impelled to conclude that Officer Winfrey did not have legal cause to stop appellant's automobile. Appellant was driving within the legal speed limits, not erratically, and there were no visible operational defects on the vehicle. Furthermore, although the officer observed two young passengers in the vehicle, he saw no furtive or suspicious movements and he had no information that the youths were being kidnaped, detained or molested in any manner. In fact, the only reason given by Winfrey for stopping appellant was that appellant was driving a vehicle along the streets of Modesto at 1:15 in the morning with two young passengers and that he did not look old enough to be their parent or guardian. Clearly, even if we should assume that what the officer observed constituted unusual activity, and it is difficult to make such an assumption in this modern age, the activity alone did not suggest that it was related to criminality. The Attorney General argues that Officer Winfrey had reasonable cause to stop appellant's vehicle on suspicion that appellant was aiding and abetting his two young passengers to loiter in violation of the municipal ordinance of the City of Modesto. However, driving along city streets, even at 1:15 in the morning, is not “loitering.” (In re Cregler, 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305]; In re Hoffman, 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353].) For all that Officer Winfrey knew, appellant could have been driving his two young passengers home from a theater or other authorized place of amusement. We are not insensitive to the numerous problems which face police officers on patrol in a mechanized nation. As we stated in Bramlette v. Superior Court, 273 Cal.App.2d 799, 804 [78 Cal.Rptr. 532], “[t]he use *934 of the automobile in criminal activity has vastly increased the possibility of unlawful conduct, and the likelihood of escape by criminals from the scene of their crimes.” Moreover, we are cognizant of the fact that the great majority of police officers assume the grave responsibility which our society has foisted upon them in a courageous and conscientious manner. Nonetheless, the right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts. Consequently, while we do not censure Officer Winfrey or question his motives, the fact remains that he stopped appellant's vehicle solely because it was occupied by young people. Were we to condone the stopping of vehicles for this reason alone, no matter how altruistic the officer's motive might be, we would lend our approval to the creation of a second class citizenry; we would also contribute to an already deteriorating relationship between the youth of America and law enforcement officials; in a free nation this relationship must be based on mutual confidence and respect. Having decided that Officer Winfrey did not have probable cause to stop appellant's vehicle in the first instance, it follows that the subsequent search was unlawful, even though consented to by appellant, and that all evidence adduced therefrom was the product of an unlawful search. As our Supreme Court said in People v. Haven, 59 Cal.2d 713, 718, 719 [31 Cal.Rptr. 47, 381, P.2d 927]: “A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct. A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” The case of People v. Franklin, 261 Cal.App.2d 703 [68 Cal.Rptr. 231], is squarely in point. There, as here, the officer stopped the defendant's vehicle without probable cause, and afterward defendant consented to the search which ultimately uncovered marijuana. The court in reversing the conviction, at page 707 of the opinion, had this to say: “The stop having been illegal, the search, though by consent of the vehicle owner, does not breathe legality into the resultant find by the officers.” A later California case before the same intermediate appellate court a few years later, also distinguished People v. Horton, holding that while driving in a car as a juvenile as 1:15 a.m. was not "loitering" that similar conduct did violate a municipal curfew ordinance for minors which was validly enacted and not unconstitutional. In re Francis W., 117 Cal. Rptr. 277 (Cal. App. 5th Dist. 1974). The claim that People v. Horton recognizes a constitutional right to drive without a license was analyzed and rejected in the case of Newman v. Garcia, 2016 WL 8939133, Case No. 3:16-cv-137-J-PDB (M.D. Fl. September 26, 2016) in which a federal trial court ruled on a motion to dismiss a civil rights claim brought by a man alleging that his constitutional rights were violated because he was arrested for driving with a suspended driver's license in which he sought $28 million of damages. The judge in that case held in pages 3-5 of the Slip Opinion that dismissed this claim that: Right to Travel Newman primarily argues Officer Garcia violated his constitutional right to travel by issuing him a citation for driving with a suspended license and stopping him from driving his car. See generally Doc. 2, Doc. 12. He contends he has a protected liberty interest in driving on public highways, he does not need a license to drive, and a driver's license is a contract between the state and a person that is cancelled when the state suspends a license. Doc. 12 at 3–4, 7. In Kent v. Dulles, the United States Supreme Court explained the right to travel—the freedom to move “across frontiers in either direction, and inside frontiers as well”—is “part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law.” Kent v. Dulles, 357 U.S. 116, 125 (1958). It has long been recognized as a basic constitutional right. Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986). “A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Id. at 903 (internal citations and quotation marks omitted). A restriction on one method of travel does not violate a person's constitutional rights. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). There is no constitutional right to the “most convenient form of travel.” City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982). *4 The constitutional right to travel does not include a fundamental right to drive a motor vehicle. Duncan v. Cone, 2000 WL 1828089, at *2 (6th Cir. 2000) (unpublished); Miller, 176 F.3d at 1206 (9th Cir. 1999). The Supreme Court has recognized a state's power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915). That includes passing legislation requiring drivers to have licenses. Id. Such a regulation is “but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens.” Id. Newman cites many state-court cases he contends support his argument he has a right to drive without a license. See Doc. 12 at 3–4. They do not. See People v. Horton, 92 Cal. Rptr. 666, 668 (Cal. Ct. App. 1971) (addressing legality of traffic stop and search; observing, “The right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts” (emphasis added)); Schecter v. Killingsworth, 380 P.2d 136, 137–38 (Ariz. 1963) (addressing state law suspending license of uninsured motorist involved in an accident who does not post sufficient security); Berberian v. Lussier, 139 A.2d 869, 871, 872 (R.I. 1958) (addressing state law suspending license for failure to deposit security with the registrar; observing, “[T]he right to use the public highways for travel by motor vehicles is one which properly can be regulated by the legislature in the valid exercise of the police power of the state”); Payne v. Massey, 196 S.W.2d 493, 495–96 (Tex. 1946) (addressing ordinance regulating operation of taxicabs); Teche Lines, Inc., v. Danforth, 12 So. 2d 784, 785, 787 (Miss. 1943) (addressing state law regulating stopping on certain portion of highway; observing right to travel “may be reasonably regulated by legislative act in pursuance of the police power of the State”); Thompson v. Smith, 154 S.E. 579, 583 (Va. 1930) (addressing contention city could not change ordinance to permit revocation of license; observing, “regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part ... by granting, refusing, and revoking ... permits to drive an automobile on its streets”); Swift v. City of Topeka, 23 P. 1075 (Kan. 1890) (addressing ordinance restricting use of bicycles on sidewalks and a bridge).4 Newman does not cite authority to support his contention a driver's license is a contract with the state that is cancelled when the license is suspended, and he does not explain how the existence of a cancelled contract would support his argument that Officer Garcia violated his constitutional rights. See generally Doc. 12. Other courts have rejected similar arguments as meritless or frivolous. See Oliver v. Long, No. CV-06-2429-PCT-LOA, 2007 WL 1098527, at *5 (D. Ariz. Apr. 12, 2007) (unpublished) (argument that by cancelling all contracts with California Department of Motor Vehicles plaintiff could violate traffic laws with impunity “frivolous,” “specious,” and “nonsensical”); North Carolina v. Ellison, 471 S.E. 2d 130, 131 (N.C. Ct. App. 1996) (argument that by cutting up license and returning it to Division of Motor Vehicles plaintiff had rescinded contract with state and could drive without complying with statutory requirements “without merit”). Absent authority to support the argument that a suspended driver's license is a cancelled contract with the state, and in light of states' authority to regulate the operation of motor vehicles on their roads, the argument is meritless. *5 Though Newman enjoys a constitutional right to travel, he has no fundamental right to drive. A state may regulate the operation of vehicles on its roads, including requiring a license. Officer Garcia informed him of the suspension and informed him of the consequences of driving with a suspended license but did not restrict his right to travel by other means of transportation. The complaint does not plausibly allege Officer Garcia violated Newman's right to travel The other two cases cited, in addition to the flaws noted below, also predate the U.S. Supreme Court's conclusion that a state has the power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915), including passing legislation requiring drivers to have licenses. Id. Simeone v. Lindsay, 65 Atl. 778, 779 is an opinion from a Delaware state trial court entered on February 27, 1907 (111 years ago as I write this). It held that at the time, in Delaware, on the public highway in question, both cars and pedestrians had an equal right to use the road and both had a duty of care in the contexts of a lawsuit against the car owner for causing an accident through negligence. It did not reference any fundamental or constitutional right and has no precedential value and has in any case been superseded by statute. Hannigan v. Wright, 63 Atl. 234, 236 is an opinion from a Delaware state trial court entered on December 13, 1905 also involving liability for an automobile accident. It says in the pertinent part: A traveler on foot has the same right to the use of the public streets of a city as a vehicle of any kind. In using any parts of the streets all persons are bound to the exercise of, reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger or the peculiar risks in each case. It is the duty of a person operating an automobile, or any other vehicle, upon the public streets of a city, to use ordinary care in its operation, to move it at a reasonable rate of speed, and cause it to slow up or stop if need be, where danger is imminent, and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater caution is required at street crossings and in the more thronged streets of a city than in the less obstructed streets in the open or suburban parts. Like Simeone, it predates the adoption of a statutory traffic code in the state of Delaware, has no precedential effect, is no longer good law, and does not purport to establish any fundamental or constitutional right. It merely enunciates the default rules governing the use of public highways by cars and pedestrians in the absence of other laws or regulations. |
Selling your primary home without living in it I already own a house and I am booking a new construction house. I am planning use it as my primary home. However, I do have a question can I sell the house without staying in it for a single day? Are there any law on how many days/months I should wait before selling it. I am aware of the tax law and pre-payment penalty. | You can legally sell a house twenty minutes after you buy it, if you or the buyer can have the documents prepared that fast. You will not be eligible for certain tax benefits on any profits you make. The house was never really your "primary home" if you never lived in it, but a house does not need to be a primary home for you to sell it - that matters for some mortgages, and in some tax situations. People doing "house flipping" often sell a house a short time after buying it, indeed that is much of the point of "flipping". There is nothing criminal or unlawful about doing that, as long as you do not deceive anyone involved in the transaction about the length of your ownership of the house or the time you lived in it. (such deception might be fraud, if the matter is material to the transaction, which it might be.) Arizona law does require disclosing "material information about the property that the seller actually and personally knows of". The Arizona Association of Realtors has drafted a disclosure form, the Residential Seller's Property Disclosure Statement which is often used for this purpose, but is not specified by law. This does include a line on which the seller is asked to disclose the date that the seller purchased the property. But as long as this disclosure is made honestly, it does not block a sale. In fact, the date of previous purchase is normally a matter of public record, and is included in real estate listings, so disclosure should be redundant, but is nonetheless safer. (This was called to my attention in a comment by user Mindwin.) What made you think there might be a minimum stay? | The problem with "as soon as possible" is that one could then say "Well, I've got a lot of bills, so it's not possible to pay you until Uncle Bill dies and I get my inheritance". A good contract leaves no doubt about who does what, when. A specific date is best, though if there is a certain amount of backing and forthing, "July 30" could be "tomorrow", and therefore "within 14 days of acceptance" would still identify a specific date -- provided that the date of acceptance is there in the contract. (It usually is, but doesn't absolutely have to be). | Can a court order a large asset to be sold if the defendent lost the case on a relatively small amount? Say a defendent owns land worth $200,000. The defendant lost the case and has to pay $9,000. He does not have any money to pay. Could courts order the land to be sold? In most U.S. law jurisdictions, yes, a high value assets can be ordered sold to satisfy a small money judgment or a small secured claim (i.e. a mortgage or the equivalent in real of personal property), subject to some exceptions that don't precisely target this concern but do alleviate it somewhat. Forcing a sale is mostly a decision made by the collection lawyer and the judge has very little discretion in the matter in most cases, so long as all formalities are observed. In most U.S. jurisdictions there are not minimum dollar amount of a debt that can be collected by execution and levy (i.e. seizure and sheriff's sale) on property of arbitrary value (although I am sure there must be at least one out there that does have a minimum dollar amount). Some kinds of property are completely exempt from creditors claims (e.g. defined benefit pension plans). Some kinds of property are protected up to a certain dollar amount of equity (most exemptions for household property and for homesteads, although a small number of homestead exemptions are unlimited). This allows courts and parties to disregard homes with little equity and low value personal property, focusing collection efforts on higher value property. There are also laws in some states require that creditors attempt to collect the debt from all other known assets with equity that can be collected through a formal process (other than a personal residence), before attempting to sell the personal residence (unless the debt is a voluntary mortgage or mechanic's lien on the personal residence and no other assets). There are several ways that the injustice of this can be avoided, if the debtor doesn't simply have the cash to pay off the debt. First, the debtor may be able to borrow the small amount of the debt owed from someone else to pay it off and avoid the foreclosure of the asset. Second, the debtor can take out a loan with the property as collateral to pay the debt, even if the debtor has few other assets. Third, the debtor can sell their own property to pay the debt probably producing a better price than would be obtained at a sheriff's sale. Fourth, someone other than the debtor and the creditor could bid at a sheriff's sale an amount closer to the fair market value of the property than the amount of the debt. Usually, the sheriff's sale price is still far below the fair market value, but it could be a lot more than the debt, and in those cases the excess goes back to the debtor. In some jurisdictions, bids for personal residences must be supported by appraisals that show what the fair market value of the property is and can't be less than that (apart from litigation costs and costs of sale). Fifth, someone could file for bankruptcy and negotiate a payment plan for the small debt in that context. | My question: Do I need to declare this income when filing my 2018 tax return? considering that I was actually losing money. Yes. If you would otherwise have to file income taxes if you didn't have this money losing venture, you need to report this income. If you otherwise wouldn't have to file an income tax return, you don't have to file an income tax return simply to report a loss from a money losing rental, but you would still want to do so, because reporting the loss in this year could reduce your income taxes in future years. When you lose more money than you earn from sources other than capital gains, you have what is called a "net operating loss" or "NOL" for short, that can be carried forward to future years to reduce your income for income tax purposes. An exception applies if a business or rental losses money year after year after year. In that case, the IRS considers the business or rental to be a hobby rather than something done with an intent to make money and the loss is disallowed. But, obviously, that exception does not apply to your case. If the answer is yes: How do I also declare the rent I paid to the agent, to show that I actually didn't earn anything. What tax form do I need? Usually, you would report the rents received as income on Schedule E to your primary tax form (probably a 1040NR) and list the money paid to the agent and any other expenses you incurred as expenses. This will generate a net loss and can be used to reduce your income subject to taxation from other sources. Under the tax law that takes effect in 2018, you can't deduct as many expenses related to the rental as you could in prior years. But, you can still certainly deduct the rent you paid for the property that you then leased to a third party in short term rentals. Airbnb issues W-9 form for US person, W-BECI for non-US person with TIN, and W-8BEN for non-US person without TIN. A Social Security Number (SSN) is one of several forms of Taxpayer Identification Numbers (TIN). So you would provide Airbnb with a W-BECI. Airbnb will then send a Form 1099 to you early next year, and will send another copy of that Form 1099 to the IRS. The fact that the IRS will learn about your gross rental income from short term rentals from Airbnb is one of the main practical reasons that you should file a tax return declaring that income. | To put it as nicely as possible, you're not being very smart by threatening to make the house guest's predicament the worst mistake they ever made. Drawing up a notarized contract with a financial penalty is ludicrous and likely simply illegal in terms of contracting for something that is against the law. Beyond that, any threats you make to against house guest could be grounds for them to file a civil suit against you, either for eviction or physical harm, and you'll end up in court rather than simply getting the house guest to leave. An Unlawful Detainer applies if there is verbal or written lease, and as such you would have to go through the formal eviction process. But if this is a simple house guest issue, with no lease or rental agreement in the past, and they are not a family member with some legal right to be in the house, law enforcement is the way to deal with it. It's very simple: set a move out date and say you will call the police or county sheriff if they don't move out on that date. If they don't leave and you do call the police or sheriff, simply say you have a house guest who won't leave, i.e. a trespasser. Law enforcement will come out and you will explain the story; they will likely make the determination that you are the property owner and the guest is indeed not welcome. Law enforcement will tell the guest to leave or be arrested, as per Florida Law - Chapter 810. You can call the police or county sheriff ahead of the move out date and determine the appropriate laws; and get advice on what you might need to do on the actual move out day. If the house guest has property, law enforcement will stand by at that time while they retrieve their property, or make arrangements for them get it at a later date, with or without law enforcement. | Let's analyse the landlord's claims: You have an assured shorthold tenancy agreement. The fact that there isn't a written contract doesn't change this as a verbal agreement is legally binding. That's true. A tenancy exists even if this was never written down, and it's an AST by default if the requirements for being one are met. Payment of rent constitutes acceptance of these terms. Payment of rent by the tenant, and its acceptance by the landlord, is sufficient for a tenancy to be regarded as existing. The tenancy can only be terminated early from the permission of the landlord. That's rubbish. A tenant can always end a tenancy, but there may be restrictions. In particular, a tenant cannot end a tenancy before the end of a fixed term without the agreement of the landlord, but the landlord has an obligation to find new tenants if this happens. However, I've been unable to find any information as to whether a fixed term exists if there's no written agreement. Assuming there is no fixed term, then for a month-to-month tenancy, the tenant must provide one month's notice to end the tenancy, with that month ending at the end of a rental period (i.e. the day before the next payment would be due). If you leave early this is legally abandonment and you are still responsible for paying rent for the duration of the tenancy That's true. ... if you do leave next month I'll consider you in rent arrears and pursue payment through legal means That is possible - but if you give notice as described above, then the tenancy will end, and (assuming you're up to date with the rent) you'll no longer be liable. | Whether or not the estate has an obligation to pay the mortgage is really dependent on the terms of the estate plan and the solvency of the estate. The fact that someone is on the deed to a property (whether a deed of gift or a transfer on death instrument) that automatically passes upon death of the original owner to a relative has little or nothing, really, to do with the estate plan. While it may have been part of the person's ultimate plan for the disposal of their assets in life and at death, that is different than being part of the actual estate plan, which deals with the disposition of assets upon death, setting out the wishes of the deceased as it pertains to all property. There are lots of people who end up in this position, even though the original person on the deed did not intend to purchase or leave the other any property. It happens a lot when say a child does not have adequate credit to secure a mortgage to buy a home, but has the money to pay a mortgage. So, in that scenario usually a parent or grandparent will put the mortgage in their name (the other will live there and pay the mortgage) and then in the event the "helper" dies, they have it pass to the other at death, either thru a "TOD" or a "joint tenancy", so that in the event they die intestate, or if the will is challenged, there will be no question who owns the house...the equity in it, anyway. It (the instrument) is its own separate entity, not subject to the will except to the extent the deceased makes it subject (I'm getting to that part). Like a life insurance policy, that pays on death but is not subject to any terms of the will, it can stand alone since deed is its own instrument, separate from any wills or trusts. Under federal law, the mortgage must be allowed to remain in effect without changes when it passes from one person to another because of a death. This negates any due-on-sale clause in the mortgage. Who pays for the remainder of what is owed, however, generally depends on the deceased's will. The will might stipulate, for example, that the heir receive the home, free and clear, with the estate to pay all monies due. In this case, the executor will either use liquid assets, or sell other non-liquid assets in the estate to pay off the mortgage. Other times, it will say that the heir get the equity, plus X amount of dollars, which the heir can put toward the home's mortgage or not. If the will is silent on the issue, it is the responsibility of the heir/person to whom the property transfers (they needn't even be an heir) to pay the mortgage upon its normal term due, or sell the property to satisfy the debt. In the event the property is worth less than the remaining mortgage, the bank will usually take the house in "deed in lieu of foreclosure" rather than seek overage from the estate. | In the United Kingdom there is a law that for any online purchase or other purchase away from the businesses own premises, including insurance policies, that you have a 14 day cooling off period to cancel without penalty. The applicable parts of the law are the Consumer Contracts Regulations and if there is any form of credit agreement involved the Consumer Credit Act. It is a point of the law that the purchaser must be clearly made aware of these provisions. |
Can Russia be sued over breaking gas contracts? During the 2022 Russian invasion of Ukraine, Russia has unilaterally demanded that "unfriendly countries" pay for Russian natural gas in Russian rubles, despite the existing contracts specifying payment in dollars or euros. At the end of April 2022, Russia halted gas deliveries to Poland and Bulgaria, for which they had contracts for and had paid on-time in the currency required by the contract. Is there any way that Poland and Bulgaria can sue Russia for breach of the contract? If so, in what court can they sue? And what remedies can the court provide, if it rules against Russia? | Yes. The Russian owned party to the contract can be sued. The remedies would be those available under the contract, which may or may not be futile to pursue, which almost certainly specify the court to which disputes should be brought. I have no access to the contracts and can't read the relevant languages anyway, however, so I can't tell you what they say about this point. In all likelihood, a Russian court would not rule in favor of Poland or Bulgaria on this score, and would not order Russia to restart supplying natural gas to them (perhaps on the theory that national security and foreign affairs decisions are involved), and no other court would have the practicable ability to cause Russia to reopen its natural gas pipelines. So, if they prevailed, the Court would have to fashion some other remedy (e.g. seizing Russian assets sufficiently associated with the contractually bound party over which they can acquire jurisdiction). If there is a third-party guarantor of the contract, collection could be feasible. If not, it would be much more challenging. | There may be a purpose to have laws which are impossible to follow. (I'm neither a lawyer nor a politician, following points are what I like to call qualified hearsay - they come from qualified people I know personally but were given as a remark or during a chat over a cup of coffee and therefore are not easily substantiable with rigorous sources. You can treat them as a hypothetical ideas for your thought experiments.) Everybody is implicitly guilty Confident citizens and transparent law is the worst enemy of totalitarian regime. You learn to live with ingrained feeling that there surely is something you are guilty of. Merely being addressed by police makes you nervous and malleable; should you stand up against oppression, it is easy for the state apparat to detain or convict you of one or more default offenses. A good example would be the law present in many, if not all, socialist bloc countries saying that knowing of a comrade having commited an offense or merely planing to and not reporting it to authorities is an offense in itself. Whether you did or did not know would be determined by the authorities. Make your laws very strict with a hope thay they will be followed at least to a degree Not laws in themselves, but standards (technical norms) regarding nuclear power stations in the former Soviet Union were strict to the point where they were technically impossible to follow given the state of the art. For example the standards for manufacture of high pressure pipes would state very low level of material impurities that when the actual manufactured material contained twice the level of impurities the pipe will still be very safe to operate. In a centrally planned economy with ever more ambitious production projections and declared zero need for contingency this was one of several ways how to create a bit of a wiggle room. (Source: I once worked for a nuclear power research institute supporting Soviet technology and was told this by an expert on stainless steel.) So there you have a bit of an illustration what may happen if a law is intentionally impossible to follow. Since you labelled your question 'United States', I believe the follow-up question is why would anyone want to propose such a law. | In general, a seller may make different and inconsistent sales terms with different customers on whatever basis the seller chooses. In some jurisdictions, for some kinds of transactions, specific laws may regulate this. They may require similar treatment, or advertised prices, or whatever. I do not know of any such laws governing the sale of oil, but there might be some. This will depend on the exact jurisdiction (country, state/province, and perhaps city or other locality). Please edit the question to specify the jurisdiction if you want a more specific answer. Price discrimination on the basis of membership in a protected class under anti-discrimination laws, such as race or religion under US federal laws, would be illegal. Proving that the basis was unlawful might be hard, however. | My own answer to the question is yes, but not directly. As with many other laws it would take a court ruling to definitively spell out how international agreements are applicable to a given situation. Unfortunately it doesn't seem that such a court ruling was ever produced so far: Google Scholar fails to list any US court cases relevant to the Convention on Road Traffic. The only somewhat relevant case is Busby v. State in which the court rules that one cannot drive in Alaska with an IDP after having been previously restricted from driving in Alaska. The court does stress out that: The Convention does forbid a signatory country (or subsidiary state) from imposing or enforcing license revocations in a manner that discriminates against residents of other signatory countries. But Busby does not claim that he was the victim of such discrimination. Busby's license was revoked for conduct that would have led to license revocation if committed by an Alaska resident. (Indeed, Busby's license was revoked while he was an Alaska resident.) And Busby does not claim that he was singled out for prosecution because he was a resident of a foreign country—i.e., that the State would not have charged him with the offense of driving with a revoked license if he had still been an Alaska resident. This could possibly mean that the court believes that the Convention only applies to foreign residents, but its not spelled out specifically. Searching for Canadian court cases likewise doesn't turn up anything useful. The only relevant case is R. v. Lawend where the person in question was trying to drive in Ontario on a foreign license after previously having had their Ontario license suspended. Here the court rules similar to the decision in Alaska in that having a foreign license does not allow one to circumvent locally imposed license restrictions. Searching for UK case law doesn't turn up any relevant court cases. Australian case law is likewise mute on the subject. There is also a relevant legal opinion by the Department of State quoted in the Digest of United States practice in International Law, 2002: Reading these provisions as a whole, we believe that the State of Georgia, consistent with the CRT, (1) must permit an alien to drive in Georgia using a foreign driver’s license issued by a country party to the CRT only if the alien has been lawfully admitted to the United States; (2) must permit a lawfully admitted alien to drive in Georgia using a foreign driver’s license of a CRT party only during the first year after the alien’s admission; and (3) may, in accordance with Georgia’s residency laws, require an alien resident in Georgia to obtain a Georgia driver’s license as a condition for continued authorization to drive. By the same token, nothing in the CRT would prevent the State of Georgia from applying more liberal rules with respect to the driving privileges of aliens. In Automated Vehicles Are Probably Legal in the United States, 2014 the author further analyses how the 1949 Geneva Convention is applicable within the United States. First, to settle the definition of "international traffic": Nonetheless, the United States ultimately accepted that “the purpose of chapter II was to establish, in effect, an international code of minimum safety requirements. By indirection, the rules of the road set forth in the convention would apply to the pattern of domestic as well as to international traffic. The author the meaning behind Article I of the Convention: Article 1 states in part that no party “shall be required to extend the benefit of the provisions of this Convention to any motor vehicle or trailer, or to any driver having remained within its territory for a continuous period exceeding one year.” This provision, on its face, indicates that the parties recognized that the treaty would benefit individuals. In no way does this recognition compel a conclusion that the Convention is self-executing, but it does suggest that the treaty is of a type that the Senate might have understood to be directly enforceable. And finally on the issue of whether or not the treaty is "self-executing": For these reasons, it is likely that courts will continue to treat the Geneva Convention as self-executing. Nonetheless, a court might conclude that, with respect to section II’s rules of the road, the governmental obligation is merely to “take appropriate measures” and that such an obligation is too vague to be enforced judicially. So it seems absolutely clear that the Convention intended for participating countries to allow foreign drivers to drive abroad for up to one year. However international treaties are not self-executing by default in Canada, unlike the US: Canada is bound by the terms of treaties that it enters into and breach thereof may give rise to international claims. However, in Canada treaties are not self-executing; they do not constitute part of the law of the land merely by virtue of their conclusion. So even though British Columbia is violating the 1949 Geneva Convention one cannot directly rely on said international agreement to enforce their rights. But another state party could theorethically sue Canada on behalf of its citizen to request that Canada rectifies its laws with accordance to the agreement. | 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. | Legality vs. illegality is determined by the specific jurisdiction. Almost every nation can legally declare war, except Japan due to Art 9 of the Japanese Constitution (there is a "work-around" which may or may not be legal, and only recently could defend itself). Thus the US can declare war under circumstances defined by certain aspects of US law, and engage in war-like activities under other legally-defined circumstances. Canada can as well, following Canadian law, similarly Norwegian law defines the ability of Norway to declare war. It is up to the individual nation to enforce such laws on themselves. In principle, an agreement i.e. a treaty could exist between certain nations that they will not engage in mutual war, in which case it might be illegal for A to declare war against B. This can give rise to a legal dispute, to be resolved in some trans-national court. The Hague Convention of 1904 attempted in Art III to require a "reasoned declaration of war or of an ultimatum with conditional declaration of war", but that requirement is de facto dead. The UN Charter Art 2 can be interpreted as saying that members legally cannot engage in war, which is the main legal basis for saying that the war in question is illegal. This Congressional research document summarizes the present issue. Under the UN Charter, war is allowed in self defense, or to maintain or restore international peace and security. Availing itself of that exception, Russia has served the UN with a list of grievances to justify the invasion: a generalized threat from NATO relating to Ukraine; in collective self-defense of certain areas of Ukraine (Luhansk, Donetsk); finally, "genocide perpetrated by the Kiev regime" against ethnic Russians. Apart from the legality or not of an attack on Ukraine, the conduct of the attack is also subject to legal scrutiny, for example limits on attacks against civilians, children, medical and religious personnel, aid workers. Theoretically, the UN could sanction / take action against Russia, but any binding action can be vetoed by Russia (as a permanent member of the Security Council). | It is possible in principle, in the US, under the Bureau of Prison Treaty Transfer program, so that one could serve your time in Australia for example -- but not New Zealand, which isn't part of a bilateral or multilateral treaty with the US: here is the list. Canada and Australia are on the list via the Convention on the Transfer of Sentenced Persons. New Zealand is (by choice) not a participant. | You could almost define a country as, "an entity that can defend itself against invasions." Non-sovereign entities are indeed generally prohibited from deploying lethal autonomous defense systems like booby-traps. But governments and state-like actors, as a matter of practice, choose their own rules. laws-of-war and international-law are not like "regular" law: When it comes down to it, states only follow international conventions and treaties to the extent that they consider it to be in their own interest to do so. If you start mining your property, you will probably be forced to stop by local law enforcement. If a warlord starts mining his borders, he's going to get away with it until someone with more power convinces or forces him to stop. Was it "illegal" for Turkey to shoot down a Russian military aircraft? One could cite all sorts of laws and conventions to answer that question. But in practice the consequences of that act are limited to whatever Turkey allows, or to what Russia and its allies can impose on Turkey. |
Are foreign consulates located in the United States considered foreign territory when it comes to abortion laws? My friend and I got into a debate whether a woman could step into a foreign consulate, take an abortion pill, then leave without fear of prosecution if abortion is illegal in the State where she resides. (More of a hypothetical question considering a possible scenario if Roe v. Wade is overturned.) | The idea that a diplomatic mission is "foreign soil" is an exaggeration of the legal situation. Certain individuals (diplomats) are immune from arrest, so if the woman is the ambassador, she can't be arrested, period. The limits on legal actions w.r.t. entering a mission are spelled out in the Vienna Convention on Diplomatic Relations 1961, Art 21-25. See Art 22: "1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission". Otherwise, criminal actions carried out within the premise of a diplomatic mission can be prosecuted under the laws of the receiving jurisdiction just as though the action had taken place outside of the mission – being inside a mission does not confer immunity from prosecution. As a general rule, when you enter an foreign embassy you do not have to go through passport formalities upon entering and exiting, and your single-entry visa is not "used up" by visiting your home country embassy (or any other embassy). That is because an embassy is not foreign soil. | There appears to be no general federal statute addressing the legality of a male entering a female-labeled bathroom, or vice versa, within federal jurisdiction. There are various regulations that touch on bathrooms, for example the OSHA regulations pertaining to sanitation require that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section", but "Where toilet facilities will not be used by women, urinals may be provided instead of water closets". These are regulations imposed on employers, and there is no provision for enforcement by employers, for instance no clause saying that the employer must call the police, or in any way intervene or sanction an employee, if a person enters a bathroom of "the wrong sex". It is apparently not a crime, as reflected anywhere in the US Code, for a male to enter or remain in a female bathroom, or vice versa. Building managers have some discretion regarding the operation of federal facilities, for example courthouses, which could extend to requesting a male to not enter a female bathroom or vice versa, but there isn't a practical way to determine what departmental regulations exist that would allow eviction of a bathroom-cross-user. Federal law does not protect against sex/gender discrimination in public accommodations. As for Maryland law, the owner of private property has the right to control his property up to the point that state law take that control from him, and therefore in principle he could call the police to remove a person trespassing in a bathroom (this article addresses the trespass angle in North Carolina). Maryland does not appear to have any case law or statutory exception to trespass laws related to labeling of bathrooms, so enforcement actions would be at the discretion of the owner. At the lower end of the political hierarchy, Baltimore has an ordinance requiring single-use bathrooms to be gender neutral, and a proposal exists to enact a state law with this effect. In other words, there does not appear to be any direct, enforceable legal requirement regarding bathroom entry and sex. Trespass laws could be used, but are at the discretion of the property owner (who might be civilly sued for his actions, but the police don't decide the merits of a discrimination suit before evicting a trespasser). | There is no internationally-enforceable mechanism regarding how other people call something, or what alphabet can be uses to write a word. I can legally call that country between Bangladesh and Thailand "Burma" or "Myanmar", I can call Україна Ukraine, The Ukraine, or Ukrainia (the latter seems to be old-fashioned, but it's still legal). As a diplomatic matter, the US government seems to have settled on certain designations so that it uses the version "Myanmar" for official purposes although it includes "(Burma)" in popular communications (State Department travel advisories). If it wanted to, the US could call The Republic of North Macedonia by the name "Macedonia", though there would be political protests. The EU, NATO, UN etc. can likewise set its own rules regarding names of countries. There are many additional complications in the case of countries that are not universally / widely recognized, such as Trasnistria and the Republic of Somaliland. If the president of the Republic of Somaliland sought to address the UN, his problem would not be what people would call his country, it is that the Republic of Somaliland is not "recognized" by the UN (it has no official status), or anyone else. The question of "sameness" of language is a prominent feature of nationalist movements. Claims are made that Flemish and Dutch are "the same" or "different", likewise Bosnian, Serbian, Croatian, Montenegrin; Dari, Farsi and Tajik. Thus there is no real chance of litigating the matter of whether Moldovan and Romanian are the "same language" and which name should be used. But if the EU parliament wants to, it could rule that the language of Moldova is to be called "Romanian", or "Moldovan". | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. | The answer isn't clear, but Justice Kavanaugh's concurrence in Dobbs suggests that such a prosecution would be unconstitutional: May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause. Dobbs. v. Jackson Women's Health Org., 597 U. S. ____ (2022). Kavanaguh relied largely on the Supreme Court's decision in Bouie v. City of Columbia, 378 U. S. 347 (1964). There, black protesters were charged for trespass because they staged a sit-in at a diner and refused to leave when police told them to. They argued they couldn't be convicted because the state's trespass statute only prohibited entering land after being told not to, but the courts convicted them anyway, holding that the statute also outlawed remaining on land after being asked to leave, even though the statute said nothing like that. The Supreme Court reversed the convictions, holding that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids." By applying such a construction of the statute to affirm their convictions in this case, the State has punished them for conduct that was not criminal at the time they committed it, and hence has violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits. Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). But Kavanaugh's opinion isn't controlling, and Bouie isn't exactly on point, so the question remains open. The defendant probably has the more straightforward argument -- the abortion was legal up until Dobbs was decided -- but there's a pretty good argument for the state, as well: When Roe was still good law, abortion law was quite fuzzy, so it was never entirely clear whether new restrictions on abortion were or were not unconstitutional. Given those conditions, the state laws outlawing abortions were clear enough to provide fair warining, even if there were legitimate questions as to the constitutionality of those laws; if a woman wanted to do something contrary to the law, she should have petitioned the courts to invalidate it, rather than simply breaking it. So there's no real way to say what the answer is at this point, but I suspect we'll get a real answer before too long. | Regarding the situation in Germany, it is not a crime by itself to travel to Syria (or in fact any other country), nor to take residence there. When people are arrested after such a trip, it is because they are suspected of having committed a crime during their stay. In this context, the crime could be, e.g., murder, abduction, or rape, but there are more specialized crimes, too, such as: Forming terrorist organisations (§ 129a StGB; translation) Preparation of a serious violent offence endangering the state (§ 89a StGB; translation) Preparation of a serious violent offence includes participating in a terrorist training camp where people are taught how to use weapons, construct explosive devices, etc. The definition of the crime was recently extended such that it is already punishable to make an attempt at leaving Germany with the intention of travelling to and participating in such a training camp. It is important to note that this intention would need to be demonstrated in court in order to get someone convicted; and someone travelling with different intentions, such as a journalist, would obviously not render oneself liable to prosecution. Outside of criminal law, there are other measures that the authorities may take to try and prevent people from travelling abroad if they are suspected future terrorists. As these are administrative measures and not criminal prosecution, the requirements for evidence are less strict. It has long been possible under German law to deny someone a passport (§ 7 PaßG; translation), or to revoke a passport that was already issued. The idea is that, without passport, the destination country or any transit countries are going to reject the traveller. This didn’t work too well in the case of Syria because a national ID card is sufficient for German citizens travelling to Turkey, which shares a land border with Syria. Therefore, also very recently, it was made possible to deny or revoke an ID card in much the same way as a passport (§ 6a PAuswG; no translation currently available). (Note that the translations I linked to are official but non-authoritative. In particular, be warned that the translation for § 89a StGB at least does not yet reflect the latest amendments.) | What exactly would a prosecutor charge? State? Federal? It depends on whether it is a state or federal prosecutor. It appears that the president has at least flirted with violating both federal and state law, in which case he may be charged by both the federal and state prosecutors, each one laying charges under the relevant body of law. Would Trump be vulnerable to Federal prosecution of the phone call after he leaves office? Yes, if the facts support such a prosecution. It's not clear to me that the conversation constituted an unambiguous violation of the federal statute, but I have no knowledge of any precedent that might inform such a determination. | "Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional). |
Personal device subject to forfeit? I have an employer-issued computer and a google-based email account. I use both the computer and the email account solely for work purposes. I am permitted to bring the computer home with me, provided it is used only for work purposes. This hasn't been a problem, and I understand that it's their device (not mine) and so I follow the rules. I understand that if they wanted to, they could inspect it at any time, etc. That's all fine. But I was quite alarmed today when I was told that if I did any of the following things... Check my work email at home using my home computer, Check my work email anywhere using my own smartphone, Connect my own smartphone (I own it, I pay for the contract, and it's not issued by work) for any purpose - be it work or otherwise - to the employer-provided internet network (including making a phone call using the wifi)... ...my personal device could be taken from me and its entire contents searched for relevant data were there some sort of a lawsuit or subpoena. I asked many clarification questions, such as why the home computer could be taken even though all the email contents are stored on a server elsewhere, etc. and was told in no uncertain terms that my use of their network forfeits any right I might have to expect privacy on my devices. They confirmed that, even though I only check their web-based gmail account my entire hard drive on my home computer could be taken if there was cause. I'm not in the know about legal issues, but want to fully understand my rights. Also, assuming that they are in fact correct, can I mitigate this at all? I use my home computer for a side business and it would be financially devastating if it were to disappear unexpectedly. The jurisdiction is Vermont, USA. I'm employed in the public sector, not a private business. NB - I'm new to the tags on this site, so please advise if I've mis-tagged this post. | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | Suppose I obtain the ability to access someone else's cryptocurrency. This sounds like fraud e.g. I overheard them saying the password to their wallet out loud or I am a custodian of their assets. Nope, STILL fraud, possibly even Computer Misuse aka hacking... and because you use internet: it's Wire Fraud I now borrow those assets, keep them for some period of time, and then return them, without the owner's consent. hmmm, let's take california... Luckjy you, it is not embezzlement because you were not entrusted with the cryptocurrency, you gave yourself access. 503. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. No it is plainly... theft under California law: 484. (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud. Giving it back doesn't matter. The person taking the crypto for any amount of time without being entitled to them is committing theft. You see, California doesn't interest that you just want to borrow. They don't even require Mens Rea for the mere taking - only for fraudulent pretense there is an intent question. In fact, it might even be automatically Grand Theft: 484d. As used in this section and Sections 484e to 484j, inclusive:[...] (2) “Access card” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument. 484e. (a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is guilty of grand theft. YIKES! and now, intent to defraud comes in, but that is actually minimal: that just means taking without being allowed to by the owner in many cases. | Congrats, you've done well to minimize your processing of personal data. But I think you're still processing personal data, and are subject to the GDPR. Serving a website necessarily involves processing an IP address. This IP address will typically be personal data. While you are not storing the IP address, the GDPR's definition of “processing” extends beyond storage and pretty much covers doing anything with that IP address. As far as I know this is not an entirely settled matter, but it's better to err on the side of caution and to assume that you are in fact performing a processing activity. Even a static web page can easily lead to additional relevant processing of personal data, for example if the HTML embeds resources from third party domains. Since your website is clearly targeted at the public, it does not fall under the GDPR's exception for “purely personal or household” purposes. So I think you do need a (minimal) privacy notice that contains at least the items mentioned in Art 13 GDPR. The main reason why some people try to avoid posting a privacy notice is because it must disclose your identity and contact details. But in Germany, that information has to be provided anyway due to the Impressumspflicht. As part of your GDPR compliance obligations, you must protect how data is processed by others on your behalf. A hosting provider will typically act as your data processor. For this to be legal, you need a contract / data processing agreement that fulfills the conditions in Art 28 GDPR. This contract binds the data processor to only use the data as instructed by you, and not for their own purposes. European hosting providers sometimes include the necessary terms in their terms of service / AGB, but you should check to make sure. Netcup expects you to accept their data processing amendment in your account settings. In the hypothetical case that you were not processing any personal data at all, the GDPR would not apply and it wouldn't require you to post a privacy notice. Other laws might still have information obligations, notably the German TMG and TTDSG. | Most of the question has nothing to do with the law, it's about technical how-to or how-does, which should be asked in Information Security SE. There are two possible legal questions: is it legal to break into a computer system and take a database of passwords, and it is legal to acquire such a database obtained by someone else. As should be known in the US, per 18 USC 1030, breaking into a computer is illegal in the US. Given that, it is extremely unlikely that Google illegally breaks into other computer systems to obtain passwords. The aforementioned law criminalizes accessing computers without authorization, not (just) "taking" stuff from computers without authorization. The law does not criminalize receipt of illegally obtained material. Passwords are not protected by copyright. If Google were to induce someone to break into a computer system to get passwords, that would be legally actionable, however there is no law penalizing innocent receipt of illegally-obtained passwords (insofar as they are not protected by copyright). It is not illegal to access the dark web, at least in the US (probably it is illegal in Saudi Arabia). Using stuff gotten from the dark web can easily be illegal (e.g. logging in to someone's bank account, or forging a passport). There are many services which monitor the dark web and report breaches, which is totally legal. | It's illegal. 18 USC 1030, the Computer Fraud and Abuse Act, makes it illegal to, for instance, "intentionally access a protected computer without authorization, and as a result of such conduct, cause damage and loss." A "protected computer" is defined to include any computer "which is used in or affecting interstate or foreign commerce or communication". This effectively includes every computer in the world that's connected to the Internet (see US v. Trotter, 478 F.3d 918 (8th Cir. 2007). To the best of my knowledge, Congress has not added any exceptions for Russia or any other specific country. It's also likely to be forbidden by the laws of your state. You did not specify a state, but taking Colorado as an example, the following are crimes under C.R.S. 18-5.5-102: (a) Accesses a computer, computer network, or computer system or any part thereof without authorization; exceeds authorized access to a computer, computer network, or computer system or any part thereof; or uses a computer, computer network, or computer system or any part thereof without authorization or in excess of authorized access; or [...] (e) Without authorization or in excess of authorized access alters, damages, interrupts, or causes the interruption or impairment of the proper functioning of, or causes any damage to, any computer, computer network, computer system, computer software, program, application, documentation, or data contained in such computer, computer network, or computer system or any part thereof; or (f) Causes the transmission of a computer program, software, information, code, data, or command by means of a computer, computer network, or computer system or any part thereof with the intent to cause damage to or to cause the interruption or impairment of the proper functioning of or that actually causes damage to or the interruption or impairment of the proper functioning of any computer, computer network, computer system, or part thereof [...] Note that this applies to any target computer, and the prosecution would not have to prove that the computer was used in, or affected, interstate or foreign commerce or communication. Other states most likely have similar laws. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | It is any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? No. Your permission is not necessary for distributing or watching that video. The recording was from your workplace, where your entitlement to privacy is quite limited unlike few settings such as (1) your attorney's office in the course of obtaining legal advice for which the disclosure was needed, or (2) your home. Even if such an entitlement existed, your decision to share that recording with the person who was with you generally constitutes a waiver of your right to privacy regarding that incident. The waiver would apply even if California had some legislation akin to the EU's GDPR. Your description nowhere indicates that that person had a statutory or equitable duty of confidentiality. It is also highly doubtful that you would wish to block the distribution of the video if people instead of mocking you expressed something pleasant or encouraging to you. people who I don't even know their names come to me to comment about the video and joke about not falling again. That is not unlawful in and of itself. Since the matter does not involve a protected category such as sex, race, religion, or disability, pursuing a claim of hostile work environment would be quite a stretch. It would also be futile because any relief would not cover outsiders who watch the video and feel like joking about it. The notion of harassment entails a pattern of conduct (meaning that a person engages twice or more in that conduct) that causes a reasonable person to feel annoyed or concerned for his safety. Even if someone engages makes a few jokes that cause you to get annoyed, any petition for restraining orders seems unlikely to succeed. Sooner rather than later, the jokes will get old and people will move on. | The legal system is set up to alleviate the problem or conundrum of intimidation by perpetrators. In the US criminal system, the State is the plaintiff, not the individual. In the extant described situation, very likely all you would have to do is sign an affidavit that the recovered phone is your phone, and that it was removed from your possession by unknown means on or about a certain date. From your description given here you don't know if it was stolen...you appear to have perhaps dropped it or left it somewhere, and someone picked it up/found it. Clearly it didn't belong to them, but this is more like "recovered lost property" rather than "received stolen property." The craigslist poster might be entirely un-chargeable with a crime, though they might have to give up the phone to you. |
Is it possible to keep your money after getting divorce in the US? If an F-1 student in the US, gets married with a US citizen, how can he protect his money if a divorce happened in the future? Specifically if he has a plan to establish a company and run a business after he graduated, how can he keep all the rights and money/stuck/profit he will earn from his company and won't share it after a probable divorce? Should they wright something like "we promise we won't have any claims about each other's money after the divorce" before they get married? | If an F-1 student in the US, gets married with a US citizen, how can he protect his money if a divorce happened in the future? Specifically if he has a plan to establish a company and run a business after he graduated, how can he keep all the rights and money/stuck/profit he will earn from his company and won't share it after a probable divorce? Should they wright something like "we promise we won't have any claims about each other's money after the divorce" before they get married? A prenuptial agreement is possible, and only an idiot or fool would draft one himself. An agreement drafted without legal representation would be highly likely to be invalidated in an effort to enforce it in the event of a divorce. Generally, both parties should have separate counsel. This must be accompanied by full financial disclosure by both parties, at least an opportunity to confer with legal counsel providing full informed consent regarding the rights given up in the agreement, and no undue pressure to sign it on the eve of a wedding. It cannot impact child support or child custody. It must also not be unconscionable to either spouse, either at the time it is executed or at the time of a divorce. If the company makes millions of dollars over the course of a ten year marriage, a court would not enforce the agreement according to those terms. In the case of an immigrant marrying a U.S. citizen, having a prenuptial agreement is usually a significant barrier to obtaining a spousal visa, which may be the only visa available after the marriage, on the grounds that this is considered a "yellow flag" that the marriage may actually be a sham for citizenship purposes only. A typical immigration officer who would read a post like this one or hearing an explanation for its purpose in an interview in those words would seriously consider denying a spousal visa or U.S. citizenship on the ground that the marriage is a fraud. The notion of a "probable divorce" in particular would almost certainly doom visa approval or a citizenship application, and would also, at the margins, make it less likely that it would be enforced at all. This is particularly true in the event of the very one-sided agreement proposed when you have a young couple that doesn't have established assets and children from prior marriages, or a pre-existing substantial amount of inherited wealth. Why else would a spouse agree to it? | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | at what point can you just leave? Is it always technically illegal in the UK to leave without paying the bill? Probably depends on what you mean with just leaving. If just leaving translates I haven't paid and I won't pay (because of the hassle with the card) then that's probably Making Off Without Payment, section 3 Theft Act 1978 (Thanks @bdsl). Could the restaurant just force you to wait until close of business if necessary? What if they still hadn't fixed the payment system by then? I don't think a restaurant can physically detain you. Not even the 45 min you have been waiting. But if you leave without paying and without an agreement with them how & when to pay they can of course call the police because again that looks very much like making off without payment. According to your post, they did provide a payment system (cash) which was working all the time and that moreover has the special status of being legal tender. if you don't physically have the cash on you, you can be sued? You can be sued if you don't pay your bill (assuming the bill itself is correct) when it's due. In order to avoid endless hassle of the "I tried to pay via x, but they wouldn't accept this." type, legal tender defines ways of payment of a debt that the creditor/seller must accept. In many legislations, cash in the local currency provides such a fallback if other payment methods fail. Note that cash payment is very robust against internet failure, broken devices and power The UK (+ US) meaning of legal tender is that the restaurant must accept this means of settling the debt (at this time, the food is already eaten but not payed) - but they don't have to accept any other means of payment. (Note that e.g. for the EUR-countries there is at least a recommendation to make acceptance of legal tender mandatory also in retail, which includes simultaneous exchange food vs. payment). The 2nd important implication of this is that any argumentation along the lines that no reasonable means of payment were available would be very weak. You are not required to have sufficient cash with you to pay your bill if you can reasonably assume that some other way of payment will be acceptable to the restaurant. I see that like a spare wheel for a car: if you have a flat tire (card doesn't work) having a spare wheel (cash) allows you to deal with the issue with less hassle than if you don't: change your wheel vs. having to get your car brought to a workshop and wait until they put on a new tire (pay cash instead of waiting for the card to work again or a tedious hunt for another payment method). I'd like to point out that card doesn't work and not sufficient cash at hand (or forgotten purse) is something that happens quite often in general (rarely for any given transaction, but we have lots of transactions). I'd expect a restaurant or a gas station to be experienced in dealing with that. In any case, there are several possibilities to resolve the issue short of "just leaving": The key to all this is communication: talk to the restaurant to find a way to resolve the issue. Reassure them that you're not trying to use the opportunity to defraud them - that's what they are afraid of in this situation. "Where can I find an ATM?" Possibly offering a deposit: "And would you mind looking after my bag [phone] until I'm back?" Possibly showing them your ID card (or similar, if you have any) so they have your address: remember that so far you are an anonymous customer for them: which means that suing you for the money would be somewhere between too expensive and impossible. If you are a group, it should be sufficient if only one of you leaves in search of cash. Credit cards can be charged in a total offline way (MOTO = mail order/telephone order) where the credit card data is entered manually by the seller: the restaurant may be able to charge your credit card if fill in a paper credit card payment form. They may accept settlement via other payment systems: paypal & Co. wire the money via your online banking account (even if that doesn't give an instantaneous transfer, ask them if that's OK with them if you show/forward them the "transfer accepted message" for now) allow them to withdraw the money from your account via direct debit or something similar I'd not expect a restaurant to accept this possibility as they're probably not familiar with it and it means a lot of hassle for them with their bank to get listed to receive money that way. if you are in a region where cheques are still in regular use, that may be a solution as well. Restaurants like any other business can write invoices. They usually don't like this because their risk of having costly trouble to get the money is high. While your printout bill is technically an invoice already, it can be turned into an invoice (+ copy for them) giving your name + address and specifying how and when you'll pay. Which would keep track of how you (pl. = you + restaurant) decided to settle the bill under the peculiar circumstances. This works even in case of e.g. a power outage that prevents you from getting cash from an ATM in the neighborhood. | The court in France would not enforce a debt collection against you; but the person who owed you the money could - very easily. They would apply to the court in Scotland to enforce the judgement of the French court, the Scottish court would look at it, say "yup, the French court has made a decision", and then tell you to pay up. After that, the French company has the same range of options as a Scottish company would. I think (but I could be wrong), that the decision of the French court might well not go on your credit record - but the corresponding decision of the Scottish court would. Note that a CCJ doesn't go on your credit record if you pay within a short period (seven days?). In your case though, the right thing to do is Pay the amount you don't dispute you owe Wait for them to sue (they may well not). Defend the case (probably in writing, not in person). If you lose, pay up straight away (at this point the court has decided that you were wrong, and you do owe the money. As such you should pay.) | No, the only purpose of a money order is that it's effectively a form of guaranteed cash that only one person can access. There are no additional protections offered by it. However, given that you are amenable to paying a little extra to facilitate your payments, you may want to consider using a credit card in the future. Provided it's not an all the time thing, credit cards will withhold payments on your behalf if a vendor fails to fulfill their obligations. This means that you're not liable for the cost of the merchant sending you the wrong thing or ignoring your order requests. I've personally done this for several things: Hotel reservation that was borderline unsuitable for human habitation. When a vendor failed to send something I'd purchased. When proceeding with this, bear in mind that the credit card company will want you to make such a claim as soon as possible and to provide as much information as possible to support your claim. If you've e-mail chains, save them. If you've been communicating by phone, write down and provide a summary of your communications. If you have an issue, don't wait a month to raise the concern, do it within a week. Probably about once a year I need to do something like this. Generally what this does is it starts a dispute process whereby the credit company will contact the vendor to get their side of the story (usually they don't respond to them either). After 60 days, the charge is dropped from your bill and presumably the credit card company refuses to pay for the disputed item. Ultimately, this gets you the best possible result. You get your money back and you didn't have to go to court to do it. | the ratio of divorced men paying the ex wife versus divorced women paying the ex husband should more or less reflect the ratio of employed men vs. employed women Not necessarily. Some states (NC for example) look at more than just the work scenario that you propose. From § 50-16.3A: (1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation; (2) The relative earnings and earning capacities of the spouses; (3) The ages and the physical, mental, and emotional conditions of the spouses; (4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others; (5) The duration of the marriage; (6) The contribution by one spouse to the education, training, or increased earning power of the other spouse; (7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child; (8) The standard of living of the spouses established during the marriage; (9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs; (10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support; (11) The property brought to the marriage by either spouse; (12) The contribution of a spouse as homemaker; (13) The relative needs of the spouses; (14) The federal, State, and local tax ramifications of the alimony award; (15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. (16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property. Take a look at § 50-16.1A also, where they define Marital Misconduct. Some may be of the opinion that alimony in NC is partly about punishment. (3) "Marital misconduct" means any of the following acts that occur during the marriage and prior to or on the date of separation: a. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse; b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; c. Abandonment of the other spouse; d. Malicious turning out-of-doors of the other spouse; e. Cruel or barbarous treatment endangering the life of the other spouse; f. Indignities rendering the condition of the other spouse intolerable and life burdensome; g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets; h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; i. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome. | What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.) | In general, no, if you make a will then you can revoke that will while ever you are still legally competent. Also, in general, this is a good thing. For your first example, you are ruling out all possibility of redemption - people change: a person who is a selfish a*$%^#@e in their 20s may be a kind, caring, dutiful and loving person in their 40s. For your second example, what if XXX gets demolished? Or you move cities? If you are truly serious, you can transfer all your assets to a trust, put your instructions in the trust deed and then nominate someone you really, really, really trust to be the trustee. This would prevent you modifying the instructions but you are then relying on the trustee interpreting them. |
Malicious actions by individual moderators This is a follow up on a previous question. Using Stack Exchange as a example, moderators should be able to destroy the site within minutes by automated means. There is no meaningful terms of service. I am not talking about the site intentionally deleting itself as a policy, as Stack Exchange has no policies or rules that would stand in a court room. Just saying if one of the moderators — there are hundreds of them — or not even a moderator, just a individual user who hacked the site — did this, there's nothing in the terms of service saying "you're not allowed to destroy our site." Again, it doesn't have to be a moderator, it could be a individual user, or anyone. There is nothing in the terms of service saying you will go to federal jail for destroying Stack Exchange. Does this make it illegal? Even if it is illegal, how many mods, or just one, can just run an automated script in Java AWT and destroy the site in seconds or minutes? | Yes, it's illegal. 18 USC 1030 (a) (5) (A) [Whoever] knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer [shall be punished as provided in subsection (c) of this section]. "Damage" is defined at (e)(8) to mean "any impairment to the integrity or availability of data, a program, a system, or information". Your proposed attack would certainly cause impairment to the availability of the Stack Exchange system and the data and information which it hosts. Whatever else you may think about the Stack Exchange terms of service, they certainly do not authorize any user or moderator to "destroy the site" in any sense such as you describe. It's not necessary for the TOS to explicitly say "you may not do X"; it's enough that they don't say that you may do it. To use a firewall analogy, it's "default deny". "Protected computer" is defined in (e)(2) to mean, essentially, any computer that is used in or affects interstate commerce. Which means practically every computer that has ever accessed the Internet, and certainly includes Stack Exchange servers. So your proposed attack would include all the elements of a violation of this section. Such a violation is punishable by up to five years' imprisonment if it causes a loss of more than $5000 (see (4)(A)(i)(I)), which if such an attack were successful, it certainly would. Greater penalties are possible in certain circumstances. Even if the loss does not exceed $5000, or if the attack is merely attempted but without success, it is still punishable by one year imprisonment or a fine ((4)(G)(i)). There is nothing in the terms of service saying you will go to federal jail for destroying stack exchange. Irrelevant. It is not up to Stack Exchange Inc. or its TOS to determine who does or doesn't go to federal prison. Rather, it is up to Congress to determine what conduct deserves such punishment (as they did in 1984 by enacting this law), up to federal law enforcement and prosecutors to investigate and make a case against an alleged violator, and up to the federal courts to determine if the accused is guilty and how they should be punished. | On the face of it there is nothing illegal about your proposal, however, "Australia maintains some of the most restrictive Internet policies of any Western country". In addition, a suit can be brought under Australian law for any material accessible in Australia irrespective of the original source or where it is hosted. Offensive Content The Australian Communications and Media Authority (ACMA) is empowered to look into complaints from Australians about prohibited content on the Internet and issue takedown notices. The ACMA is not mandated to scour the Internet for potentially prohibited content, but it is allowed to begin investigations without an outside complaint. Prohibited content is content that which would attract an R18, X18 or RC by the Australian Classification Board. Note that this is more restrictive than what is allowed for offline publication; offline publications can be R18 and X18. Once the determination has been made that content hosted within Australia is prohibited, the ACMA issues a takedown notice to the Internet content provider (ICP). It is not illegal for the ICP to host prohibited content, but legal action could be taken against it by the government if it does not comply with the takedown notice. For offensive content hosted outside of Australia, the ACMA itself determines whether content is prohibited and notifies a list of certified Web-filter manufacturers to include the prohibited Web sites in their filters. Australian Internet Service Providers (ISP) are required to make these filters available to their customers but their use is not mandatory. Your type of site is unlikely to fall foul of this but it could happen, particularly if you allow images or video uploads. You would need to be able to respond quickly to any take down notice. Hate Speech Australia addresses hate speech through the Racial Discrimination Act 1975, which makes it "unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group." The Federal Court has ruled that publication on the Internet without password protection is a "public act" and hate speech on your website could fall foul of this provision. ACMA does not have the statutory authority to deal with hate speech complaints so the only avenue is through the courts, however, ACMA will pass on complaints to the ICP. This area is much more likely to be an issue for your site - it is easy to see a complaint about a product with a distinctive national origin descending into hate speech as defined. Copyright As a publisher, you could be held liable for the uploading of copyright infringing materials by others. Defamation This is probably where your greatest risk lies. For a defamation action to be successful, it must be established that the communication: was published to a third person, i.e. to at least one person other than the plaintiff (person/entity defamed). Putting it on the internet does this. identifies the plaintiff, for example, by name or by a reference to a small group of people, etc. Identifying the person as, say BMW, does this. contains a defamatory statement or imputation (whether intentionally published or not). Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule; say a criticism about a car the person makes. In theory, any individual or entity who considers damage to their reputation has or is likely to occur, as a result of material published, may sue the publisher/s of the material. In practice, the laws are inaccessible to ordinary individuals who are defamed due to the exorbitant legal costs involved in bringing a defamation action. Australia's defamation laws are often used by politicians and corporations who consider the media, individuals or community groups have defamed them in publishing information critical of their activities. Defamation action may be brought, not only against the original publisher (writer/speaker), but also against anyone who takes part in the publication or re-publication of the material. However, the fact that a person can be sued does not necessarily mean they would be found liable by a court. There are numerous aspects relevant to liability. Defences that may be successfully pleaded in relation to a defamation action vary throughout Australian jurisdictions. Depending on the jurisdiction, these may include: truth/justification fair comment (e.g. an expression of an honestly held opinion or a criticism on a subject matter of public interest) absolute privilege (this attaches to the occasion, not the statement or speaker, such as during parliamentary proceedings, judicial and quasi-judicial proceedings, executive communications and communications between spouses) qualified privilege (e.g. fair and accurate reports of parliamentary proceedings, judicial proceedings, public meetings concerning matters of public interest/concern) consent (e.g. where the plaintiff expressly or impliedly consented to the publication of the particular imputation) triviality (e.g. where the circumstances/occasion of the publication were trivial to the extent that the person defamed was not likely to suffer harm) innocent dissemination (e.g. applicable to re-publishers/re-distributors such as newsagents/book sellers, including potentially to ISPs/ICHs. The defence in Clause 91 of the BSA is also relevant to ISPs/ICHs.) etc The Broadcasting Services Act (C'wlth) ("the BSA") provides a statutory defence to an ISP/ICH who carries/hosts Internet content in Australia and who was not aware that they were carrying/hosting a defamatory publication. You need to have good procedures in place to remove defamatory content ASAP after you become aware of it. Defamation action under Australian law may be commenced in any State or Territory in which the allegedly defamatory material was published. The Australian High Court has ruled that a party within Australia can sue a foreign party in an Australian court for defamation resulting from an online article hosted on a foreign server. | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | 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 conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. As for it being legal for website operators to log the IP-addresses of visitors, this is covered by the following paragraph (also pointed out by phoog in a comment). The paragraph says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) You are not the only web site that logs IP addresses for the purpose of security. Every web site I've ever worked on - from those controlled by large corporations to tiny NGOs - do this. This security practice will not be impacted by the GDPR (if it were, I am sure we would have heard about it by now). there is the EU cookie law too If your website are going to be accessible to European citizens and not only accessible by your friends and familiy, you have to comply with the EU cookie directive of 2002 (a exemption for "personal websites" does not exist). | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. | Why isn't forcing users to accept new Terms of Service by threatening financial loss, (like denying access to purchased content, or inhibiting or prohibiting the ability to earn an income), considered extortion and therefore illegal? Usually this is not illegal, and even if it is, it usually doesn't constitute extortion (or extortion's civil counterpart, which is called "duress", which is an affirmative defense to contract enforcement). Generally speaking, exercising a legal right someone already has, for a purpose that is not improper, does not constitute extortion. A TOS Rarely Creates A Reasonable Expectation That It Won't Change Most importantly, in the case of terms of service governed information technology services, the firm that creates the terms of service reserves, at the outset, the right to change them at any time. So, the user has no reasonable expectation that the terms of service won't change in a manner that they dislike. There is no implied promise to never change anything material about the service. Terms of service are usually specifically drafted from the outset to avoid creating something that looks like a property interest on the part of the user in having the service continue to work in a particular manner. TOS Terms May Not Be Unconscionable Both the original terms of service and any subsequent amendment of them, is not permitted to be "unconscionable" (e.g. it can't make the life of your first born child a liquidated damages provision that applies if the terms of service are breached). But, there isn't much of a legally protected reliance interest in not having the terms of service changed in this situation (although almost every general rule could conceivably have some exception to it, probably far more factually extreme than the fact patterns identified in the question). If a term is unconscionable, it may not be enforced as contrary to public policy, without regard to what prior versions of the same agreement may have stated. TOS Changes Are Usually Prospective Only On the other hand, a terms of service amendment is generally only effective prospectively and does not generally change rights that have fully accrued and vested prior to their amendment, at least until the user takes some act to affirmatively continue to use the service going forward. When there are vested rights under old versions, the remedy is not to characterize the change as extortion, however. It is to not apply the amendment to the terms of service retroactively to the already vested rights. For example, if the old terms of service did not contain an arbitration clause, and litigation was in progress under the old terms based upon old transactions, and then a new terms of service were adopted that mandated arbitration, this amendment would not generally be applied to require the pending lawsuit in court to be stayed and transferred to an arbitration forum. The right to litigated vested when the lawsuit was filed. | That's probably not a violation of that rule...but that's not your biggest problem. The most reasonable interpretation of that line in the terms is that you can't use a bot or do anything that looks kind of like using a bot. So if you and all your friends used a script to enter your picks for you, that wouldn't be allowed. Manually entering picks based on some predetermined methodology is hardly "robotic, repetitive, automatic, programmed or similar." Your much larger problem is mathematical, not legal: you'll need 42,467,327 friends (plus yourself) to guarantee a perfect pick. It seems like you need to correctly rank 4 groups of 4 in order, plus correctly guess the result of an additional 7 two-team games, so that's ((4 nPr 4) ^ 4) * 2^7 = 42467328 entries required to cover all possible rankings. Last year, there were 5 million participants (and only one perfect pick among them), so if you get that many people to enter, I'd bet Riot would be more than happy to give you a free computer for advertising their tournament to so many people. |
In 2011 two 14-year-old girls held an 11-year-old boy down and stripped him completely naked The girls then uploaded a video of him being held down naked to Youtube and they weren't prosecuted, why is this? https://web.archive.org/web/20110604124555/https://www.winknews.com/Local-Florida/2011-06-01/Online-video-shows-Fort-Myers-boy-being-bullied | Because the relevant law enforcement decided not to In the US (and indeed in all common law jurisdictions), law enforcement and prosecutors have discretion over when and if to lay charges by considering such things as the wishes of the victim, the prospects of success and whether charges would be just in the circumstances. At best, this allows a measured response to the particular situation. At worst, it enables discrimination and persecution. Either way it solves the problem of allocating limited resources to comparatively unlimited need. | The law of Texas is controlled by federal law, viz. the First Amendment. This item by the ACLU summarizes what that law is. Regarding your concern, public schools are not required to be "religion-free zones". Individuals have the right to hold and express their religious beliefs, or their lack of such beliefs, as long as it is contextually appropriate. That is, you don't get to invoke the First Amendment in the middle of a math lesson in order to engage in a rant. Students are allowed to try to persuade others to believe whatever they want, and students are allowed to be snarky about people who don't share their beliefs. Schools can teach about religion as part of the curriculum, though they cannot teach religion. It is okay to teach the historical fact that some guy decided based on the Bible that the world was created 10,000 years ago, but it not not okay to teach as a scientific fact that the world was created 10,000 years ago. Although I can't name a specific movie about Christmas that would be plainly objectionable to a non-Christian, we could assume that there is some such movie which is plainly advocacy of a religious viewpoint and which mocks Yazidism. A Yazidi student could then be excused from this movie, just as Christian students could be excused from attending an analogous Yazidi-advocating movie. | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. | Yes. This is treated as time served as several media accounts of sentencing hearings in these cases have demonstrated. See, e.g., this account in The Atlantic magazine, and this one in the newspaper USA Today, and this one in the newspaper the Houston Chronicle. I also saw a similar account in the L.A. Times but can't provide a link because my non-subscription access limit has been exceeded. | You are wrong that they never get into legal trouble. It isn't terribly common but it certainly happens to those that get relatively prominent. Many of the folks doing the copyright infringement are judgement proof. It makes little sense for Disney, for example, to sue some guy living in his parents' basement for uploading a clip of their movie when that guy has no assets. Financially, it wouldn't be worth the cost of a lawyer. Many of the folks doing the copyright infringement are in jurisdictions that look the other way. If you're a Russian citizen pirating content owned by American companies, the Russian authorities aren't going to cooperate and arrest you and the American companies likely can't recover any judgement they'd get because you don't have any assets in America. There is a whack-a-mole problem. If there are hundreds of people posting pirated content to Facebook and each one is running hundreds of pages, that's tens of thousands of pages posting content. By the time you identify and close all of them, the pirates will have created tens of thousands of new pages. There is a cat-and-mouse problem. Copyright owners have automated tools to scan for their IP to issue takedown notices. Piraters know this so they modify the video (posting it as a mirror image or adding some additional video elements) in order to evade the automated tools. If copyright owners have to manually identify pirated content, it's realistically not cost effective to do so. The humans finding that content would cost more than the business loses in revenue to pirates. Tracking down the actual human/ business behind the copyright infringement is often a fair amount of work and may involve motions in courts in multiple countries. That work tends not to be highly prioritized by law enforcement. If you're a small fish, it is unlikely that anyone would go to the effort of unmasking you in order to sue. | We're missing a lot of facts that would help drive the analysis. The first question I'd ask was whether this was part of an actual or attempted sex offense. If that's the case, the suspect could be facing particularly serious charges. Other information is also missing, such as the drug involved, whether it's on the list of controlled substances, her knowledge of the drug, her relationship to the suspect, and so on. Still, based on the information we've got and the inferences we can make from them, I could reasonably see the following charges being filed: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual Sec. 12-3.05. Aggravated battery. (g) Offense based on certain conduct. A person commits aggravated battery when, other than by discharge of a firearm, he or she does any of the following: (1) Violates Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another and any user experiences great bodily harm or permanent disability as a result of the injection, inhalation, or ingestion of any amount of the controlled substance. (2) Knowingly administers to an individual or causes him or her to take, without his or her consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance, or gives to another person any food containing any substance or object intended to cause physical injury if eaten. Sec. 12-4.5. Tampering with food, drugs or cosmetics. (a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics. Sec. 12-5. Reckless conduct. (a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person. Sec. 21-1. Criminal damage to property. (a) A person commits criminal damage to property when he or she: (1) knowingly damages any property of another Sec. 11-1.20. Criminal sexual assault. (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and: (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent; Sec. 11-1.30. Aggravated Criminal Sexual Assault. (a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim, except as provided in paragraph (10); (3) the person acts in a manner that threatens or endangers the life of the victim or any other person; (4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony; (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim's consent or by threat or deception for other than medical purposes; Sec. 11-1.50. Criminal sexual abuse. (a) A person commits criminal sexual abuse if that person: (2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Sec. 11-1.60. Aggravated criminal sexual abuse. (a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim; (5) the person acts in a manner that threatens or endangers the life of the victim or any other person; (6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim's consent or by threat or deception. Sec. 9-1. First degree Murder (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Sec. 9-3. Involuntary Manslaughter and Reckless Homicide. (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly Sec. 9-3.3. Drug-induced homicide. (a) A person commits drug-induced homicide when he or she violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance. Sec. 9-3.4. Concealment of homicidal death. (a) A person commits the offense of concealment of homicidal death when he or she knowingly conceals the death of any other person with knowledge that such other person has died by homicidal means. Sec. 9-3.5. Concealment of death. (b) A person commits the offense of concealment of death when he or she knowingly conceals the death of any other person who died by other than homicidal means. | Section 230 (of Title 47) grants immunity from civil liability under certain circumstances, so the website is not liable to the porn-distributor for taking down their images. There are also criminal laws pertaining to child porn, such as 18 USC 2252. It is not a crime to "see" child porn. Instead, the crime is defined with reference to one who knowingly receives, or distributes, any visual depiction... of child porn. Therefore you cannot be prosecuted if you do not know that the image is has the prohibited characteristics (is child porn). See US v. X-Citement Video, 513 U.S. 64 for discussion of th scienter requirement. The surrounding circumstances (the report) at most indicate that the moderator has some reason to believe that it is porn, and the immediate deletion of the material supports the conclusion that the moderator's action complies with the law. Paragraph (c) of that law also provides a defense, in case of prosecution: It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant— (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof— (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction. | Why would this be a concern? The adults have some duty in an elementary school setting to monitor the children in the restroom in any case. Separate restrooms are an employee perk, not a liability driven decision. |
What is the difference between ownership and exclusive sovereignty in terms of US land law? Yesterday a Law YouTuber by the handle 'Lehto's Law' made a video titled "Yes, You Own the Airspace Over Your Property" in which he describes that indeed you do own the air over your property. However 49 U.S. Code § 40103 states that "The United States Government has exclusive sovereignty of airspace of the United States." These things seem to conflict, to my knowledge. Do I actually own the space above my house? What is the legal difference between ownership and exclusive sovereignty? can I sell the airspace above my house? Can I exert any common law power over the air above my house? | Ownership is different from sovereignty Sovereignty means the right and power to make and enforce laws. Ownership means having property rights over something. Put simply, the United States (Federal and States considered collectively) has sovereignty over everything in the US (and some things outside) but everything in the US is not owned by the US. It’s owned by a bunch of different entities: individuals (US and non-US citizens), corporations (foreign and domestic), local, state and Federal governments etc. Ownership rights are subservient to sovereignty - the government may pass a law restricting what you can do with your property because they have sovereignty over it. Can you exert your rights to that airspace? Of course, however, the invention of aircraft required modification to the right of exclusive ownership. From United States v. Causby, 328 U.S. 256 (1946): (a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260-261. (b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266. (c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U.S. 263-264. (d) Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. Pp. 328 U. S. 261-262, 328 U. S. 264-267. This is a perfect example of the difference between ownership and sovereignty. People used to own the airspace “up to heaven” then the sovereign in the shape of the US Government changed the rules so now they don’t. Whether you can sell the airspace above your property depends on whether the sovereign (the US) has a law that allows or prohibits the splitting of airspace rights from the underlying land. I know such a split is usually possible with water and mineral rights. Exclusive sovereignty in the case of a Federal nation like the US means that only the Federal government has power. When only the states have power it’s called residual power and when power is shared it’s called concurrent. | Copyright law is a country-by-country matter. Most countries are signatories to the Berne Convention, which provides a common framework, but there are still variations, generally in the duration of copyright or the definition of copyrightable material. According to the Hirtle chart, a video game that was first published in Europe in the year 2000 and subsequently published in the United States is still copyrighted in both the United States and whichever European countries it was published in. It is likely to be a work of corporate authorship, so the US copyright will expire on January 1, 2096 (unless a law extending the duration is passed). In the United States, the requirement to register a copyright was eliminated in 1989 as part of the Berne Convention Implementation Act; registration still provides benefits when filing a copyright-infringement lawsuit. Most European countries eliminated their registration requirements much earlier, if they had them at all: the Berne Convention dates from 1887. Copyright does not simply cease to exist when the owner does, or if the owner cannot be determined. The difficulty of tracking down copyright holders for old or little-known works is the driving force behind orphaned works legislation. There are no orphaned works laws in the United States, and since copyright is country-by-country, European laws won't help you if you're interested in publishing in the US. In order to track down the copyright holder, you'll need to figure out who originally held the copyright (probably the publisher, but it could be either development company, or both, or the game might be a collective work of the individuals who worked on it). If it was a work of corporate authorship, and none of the game-copyright sales mention it, copyright will have been transfered when the company owning the copyright was sold (as part of a general "and all intellectual property" clause). | Intellectual property is property and the owner can do all the things that can be done with property including selling it, gifting it and bequeathing it. It can also be licensed; the closest analogue to normal property being renting or lending it except you can license to more than one person at a time. The current owner can do anything the original owner could do with it. Transfer of ownership does not affect the duration or status of the rights at all. | The actual law in BC, the Residential Tenancy Act, guaranteed a tenant's rights to the rental unit and the common areas, and restricts the landlord's right to enter the rental unit. Common areas are distinct from the rental unit. A common areas is "any part of residential property the use of which is shared by tenants, or by a landlord and one or more tenants", and a rental unit is a "living accommodation rented or intended to be rented to a tenant". In this case, that would be the room. There is no restriction at all on landlord's access to common areas, and there is no requirement that landlord access to common areas be for specific purposes. Access to the rental unit, on the other hand, must be for a reasonable purpose. | 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. | You always run some legal risk when you drive. As long as you are insured (you have a card in your hand) and you have permission to drive the car, it does not matter who owns the car. There is a difference between the legal minimum insurance coverage and actually adequate coverage, and since you are not getting separate insurance where control the insurance levels, you theoretically run some liability risk if you have an accident and the coverage is less than the damages (insurance doesn't mean that the other guy can't take you to court for the rest of the amount). There is also a risk that the housemate will do something crazy like cancel the insurance coverage for you, or report the car stolen, so you have to decide how worried you are about that possibility. | In the US, radio communication proper is regulated by the FCC and the NTIA. The FAA has nothing to do with it; they regulate things as they affect airplanes, but the actual radio rules are set by the FCC, and since frequency allocation is a purely radio thing the FAA has nothing official to do with it. The breakdown between FCC and NTIA is that the FCC deals with non-federal communications, while the NTIA deals with federal communications; they split the spectrum. Now, with things like Wi-Fi, many of the rules are set by non-governmental standards organizations. Wi-Fi is not regulated by the FCC; it falls within the frequencies and transmission powers that the FCC has deemed to be not regulated. So, the FCC never set aside 2.4 GHz for wireless Internet; they set it aside for any low-powered transmissions anyone wants to make (subject to interference rules). With LTE and satellite communications, there's more regulatory control; they are high-powered communications, and are licensed to individual operators for a specific frequency range. As Flup said, there is international coordination for obvious reasons (the ITU actually predates the UN by almost a century). The ITU helps coordinate spectrum usage, and also assigns satellite orbital slots in geostationary orbit (where most communication satellites are). | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. |
Unreasonable Time After ETA Ordered a sofa set from a furniture store with an ETA of March 25th. The contract I signed said that ETA are just that, just estimates. It is not beginning of May and the store has not provided an updated ETA and no option to cancel the order without a 30% cancelation fee. At what point passed the original ETA is the contract still valid? When I spoke the manager, she told me that she's had customers who had to wait years to get their stuff, and didn't seem bothered by that fact. | At what point passed the original ETA is the contract still valid? There is no hard limit or deadline other than the one (if any) the contract itself provides. The contract remains valid regardless of a party's breach or non-performance. The remedies that would be available to you are in the form of rescinding the contract --without having to pay the cancellation fee--, or forcing the store to deliver the furniture soon. The longer the delay, the clearer your entitlement to either remedy. The manager's allegation about other customers is unavailing: Your description does not reflect that the contract or estimates are in terms of the delay that non-parties tolerated. Their contracts are totally unrelated to yours. The contracts might not even be comparable. The purpose of estimates is to give the counterparty some rough information that is known to likely influence his decision-making. Accordingly, a huge departure from the estimate supports the finding that the store deprived you of information that was material to your decision. The store's failure to timely inform you strikes the contract law tenet that you entered the contract knowingly. Furthermore, the store's deliberate act of specifying even the day of the month [mis-]led you to rule out that the delivery might actually take years. Typically furniture is purchased with the expectation of being able to start using it relatively soon, not years later. In addition to breach of contract, the store might also be in violation of statutes against unfair and misleading practices. | This is just saying that if they can’t host your event then the only remedy you get is your money back that your paid them (your deposit, advance payments, and of course your don’t owe final payments). It is there to make it clear that they are not responsible of any other money. What else might the client want them to refund? Other lost expenses. Non refundable deposits to the band, the florist, the caterer if this is just for the space. The non refundable airline tickets your relatives bought. Prepaid hotel rooms. They will not pay for any of that. The pandemic is a bit of a red herring because although that is of course the big thing now, it says any occurance whether or not the business caused it. The answers to your specific questions though are pretty trivial. -The business did not cause the pandemic or control the state health office (Irrelevant as noted) -There is nothing they can do about it. The state or county will allow the events when the situation improves. But even if say there was no state order but the venue for their own reasons or because they could not get enough staff cancelled, the answer would be the same. | 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. | The agreement linked in the question seems to be or to purport to be, for a non-final, non-production version of the board. I have seen such agreements used, both for hardware and software, used when beta-test versions of products are being distributed to those who agree to do such testing, often in exchange for a reduced price on the final product, or an early look. I have also seen similar language used when an evaluation version of a product is provided free, or at a much reduced price. In such a use, it would be a reasonable contract, it seem to me, and I see no reason why if it were agreed to by both parties in such a situation, it would not be binding. Often such agreements also include a non-disclosure aspect, but this one does not seem to do so. I cannot see how such an agreement could be made applicable automatically, without both parties having chosen to agree to it, and indicated this by signing, clicking, or in some other positive way. I doubt that it could be made automatically applicable, on an "by using this product you agree" basis. I don't know of any physical consumer product, or appliance, sold with such an agreement in ordinary commerce. I am not sure what would happen if a manufacturer wanted to require all purchasers to sign such an agreement. I don't know if it would be binding. I would think that the purchaser's rights under the First Sale doctrice, could be modified by a valid contract agreed to by the purchaser. I do not think that they could simply be revoked by a contract of adhesion, which the purchaser had no choice to decline before making the purchase. As the OP says this was not signed or agreed to in any way, I can't see how it binds the OP. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | Having done a bit of brief research, I find that "legit" is a synonym for "good". So, no. The header announcing a "principal amount" serves no purpose and could be misinterpreted as indicating that there is a loan. There is no reason to indicate the date twice, which gives rise to two different values of "date". The phrase "For value received" can be interpreted in at least two ways, one being "in exchange for some unspecified value to be received at some future date by Promisor", and "in exchange for a specific value already received by Promisor". Under the later interpretation, Promis(s)ee probably could not breach but under the former, Promis(s)ee could. So it makes a difference. You can just pay to the Promis(s)ee, and not imply that you are creating a pay-to-order instrument such as a check. That still leaves you the option to pay with a check. Or was the intent to say "pay on demand"? The expression "the sum of £500 shall the Promisor fail to meet his target" is not grammatical in US English, and I'll leave it to a UK speaker to judge if this is, over there. I assume that this is supposed to express conditionality, in which case "if" is a useful term. Then the meat of the contract, I guess, is that if the Promisor fails to meet somebody's target of 47.5 work hours per week, then Promisor has to pay Promissee £500 (and not otherwise). It's really not clear how anyone would know whether "meet a target of 47.5 work hours per week" has come to pass. Does that mean "work at least 47.5 hours per week"? Does that mean "for each of the three weeks within the time period" (or did you mean "work 47.5 hours within some one week, within the 3 week period"). Being explicit that the work obligation extends for 3 weeks would be legit (vide supra). Supposing that the second clause means "Promisor will pay £500 by 5:00pm 2 July 2016", you should put it that way. Or if you mean "Promisor will pay £500 by 5:00pm 3 July 2016", say that. Deadlines for performance should be stated very directly and clearly, and require no calculation and interpretation. And I'd suggest including a clause stating that "Promissor" and "Promisor" are used interchangeably in this contract. Or else be consistent in spelling. Note that almost any contract can be given some interpretation. From the perspective of creating a contract, the first concern should be over clearly expressing the intentions of the two parties in written form. After all, you don't have a contract if there is no meeting of the minds. | This is an internet transaction Internet transactions can be reversed within 14 days after delivery of physical goods without the need to state reasons in germany. That is "Rücktritt vom Kaufvertrag". However, you are needed to send back the product and might be required to pay the shipping fees, depending on the original contract. This is a materially flawed product You ordered a book with text A. You got text B. That is a material flaw and you can demand the correction of such a material flaw (Mangel) at the expense of the seller, including any postage. However, if the text was provided by you or the original order form is indicating text B instead of A, the mistake is on you. | No. You have to ask for specific permission to send marketing emails, and can't make it a condition of making a purchase since marketing emails are clearly not necessary for that. When accepting the terms you need a separate tick box for marketing emails, and it must be unticked by default (opt-in). |
How to refer to an unknown signer, in the parties section of an agreement Have an agreement that will be signed by someone but we want to reuse the agreement and not edit each time to add the signers name. My question is how can I refer to the signer at the top of the agreement, without editing the agreement to show their name each time? | One could replace: The following agreement constitutes the relationship and commitments between Our Company LLC (Agency) and (Client). With The following agreement constitutes the relationship and commitments between Our Company LLC, referred to in this agreement as "the Agency", and the other party, specifically identified in the signature section, and refereed to in this agreement as "the Client" or "You". | If the envelope had someone else's name and not your name, you should in theory not have opened it, and should instead have marked it "Not known at this address. Return to Sender." and handed it back to the postal service to be returned. If you were asked to sign for the letter, ideally you would check that it is not addressed to you (or anyone else now at your residence) and refuse to sign, but it is easy to overlook that at the moment a letter is presented to you. And sometimes certified mail is delivered without obtaining the signature of any resident. If, however, the envelope had your name on it, you were entitled to open it, and are not bound by any confidentiality statements in the cover letter, assuming that you had no previous relationship with the sender. You may well choose to respect them, but you cannot be legally bound unless you accepted such an obligation at some point, usually in a contract of some sort. If you did have a confidential relationship with the sender, then its terms would normally control, whatever they might be. You could prepare an envelope addressed to the sender, enclose the document, and mail it back to the sender. You could optionally add a short cover letter explaining how you received the document. If the envelope was addressed to some other person, this would, I think, be the best thing to do. If the document was addressed to you, this is totally optional, you could legally just discard the document and forget about it, and you can probably legally read it and do whatever you like about the contents. But as the answer by gnasher729 points out, returning it would be the nice thing. As the comment by Makyen points out, you may wish to retain evidence of what was received. One sided confidentially statements on letters or faxes are not legally effective in the absence of some prior or current relationship or agreement to be bound in confidence. | That is, you don't even have to give them a copy of the contract. In the same way you might reference some legal code without actually copying the legal code directly into the contract. If you do not communicate material terms of the contract to your contractor, the contract will be unenforceable due to lack of meeting of minds. Referencing "some legal code", provided that that code is publicly available is fine: your contractor can look it up and decide if they are happy with it. But doing the same with "Independent Contractor Agreement #123" will only work if you provide a copy of it to your contractor. For example, it can be attached to the paper being signed as a Schedule. So, in a nut shell, abstracting prose out is fine as long as it is communicated/attached. | You are never obligated to sign a contract. You already have a lease agreement in place, which will be enforceable for the agreed-upon duration. The lease can be changed if both parties agree to it, but one party cannot unilaterally demand that other agree to any changes to the contract - a landlord can't, for example, change your lease agreement to increase your rent payment in the middle of your lease term and demand that you sign it. The landlord is certainly allowed to ask, in the hopes that both parties can come to an agreement, but again, both parties need to agree in order for an existing contract to be changed. | You are entitled to at least see, and probably get a copy of, any document you sign. If you insist, they will have to show you or give you a copy. It may well be that they are supposed to give you a copy even if you do not ask. But if you are going to insist, allow a bit of extra time at such appointments. If they describe the document, even in rather general terms, your signature is probably binding, unless they have significantly misrepresented the document. If they tell you it is consent to be treated and it is actually an agreement to purchase a timeshare, that would be fraud and the document would not be valid, but that would be very unlikely. There might be some provision that you do not like, but such agreements are usually fairly standard, and also usually not very negotiable if you want service at that office. Still, it is better practice to at least look over and get a copy of any document you agree to. | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... | Can you have valid Terms and Condictions when there is no entity mentioned? No, but the example you post is inapplicable because the terms clearly state in the beginning that the agreement is between "you" and "Binance operators". The latter is defined shortly thereafter. Thus, it certainly identifies the entity. A contract does not need to exhaustively list all information such as parties' registration(s) or domicile. As long as a reasonable person is able to grasp who are the entities entering a contract, that contract is binding and enforceable. If it cannot be ascertained from the contract who the counterparty(-ies) is(are), then neither party can prove that he and other entity(-ies) knowingly and willfully agreed to an exchange of considerations or promises thereof. Accordingly, nobody would have standing to sue others for breach of contract. |
Could I be charged with a crime for putting an item from a store in my pocket for a few seconds? One time, without thinking, I put an item (which I intended to buy) from a store in my pocket. I immediately realized this wasn't a good idea, and took it out of my pocket, carried it in my hand for a while while I kept shopping, then went and paid for it and a couple other items. Did I commit any crimes? Could I be charged with theft for something that for a couple seconds, probably looked like I intended to shoplift? | 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. | The physical cash in the bank is not your property, at least not in US law (according to Scalia). It becomes your property when the withdrawal is performed by some means specified in your contract. A deposit gives you a contractual right to demand money from the bank. Bank robbery is a crime. Having money deposited with the bank doesn't change that. The only possible chance a robber has at trial is jury nullification. I haven't found records for that in Lebanon, but it does have jury trials. Impartial review classifies Lebanon's justice system as somewhat corrupt, but generally compliant with the basic principles. So it might be possible to get away with it at trial, but a very long shot. | Depends on where you are, and likely also on what they knew when. It is entirely normal to order some goods (like perishable food, or custom-fitted furniture) before it is produced. The contract may or may not include advance payment. Most jurisdictions require some sort of intent for fraud, so the non-fulfillment would not be fraud if circumstances beyond the control of the supplier prevent delivery. The question of civil damages and repayment is distinct from criminal fraud charges. | Yes. The charge in that case is solicitation of assault. Usually, solicitation of a crime carries the same punishment as the underlying crime. On the other hand, if a daughter tells her father what you did to her and he unilaterally decides to assault you, out of defense of his family's honor and outrage, the daughter has not committed a crime. | Intentional sabotage of a TSA computer system is almost certainly a serious crime and would also almost surely give rise to civil liability, although you might avoid both if you warned the TSA that the phone was set up to intentionally break their system, in which case it might be confiscated as contraband. If the product had a "feature" unknown to you and that you had no reasonable reason to know of that caused the harm, you would ultimately have no criminal or civil liability, although the manufacturer might be strictly liable to the TSA under a product liability theory, and you would probably be detained as a witness to figure out what happened. If the product had a "feature" that broke the TSA computer that could be de-activated and that you meant to de-active but carelessly failed to, you would have negligence liability to the government and might or might not have criminal liability (I'm not enough of an expert in the relevant statutes to know). You might be liable for a strict liability Federal Communications Commission offense for having a device that is in violation of their regulations. | This helpful video gives the answer, and it's no, you don't have to open your door unless they have a warrant. If you've committed an indictable offence (those considered most serious, such as murder, manslaughter, causing really serious harm (injury) and robbery) they have the power to enter without a warrant (see 17 b of the PACE Act). In the case I saw there was no indictable offence and so the lady didn't (shouldn't!) have opened her door. You can speak to them through a closed door or window and if they try to break in it is they that are breaking the law. | It is possible. If you say e.g. "On March 12 2021 I stole a steak from the grocery store at the corner of Smith St. and Wesson Ave.", that is a confession. It is voluntary and not coerced (you're not required to apply for the job), so it is admissible. It is extremely unlikely that there is any insulating provision in the job-application process ("information obtained via applying for this job will never be used against you in a court of law"). Whether or not you would actually be arrested and tried depends on the circumstances (basically, is it "worth it" to them to prosecute you). Also, what you say in the "explanation" box matters, so I gave you a clear confession to criminal culpability. Something like "I was at the store when some dude shot a lady" isn't a confession to committing a crime, it more satisfies the full-disclosure requirement. | It looks like the gym was allowed to take the money out of your bank account and didn't. They didn't notice that they didn't take your money, so they can't really expect you to notice it. So you haven't done anything that would be criminal. The bigger question is how much you owe them. If you used the gym all the time, like someone paying monthly would do, they will most likely have the right to payment. That's not unlimited, there will be some "statute of limitations" so they can't ask you for 30 years back payments, but with less than two years they probably have a right. If they raised prices, it's unlikely the would have a right to that because they never told you. The situation while your subscription was frozen is interesting. Basically you just walked in, used the gym without paying, but they didn't stop you in any way. I could walk into your gym, ask if it is Ok to use it, and if they say "yes" and don't mention payment, I'm in. So for this time you can argue whether or not you owe them money. Summary: You haven't done anything criminal. You most likely owe them money. About the money, they can take you to court if you don't pay which will cost both sides money. Since you did use their service and other users did pay, the morally right thing would be to pay what seems fair to you, possibly with some negotiation. And legally, you might consider paying them enough to make both sides happy enough so you can stay a gym member and don't get sued for the money. |
USA/North Carolina/Double Jeopardy Is it lawful to attain prosecution of an individual based solely upon hearsay of 2 collaborated adults (for alleged multiple indecent liberty) charges on a toddler, which were dismissed 7 years later. Total sentence was 70 years. The prosecution of the time solely used the evidence deriving out of the 7 charges to additionally, but falsely create a rape charge, which was not dismissed, in spite no whatsoever physical evidence existed. Considering the age of the toddler at the time, the toddler was exempt from testifying in court. The toddler also allegedly claimed 2 other persons as perpetrators to officials, according to court documents. This information wa however completely suppressed by the judicial entities of the time, so as to shield the judicial wrongdoing. Prosecution and court relied solely upon hearsay of 2 individuals, who both had motive to perjury. As explained above. Initially 8 charges were sought, 8 charges were prosecuted. 7 were dismissed within 7 years of litigation. 1 charge remains. However, the alleged evidence of the 7 charges which were dissmissed was carried over to uphold the 8th charge. That charge by itself has absolutely no physical evidence whatsoever. How can this be legal? | It's not clear what you are asking ("How can this be legal?"), so I suppose it may mean that you don't understand the relationship between dismissal of a charge and admissibility of evidence. Or you think that physical evidence is required by law. You might try clarifying the question. A prosecution can be dismissed with prejudice or without prejudice. Dismissal with prejudice means that the charge cannot be pursued again, whereas dismissal without prejudice allows re-filing the charges, and is basically a temporary delay. Dismissal with prejudice can occur especially when the defendants fundamental rights were violated, for instance with illegally-obtained evidence. Dismissal without prejudice may arise because the prosecution needs to gather more evidence. The fact that a prosecution had started with an intent to use certain evidence does not mean that the evidence is itself now inaccessible. So in principle, any evidence that would have been used in an earlier prosecution can still be used. In the case of a felony, it does not legally matter how much time has elapsed since the alleged crime and the prosecution. So on the face of it, there is still a viable prosecution. Physical (forensic) evidence is not required to obtain a criminal conviction, all that is required is testimony that "fully satisfies or entirely convinces [the jury] of the defendant's guilt". That can be the testimony of two witnesses. While "hearsay" evidence is excluded, the definition of "hearsay" is complicated, since hearsay is what people generally think is hearsay but certain things are excluded from the definition of hearsay (therefore are admissible). FRE 803 spells out the exceptions: 803(4) is widely used to allow testimony by the in the case of sexual assault of children. This article surveys a number of relevant cases, and see also this article – the point is that testimony from a psychologist, social worker, parent or other person as to what the child said can be admissible. | Different exclusionary rules have different reasons. Hearsay is frequently inadmissible because it's less reliable for the court to hear Alice saying "Bob told me that Carol hit him" than to hear Bob saying "Carol hit me." Another even more critical problem with hearsay testimony is that the defense cannot cross examine the person who made the statement in court. If Bob is there, the defense can ask questions such as "where did Carol hit you" and "did Carol use her right or left hand" to clarify the testimony or call its veracity into question. Alice, not having been a direct witness to the act, will not be able to respond to many of these questions. united-states Evidence obtained in violation of a constitutional right is inadmissible because admitting it amounts to allowing police or prosecutors to violate people's constitutional rights in order to obtain convictions. Not only does an unconstitutional search itself violate the rights of the person being searched, but so does the use of evidence acquired in such a search. See Fruit of the poisonous tree at Wikipedia and the cases linked therein, especially Silverthorne Lumber Co. v. United States and Nardone v. United States. | Double Jeopardy does obviously not apply to being tried by the state and the federal court system, where you can be convicted for drug smuggling by both the Federal and the State court as you broke both laws with the same act. This is true, and the answer to your question comes in the reason this is true. The exception to double jeopardy you're referring to applies to charges from separate sovereigns. When considering whether two entities can both charge someone, you trace back each of them to the sovereign power that gives them their authority. States are considered sovereign, as are Indian tribes with respect to crimes committed by Indians (although for certain serious crimes like murder, Congress arguably stripped tribal courts of jurisdiction with the Major Crimes Act). The United States is of course sovereign. The military is not sovereign. Military charges are based on the sovereignty of the United States, so double jeopardy applies between military and civilian federal courts. Likewise, US territories (and DC) are not sovereign and have criminal jurisdiction based on the sovereignty of the United States, so territorial (and DC) charges are subject to double jeopardy with each other, with military charges, and with civilian federal charges. That said, double jeopardy only applies if the charges represent the same offense. The UCMJ has offenses with no civilian analog. If you're charged with murder in civilian federal court and mutiny under the UCMJ, those are two different crimes. | united-states For a particular sovereign in the United States, the criminal law test for this is from Blockburger v. United States (emphasis mine) 12 Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' Compare Albrecht v. United States, 273 U. S. 1, 11, 12, 47 S. Ct. 250, 71 L. Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed. What this says in more plain language is that a person can be prosecuted under two different statutes for the same logical act as long as there is at least one fact that has to be proven for each count which doesn't have to be proven for the other count. This does mean, for example, that a person could not be prosecuted for aggravated assault, acquitted and then later prosecuted for simple assault on the same facts if there aren't any facts required for simple assault that aren't required for aggravated assault. For the example in the question, this does seem to mean that if, for example, a robber was first prosecuted for murder, and then later separately prosecuted for carjacking after the murder, this would not be double jeopardy. I would guess in practice that courts wouldn't appreciate this kind of game-playing since it wastes the court's time as well to adjudicate two trials when there could just be one, but I don't know if there's a hard rule against it. Blockburger was actually arguing that multiple convictions from one trial should be overturned because some of them relied on the same facts as another. In this case SCOTUS ruled against Blockburger, but on the basis that the facts did not overlap, not that the legal basis of the argument was unsound. I noted in the beginning that this applies to particular sovereigns, which in terms of US law means either a state or the US Federal Government. Under the dual sovereignty doctrine (e.g. Gamble v United States), if the same set of facts of a case constitute both a state crime and a federal crime, or the also likely case that a federal crime requires all the facts of a state crime plus a few more, both the relevant state government and the Federal government can prosecute the person under their own statutes. This would technically also apply if two states wanted to prosecute someone, although it's unlikely that there is any way to have the exact same set of facts break two different state's laws since state laws generally can only cover actions taken inside the state or affecting that state in particular. | First of all, Sally can't charge Bob, or anyone else. She can file a complaint with the police, or with the District Attorney. It may or may not be investigated, and if it is, charges may or may not be brought, and she has no control over any of that, although she may be able to use persuasion or political pressure to influence the decision. In New York, persuading a child to make pornography is a class C felony. Possessing child pornography is a class E felony. Promoting an obscene sexual performance by a child is a class D felony. Disseminating obscene material to a minor is a class E felony, unless the defendant solicits the child to engage in sexual activity, in which case it's a class D felony. All of these have 5-year statutes of limitation. (N.Y. Pen. Law § § 70.00, 80.00, 235.21, 235.22, 263.05, 263.10, 263.11, 263.16.) I can't find any NY law that makes it a crime to ask for a naked image of a child and be refused, although there may well be one. Note that it is not a crime in NY to posses sexual or nude pictures of a person 16 or older, although it is a crime to create them. There are also federal laws against child pornography, but federal policy is not to bring federal cases where the accused are under 18 and a state case could be brought. In fact, the federal authorities generally do not bring cases except against major producers when a state case can be brought instead. But that is a matter of policy, not law. NY has a pre-trial diversion program for teen-ages involved in "sexting". They can agree to take special classes, and avoid a criminal conviction or any jail time. The court must approve candidates individually for this program, but it is widely used. In the given scenario, the statute of limitations would not have expired (if the law I couldn't find makes this a felony, misdemeanor SoL is 2 years). In theory bob could be charged and tried for his solicitation. If charges were levied, the prosecution would need to prove at trial that Bob had made the request, and that it was serious, not a joke. It would also need to persuade a jury to convict when no sexual image had ever been transmitted. In practice I doubt that a case would be pursued after several years. That would depend entirely on the DA, or the relevant assistant DA who handled the case. Nothing would legally prevent such a case that I know of. | There are all manner of reasons that evidence can be excluded at a trial, most of which are set forth in rules of evidence. If the evidence was not admitted on the grounds of relevance and the charge was speeding, I presume that the reason that it was found not be to relevant was that it was not possible from a video to determine how fast someone was driving and there was no dispute in the case over who was driving. If the defendant could have articulated some reason that the video was relevant to those points, perhaps it could have been admitted. But, as if often the case, pro se defendants are usually not articulate enough to set forth a legally relevant reason that evidence should be admitted. Unless the defendant could show that the video showed something allowing a jury to determine whether or not the law was violated, it probably wouldn't be relevant and I can't easily imagine how it would be relevant, but perhaps there was some special facts or circumstances that might show, for example, that the speed gun was actually picking up another vehicle. | In the United States, prohibition against double jeopardy is a constitutional protection. As long as one was actually at jeopardy for an offence by a particular sovereign, that sovereign may not subsequently prosecute the accused for the same wrong. In other jurisdictions, such as the U.K., it has a less strict form, even though generally, special pleas of autrefois acquit would be available. It is also not the case that after an apparent "confession" in public that there is "no doubt" about a person's guilt. No evidence is "certain" in law without being tested in court. Also, you propose: you were tried for murder and acquitted - then you go out and publicly admit that they were wrong, you did actually murder that person This does not put the acquittal into question. The prosecution failed to prove the case beyond a reasonable doubt. This means at law that one is deemed to be not guilty. Your scenario does not show that the trier of fact was "wrong" about the prosecution failing to prove its case beyond a reasonable doubt. This is not an avenue by which the prosecution can challenge an acquittal. If a properly instructed trier of fact finds that that the prosecution did not prove its case beyond a reasonable doubt, this conclusion is unassailable. You ask "where is the justice?" The justice of a system is assessed by its application across the totality of cases. Given that a system of prosecuting and judging that is run through humans will inevitably produce errors, the law has developed to promote a measure of "justice" across the entirety of the cases that are disposed of by the court rather than to futilely attempt to ensure the "correct" result in every particular case. The rule against double jeopardy has arisen out of this systemic concern for justice. It does not purport to secure the "correct" result in every case. | The police can arrest and charge anyone if they have a reasonable belief that a crime has been committed so: yes. However, if the question is: can they secure a conviction the answer is a resounding no. North Carolina law has three prohibitions on minors and alcohol: supplying to, possession of and buying. Possession is easily dealt with: the minor never possessed the alcohol. Supplying is also dealt with perfunctorily: the supply went from the restaurant to a person 21 or over. This only leaves buying. Now, buying something requires a contract (or since the object is illegal, what would be a contract but for that). Did the minor have a contract with anyone? That is, were they under an obligation to pay for the alcohol? No. If the pair had skipped out on the bill, the restaurant would pursue the adult for payment because that is who they have a contract with. Any arrangement between the diners as to how they will split the bill is a private, unenforceable arrangement, not a contract. |
Is a state law protecting a non-citizen fetus unconstitutional? The Constitution and 14th Amendment expressly list protecting citizens as a core responsibility of Government. However, a fetus is not a citizen until it is born. The IRS defines as US person as someone that is born. Could the federal government argue that laws by states to protect the life of a non-citizen (a fetus) are unconstitutional according to a strict interpretation? This does NOT imply that murdering a non-citizen should be legal as murder is a general law. States currently want new explicit laws for a fetus because they cannot try abortion as murder as they may like. EDIT: The answer by bdb confuses the action of protection with a mandate of protection. This argument is not that protecting non-US citizens is unconstitutional. It is that laws mandating protection of non-US citizens are unconstitutional. | It may help to start by clearing up some false premises in the question/comments: The Fourteenth Amendment does not "expressly list protecting citizens as a core responsibility of Government." The IRS does not define "U.S. person" as "someone that is born." The Internal Revenue Code has no bearing on whether corporations are considered people for purposes of political contributions. Then we need to clear up the main logical fallacy on which the question is built: Even if we accept that the Fourteenth Amendment requires government to protect citizens, and even if we accept that fetuses are not citizens, that doesn't mean states can't protect fetuses. That argument -- "States may protect citizens, therefore states may not protect noncitizens" -- is a straightforward example of denying the antecedent and pretty obviously untenable once you stop to think about it. Houses aren't citizens. Elections aren't citizens. Can state laws protect them? Foreign exchange students aren't citizens; can state laws protect them? How about the Canadian ambassador? The answer is quite well settled. The Tenth Amendment ensures state governments' right to enact virtually any laws to promote health, safety, and welfare, so long as those laws do not run afoul of some constitutional limit. Existing Supreme Court precedent makes clear that that authority -- known as the "police power" -- is virtually boundless. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore & M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895). While Roe v. Wade has long provided just such a constitutional limit against the exercise of that power to regulate abortion, it appears clear that protection is about to vanish. Without Roe, states looking to protect "potential life" will be free to enact virtually any law that would advance that goal. | They don’t, or not necessarily The primary purpose of a constitution is to define the structure, operation and limits on government. It contains the laws that the government cannot change except by any procedure included in the constitution. It isn’t necessarily to spell out the rights of citizens. Some do, some don’t. The median age of constitutions is 19 years - half of them are older than this, half of them are younger. Coincidentally, or perhaps not, this is close to the 20 years that Thomas Jefferson thought a constitution should last since “the earth belongs to the living, and not to the dead.” The US Constitution is the oldest (and shortest) still in modern use - it’s influential but it’s a poor example of what modern constitution’s are like. For some particular examples: the United Kingdom (a unitary state) does not have a written constitution. It’s unwritten one has only one clause - Parliament is sovereign. UK citizens have a bill of rights but that is under an Act of Parliament, they are not constitutional rights. New Zealand (a unitary state) has a constitution but that constitution is an act, or more precisely acts, of Parliament and their bill of rights is also an act of Parliament. Australia (a federal state) has a constitution which is an act of the UK Parliament with a single right (freedom of religion) and no bill of rights. Australians have an implied right of political discourse because the High Court has determined that that is necessary for the democracy described in the constitution to work. Their other rights are those that exist at common law. People in the state of Victoria have a bill of rights (made by Parliament) but no other state or territory has adopted one. the French (unitary) constitution creates the position of “Defender of Rights” but what those rights are and the procedures for defending them are delegated to parliament to decide. | Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion. I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here. | The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned. One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law. One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so. Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress. As a political matter, I doubt that the current Congress will pass such a law. | No. While the Equal Protection Clause of the 14th Amendment doesn’t apply to the federal government, the Supreme Court has read the same requirements into the 5th Amendment. This is generally considered to have started with Bolling v. Sharpe 347 U.S. 497 (1954) (in this case, "the Court began in earnest to fold an "equal protection" guarantee into the concept of "due process."” United States v. Madero, No. 20-303, at *9 (Apr. 21, 2022)), and as Buckley v. Valeo, 424 U.S. 1, 92 (1976) put it, Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. | It appears that the "leading" source of Freedom of Movement is the Privileges and Immunities Clause (Art. IV, S.2 , Cl. 1) of the US Constitution, that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". See Crandall v. State of Nevada, 73 US 35: "We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states" (quoted from an earlier case); US v. Wheeler, 254 U.S. 281 In all the states, from the beginning down to the establishment of the Articles of Confederation, the citizens possessed the right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom citing the Privileges & Immunities clause as the constitutional foundation. However, this article, sect. IB notes a number of additional constiutional sources: Various Justices at various times have suggested no fewer than seven different sources: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and [sic] Immunities Clause, a conception of national citizenship said to be implicit in the structural logic of the Constitution itself, the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses. Edwards v. California, 314 U.S. 160 relates freedom of movement to the Commerce Clause, Aptheker v. Sec’y of State, 378 U.S. 500 points us to the Due Process clause. The argument hasn't apparently been made based on the First Amendment, since there are better arguments. | Insofar as those treaties don't bind the US, the notion of "violating" such laws is moot. Hoda Muthana is, under Yemeni law, a Yemeni citizen (it is immaterial whether she has ever "accepted" or exploited it), and as such stripping her of US citizenship would not leave her stateless. In the case of Hoda Muthana, the action is based on the legal argument that she was not ever a citizen, based on the premise that her father was a foreign diplomat. Under US law, children born to foreign diplomats in the US are not birthright citizens, following US v. Wong Kim Ark. Birthright citizenship cannot be revoked. However, a person can renounce their citizenship, via certain acts, including taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years;or (3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer The defense argument would presumably be that ISIS is not a foreign state (despite their own claims to the contrary) so her affiliation with ISIS does not qualify. There are grounds for denaturalization, including falsifying or concealing relevant facts pertaining to naturalization, refusing to testify before Congress, or joining a subversive organization including Al Qaeda within 5 years of naturalization. | The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at "information". The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves. The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system. |
Can I store the names of arbitrary business associates in my CRM system? I'm running an agency and I would like to store the names of employees of my client's companies to help me build client relationships. For example, "Gina works on reception." Is this allowed within GDPR? Can I legally do this in the UK? Why or why not? Bonus question: If not, what are some ways that I could avoid GDPR breach while still making it easier for my employees to remember the names of random employees we encounter? | The GDPR does not outlaw such processing of personal data. It merely regulates how and for what purposes you can process personal data. In general, you can conduct any processing activity as long as it has a clear purpose and a legal basis. Here, the purpose would likely be something like “conducting business with my clients” and the legal basis would be a “legitimate interest”. A legitimate interest always requires a balancing test that weighs your interests against the interests and rights of the affected persons. For example, can the affected persons reasonably expect such processing activities? In a professional setting, it can probably expected that business partners keep notes about contact persons so your intended processing could be fine. The GDPR does impose some general constraints. There are general principles like data minimization and storage limitation – you should only collect data that is necessary for your purpose, and shouldn't store it for longer than necessary. You should think about appropriate technical and organizational measures (TOMs) to protect the processing activity, for example about how your CRM is hosted, how backups are made and how security updates are installed, who has access to the personal data, and how the people with access to the personal data can be trained. For example, such training might inform your employees that they can only use the data in the CRM for business purposes, but absolutely not for personal purposes like asking Gina from reception out for a date. | It follows from case law from the ECJ, e.g. C‑70/10 (28 January 2010) and C-582/14 (19 October 2016), that IP-addresses are personal data. Since my interpretation of the case law differs from the interpretation offered by @Greendrake, I'll go into the relevant case law in a bit more detail than I did in my initial answer. TL;DR: Yes, IP-addresses in server logs are personal data and you need to declare IP-address logging in your privacy policy. As I said, we need to examine the case law I mentioned in the introduction to find out whether IP-addresses are personal data. The first of those are ECJ C-70/10. In this, the court concludes that all IP-addresses are "protected personal data": It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. (my emphasis) Then, in 2016, the ECJ ruled in a more narrow case ECJ C‑582/14 specifically ruling on dynamic IP-addresses: The court goes through a number of deliberations, then concludes: Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is very clear from this text that the court does not challenge or invalidate ECJ C-70/10 on static IP-addresses. The court is very careful, in its ruling to point out its ruling is specifically about dynamic IP-addresses. So the ruling of ECJ C-70/10 still stands for static IP-addresses, these are always protected personal data. I believe this case law is summarized in Recital 30 of the GDPR. This recital lists the identifiers that may make natural persons identifiable: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. (my emphasis). Since it follows from case law that static IP-addresses always makes the data subject identifiable, and dynamic IP-addresses may make the data subject identifiable, I will conclude, based on jurisprudence alone, that: Unless you are able to filter your logs to exclude static IP-addresses. I think you must consider IP-addresses protected personal data under the GDPR. However, in ECJ C‑582/14, the ruling about dynamic IP-addresses hinges on the controller having legal means to identify the data subject by connecting the IP address to some other data. The court seems to think that getting access to ISP logs is the only means of doing that. This is wrong. In 2015, the Norwegian computer scientist Einar Otto Stangvik identified 78 Norwegians who seem to have downloaded abuse material starting only with their IP-addresses. Stangvik did this while working as a consultant for Norway's larges newspaper VG. I know Stangvik and I am familiar with the methods he used. I've tried them myself, and they work. Stangvik did not have access to ISP logs, he did not do anything illagal, and the 78 natural persons identified only by means of their IP-address, combined with other data the Stangvik had legal access to. I will not go into details, I will just say this: If you know how to do this, getting to the natural person when you know the IP-address is not difficult or labour-consuming. To return to the question: It also follows from the GDPR that logging of IP-addresses falls under its definition of "processing". Your privacy policy should list all personal data personal data that is collected by yourself and third parties ("processors" in the terminology of the GDPR) that you rely on. Your hosting company is such a third party, and you need to declare the logging of IP-addresses in your privacy policy. | You probably can't refuse to use such services. The relationship between you and these services is very different when you interact with them as a consumer, versus when these services are provided on behalf of your employer. In the latter case, the service is (or at least should be) bound as a data processor who can only* use your personal data as instructed by the data controller, your employer. Thus, it is your employer who determines for what purposes your data will be used, not the cloud service. Your employer has a legitimate interest in providing a modern and secure productivity suite to its employees, and in requiring you to use such services for efficient communication and collaboration. Of course it would be possible to provide some such services on-premises, but the GDPR doesn't really discriminate between self-hosted and third party services, as long as the third party service is contractually bound as a data processor. To a large degree, this is of course a legal fiction. The cloud services deploy new features all the time, and all that your employer can really do is agree to those changes, including agreeing to new ways for how to process your data. Also, the service provider may act both as a data processor on behalf of your employer for some purposes, but as their own data controller for others. E.g. in Google Workspace (formerly GSuite, formerly Google Apps for Business) Google collects analytics data about how you use their Docs product, and they use it for their own purposes. However, they would only process the document itself as a data processor. This is quite different in the consumer version where Google can use personal data for their own purposes, although within the limits of their privacy policy. Within your work account, you do have some privacy controls, similar to a consumer account. While your employer can set defaults and restrict features, you are not forced to share all data. E.g. in a Google Account, you can “pause” web and app activity (i.e. browsing history) that would otherwise be collected from Chrome browsers while logged in with your work account, or from Android devices that are managed by your employer. This data would potentially be used by Google for Ads, even with a Workspace account (I'm not sure). However, Google Workspace services generally do not feature ads themselves, e.g. the paid Gmail version does not feature ads. The largest real issue with the use of such services by an European employer is the international transfer of data to a non-EU jurisdiction, especially into the U.S. The GDPR offers many alternatives for how such transfers can be protected. In the past, the EU and US had used the Privacy Shield mechanism. However, it was found to be invalid in the 2020 Schrems II ruling, due to concerns about US mass surveillance. Subsequent guidance from supervisory authorities explained that it's not sufficient to use “standard contractual clauses” as an alternative protection, but that additional safeguards have to be implemented, which would effectively deny the personal data to actors in the US. Both Google and Microsoft offer some “data sovereignty” choices that prevent international transfers into the US. However, those have to be configured appropriately by your employer. Thus, instead of asking “can these services be used?” to which the answer is yes, it might be better to ask “is my employer using these services in a compliant manner?”. If you have concerns about such issues, you can contact your employer's data protection officer | 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. | You clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. | Per Art 3(2), GDPR only applies to non-European companies when their processing activities relate to the offering of goods or services to people in Europe, or when the processing activities relate to monitoring people in Europe. However, the word “offer” of this targeting criterion requires some level of intent. It is not enough for GDPR to apply that they're marketing to someone who happens to be in Europe, but GDPR would apply if they are intentionally marketing to people who are in Europe. I don't know what they are marketing, so I don't know if that would be the case here. Even if GDPR were to apply, it would not be the most appropriate law. Yes, there's the GDPR right to erasure, which applies under some conditions (though there's a pretty absolute right to opt-out from marketing). The EU's ePrivacy Directive provides more specific rules though, in particular that every such marketing email must offer a way to unsubscribe. Other countries have comparable anti-spam laws, potentially also the home country for this online service. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | The conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. As for it being legal for website operators to log the IP-addresses of visitors, this is covered by the following paragraph (also pointed out by phoog in a comment). The paragraph says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) You are not the only web site that logs IP addresses for the purpose of security. Every web site I've ever worked on - from those controlled by large corporations to tiny NGOs - do this. This security practice will not be impacted by the GDPR (if it were, I am sure we would have heard about it by now). there is the EU cookie law too If your website are going to be accessible to European citizens and not only accessible by your friends and familiy, you have to comply with the EU cookie directive of 2002 (a exemption for "personal websites" does not exist). |
What would happen if a case before the Supreme Court court involved a conflict of interest for all justices? I realize this might be a silly scenario, but suppose that nine of the storage units in the Wooden v. United States case had been rented by Supreme Court justices. Then all of the justices might have a conflict of interest in a case that was presented before the court. What would happen in this scenario? Would they just have to let the lower court's ruling stand? (If I understand this rule correctly, if four justices had conflicts of interest, the court would lack a quorum. That's more likely, though admittedly very unlikely.) | If six justices decided that the case were sufficiently important, they could refrain from recusing themselves so as to be able to hear it. If that didn't happen, the lower court's ruling would stand, as you suggest. If I understand this rule correctly, if four justices had conflicts of interest, the court would lack a quorum. That's more likely, though admittedly very unlikely. However unlikely it may be, it has actually happened (for example, Shao v. Roberts). | The companies agree to resolve the dispute with a neutral arbitrator. This is similar to a court action, but instead of a judge or panel of judges, there is an arbitrator or panel of arbitrators. The two parties to the dispute must agree to this in advance. For more information, you can consult the rather thorough Wikipedia article on the subject: https://en.wikipedia.org/wiki/Arbitration | Separation of powers means that the judiciary can't pass laws or executive orders. It doesn't mean that the judiciary can't interfere with their passage and enforcement. Quite the opposite -- the checks and balances inherent in the system ensure that the judiciary can interfere in some cases. One of the checks is the concept of judicial review: the courts' power to review each branch's actions for compliance with the constitution -- and more importantly, to strike down actions that are unconstitutional. When a court strikes down part of a law, though, they aren't writing a new law, or even repealing a law. They are overturning parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist. In India's constitution, Article 13 provides the main basis for this power. Article 13.(2) (in Part III) states: (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. This article, aside from making it clear that laws passed by the State can be void, also gives the Supreme Court the inroads it needs to do the overturning. The catch is, the Court can not overturn most laws passed by Parliament, just the ones that Part III can be construed to prohibit. (While the judiciary is not explicitly named, it's the only branch that can officially say whether or not a law is constitutional. It'd be a conflict of interest anyway for Parliament to do it. Parliament, in passing the law, presumably wanted it to be enforced, and thus has an interest in avoiding too much scrutiny.) So the Court can already declare an unconstitutional law void, because it already is...and that's before we even get to Article 142. Let's take a look at the article anyway: (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Note that (2) explicitly grants the power to issue subpoenas, contempt citations, etc. So we can't claim that's what (1) was intended for, and have to ask what it means. The Court decided that the article gives it the power to order the government not to violate your rights, as such an order is "necessary for doing complete justice". And as the final arbiter of the meaning of the very text that defines it into existence, it has that prerogative. And due process is one of the rights protected. Article 21 (also in Part III): No person shall be deprived of his life or personal liberty except according to procedure established by law. "Procedure established by law" is a much weaker phrase than "due process", and technically meant that anything that the government scribbled into law was good enough. But case law has all but removed the distinction. (See Maneka Gandhi vs Union Of India.) Basically, any procedure for depriving someone of life or liberty must be just, fair, and reasonable. (Otherwise a law declaring you a criminal, to be arrested on sight, would be constitutional.) "Someone filed a complaint" simply wasn't gonna fly. | As for SCOTUS being willing to overrule itself, here is a table of such cases, starting with Hudson v. Guestier 10 U.S. (6 Cr.) 281 (1810) which overturned Rose v. Himely, 8 U.S. (4 Cr.) 241 (1808) up to Ramos v. Louisiana, No. 18-5924 (U.S. Apr. 20, 2020) which overturned Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion) and Johnson v. Louisiana, 406 U.S. 366 (1972) (Powell, J., concurring). This is 234 cases since 1798, slightly above once a year. No idea what the rate is for the UK or Canada. | No The general common law rule is that a lawsuit requires an actual dispute. This is a contrived dispute with no real-world relevance. With apparent (or even actual) authority to act on behalf of A, you assisted B with making copies. The moment you contrived this scheme and set it into motion, you consented on behalf of A to allow B to use the materials. It is like paying someone to slip and "fall" on your sidewalk so they can sue you. There is no actual dispute, and volunti fit non injuria. | Would a district judge within the Seventh Circuit be allowed to consider the full Bowman quote, or is it restricted to the Seventh Circuit's interpretation of the Bowman quote? "Bowman quote" aside, in case of conflict between SCOTUS and appellate precedents, a district judge ought to follow SCOTUS precedent to the extent that it directly controls the matter at issue. Otherwise, the district judge would propagate the appellate contravention of the principle formulated in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989): If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Bowman states that the legislative intent of extra-territorial operativeness is obvious for some types of crimes. In other words, that the legislator does not need to expressly indicate extra-territoriality for certain classes of crimes. Leija-Sanchez 602 F.3d 797 (2010) does not misconstrue Bowman. Instead, it truncated a statement therefrom. A truncated citation does not create precedent. Furthermore, that truncation is inconsequential because "indeed, all of the conduct ascribed to Leija-Sanchez took place here", Leija-Sanchez at 801 (emphasis in original). That defeats defendant's argument regarding extra-territoriality. Even if a party attempted to take advantage of the truncation in Leija-Sanchez, the adversary would defeat that attempt by pointing out the material portion being omitted. | 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.") | The Answer Depends Upon The Facts Of The Case Related To The Forum Where The Suit Is Commenced The analysis depends upon some key facts that a person asking a question might not know, because they are not intuitively obvious and have actually changed in the last few years, without knowing the relevant law. When The Forum State Has General Jurisdiction Over All Defendants The most important question to consider is this one: Is the state in which the class action suit is brought is home to the headquarters of the US manufacturer (or a state where the manufacturer has a substantial equivalent to a headquarters)? This question matters because, if and only if the answer to this question is "yes" then, "general jurisdiction" would be present under a U.S. Supreme Court precedent established in 2014. If a forum state's courts have "general jurisdiction" over a defendant, this means that the defendant can be sued in that forum on any cause of action against that defendant arising anywhere in the world, regardless of any other relationship that the claim has to the forum state (except for claims in the exclusive jurisdiction of the federal courts which can be brought in a U.S. District Court located in the same state, or in an arbitration forum pursuant to a valid arbitration clause that binds the parties, an issue beyond the scope of this question and answer). Until recently general jurisdiction over a defendant (i.e. jurisdiction over any lawsuit against a defendant without regard to the particular facts of the case) was present in any state where a company has a permanent office for the conduct of business, under half a century of precedent on the issue that traced back to a U.S. Supreme Court case known as International Shoe v. State of Washington, 326 U.S. 310 (1945). In the case of large corporations doing business nationwide, this usually meant that a plaintiff had a large number of states to choose from in which a defendant could be sued on any matter whatsoever which also facilitated the filing of class action lawsuits with plaintiffs from all over the world covered by a single lawsuit. But, in the U.S. Supreme Court case of Daimler AG v. Bauman, 571 U. S. ___ (January 14, 2014), general jurisdiction was limited to the state where the headquarters of the business is located, or another state the defendant is otherwise equally "at home." (For example, the state where Amazon.com chooses to locate its proposed "HQ2" in the case of a lawsuit against Amazon.) If so, the foreign plaintiff member of the class can probably join the lawsuit, since general jurisdiction is present. When The Forum State Does Not Have General Jurisdiction Over All Defendants But, if the forum of the class action lawsuit is not one of the typically one or two states where the defendant is "at home", then a U.S. Supreme Court ruling from June of 2017 that significantly changes the law of "specific jurisdiction" probably bars the joinder of the foreign plaintiff as a member of the class. This case holds that specific jurisdiction over a defendant arising solely from the fact that it sold a defective product in a particular state or country which it caused an injury to be limited to plaintiffs who actually purchased the product or suffered an injury in that state. So, if there is more than one defendant, the forum state must have general jurisdiction over all of the defendants, or must have specific jurisdiction over all defendants over whom it does not have general jurisdiction for a reason that applies to all members of the class bringing the lawsuit. For example, if the defective product was an airplane that crashed in California as a result of a defective product, everyone hurt in the crash could sue in a single action in California because that is where the injury occurred to all of them, even if the people on the plane who were injured or died came from different states and countries. Similarly, if the product was defective as a result of design work conducted by multiple large corporate defendants with different home states outside Colorado that took place entirely at a design collaboration workshop at the University of Colorado at Boulder, a class action including all persons injured globally by the defective products could be brought in Colorado, even if the injuries were dispersed all over the world at places where the defective products were delivered. The case adopting this radical change in the law of specific personal jurisdiction is Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. (U.S. June 19, 2017) in which the court finds that "specific personal jurisdiction" (as opposed to "general jurisdiction") is lacking with regard to the claims of members of the class of plaintiffs who are not California residents in this case brought in a California state trial court (in an 8-1 decision with Justice Sotomayor dissenting). According to the official syllabus of that case: A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. It is not sufficient in the high court's analysis that the corporation is already subject to suit in California as a result of its conduct in California to most of the people in the suit. Instead of analyzing whether California has jurisdiction over the product liability situation, in general, the high court decides that the determination regarding whether California has jurisdiction over a suit against a particular defendant must be made on a plaintiff by plaintiff basis when "specific jurisdiction" rather than "general jurisdiction" is involved. Sotomayor's dissent in this case emphasizes implications of this ruling in the kind of situation posed by this question at Law.SE: Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State. I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. The most serious issues arise in one of the situations that Justice Sotomayor addresses which the majority does not adequately consider in the rebuttal in its own opinion, which is the situation where there are multiple possible defendants with different home states, whose relative liability is unknown or independent or mutually dependent. For example, suppose that the product has two kinds of defectively manufactured components manufactured by companies with two different home states in the U.S. (e.g. an electronic device charging bay and a battery) that are assembled by the customer after they are delivered independently, which, when acting together, cause the assembled product to be dangerous and cause injury even though the design itself is not defective. Under Bristol-Myers, there is no U.S. forum with jurisdiction over all injuries caused by these compound manufacturing defects that can allocate responsibility between the responsible manufacturers on a consistent basis. Why Didn't It Matter That The Drugs Were Distributed By A California Distributor? The high court is also unimpressed with the fact that the drug giving rise to the product liability was distributed by a California company, presumably because the cause of action in question in the case was brought against the manufacturer as a strict liability defective product claim, rather than as a claim against a seller of the product arising from a warranty that the product was free of defects arising under the Uniform Commercial Code or an express warranty. This makes sense if the California distributor was a wholesale company not in direct privity with the retail buyers of the products from retail pharmacies who were injured by the products. The wholesaler could be sued under the Uniform Commercial Code on its warranty to the buyers of the drugs, only by the intermediate wholesalers or retail pharmacies that bought the drugs. The wholesaler could also be sued on its warranty only if those direct buyers themselves suffered injuries as a result of the defective product. For example, a retailer might have injuries in the nature of breach of warranty liability in suits brought against retail sellers by injured consumers under the Uniform Commercial Code that the retail sellers would be seeking indemnification of from the California based wholesale distributor. But, Bristol-Meyers does mean that it is basically impossible for injured consumers who were not injured in the forum state to sue both the manufacturer of the defective drugs (where jurisdiction would be present in New York and New Jersey) on a tort theory, and the distributor of the defective drugs (where jurisdiction would be present in California) in the same action. So, it is effectively impossible in this case for all people injured by the defective drugs to sue all of the potential Bristol-Meyers case defendants in a single lawsuit. Statutory Considerations Existing statutory limits on federal court jurisdiction limit the jurisdiction of the U.S. District Courts in most cases of cases to cases in which a state court in the state where the U.S. District Court is located would have either general jurisdiction or specific jurisdiction of the defendant (without regard to the fact that the case might be within the exclusive jurisdiction of the federal courts as a matter of subject matter jurisdiction which pertains to the nature of the cause of action asserted rather than the ties of the defendant to the forum state). But, the decision leaves Congress with the option of potentially changing that statute which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, as it already does in cases that are predominantly "in rem" (e.g. interpleader cases and interstate boundary and real property title disputes), in bankruptcy cases, and with respect to the subpoena power of U.S. District Courts. The official syllabus also notes that: The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. Constitutionally, Congress still has the authority to vest all U.S. District Courts with jurisdiction over any case in which the United States treated as a single state for purposes of general jurisdiction and specific jurisdiction analysis. This would leave the question of which particular U.S. District Court was the proper one to file in as a question of venue (which does not have a constitutional dimension) rather than a question of jurisdiction (which is subject to constitutional considerations), and many legal scholars have urged Congress to do just that. But, so far, Congress has not altered a status quo that does not give U.S. District Courts the maximal jurisdiction allowed under the United States Constitution. But, so far, Congress has instead taken an intermediate position on the geographic scope of federal court jurisdiction in the jurisdictional portion of the Class Action Fairness Act of 2005 (which also limits the extent to which "coupon settlements" of class action cases are permitted). In particular (per the link in this paragraph): The Act permits federal courts to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at least 100 plaintiffs; and where there is at least "minimal diversity" between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). The court, however, may decline jurisdiction under certain circumstances, and is required to decline jurisdiction in certain others. But, while the Class Action Fairness Act of 2005 allows many class action lawsuits which would otherwise be brought on exclusively state law claims in state court to be brought in federal court, or removed from state court to federal court, it does not authorize class action lawsuits that could not be brought in a state court which a U.S. District Court is located due to lack of either general jurisdiction or specific jurisdiction from being brought in that federal court either. The Class Action Fairness Act of 2005 was favored by businesses likely to be defendants in future class action lawsuits (such as manufacturers), because state civil procedure law in some U.S. states such as California, is more favorable to class action plaintiffs than federal civil procedure laws related to class actions. |
How does a requirement to wear a mask infringe civil liberty? I come from a scientific background, so wearing a mask is second nature in a laboratory & clinical settings: I am biased because I do not want to infect patients or inhale pathogens. That being said, I am trying to understand the viewpoint as to exactly what liberty and how the requirement to wear a mask infringes upon anything. For context Google return major news outlets with keywords COVID Mask protestor Any reference to a statute or case law is appreciated. UPDATE: if it helps: assume that the governing law is the United States. I am not a lawyer: the closest I have come to the legal field is patent prosecution | The right that the government leave you alone All modern, pluralistic democracies have a number of specifically protected or traditional rights (for example, Australia) which at their root encompass the idea that the government should leave the individual alone unless interference is necessary. In general, the types of regulations that have been promulgated in response to the pandemic conflict with the following Australian rights because they may: interfere with freedom of speech; interfere with freedom of religion; interfere with freedom of association; interfere with freedom of movement; interfere with vested property rights; deny procedural fairness to persons affected by the exercise of public power; inappropriately delegate legislative power to the executive; authorise the commission of a tort; interfere with any other similar legal right, freedom or privilege. With masks, in particular, the last two seem the most appropriate. It is generally accepted that laws that limit or restrict these sorts of rights should be proportional and subject to rigorous scrutiny. With very few exceptions (e.g. a right not to be tortured), no right is absolute. This is so because once more than one individual has rights, those rights may (will) come into conflict. For example, my right to fire my crossbow may come into conflict with your right not to get a crossbow bolt through your head. There is no doubt that requiring someone to do what they would not normally and do not want to do (e.g. wear a mask) is interfering with their liberty even if it is slightly more difficult to point to an enumerated right that is being violated. Laws that do this sort of thing can founder on one of two shoals: The enactment, promulgation or enforcement of the law exceeds the power that the government actually has. For example, most of these restrictions have been promulgated by executive order: does the executive actually have the power to make such orders either on its own behalf or through a power referred by the legislature? Also, in a federal system, the federal government cant exercise governance in a matter reserved to the states and vice-versa. Is the law itself in conflict with some other law guaranteeing a right? How is that conflict to be resolved? Laws have a hierarchy and a law that bumps into a law higher up will founder - regulations are trumped by case law, case law is trumped by legislation, legislation is trumped by a constitution etc. | From a legal perspective, I think the ruling is reductio ad absurdum correct. California voters passed Proposition 65. Consequently, CA Health and Safety Code 25249.6 says "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10". Section 25249.8 mandates a list, and defines "known to the state" A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state’s qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity. Acrylamide is so listed, and has been for 18 years, reason code listed as "AB-IARC, AB-US EPA". The law does not say that "the benefits may outweigh the risks", nor does the law say anything about usual doses. There is an "escape clause", if one (the defendant) can prove that there is no effect (25249.8(b)): An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant. The answer on Skeptics does not address the EPA finding (and the science underlying it). At this point we can only conjecture about the defense's scientific argument (the ruling is still in the works, pending feedback from parties), but the judge said "While plaintiff offered evidence that consumption of coffee increases the risk of harm to the fetus, to infants, to children and to adults, defendants' medical and epidemiology experts testified that they had no opinion on causation" and that the coffee makers hadn't presented the proper grounds at trial to prevail. Insofar as human subjects testing of suspected carcinogens is illegal, any argument that "but this only shows that it causes cancer in rats" is legally empty: rats are a suitable proxy for humans. This is a state report addressing a potential carcinogen, 4-Methylimidazole. The report notes that to have a No Significant Risk Level finding, the substance must have less than a "daily intake level posing a 10^-5 lifetime risk of cancer". A further requirement is that "risk analysis shall be based on the most sensitive study deemed to be of sufficient quality" (whatever that is). This study mentions a previous study which was rejected because "these studies do not meet the criteria specified in Section 25703(a) because the experiments were not designed to adequately control for and examine the potential carcinogenicity of 4-MEI". Basically, Spiegelhalter's argument is too meta, and doesn't constitute a proof that acrylamide poses no risk of cancer. If the defendants commissioned an independent scientific study to overcome earlier carcinogen findings, perhaps the study failed on technical grounds. The bar that has to be cleared is very high. The EPA regulation says that the maximum contaminant level goal for acrylamide is zero. That is the carcinogen-science basis for specific allowable levels in water supplies. | 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. | There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved. | Your distinction between civil rights and civil liberties does not enjoy support from the legal perspective. Typically, the law addresses rights, and "liberty" is invoked only in rhetorical flourishes (at least in the US legal context). "Right" is about the relationship between a person and actions. Liberty may be a consequence of certain rights. Government protection of rights typically takes the form of forbidding the government to do certain things (things that interfere with a person's right to do certain things). The right to due process protects your right to live your life free from government interference, except when certain conditions are present (as stated in a law). Due Process (as a procedural requirement on government action) is neither a right nor a liberty, it is a restriction addressed to government power. Its purpose is to protect the rights of individuals. | How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is "because the Supreme Court of the United States said so." In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his "caveat") that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg). The Declaration of Independence is not law. Following "a history of repeated injuries and usurpations" and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not "enshrine" or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values. | This is a super complex question and no one really knows the answer yet. Orin Kerr is probably the leading scholar on this question, and he generally argues that forced decryption of one's own device is not a Fifth Amendment violation. As I understand it (and oversimplifying by a lot), one key piece of his position is that requiring you to put in your password is a statement about your knowledge of the password itself, not about the contents of the machine into which you are entering it. And because your knowledge of the password for your own devices is presumed, an exception for "foregone conclusions" would leave this compulsion unprotected by the Fifth Amendment. You can read one of his explanations here. The Eleventh Circuit disagreed with that approach, but a California judge recently reached a conclusion similar to Kerr's. This will probably by a question for SCOTUS before too long. | There aren't any specific laws or regulations about medical charges. Instead, this is a matter of general contract law, where you have to agree. You have to consent to be treated, and a signature is taken to be evidence of consent. The law does not say that they have to ask permission for absolutely everything they do, the action just as to be in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained This law insulates doctors from getting sued. In a situation where treatment is provided against a patient's instructions, you may have a cause of action for e.g. battery. In general, a doctor can't poke you, draw blood, make "offensive contact" etc. without consent, and consenting to one procedure does not "open the floodgates" of consent for any othre procedure. Of course, if the procedure was not performed, you obviously are not liable for the cost (and they are not liable for a non-occurring battery). This may in fact constitute gross negligence. During trial, the primary issue is likely to be whether there is proof that the procedure was expressly rejected. The doctor would probably provide the consent form, and that form may or may not indicate that the test would be conducted. It would not be surprising if the patient never saw an actual form and instead just electro-signed, having been told that this is authorization to treat. Corroborating witnesses would be helpful. From a practical perspective, especially if the billing department is being recalcitrant, this is probably a matter best handled by an attorney who would start with a formal letter summarizing the consequences of unauthorized medical treatment. |
In what situations is hearsay allowed in a court of law? https://www.youtube.com/watch?v=E3TEQ9A_lm8 I am not sure if I am crazy, but Amber's legal team is using a backdoor to use hearsays as evidence or to tilt the jury in their favour by continually mentioning the hearsay. But the judge keeps allowing them to do it. Is there a rule or law that dictates how a judge can allow a legal team to use hearsays? | This is a quite complicated area of evidence law in the U.S. as there are many statements which are inadmissible under the hearsay rule, but there are also many statements that would otherwise be hearsay that fall within exceptions to the hearsay rule. In U.S. federal court practice, hearsay is governed mostly by Federal Rules of Evidence 103, 104(a), 201, 801-807, and 1101. Most state court rules of evidence in the U.S. with regard to hearsay closely track the Federal Rules of Evidence. Some states do not follow this pattern but are substantively very similar as the Federal Rules of Evidence largely track of the common law rules of evidence before they were codified. Rule 801 provides two exclusions from the definition of hearsay and a foundational definition. Rule 802 prohibits the introduction of hearsay into evidence unless an exception applies. Rule 803 provides 23 exceptions to the rule. Rule 804 provides five more exception to the rule. Rule 807 provides a final residual exception. So, in proceedings where the hearsay rule applies there are 31 main exceptions to the general rule, in addition to the argument that the general rule does not apply, but this still excludes lots of statements. Rule 201 (judicial notice) is another exception. Some of the main reasons to admit hearsay are that: It is not offered for the truth of the matter asserted (e.g. to prove the someone was present and talking at a place not that what they said was true, or to prove that someone said something defamatory or fraudulent, or to prove the someone made a "verbal act" with legal significance like agreeing to a contract or ordering someone to do something). It is a statement of a party opponent or someone affiliated with a party opponent (i.e. someone affiliated with the other side in the lawsuit or criminal case). It is a prior statement of a person made under oath and subject to cross-examination. It is a business record or public record or an "ancient document" (currently ancient means before 1998 in the federal courts, and typically more than twenty-years old in the state courts). It is a market quotation. It is a statement made describing things "in the moment", for medical diagnosis, or when the facts were fresh in the "declarant's" mind. It pertains to rights in real property, or to family relationships. It is a statement contrary to the interests of the person making it. It is a statement made when the declarant's death was believed to be imminent (i.e. a dying declaration). It is a statement made against someone who caused the witness to be unavailable. There are reasons that the statement is reliable and the intent to provide the statement is cleared with the court in advance. The matter upon which a statement is made is of general public knowledge not reasonably subject to dispute, is easily confirmed without doubt by a court, or is from a learned treatise. Hearsay objections are also waived if a timely objection isn't made to them. See Federal Rule of Evidence 103. And, courts have some discretion to allow hearsay testimony on immaterial matters or matters that are not seriously disputed in the case for expediency's sake. Rules 104(a) (excluding preliminary matters) and 1101 set forth when the hearsay rule applies and when it does not. Rule 1101 excludes from the rule a variety of preliminary matters, mostly in criminal cases such as: grand-jury proceedings extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant; a preliminary examination in a criminal case; sentencing; granting or revoking probation or supervised release; and considering whether to release on bail or otherwise. Rule 805 governs the complicated situation of hearsay within hearsay. Rule 806 coordinates the hearsay rule with rules on how it is proper to introduce evidence about the credibility of a witness. There is also a constitutional rule of criminal procedure, called the "confrontation right" that established minimum standards for the exclusion of hearsay evidence in criminal trials even when a court's procedural rules do not exclude it. Most states also have a hearsay rule pertaining to oral promises made by dead people called the dead man's statute, and limitations on introducing oral statements related to written agreements called respectively, the parole evidence rule and the statute of frauds. In contrast, in the U.K. courts, roughly speaking, hearsay is generally admissible when the person making the underlying hearsay statement is available to testify, or is unavailable, which subsumes a large share of the U.S. hearsay rule, and makes much more hearsay admissible. U.K. practice would also allow admission of almost anything without a U.S. hearsay exception since they are derived from British common law evidence rules related to hearsay. The main purpose of the hearsay rule is to prevent a defendant in a criminal case or lawsuit from being denied an ability to cross-examine witnesses in court because they would like to present evidence by affidavit or letter instead, effectively placing that burden on the prosecution in criminal cases, or on a plaintiff in simple civil cases, rather than forcing the defendant to pro-actively subpoena witnesses for the other side in the case. The rule has a broader sweep than that, but that is its core purpose. | Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an "ah-ha" moment and says "Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta." Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say "this is too hard". Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says "I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out." Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with. | 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? | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. | There are instances when the testimony may still be admitted. For example, a deposition may be admitted at trial either for impeaching or when a witness cannot attend, which involves the circumstance of death (FRCP 32(a)(4)(a)). Additionally, regarding hearsay, there are numerous exceptions. My Evidence professor said in class "If you cannot find a way to get evidence around a hearsay objection, you are not trying hard enough." One such hearsay exception states in the committee notes: Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. | since the recording wasn't made in California, would the California court allow it to be used? Yes because the recording was obtained lawfully. The rule of one- or two- party consent primarily regulates the act of obtaining the evidence (i.e., recording the conversation), and the lawfulness of that act determines whether using that as evidence is permissible. Section 632(c) of the California Penal Code excludes from the definition of confidential communication "any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded". When Bonnie took part in the phone conversation with Suzie, Bonnie knew or should have known it was in a jurisdiction where one-party consent applies. Accordingly, Bonnie could reasonably expect that the communication may be recorded, thereby preempting the effect(s) of section 632. |
Can a minor possess a handgun on private property in Oregon? Can a minor possess a handgun on private property in Oregon (outside any city limits) with the consent of his parents and the property owner? | Are minors allowed to possess handguns in Oregon? Yes, with exceptions, although they may not purchase or own handguns, and are not permitted to conceal carry handguns. Oregon Revised Statutes § 166.470 prohibits any person from intentionally selling, delivering, or otherwise transferring a handgun to anyone under 21 years of age, ORS § 166.470(1)(a), except the temporary transfer of any firearm to a minor for hunting, target practice, or any other lawful purpose. ORS § 166.470(3)(b). The other primary statute that is relevant is Oregon Revised Statutes § 166.250 which also provides that minors may possess any firearm temporarily for hunting, target practice, or any other lawful purpose. ORS § 166.250(2)(a)(B). But, despite this general rule, a minor may not possess a firearm if they are under 18 years of age, and while a minor, committed the equivalent of an adult felony or a misdemeanor involving violence, within four years of being charged with possession. ORS § 166.250(1)(c). (Source). | If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per RCW 11.08.140 it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has the duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears. Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under ORC 2105.07, the prosecuting attorney of the county in which letters of administration are granted upon such estate shall collect and pay it over to the county treasurer. Such estate shall be applied exclusively to the support of the common schools of the county in which collected. | The law doesn’t “defines a minor as a legal person below (some age)” It defines it as a natural person below (some age). | In general in the US, anyone may photograph anyone else if they are all in a public place, although in some states such a photo may not be used commercially without permission, which must often be paid for and may be refused. It is unusual for police to photograph people on the street, but they might want to document who was present at a particular place and time. They can do so, but I am not at all sure that they can prevent a person from covering his or her face, or turning his or her back, or charge a person who does so with obstruction. I don't think so. Under some circumstances in the US police may ask a person for identification, and may charge a person who refuses to provide it. This varied from one state to another, and usually depends on the specific circumstances. (If a person is driving an automobile, police may demand to see a driver's license, for example.) Unless a police officer puts a person under arrest, the officer has no general right to control that person's actions, beyond instructing the person not to interfere with ongoing police work. I do not think an obstruction charge would hold up for covering one's face or turning away in the absence of an arrest. | You are in a tough spot. The main risk is "civil forfeiture" of the duplex if you have sufficient knowledge that it is being used for purposes of drug dealing and take no action. See, e.g., a case from October 1, 2021 when a house was seized on this basis. But the tenant has property rights under a lease that you can't abridge unless you can prove that there is a violation of the law. And, it isn't obvious if you know enough to trigger civil forfeiture exposure based merely on uncorroborated statements from another tenant that observe only conduct often associated with drug dealing and not deals themselves. Still, the knowledge you do have might trigger a duty to inquire if you want to escape civil forfeiture liability. Under the statute, to defeat a civil forfeiture action (assuming it has been used for drug dealing), you must show: (e)(1) A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur; (B) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm's length commercial transaction; (C) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture; (D) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction; and (E) Acquired the interest: (i) Before the completion of the conduct giving rise to its forfeiture, and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or (ii) After the completion of the conduct giving rise to its forfeiture: (I) As a bona fide purchaser for value without knowingly taking part in an illegal transaction; (II) Before the filing of a lien on it and before the effective date of a notice of pending forfeiture relating to it and without notice of its seizure for forfeiture under this article; and (III) At the time the interest was acquired, was reasonably without cause to believe that the property was subject to forfeiture or likely to become subject to forfeiture under this article. (2) A property interest shall not be subject to forfeiture under this Code section for a violation involving only one gram or less of a mixture containing cocaine or four ounces or less of marijuana unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana. The language in bold is the most threatening part that effectively establishes a duty of inquiry and a duty to take action if your inquiry establishes that drug dealing is going on. If you can't establish that you were ignorant of wrongdoing, and reasonably so, under the circumstances of being told by one of your tenants that something is going on, you are at great risk of losing the duplex to civil forfeiture if the DA can prove that drug dealing is taking place by far less than a reasonable doubt standard. You might want to hire a private investigator to look into the situation carefully, and to try to evict the allegedly drug dealing tenant if the private investigator corroborates the fellow tenant's claims. | There is no search analog to the Miranda requirement. The Supreme Court in Miranda didn't just decide that people had to be told their rights, for all rights in all contexts. Miranda applies just to 5th and 6th Amendment rights, in case a person is being held coercively. If you are free to go, you need not be apprised of your rights: so, if the police are just asking questions when you are not being held, they are not required to give a rights warning. Likewise, they are allowed to request permission to conduct a search. It is true than many people do not understand that a request is distinct from an order. A useful phrase to remember is "Am I free to go?". If the answer is no, you are busted and they can search you. If the answer is yes, you don't have to let them search you (to avoid the ambiguity of silence, refusing permission to search is not a bad strategy, unless you want then to search you – e.g. if you want to get on the plane). | The club renting space from the shopping center makes no difference; the difference is public vs. private land. The legal controller of the land you are on - whether the shopping center, the club or private land around the shopping center - can ask you to leave at any time for any reason. There is no wiggle room. A controller is not necessarily the owner - a tenant is a controller as is an emergency service executing legitimate control. The police are law enforcement; if you don't leave private land by request, their duty is to remove you at the request of the land owner. Private security also has the same function, though their jurisdiction is more limited off their property, as they are private hired by the shopping center or club. Either would ask you to leave, and if you refuse, you could be arrested for trespassing. If arrested, the local district or county attorney would have some discretion on prosecuting you for trespassing. | With respect to disciplining its students and employees, a private school can basically do whatever it wants. There's more freedom to do so with respect to students than with employees, who have greater protections derived from anti-discrimination laws, collective-bargaining agreements, and the like. If a private school wants to impose a No Burger Tuesdays and a complete ban on political activity, that's probably going to be permissible. The First Amendment will protect the school's right to associate with only those who meet its standards, as absurd as those standards may be. Again, there are exceptions to this rule, like Title IX, which requires equal educational opportunities regardless of sex, but they don't have much bearing on your question. Even for a public school, there will be quite a bit of latitude here, because these rules don't actually regulate off-campus conduct. If a student wants to attend an off-campus public gathering, the campus police aren't going to lock him in his room or arrest him for leaving campus. The rule is simply that if you attend a public gathering off campus, you may not come back on campus afterward to threaten the lives of your classmates. |
UK - Can an executor evict a mentally ill family member engaging in elder abuse? What are possible options does an executor havve to evict an abusive daughter currently abusing her elderly (possibly senile) mother? Suppose that these key facts are true: The daughter has a history of causing harm to self and others, including suicidal ideation and is on social services radar from previous events, probably suffering from Borderline Personality Disorder but has no official diagnosis. Ownership of the house is 50-50 between mother and daughter. The will could be contested leaving the daughter with 25%, however 19 years have passed. The mother is possibly showing signs of dementia. The police and social services have been notified and are frustratingly slow and nonchalant. There should be a way to break the current living situation. Ideally the daughter needs to be sectioned, and the mother in a smaller retirement flat with proceeds from selling the house. Are there any legal options to force eviction and/or a sale of the house? | An executor executes a will according to the wishes of the will. This involves disposition of the estate. Almost certainly the mental state of humans is not material to the disposition of the estate. I'm unclear what you even mean by executor. The named executor of a will only has power after a person dies. Was the will executed 19 years ago? If so, the executor's power is long long passed. The chance of challenging a will 19 years later is practically zero. Elder abuse will be managed by the state. An interested party may involve the state to create an investigation as to what is going on. | An adult is normally assumed to be competent to enter into a contract unless there is some reason to think otherwise. It is not usual to demand evidence of competency unless there is something in the appearance or actions of a party that raises such a question, or something about that party, such as a history of mental illness, known to the other party, that raises such a question. I have heard of a party being medically examined just before signing an important document, to provide evidence of competence, but generally in connection with a will, and generally when the signer is elderly and in poor physical condition, and even then such a procedure is rare. If competence is disputed, medical evidence is required to resolve the question, or more exactly to establish lack of competence. In the absence of such evidence, competence will be presumed. That was the conclusion of the MA Supreme Court in FRANCES M. SPARROW vs. DAVID D. DEMONICO & another, 461 Mass. 322* (2011). The court held: without medical evidence or expert testimony that the mental condition interfered with the party's understanding of the transaction, or her ability to act reasonably in relation to it, the evidence will not be sufficient to support a conclusion of incapacity. It was a significant part of the court's reasoning in that case that a reasonable person might well have entered into the agreement in question, and that the party was represented by a lawyer, and acted in accord with the lawyer's advice. That does not, however, seem to be a requirement; merely additional evidence of the reasonableness of the action. | Legalese is not required You can and should write a will in plain English. However, you need to ensure that your simple wishes can: Actually be understood, Actually be implemented, Don't have unintended consequences, Cover all bases. Use a lawyer I suggest that you write your simple wishes out as you have done and take them to a lawyer. A good lawyer will be able to: Draft a will and have it executed so that it complies with the law, Keep a copy of the will so that your executor can find the damn thing without having to tear your house apart, Consider the contingencies that you haven't. My lawyer charged me and my wife $150 each - 20 years latter the estate has twice as many children and would be worth several million dollars; I consider it one of the cheapest pieces of insurance I have ever bought. Contingencies Who is the executor of the will? This is the person who administers the estate until it is finalised. As written, you haven't named one: in most jurisdictions this makes the government's Public Trustee the executor. How and how much will the executor get paid? Executor's are entitled to be paid for their services. What happens if you and your wife are separated or divorced at the time of your death? Wills are not automatically terminated by these events. What if Bob is dead before you die? Or has emigrated? Or is insane? What if Bob dies in the same car crash that kills you and your wife? What if Bob dies after he becomes the trustee of the trust? Who will be your child's guardian? As written, Bob is responsible for the finances but he is not the guardian. The child would be reliant on kinship guardianship or become a ward of the state. For what purposes can Bob use the trust money? Education of the child? Vacations for the child? His own gambling problem? Can the trust borrow money? What types of investments can the trust make? Bolivian palm tree futures anyone? Does Bob need to get professional financial advice about this? Who will audit the trust to ensure Bob is behaving appropriately? Your wife falls pregnant tomorrow. Do you want to write a new will or have one that works no matter how many children you have? What if all 3 of you die in the same car crash? Who gets the estate then? Only people with no assets or dependants have a simple estate | Any eviction order (for non-payment) will not be enforced by the sheriff (as ordered by the court), and that is how evictions would happen. This is also required under the governor's order of March 20. Foreclosure entails eviction – though the order prohibits the enforcement of an associated eviction order, and doesn't prohibit starting action against a property owner. Theoretically, you could file for eviction against your tenant and at some point the petition could be granted, and the sheriff would enforce it. Those are the current legal options. Current (optimistic) projections are that evictions could happen in the second half of May. | The bouncer is employed (or (sub)contracted) by the owner/lessee of premises - someone with the right to evict persons from their private property per the common law rights to exclusive use of one's property. When the bouncer evicts you, they are exercising this right on behalf of and as the agent for the owner, who could do it, but instead has assigned limited agency to the bouncer to do that for them. Entrance to (and remaining on) a property may be authorised and revoked at any time - at the time that consent is not given or is withdrawn, you become a trespasser and the police may be called upon to forcibly remove you from the premises. For example, I can have a party at my house, but if I don't like someone, I'm entitled to ask them to leave. I could also ask a friend to ask that person to leave, if I didn't want to do it myself. Note that bouncers aren't empowered to physically evict anyone except for the general right to use reasonable and proportionate force. For instance, someone that was just standing around in the nightclub probably couldn't be physically thrown out, but someone who was causing harm to themselves or others could be restrained or repelled as appropriate (and if restrained, you'd need to be very careful to do so in the course of effecting a citizen's arrest, otherwise you'd probably be committing false imprisonment). There may be statutory provisions that bestow additional rights and responsibilities upon bouncers, but this is the basic premise. I'm fairly certain that this would apply in all Australian jurisdictions; probably in all common law jurisdictions. | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | Nothing in the description strikes me as illegal or unlawful, so I am unsure of the grounds your friend would have for legal action. The questions a lawyer would ask (in addition to that) would be likely to include : How does your friend quantify the damage? The law is great for pursuing financial compensation, but does not handle abstract concepts. Has your friend used psychological counselling services, and what was the cost? What additional financial costs has your friend borne? If your friend has written to the University and has expected a response, what is the evidence of diminished trust? (The letter suggests otherwise.) Would a reasonable person (the proverbial "man in the street") be psychologically damaged by the events experienced by your friend? Is there evidence of a pre-existing condition? You've also mentioned yourself as a witness. Did you witness the eviction, or would you be attesting to your friend's state of mind? If the latter, what are your psychological qualifications? In the main Western jurisdictions, the answer to the question "can my friend sue?" is usually "yes", but whether they stood a chance of winning the suit would probably be a better question to ask. Your friend would only be likely to win a case against the University or the Security company if they could demonstrate unlawful or counter-contractual activity by staff, and were able to demonstrate financial damages that had been caused by that activity. | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. |
Can stupid action that looks like theft be criminal? On another site, a third hand story was told: In an office supply store, expensive printers go missing without payment. They find out that an employee is so obsessed with selling extended warranties that when she sells a printer and manages to sell extended warranty as well, she fills out all the forms, charges for the warranty - and forgets charging for the printer. It seems that this is indeed due to stupidity and not intentional. Can she still be guilty of theft? And if a customer walks away, having paid exactly the amount the cashier asked them for, but without having paid for the printer, could that be theft? If not, do they owe the money for the printer? | No. Theft is, in most jurisdiction, an action by which the offender takes another person's property with the intent to permanently deprive them of it. The clerk isn't taking any property from the store, and she doesn't have any intent to deprive the store of anything. She is therefore not guilty of theft. If she were doing this intentionally -- either in league with the customer or even without the customer knowing -- she could likely be held liable for the theft, either on a conspiracy theory or perhaps an innocent-agency theory. The lack of criminal liability of course does not mean that there can be no accountability. The employer is free to terminate the employee, and it will have different options -- depending on jurisdiction -- to recover the value of the uncharged printers, perhaps by docking her paycheck or through a negligence action. | The party that made the overpayment would have the right to sue you for "unjust enrichment" or "breach of contract" (since the terms of service no doubt provide or strongly imply that you are entitled to only one payment per sale), if you didn't voluntarily return the overpayment following a demand to do so, even though you received it through no fault of your own. Most of the core cases involve clerical errors in the bank account number used for a bank deposit. In general, there is a right to recover an accidental transfer of property to another, even in the absence of a clearly applicable contractual arrangement. As another example, if you were accidentally given a valuable coat at a coat check by accident and didn't notice it until later, the true owner would have a right to have it returned. The FTC regulation applies (as demonstrated by the link cited in the question) to intentional unsolicited deliveries of merchandise (which would always be tangible personal property by definition) to you through the mail. It does not apply to transfers of money, or to the accidental mis-delivery of property to the wrong person or the wrong address. The law in question is as follows: 39 U.S. Code § 3009 - Mailing of unordered merchandise (a) Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15. (b) Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. (c) No mailer of any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications. (d) For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. | If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer. | Whether or not this would be allowed would generally call for a more fact rich situation than the one presented in the original question, that would cast light upon why a retailer might be inclined to refuse to accept payment. Hypothetical legal questions that presume that people are acting irrationally for no good reason are generally ill posed and don't have meaningful answers. Sometimes, there might be a legitimate privacy interest implicated if the invoicing party acknowledged a payment from a third party. For example, suppose that the invoice was for a paternity test and payment would confirm that the incapacitated person actually obtained a paternity test. Sometimes, there are legal rights beyond payment that are implicated and the reasonableness of a refusal might hinge on those rights. For example, suppose that the invoice was for an option to keep using an oil well. Payment of the invoice by the deadline would keep the oil well operating and the land owner sending the invoice might prefer that it not be paid so that the oil well would be shut down. Quite a few contracts are structured in this way. Maybe the invoice was for the right to purchase a first edition of a book when it was finally released, for example, and not paying it would free up a copy for someone else at a price that had increased in the meantime. Or, suppose that the invoice were for unpaid taxes and payment of the taxes would prevent property from being seized for sale by tax authorities, and the taxing authority would prefer that the invoice was not paid so that the valuable property could be liquidated. But, it is hard to imagine that there would be any reason that an ordinary retailer with an ordinary bill would ever refuse payment, although I suppose that this might trigger an interest or penalty amount owed under the contract for late payment. If that were the case, the principal of mitigation of damages, which says that a party to a contract must take all reasonable steps to mitigate their damages, might obligate the retailers to accept the payment or forfeit the penalty amounts that the retailer could have avoided as damages by accepting payment. I doubt that an undelivered tender of payment from a third party would eliminate the obligation, but, it might limit the damages that could be claimed as in the scenario above. | No, it does not. There is indeed a 2-year guarantee for all goods, but "goods" is defined to be a "tangible movable item" according to Directive 1999/44/EC Article 1, subsection 2(b). In less legalese, a physical item; software doesn't count. While there has been discussion about extending this protection to software, I'm not aware of this having been done yet. Even if it were, determining whether goods are "faulty" ultimately comes down to whether it conforms to the contract of sale (Article 2). I think it's likely that vendors in this area would put a disclaimer for unforeseen security vulnerabilities, or something to that effect. | In general, a private seller of second hand goods makes no warranty as to their merchantability or fitness for purpose: the onus is the buyer to find any faults. However, if the seller has taken active steps to conceal the fault for the purposes of the sale then they are responsible. For example the courts have held that a boat placed deliberately on the sand to conceal a hole made the seller responsible while a painting covering a hole in the wall of a house did not because it had been there for many years. Different laws apply if the seller is in the business of selling second hand goods. | Possibly The game company has almost certainly excluded liability under the contract you entered. There may be some consumer protection that you have that they cannot exclude - I don’t know enough about German law to meaningfully comment. Notwithstanding, if you were to initiate legal action against the, as yet, unknown wrongdoer, you could subpoena the relevant records from the game company with a court order. No matter what privacy or other protections the other person has, the game company must obey the order or be in contempt. Without such an order the game company is right that they can’t disclose details of other users. As a practical matter, it will cost several hundred € to initiate legal action and several thousand to pursue it to the end. And you might lose. A better response is to treat the lost €80 as a relatively cheap life lesson - many people lose a lot more learning to recognise scams. | I'm not sure there would be any need - or any ability to bring - any civil action. Forgery would appear to count as a Category D felony under Section 205.090 and, "In addition to any other penalty, the court shall order the person to pay restitution.", so person "a"'s damages should have been met under the process of the criminal prosecution of person "b" for forgery, with nothing further to claim. Person "c" will have stolen a car. Whether that car was legitimately owned by person "a" may only be relevant if person "c" is using their belief that it belonged to person "b" as mitigation (for example recovery of a debt - though it won't help much as this should have been done through proper channels), which again would be a criminal proceeding. |
If a witness in a trial is appearing via Zoom from another country and is found guilty of being "in contempt" how would the punishment be enforced? So a witness can only appear via Zoom due to being in another country (or refuses to come to the country where the trial is being held). They are found in contempt of court for whatever reason. How would the punishment (in the UK up to 2 years in prison) be enforced? Interested in any jurisdiction not just the UK. | A warrant for the arrest of the person on contempt charges could be issued although this probably wouldn't be a valid basis for extradition and instead would only be enforced if that person came to a place where the court has territorial jurisdiction. The person held in contempt could be fined, with the fine reduced to a money judgment, and the judgment could be enforced against any assets or income of the person held in contempt that are, or are in the future, within the jurisdiction of the court. The money judgment could also be domesticated to a jurisdiction where the witness has assets to enforce the judgment through the local courts there. If the witness is a party to the case, or is in some close relationship with a party to the case such that the party ought to be able to exert some control or influence of the witness, sanctions related to the case itself could be imposed. The testimony of the witness could be disregarded as a sanction if appropriate. If the witness were testifying involuntarily pursuant to letters rogatory (which is basically a subpoena from a jurisdiction where the witness is not located that is domesticated in the jurisdiction where the witness is located by a local court in accordance with local law), the court issuing the letter rogatory could sanction the witness according to domestic law for contempt of court for violating the commands issued in connection with the letters rogatory. A simple declaration that a person was in contempt of court could sometimes have collateral consequences for that person, for example, in loan applications or background checks or violating the term of some contract that was the basis of the obligation of the witness to testify, or in connection with a plea agreement that called for that person's testimony (possibly in anther jurisdiction). Courts have some discretion to fashion custom remedies in unique situations in response to someone's contempt of court. | 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 jury would never hear the recording The recording and its provenience would be provided to the prosecution who would, rightly, have issues with its admissibility. The defence and prosecution would make submissions on this to the judge, normally well before the trial date and the empaneling of the jury. If the recording had genuinely emerged during the trial, such submissions would be made without the jury seeing them. The submissions would typically be in writing rather than verbal. If the judge decided the evidence was inadmissible the jury would never see it and never know of its existence. If the jury somehow found out about it anyway, this would be grounds for an immediate mistrial and we would start again with a new jury. Illegally obtained evidence is not automatically inadmissible Hong Kong is not the United States - admitting or excluding illegally obtained evidence is at the discretion of the judge based on where the interests of overall justice are best served. In any event, the absolute prohibition in the US applies only to prosecution evidence - evidence illegally obtained by the defence is subject to the same rules as in Hong Kong; the judge decides. | A witness is not evidence, but what a witness says (their testimony) may be evidence. Or, the body of a person who happened to be a witness is evidence. I suspect that there is a translation problem. It is always physically possible to try pay a person to lie and AFAIK never legal: the person who lies and the person who induces the lie will be punished by law. The witness who testifies will have to swear that their testimony is the truth. | Questions about being barred from entry into the UK 10 years down the road need to be asked some number of years in the future. Current practice is that the Home Secretary does not bar entry because of an unpaid debt, instead you have to do something egregiously bad or antisocial. Given Brexit, future matters of immigration are not set in stone. One consequence of walking away from a lease is that you are likely to be sued (in UK courts) for breach of contract, and the court may find that you owe the rest of the lease money. If that happens, you need to be concerned with whether the judgment can be enforced against you, even when you are in the US. The general answer is, yes, the landlord can petition the US courts to enforce a UK judgment against you. The specific details depend on the law of your state, but most states have a version of the Uniform Foreign Money Judgments Recognition Act. In addition, the landlord could sue you in US courts (maybe not as convenient for him). There is no requirement that you have to be a US citizen to sue a US person, and a landlord can (would almost certainly) sue you via a US attorney who would represent him. An alternative to fleeing your obligation and saying "Go ahead and sue me!" is to negotiate a termination of the lease. The landlord would have a duty to mitigate his losses, so if the remainder of the lease has a value of $2,000 a month for 8 months, the landlord can't just do nothing -- he has to try to rent the unit out, so perhaps his actual losses would be only $4,000. Suing a person is expensive especially when you you are dealing in trans-national disputes, so he may be willing to accept some figure in exchange for terminating the lease. Your (UK) lawyer will give you good advice on how to proceed, if you opt to not get sued. | Prison v. Jail First of all, failure to appear (in the U.S.) would led to incarceration in jail (a local government facility allowing for detention typically up to one year for misdemeanors), rather than prison (which is typically a state or federal government institution incarcerating people for a year or more pursuant to a felony conviction). A jail is typically run by the county sheriff or a city's chief of police. A prison is typically run by a warden appointed by a state department of corrections. A civil court never sends anyone to prison for failure to appear, or for that matter, as a sanction for any purpose. Even a multi-year remedial civil contempt sanction is served in jail rather than prison. When Can One By Jailed For Failure To Appear In A Civil Matter? Second, failure to appear can only lead to incarceration if: (1) the person who fails to appear in either subject to a subpoena requiring that person to appear, at a date and time certain in a particular place, as a witnesses, that is personally served upon them (or where personal service is waived by the person) (this is the same in civil and criminal practice), or (2) the person is served with a judgment creditor's interrogatories to be answered in person (which are the moral equivalent of a subpoena) and must be served in the same manner, or (3) the person fails to deliver a person pursuant to a writ of habeas corpus (which is the moral equivalent of a contempt of court finding and very uncommon) that has been served in the same manner, or (4) the person has been personally served (or has personally waived such personal service) with an order to show cause (at a specific date, time and place) why they should not be held in contempt of court. The precise name of this document can vary and could also be called a "writ" or a "citation", rather than an "order to show cause". Citations for traffic offenses or other ordinance violations or civil offenses are functionally equivalent to (4). Of course, in each of the cases (1) to (4) you obviously aren't incarcerated at the moment that you fail to appear as the whole problem is that you aren't there. Instead, in each of those cases, a warrant for your arrest is issued by the court and you aren't actually incarcerated until law enforcement manages to arrest you before the warrant is vacated because you do appear, or the warrant is vacated by stipulation of the parties approved by the court, or is vacated because the matter you were required to appear for is now moot (e.g. in the case of judgment creditor's interrogatories, the judgment is paid in full). How Long Is One Incarcerated For Failure To Appear? In cases (1)-(4) the duration of incarceration is only from the time of arrest until the person can be brought before the court at the soonest possible time to do whatever they were supposed to have shown up in person to do and failed to appear at, often a matter of a few hours and rarely more than a long weekend. These forms of incarceration are for the purpose of compelling your appearance in court by force, not for punishing someone for not showing up. Other Reasons People Are Incarcerated In U.S. Civil Courts One can also be incarcerated in a civil court because one is found to be in contempt of court after one has appeared and been found by the court in an in person hearing to be in contempt of court, but incarceration for contempt of court itself, as opposed to failure to appear at a contempt of court hearing, is never a sanction imposed for failure to appear. Other Sanctions For Failing To Appear Also, keep in mind that failing to appear can result in other consequences besides incarceration, the most common of which is to be found in default causing you to lose you legal case or whatever other legal matter was pending as a result of your failure to appear. Another common sanction for failure to appear (e.g. at a deposition when you are not under subpoena) is a monetary sanction to compensate others for the attorneys' fees incurred due to your non-attendance, and a determination that facts that could have been established if you had appeared will be deemed to be true regardless of reality. Civil Law Systems Compared In "civil law" countries whose legal systems are not based upon the English common law, judges do not have a generalized contempt of court power and the scheme by which people are sanctioned for failing to appear in civil matters is different. | The decision will be made by whichever country arrests him first (although a minority of countries allow for the trial of people who break their criminal laws in absentia). Needless to say, if nobody manages to arrest him ever, he will not face any criminal consequences except the issuance of an arrest warrant possibly accompanied by a pre-existing conviction in absentia if arrested in countries that allow for such a proceeding. Normally, in these circumstances, either country would have jurisdiction under its own laws to prosecute and punish the criminal, and many extradition treaties would not require the extradition of someone who committed a crime punished domestically in the state in whose custody the criminal is as part of the same course of events. Many countries will not extradite someone if they could face the death penalty in the receiving country. But, sometimes law enforcement in a country with a less serious penalty will intentionally defer to law enforcement in a country with a more serious penalty that is simultaneously trying to arrest him. Ordinarily, law enforcement is not authorized to use deadly force to arrest someone who is simultaneously being arrested by law enforcement from another country against either the arrestee or the law enforcement from the other country. Indeed, using deadly force against another country's law enforcement officers who are carrying out a lawful arrest in their own country would ordinarily be considered an act of war. U.S. double jeopardy provisions of the constitution do not prohibit a second prosecution of an offender in these circumstances because of a first prosecution by another sovereign, but many prosecutors in many countries would decline to prosecute someone a second time for the offense that they have already been convicted of in exercise of their discretion, and many judges would consider time served in another country for the same offense as a factor in setting their own sentence. | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. |
Strictly speaking, are damages an essential element of breach of contract? Several resources, including one from an attorney in California and another from an attorney in Arizona state that harm or damages to the non-breaching party is an essential element of a breach of contract action. This is apparently confirmed in the Colorado case W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). In other words, if there has been no harm, no breach has occurred. Taking this to its logical conclusion, it would mean that every single contract term in every single contract includes an implied clause limiting its application to instances where violating its requirements results in actual, legally cognizable damages. For example, a contract that provides, "Alice promises to Bob that she will not do the Hokey Pokey." actually means "Alice can do the Hokey Pokey all she wants as long as she doesn't thereby hurt Bob (e.g. causing an oil spill on his land, making his crops fail, making his debtors unable to pay him, driving away his customers, causing a personal injury, etc.).". For a more practical example, I recently signed a car rental contract in which I agreed not to take the car outside of a specified geographical area without permission. Applying this harm rule, a court would actually interpret the clause to mean that I may take the car outside of that geographical area as long as no harm to the other party occurs (e.g. a car wreck, weather damage that is greater than it would have been if the car had been kept within the specified area, etc.). I could theoretically tell them, "Yes, I took the car to Oklahoma in violation of the letter of the contract, but I returned it without any more damage and wear and tear than it would have sustained had I kept it in Texas as I promised. Even if it did sustain damage as a direct result of my actions, there's no way you could prove that the damage was caused by my travel to Oklahoma or that it would necessarily not have occurred if I had stayed in Texas. No harm, no breach, get off my case!". This would also mean that harms that the law typically does not consider, such as emotional trauma not rising to the level of IIED, likely also do not result in a breach of contract even if the express terms of the contract forbid the behavior that inflicted the trauma. This seems untenable, as it would blur the distinction between contract and tort law and turn breach of contract into some sort of quasi-tort action. Common sense (which might not actually be worth that much) tells me that reducing every contract to "don't hurt the other party to this contract" isn't realistic and that a judge would look at me very strangely when I tell him that I gleefully turned around and did almost everything I promised not to do and almost nothing of what I promised to do but that at least nobody got hurt so please rule in my favor kthxbai. So, strictly speaking, is a legally cognizable injury an essential element in breach of contract under Common Law principles? To be clear, I'm not asking for help with any specific jurisdiction, but am asking about the history and theory of breach of contract under Common Law. Another way to phrase the same question is, is "Nobody got hurt" a complete defense to an action for breach of contract (i.e. it is not a breach at all and the court would rule in favor of the defendant), or is lack of harm only be a mitigating factor when deciding how much to award the plaintiff for the defendant's breach? Discussion I'm picturing this sort of scenario more with standard form contracts that forbid all sorts of apparently innocuous behavior than with short, bespoke contracts that get right to the heart of the matter. For example, I might read a standard form contract and think, "There's no way they would know if I violated this clause or not. Even if they knew, there's no way they would actually be harmed. Even if they were harmed, there's no way they could prove it in court. Even if they could prove it, the harm would almost certainly be too remote, speculative, and/or de minimis to sustain an action. I can just ignore the actual words of this clause and just concern myself with not hurting anybody and be confident that I am not doing anything wrong." As it pertains to my rental car hypothetical, I might think, "Ok, the contract clause says 'You agree not to take the car out of the state of Texas', but their real concern is stopping me from transferring the car to Guatemalan revolutionaries or disassembling it for parts to repair an Alaskan oil pipeline. A five-mile jaunt across the state line to visit my sister in Oklahoma doesn't give rise to the harm countenanced by the clause, so doing so does not constitute a breach." I have a very strong feeling that this is dangerous legal reasoning, but am having trouble figuring out exactly why. | Strictly speaking, are damages an element of breach of contract? There are inconsistent formulations of breach of contract. But that inconsistency is inconsequential. What matters is that damages --whether anticipated or actual-- are relevant for ascertaining the remedies for the breaching party's violation(s) of the terms. The wording in Restatement (Second) of Contracts at §355 implies that [punitive] damages are not breach of contract. Other sections reinforce that interpretation by referring to damages as the effect(s) of a breach, not an element of the breach itself. See §243. By contrast, some courts include damages in their formulation of prima facie elements of a breach. Examples are Sellers as Tr. of R&LD Trust II v. Felton, 626 S.W.3d 121, 125 (2021) (mentioning "resulting damages" among the allegations that "support the existence of [a] contract", brackets added), and CP3 BP Associates LLC v. CSL Plasma Inc., (Missouri CoA, Apr. 2022) ("To establish a prima facie case of breach of lease, a plaintiff must establish [...] that plaintiff was thereby damaged by the breach"). A defendant can be found in breach of contract. But the legal proceedings would be pointless unless the plaintiff sought declaratory relief or can prove damages. That being said, scenarios like the car rental example can entitle the non-breaching party to remedies even if the rented car is not involved in an incident. Primarily the non-breaching party might be entitled to void the contract, given this party's awareness of the counterparty's non-compliance with terms they willfully and knowingly entered. For instance, even in the absence of incidents, an insurer is entitled to rescind a policy if it realizes the insured indulges in recklessness or moral hazard. That is because the insured's conduct contravenes the basic assumption of insured's risk aversion as well as the agreed allocation of risks on which an insurance policy is premised. See Restatement at §§151, 153, and 154(a). In some contexts, the non-breaching party might also be entitled to a reasonable award if the formation of that contract is traceable to opportunity costs or, for instance, if voiding the contract [due to the counterparty's breach] causes the non-breaching party administrative expenses. | The contract is almost certainly not valid. The answer you linked references the 2001 Federal Circuit case Fomby-Denson v. Dept of the Army. The court, in its opinion, quoted from the 1948 Supreme Court case Hurd v. Hodge: [t]he power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States . . . . Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power. It is clear that, in the case you propose, the enforcement of such a contract would go against the public interest. Quoting from the 1972 Supreme Court case Branzburg v. Hayes, the Fomby-Denson decision said: it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. It further notes this clause from the First Restatement of Contracts: [a] bargain in which either a promised performance or the consideration for a promise is concealing or compounding a crime or alleged crime is illegal. | 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. | Misrepresentation At common law, if you are induced to enter a contract by a material misrepresentation then you can rescind the contract and/or sue for damages. The person concerned would have to prove on the balance of probabilities that: the misrepresentation was actually made, which, if it was only verbal and there were no independent witnesses will be problematic, the misrepresentation caused them to enter the contract. If the dealer were to deny everything, and it came down to a "he said, she said", then, on the evidence, the person should lose. The facts are equally consistent with the buyer making an unprompted mistake as to the model of the car. Unfortunately, while most cases are compelling when you only have one side's story; when both sides get to have their say the facts become less easy to determine. Outside of misrepresentation, the person can complain to whatever government consumer protection agencies there are in Florida. | Yes. Therefore, when assessing a claim, it would be incorrect or premature to conclude simply from lack of actual harm/damage that a wronged party would have no available remedy. In order to make this conclusion, one would have to examine the statutory scheme or the nature of the tort to determine whether the claim is actionable without proof of damage. Many statutory causes of action are actionable without having to prove loss or harm. Canada's Copyright Act, s. 38.1 allows a plaintiff to opt for statutory damages Texas's SB-8 creates a cause of action that allows the claimant to recover statutory damages absent any proof of harm to the claimant The Telephone Consumer Protection Act of 1991, 47 USC § 227 provides for statutory damages in the amount of $500 In British Columbia, "it is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose" (Privacy Act, RSBC 1996, c 373) The common law and equity also recognize various wrongs and remedies without proof of damage The tort of trepass is actionable without proof of damage (Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124, at para 130). The tort of battery is actionable without proof of damage (Norberg v. Wynrib, [1992] 2 S.C.R. 226). The equitable remedy of disgorgement may also be available without proof of damage (for example, after a breach of fiduciary duty) (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para 32). | Neither The contract is completed when each party has totally fulfilled its obligations under the contract. In this case, it is when the purchaser has consumed or otherwise dealt with the banana to their satisfaction. The vendor has ongoing obligations under the contract until this happens. For example, obligations that the banana is of merchantable quality and fit for purpose. If the purchaser peels the banana and discovers that it is "off" or eats the banana and develops food poisoning then the vendor still has obligations and can be sued under the contract. Yes, I realize that no one is going to sue anyone over a rotten banana but let's assume that "banana" is code for 54km of motorway construction and £1 is actually £1 billion. When is the contract formed? This is not a trivial determination and there are literally hundreds of thousands if not millions of lawsuits that have turned on this exact question. Once the contract is formed its binding on both parties; until then, either can walk away (subject to estoppel) The traditional analysis involves offer and acceptance. In your banana scenario, the shop displaying "Banana's: 50p/each" (it's a fruit shop - they always have unnecessary apostrophes) is not an offer - it is an invitation to treat. An offer is made by Ben placing the banana on the counter and proffering the £1, it is accepted by Sam taking the £1. At this point, the sale is binding on both parties. Ben has fulfilled all his obligations under the contract, Sam still has some. In addition to those discussed above, he owes Ben 50p. Strictly speaking, this is not an obligation under the contract but a debt due and payable. Consumer protection law The proceeding is a strict contract law interpretation - many jurisdictions have consumer protection legislation (and food safety laws for bananas) that impose additional protections and may change the contract law position. | What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings. | If the agreement is the result of a binding determinative process like the decision of a court, arbitrator or administrative tribunal, the aggrieved party can go to the court for enforcement. If it isn’t, then the agreement may be enforceable as a contract (see What is a contract and what is required for them to be valid?). Breach of the contract allows the aggrieved party all the normal remedies. In either case, breach by one party does not excuse breach by the other. Of course, the agreement can be worded “you do this then I do that” so if you don’t do this, you are in breach but I’m not. If it isn’t either of the above, it can’t be enforced. |
Am I responsible for accidental damage done by an electrician? If I hire an electrician to do some job, and he caused a fire at the house. Am I also somehow legally responsible for the accident because I hired him and not another electrician, who might have been more competent and avoided the accident? Or I am not responsible at all? | There are various ways in which you could be "responsible". For example, if you own the house, have no insurance, the house burns to the ground and the electrician has no resources that you can seize, then you will have to suffer the consequence of having no home. If a guest is harmed in the fire, you might be found liable because of your negligence (plaintiff's lawyer has to put convincing spin on your actions in showing that you neglected your duty of care). Since you are hiring the electrician, under the doctrine respondeat superior you can become liable for the worker's acts carried out on the job. What matters in that case is how the act came to be, for example did it happen as a result of bad wiring that he was hired to do, or was he a crazy arsonist who look advantage of an opportunity to torch your house (you are not liable, torching the house is not an act reasonably related to what you hired him for). You could end up responsible for the loss if you are insured, the "electrician" was uninsured (and other kinds of "un" like "unlicensed"), and the insurance contract allows the claim to be denied because you wrongly hired an unqualified, unlicensed guy off the street who did not secure the required permits. That doesn't mean that you can't sue him, but if you cannot collect on the judgment, then you end up having to take responsibility for your action. "Responsibility" is a legally vague concept, instead I assume you are interested in whether the courts might force you to pay for the damage done to someone, or even might punish you for a criminal act. In the former case, the relevant legal concept is "liability", meaning that you can be required to compensate another for the damage that you caused. In the latter case, the criteria are much stricter, that you have to deliberately do a thing that was explicitly forbidden. | In Illinois: The General Assembly has established numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. Basically, if you are a licensed medical profession, or have had successful training in CPR provided by the the American Red Cross or the American Heart Association, and you try in good faith to save somebody's life and fail, you are not liable for their death, under the assumption you did not cause harm in the first place (i.e. you can not stab someone in the chest, attempt CPR, and be exempt from lawsuit(s)). Note that this doesn't apply to just CPR or physicians. This also covers dentists, Pharmacists, Optometrists, Physical Therapist, etc. | With the additional information in the comment, the approach most likely to give you a good outcome would be to present this as a dispute between the retailler and the manufacturer. Make a note of who said what and when, and try to obtain written confirmation from the retailler. It sounds like the retailler is currently on your side, which makes your position stronger as your legal contract is with them and they will have obligations under the Consumer Rights Act 2015 (I'm assuming you bought the item as a private individual and not as a business). Note that you may not have a right to replacement. Consumer protection legislation and warranty terms include several ways the supplier can provide redress (usually repair / refund / replace). Since the preference is replacement, you will not be able to argue an inherent design fault with the product. This may give the manufacturer the opportunity to assert that the retailler, or you, specified an incorrect fitting kit - or that it was incorrectly installed. If the fittings were supplied with the foil, you could argue that it was an issue with these that led to total loss of the rest of the foil. It looks like you currently have grounds to claim this against the retailler. If there's no satisfactory resolution, consulting the Citizens Advice bureau would be a good place to start. | You would almost certainly be criminally liable if a fire were to occur and your insulation did not meet the Fire Safety Building Regulations, especially as you deliberately used a non-conforming material. Cotton towels are not one of the materials that have met or exceeded the EU and UK regulations. Edit to add - as an aside, should you suffer a fire for whatever reason, any landlord, housing or home insurance you have have will almost certainly become void should the insurance company discover your use of cotton towels as insulation. | Legal action might be taken by the garage, because you had a contract to repair the gearbox which you cancelled (causing them some damages in time spent). You could hope that the store-owner will pay the invoice that you sent, but that seems to not be likely. The store owner can't sue you for sending him the invoice: the mechanic can sue you for not paying what the work billed for. But you do have a recourse, which is that you were acting on behalf of the store owner. I assume that you were in possession of the old gearbox, so it simplified matters if you took transported it to the mechanic, since the store owner was going to pay. In other words, you were acting as the store owner's agent: you were authorized to create a contractual arrangement between the garage and the owner. The one problem is that apparently the garage thought they were doing the work for you, and not for the owner. So they may sue you, and you may sue the owner. And suing anybody costs money. The owner is, perhaps, trying a strategy of not paying what he does actually owe, in the theory that the alternative of suing is too much time and bother (besides, it's the garage owner who would have to get the ball rolling – unless the shop owner first wants to sue to recover the gearbox). Given the information you have provided, I don't see a basis for the shop owner suing you. In order to sue someone, that person has to have caused you some damage. He could claim that he didn't authorize you to take the gearbox to the garage, or that you were negligent in making the arrangements with the shop (for instance if he said "but only if they will do the diagnosis for free"), in which case the court will have to decide whose story is more believable. | Read your policy Insurance contracts spell out in excruciating detail in which circumstances they are on risk and which they aren’t. For example. In that policy, page 39 excludes "Loss or damage caused by lopping or felling of trees when this is performed or authorised by you, your family, or a household member". So DIY tree felling is at your risk. So is authorising a contractor to fell a tree (although you would presumably look to the contractor's insurer for restitution) You would be covered if a neighbour (or their contractor) dropped a tree onto your house or if a utility company did so. They didn't need or get your authorisation so the exclusion does not apply. | Following the guidance of the police In summary: If the item is hazardous or dangerous you should report it to the police using the emergency number. If the item is non-hazardous and found in a private place, hand it to the owner of the premises - it's their responsibility to attempt to find the owner and the property becomes theirs if they can't. If the item is non-hazardous and found on public transport, hand it to the operator - they have their own by-laws about lost property. If the item is non-hazardous and found in a public place, if it has a serial number, hand it to the police - they may be able to trace the owner if it is a government document, hand it to the issuer if it is of low value, make reasonable efforts to find the owner "these could include asking people nearby or in offices or shops. You could also consider leaving a note with your details. If you can't find the owner there's nothing more we can do and you should dispose of the item." if it is of high value, make reasonable efforts to find the owner and if you can't hand it to the police. | 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. |
Can issues raised in a civil matter be used as evidence against a party in a criminal case? If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Does a judge have the duty to report any law-breaking that arises in civil cases or is a civil case confidential between the two parties? | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. | It is possible that you could be required to testify in a coroner's inquest, or in a criminal trial (if it were later determined that a crime was committed despite first impressions to the contrary). You could also conceivably be called to testify in a civil trial concerning, for example, insurance payment eligibility. But, it is also quite likely that none of these proceedings will happen and that your initial statement to police on the scene will be sufficient for all purposes in the future. The coroner may be satisfied that he needs no further information. Law enforcement may decide that no crime was committed. And, the death certificate's cause of death and date of death may be found to be sufficient in any future civil dispute. | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | england-and-wales The timing of charges being laid is a factor to take in to account, as is whether a charge is appropriate after taking in to account the suspect's circumstances described in the OP, but setting those aside - more often than not it's a negotiation between the various prosecuting agencies and the investigation teams' supervisors resulting with the more serious offences taking precedence. The lesser offences are either dealt with at a later trial or left to "lie on file", meaning there is enough evidence for a case to be made, but that it is not in the public interest for prosecution to proceed, usually because the defendant has acknowledged other, often more serious, charges. No admission to the charge is made by the defendant, and no verdict is recorded against them. Wikipedia | Once a case has been commenced, you can definitely lose, or you can probably lose. If you decline to proceed, you definitely lose. If you proceed, the jury (or judge as the case might be), might find some witnesses more believable than others and might find that the forensic evidence is not as convincing as it seems. Empirical evidence suggests that criminal trials reach the correct conclusion in about 90% of cases that aren't resolved on an uncontested basis. Generally speaking, the Crown is only going to press a case where the prosecutor subjectively believes that they are correct that the defendant is, at least, guilty of something. So, a Crown prosecutor can also justify "rolling the dice" in a case with a low probability of winning, because at a minimum, a factually guilty defendant (whether it can be proven beyond a reasonable doubt or not in a particular trial with a particular finder of fact) has to suffer through a trial which is a form of punishment (particularly if the defendant can't secure pre-trial release). Also, while the Crown prosecutor ultimately represents the state and not the victim, the victim of a crime is a quasi-client and sometimes a victim who often has personal knowledge of a defendant's factual guilt, really wants to have their "day in court" and a chance to present their case to the public for all to hear. Law enforcement officers working on the case may want it to go to trial for similar reasons. Strategically, bringing even weak cases to trial also makes a Crown prosecutors threat to go forward with a trial even in a seemingly weak case more credible and that can increase the prosecutor's negotiating power. Also, a trial always reveals information, and sometimes the information revealed in a trial that is lost can provide value in future law enforcement efforts. Finally, prosecutors are humans and people, in general, don't like to admit their own mistakes. So, they may go forward even when their case is weak because they don't want to admit that they were mistaken and would prefer to have somebody else say they were wrong than to admit error. The personality type that doesn't admit mistakes is pretty common in this area. | "Without prejudice" does not, of itself, create an obligation of confidentiality What it does do is prevent the contents being used against the author in any future proceedings - by this litigant or anyone else. The purpose of civil litigation is to resolve disputes. There is another, better, cheaper and more commonly used mechanism - parties agreeing on their own resolution through negotiation. The purpose of the without prejudice rule is to allow parties to have a full and frank negotiation without the risk that what they say will bite them on the ass in court. If they do not settle, then the court cannot and will not know about any concessions or negotiating positions that either party made or took. Adding "save as to costs" means that after the case is resolved, a party may introduce any offers they made that were better than what was won in order to show that costs should be mitigated - basically that because there was a better offer on the table the litigation was needless and the costs unnecessary. You can share it with whoever you like - they won't be able to use it in court. | Discovery Basically, you ask. If your opponent thinks your request is out of bounds they object, give their reasons to the judge, you give yours and the judge orders them to produce the evidence or not. A lot of people think court cases have big “ah-ha” movements when a witness reveals something unknown on the stand. This rarely happens because there are no secrets in litigation - both sides have to clearly explain their case before, usually well before, they go to trial. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. |
What is tort law and how does it differ from civil law? Is there any difference or overlap between the two? Does one more broadly encompass the other? Are torts defined in statute or do they exist alongside statute in some way more fundamentally and less ephemerally than statutes exist? What is a “common law tort “? In the past there used to be a Wikipedia page, “list of torts” but it didn’t seem to really classify then be jurisdictions much less give the original basis for each tort, and furthermore there were a huge number of different torts. | First, civil law has, confusingly, two meanings. It can denote the legal systems used in most of Europe, as opposed to the common-law systems arising in England and spreading to most of the former British empire. In the US, and in other common-law jurisdictions, civil law is pretty much everything other than criminal law. Given the tagging of the question, this seems to be the sense that you have in mind. What is tort law and how does it differ from civil law? Is there any difference or overlap between the two? Does one more broadly encompass the other? Tort law is a subset of civil law. Are torts defined in statute? Some are; some aren't. There is a common-law doctrine of torts. These torts have been defined by the courts through judicial precedent rather than by the legislature through statute law. They are therefore known as "common law torts." Some jurisdictions have abolished these torts and replaced them with torts defined by statute. or do they exist alongside statute in some way more fundamentally and less ephemerally than statutes exist? Statutorily defined torts are rather less ephemeral than common-law torts, not more. What is a “common law tort “? See above. | Civil law instead of criminal law Not all things that we commonly refer to as "illegal" are actually crimes - many of them refer to violations of contracts or other obligations where the harmed party may (or may not) use the civil system to obtain some satisfaction, but the government and prosecutors will not do it for them. In general (with some exceptions, depends on jurisdiction and circumstances), most low scale copyright violations are treated as a civil matter - it allows the harmed party (i.e. the copyright owner) to sue you for damages in a civil court, if they wish and are able to do so. However, it generally is not a crime (again, with some exceptions - e.g. large scale distribution often is) so the government and police on their own cannot, should not and does not investigate and prosecute violations of software licence terms. | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | There isn't a difference. The terminology in England and Wales that means the same thing is "litigant in person", with the source of these Latin phrases have abandoned them in favor of plain English terminology. The variation of usage, however, does not necessarily break down on a federal v. state court basis. Pro se is the majority usage, but the variation is more regional, within state courts, than it is a federal v. state divide. California and Michigan, for example, use both terms and use them interchangeably. If there is a historical reason for the variation in terminology, I haven't groked it. Incidentally, there was historically a subtle distinction between the two concepts related to consent to the personal jurisdiction of the court that has long since become obsolete (more than a century ago), but which movements such as the "sovereign person" movement errantly believe has great legal importance to the power of a court over them. | I can't do much better than the opening to Wikipedia's article on this: The contemporary legal systems of the world are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. I believe that there are about 196 sovereign nations in the world so that gives 196 national systems. Many of these have sub-national jurisdictions (e.g. The USA with 50 states plus military law) so this total is at least several hundred and may run up to 1000. In addition there are systems of supra-national law such as maritime law, war crimes law and supra-national jurisdictions like the EU. So, short answer: lots. The correct terminology for a system of law is a jurisdiction. Note that many activities will be subject to multiple jurisdictions. | This distinction was once important in English law, and other common-law systems derived from it, because common-law courts felt free to punish a Malum in Se even when there was no relevant statute, while a Malum Prohibitum would be punished only if it violated a specific statute. But today in the US, and to a large degree in the UK and other common-law countries, nearly all law has a statutory basis (although subject to interpretation by courts). Thus the distinction between Malum in Se and Malum Prohibitum no longer makes a significant difference, and is pretty much purely academic, except in a historical context. | There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both "English Law" and "English and Welsh Law", usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as "Welsh Law". |
Is it contempt of court to indicate in voir dire you will never find someone guilty of a drug crime In a trial involving drug charges During voir dire a juror volunteered the statement “I believe criminalizing drugs is morally wrong and will never convict someone of drug crimes.” Is this contempt of court? What if a lawyer asked “is there a reason you would be biased in this case about a drug dealer?” Does this change the answer. Assume all charges are non-violent drug related charges. | Contempt of court is when you refuse to do what the court (judge) orders you to do. Actually, you have been instructed by the judge to answer questions truthfully, so if asked, you are supposed to state your beliefs. Volunteering an unwillingness to apply the law as instructed is always an option, and will get you excused from that jury for cause. | The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge. In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never "attached," for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.) Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process. If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure: If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree. States, however, may approach this slightly differently. | I have encountered this problem in Pennsylvania. The PA Code requires a District Attorney to approve all private criminal complaints. If the DA declines to prosecute, then an affiant can petition the Court of Common Pleas to review the decision. However the affiant bears the burden of convincing the court that the DA abused his descretion in declining to prosecute, which is a pretty high hurdle. In the United States the only other legal appeal I am aware of is through federal courts under broad federal laws like 18 USC 242 or 42 USC 1983. | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. | I do not believe that Idaho has such a law. This is not the end of the analysis, however. It isn't clear that saying you do not have a conviction, when in fact, you have a conviction that was dismissed, is a permissible ground for an Idaho employer to, for example, justify the termination of your employment for an improper reasons (e.g. national origin) when the employer, after the fact, discovers that you have a conviction that you did not disclose because it was dismissed. An Idaho court could easily rule that the non-disclosure of a conviction which was dismissed was not a material fact upon which an Idaho employer could justify terminating your employment when it was discovered after the fact. Likewise, fraud prosecutions generally require a misrepresentation to be made regarding a "material" fact, and not just any fact. In the same vein, while misstating your middle name might be a misrepresentation, it might not be an actionable misrepresentation of a material fact. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. | It is certainly not the case that all accused plead not guilty. Some plead guilty, often as part of a plea bargain. Some plead "no contest" meaning that the accused does not admit guilt, but will not argue the point in court. For many purposes this has the same effect as a guilty plea, but may matter later when the accused can truthfully say that no guilt was ever admitted. I think there are some other less common pleas available as well. It is not uncommon for an accused to plead not-guilty at first, and later complete an agreement with the prosecutor and change the plea to guilty, perhaps on only one accusation or some subset of accusations. This would often be in connection with some sort of plea bargain. In general, if there is any doubt about wanting to contest the accusation, an initial plea of not-guilty will be made by the accused, because this is fairly easy to change to a plea of guilty later, while changing a plea of guilty to not-guilty is much harder, and is not always allowed. I do not know what reasons there might be in the specific case mentioned, but I caution that news reports on such matters are not always accurate. |
Is it legal for a medical test center in Florida to knowingly lie to a patient about the outcome of a test? There is a Twitter anecdote about someone who had himself tested for COVID twice at the same lab in Florida and was both times told he tested negative, but when he asked for the physical documents that contained his test results, the documents said he and the people he got tested with tested positive both times. Just so everyone knows, Florida is lying about COVID tests. My brother and I went in to get a PCR test and when he called to get the results, they told us they were both negative. When my brother felt some symptoms 2 days later, he went in with my 7 year old nephew and got tested at the same place again. This time he didn't call and waited to get a hard copy of the results. The person at the desk (who was different than the 2 days prior) handed him the tests and said they were both negative. When he got into his car and looked at the results himself, he could see they were positive. They just straight up lied twice about the results. Lied to on 2 separate occasions by 2 different people. Doesn't seem like incompetence to me at that point. How many people have been sick and didn't know it was COVID and then spread it? Setting aside the speculation about motives and whether this is malice or incompetence, and just looking at the claim made in this post without judging the veracity and whether this is an isolated incident just at this center or a systematic occurrence across Florida, is it legal in the state of Florida for someone at a medical test center to knowingly tell someone they tested negative for an illness when in fact they tested positive? | There are circumstances in which medical ethics historically authorized treating physicians to defer sharing information with patients or even to mislead them in their best interests medically, although the scope of what is considered ethical in that regard is narrowing. But in the fact pattern described in the quoted material there is no plausible way that this withholding of information could be justified. If it was intentional (or for that matter, even if it was negligent) there could be grounds for tort liability for harm caused as a result (although causation and damages are hard to prove). On the other hand, just because it could give rise to tort liability, doesn't imply that the action is necessarily a crime, at least without some kind of motive other than random spite to intentionally provide a false result. However, it is quite difficult to come up with a believable reason that this would happen to someone at random. If the person taking the test bribed someone to provide a false result, which is plausible, that is one thing, but just doing it randomly really doesn't make any sense. The fact pattern provided sounds like it doesn't include the "full story." Why keep records of the actual test results (or for that matter why do the actual tests at all) if you are merely going to intentionally provide a false negative? | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | The question of a patient's legal responsibility would arise under a negligence lawsuit, where the patient "should have known". The standard for determining what things a person "should have known" is fluid, but obviously you can start with "could have known". If a patient's can't know a fact, they cannot be said to have negligently contributed to the damage. Doctors are given these warnings, but patients are not, uniformly. It is therefore possible that a patient was never warned of the effects of an opioid prescription (I can personally attest to that lacuna in the system). Your assumption about the bottle being so labeled is only valid for the original supply bottles from which the pharmacist dispenses. However, there is also a rather compelling argument to the effect that no person in the US can in fact be unaware of the addiction risk of opioids. It is a defeasible argument, possibly applicable to a hypothetical person who has lived in complete isolation for decades. A patient is not required to undertake independent research in order to validate the science that underlies statutorily-mandated FDA approval or drugs, instead, the burden is assigned to the manufacturers and distributors (primarily doctors and pharmacists) to convey the relevant information. Thus HR 1026 would, if enacted, mandate a different warning. But the bill does not assert a lack of liability on either side, therefore the question reduces to the "simple" matter of determining if a person knew or should have known. | 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. | Laws vary by state, of course. In Wisconsin, according to the 1993 case State v. Neumann: the offense of second-degree sexual assault by sexual intercourse does not require proof of intent and therefore someone who claimed to be too drunk to know what he was doing was still guilty. Although that was a case involving adults and therefore a different statute, I think the statutes are similar enough to produce a similar result in a case involving a minor. But even though intent isn't required, according to the 2007 case State v. Lackershire she's still be not guilty in Wisconsin. It flat out says that: If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Additionally, in your case, there was a gun to her head. Under Wisconsin law, the woman could not be guilty of statutory rape, because of this law: 939.46 Coercion. (1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. The paper you link to mentions several possible defenses like coercion, and how each defense is not applicable in some states. I don't think it ever clearly establishes that there is a state where there is no defense. The example you (and the paper) give occurred in Florida. I couldn't find an applicable statute in Florida law, but that appears to be because it's in common law instead of a statute. According to the 1981 Florida case Wright v. State: Florida has recognized the common law defense of duress as a defense to crimes other than homicide so I don't think the woman would have been guilty under Florida law, either. The paper states that she was in fear for her life and that of her daughters, and it is extremely apparent in hindsight that her fear was reasonable. I imagine that if the author was able to find an actual case where a victim was prosecuted under similar circumstances (or even one where the victim clearly could have been prosecuted under the law of that state) he would have used that case as his example instead. It seems that he couldn't... and that might tell you something. He probably used this example because it was sensational, but it doesn't seem that the woman was guilty under applicable law. | The second statement is completely independent of the first. This is to certify that X is pursuing a Minor specialization in our department**.**[PERIOD] The courses offered by our department that have been taken by X are as follows:[...] As long as both of these statements are true, it is not deceptive, therefore not fraudulent. | The fact that it is possible to engage in fraud, doesn't mean that it is impossible to prove something. Usually, in a civil action, testimony that a business record says something and that it was not falsified is sufficient to meet a preponderance of the evidence standard (i.e. to establish to the satisfaction of a judge or jury that it is more likely that something is true than it is that it isn't true). It is easy to forge checks too (and hard to prove that a signature is fake), but that doesn't mean that you can't prove payment by check or that negotiable instruments are useless. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. |
Leased an incomplete commercial building and landlord is not finishing I leased a commercial building that was currently being built. At the time the physical structure had been completed and all that was left was connecting water and electricity to the building. In the lease agreement we stipulated that rent would be 50% off until the building received full services and then the full rent payment would be due. There was a verbal agreement that the process of "hooking up the water and electric" should take no longer than a few weeks. It's now been over 3 months since the lease was signed and the building still does not have services. The landlord is slowly installing services but there seems to be a lack of urgency in getting things done. For example, he passed inspection for electric on April 1rst but has yet to schedule a time to put in the utility pole to get electrical service (as of April 29th). I cannot run my business without the electric and water hooked up. I understand there was no stipulation on when or if the electric and water would be installed in the lease agreement, but I'm wondering what I should do in this case. I cannot use the property for my business, nor can I get it insured for theft until electric is installed. My ideal situation would be that I would recover the amounts that I have paid beyond the first month and discontinue payments until full water and electric is available. This property is ideal for my type of business and it may be difficult to find another due to market circumstances in my area. The least ideal situation would be to continue paying half rent on a building I can't use indefinitely until the lease term is up. | In the lease agreement we stipulated that rent would be 50% off until the building received full services and then the full rent payment would be due. Ouch. I bet the lease agreement also says something like "no other agreements verbal or otherwise are in effect for this agreement." So what you did was release the landlord from the responsibility to make the building habitable. Pretty sure you will need a lawyer to unwind this. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. | First of all, the amount involved is probably a few hundred dollars, maybe a thousand: if you do not pay it is extremely unlikely that your roommate will attempt to recover. Even if they do, they will probably fail - 30 days notice is 30 days notice: unless last month was February, the 8th to the 8th is either 30 or 31 days, you have complied with the terms of the lease. If the lease had said "one named months notice" then your roommate may have a case; as it is, they don't. Is he right? No. Is there ever a case where I'm liable for pro-rated rent beyond the 30 day notice period? Only if it says so in the lease. Do I owe him rent for each day in November that the room is vacant beyond the 8th? No Would a judge make an exception in his favor since I didn't tell him I was looking for a new place to live? Judges don't make exceptions, particularly not in anybody's favour. The role of a judge is to enforce the law - not to make exceptions to it. A judge would give effect to the terms of the contract except where those terms are prohibited or against public policy. | Unless there is some surprise in the wording of your contract, you have no realistic legal recourse. You had a hope that the warranty could provide something which it does not provide. A "reasonable person" would read the wording of the contract and understand that it requires pre-approval, and does not include an exception clause "unless it gets really cold". You could hire a lawyer to sue them and maybe a judge would find against the company on some social policy grounds, i.e. the contract is against public policy (after all, under landlord-tenant laws, in the analogous situation the landlord would be obligated to fix the heat problem). Since these contracts are quite widespread and well-known, and legislatures have not declared them illegal, it is safe to conclude that there is no public policy being violated. So even if a sympathetic judge were to rule in your favor, it would be overruled on appeal. If the warranty company delayed processing your request in order to get you to blink and break the terms of the contract, that could be held to be a bad-faith dealing. It is more likely that it is just a very slow process, slower than the average HVAC contractor, who would buy full-price replacements and have many workers on call to address your needs. | If the landlord has a right to charge a late fee (and that late fee is not a penalty) then that right accrues from the instant that the rent is late i.e. any time after 5:00:00 pm precisely if that is the time stated in the lease. If only a day is stated then it would be midnight. For case law on the penalty doctrine see PACIOCCO & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2016] HCA 28 which involved a challenge to a bank charging late payment fees on credit cards. | The possession is not adverse during the tenancy, so the clock does not run. If the tenancy contract ends or is violated for [appropriate length depending on location] with no reaction from the landlord, that is grounds for adverse possession. | The right to adequate housing is a political question, the content of which is unclear in the UN's fact sheet. What they say is: All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, clean drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage facilities, refuse disposal, site drainage and emergency services. Sanitation facilities are not completely ignored, so there is a theoretical basis to start from. However, that list of desiderata is not legally enforceable, so it would depends on the laws of the particular jurisdiction. In the state of Washington (US), a rental that lacked any sanitary facility (toilet) would be a violation of the health code: even hot water is required by law. In other countries, esp. where running water is not ubiquitous, there may be no legal obligation for a landlord to provide a toilet with running water. Whether legal action could be taken against the landlord depends on local law. A property owner can evict a tenant, subject again to local law. Usually, it requires a legal process where the owner petitions the court to evict the tenant, and in case the tenant has a contractual right to be there, the owner has to show cause (tenant breached the terms of the lease). A landlord does not generally have an obligation to find alternative housing for a tenant, but perhaps there is such a law somewhere, related to tenant tenure. The mention of a co-owner is a bit confusing. If A is the sole owner of a property, A can exercise landlord rights. If A and B both own the property, either of them can exercise landlord rights. However, if they disagree, i.e. A wants to evict tenant C and B wants to let C stay, the dispute between A and B must be resolved, and if they cannot come to an agreement then B can cause a delay of the eviction until the dispute is resolved in court. Again, the details on this would depend on the jurisdiction, and in part whatever landlord-tenant laws there are. | Can my water district's billing practices still be legal? They are likely to be legal, but it isn't entirely clear. Contract Law ETo data is not published in advance of billing, which seems to violate Contract Law's notion of agreement between parties. A contract can set forth a formula for determining a price, rather than a particular dollar amount. For example, my utility company charges me a rate for electricity and natural gas that is based upon the market price of those commodities that it has to pay (although since my utility is a regulated utility, it has to get approval from a government agency each time it does so to confirm that it is really charging the market rate). Similarly, in the construction industry, and in government contracts, "cost plus" contracts that charge based upon whatever is spent to get the job done plus a market up by the general contractor, are not uncommon. Proposition 218 The Proposition 218 analysis is trickier. This is clearly not a tax or an assessment. So the threshold question is whether this is a Property Related Fee. In December of 2018 a legislative analysis stated that: A fee is a charge imposed on an individual or business for a service or facility provided directly to an individual or business. Local governments charge fees for a wide range of purposes, from park entry fees to building plan check fees. The amount of the fee may not exceed the cost of government to provide the service. Proposition 218 restricts property-related fees, defined as fees imposed "as an incident of property ownership." At this time, there is no consensus as to which fees meet this definition. The drafters of Proposition 218 indicate that it was their intent to include most fees commonly collected on monthly bills to property owners, such as those for water delivery, garbage service, sewer service, and storm water management fees. Other analysts of Proposition 218 contend that fees that vary by level of service (for example, a fee for metered water usage) should not be considered a property-related fee, because it is based on service usage, rather than property ownership. Because Proposition 218 does not restrict nonproperty-related fees, the definition of this term will be an important and sensitive issue for the Legislature and courts. But, the California Supreme Court clarified this in July of 2006 in the case of Bighorn-Desert View Water Agency v. Verjil, ruling that metered rates for consumption of water are “property-related fees” subject to Proposition 218. So, assuming that your Water District is a governmental agency and not just a private company like a Ditch Company from which you receive privately owned water because you have shares in it, Proposition 218 should apply. This leads to the second question: Does the amount of the fee exceed the cost of government to provide the service? This is a non-trivial question with lots of ambiguities associated with it, that are fundamentally accounting issues, regarding the level of generality at which you analyze it. At the most general level, the water district clearly isn't allowed to collect more in fees in the aggregate than is necessary for it to break even from purchasing the water from someone and conducting its operations (assuming that it is a governmental entity). But, assuming that this threshold is met, the question is then how much discretion the water district has to allocate its costs, many of which are fixed costs that benefit all of the people in the water district, to particular users. It sounds from the question as if some of its costs involve purchasing water from a wholesaler, and some involve things like distributing that water to individual customers, metering usage, invoicing customers and collecting payments. Also, another question of generality is over what time period costs have to match services. At a fairly broad level of generality, perhaps it is permissible to match fees to cost on an annual basis. Certainly, the matching doesn't have to be any more specific than for an individual billing cycle, but it isn't obvious that this much precision in timing is required. Almost certainly, the water district is entitled to some deference in how it decides to allocate costs to services when there is more than one reasonable way to do so. Very likely, the water district evaluated its billing policy with its municipal attorney in light of Proposition 218 when it adopted this system and obtained an opinion of counsel that its plan was compliant. Indeed, it probably has covenants in its municipal bond offerings that require it to do so. Therefore, it is very unlikely that the water district's billing policy blatantly and unambiguously violates Proposition 218, even though it make be pushing the envelope with a billing scheme that isn't clearly allowed or clearly forbidden by court precedents that are factually similar. If that is the case, you might find a lawyer willing to bring a class action lawsuit to test the validity of the billing system, but it would likely be a long and difficult case with an uncertain outcome that the water district is more likely to win than you are, although it still might be a technical violation. Given the small stakes you have in the question with your own relatively small water bill, and the high stakes that the water district has in justifying its billing system for all of its customers, it is hard to see how this would be an economic battle for you to fight. |
Copyright infringment: using dictionary definitions I am planning to build an online web app and a mobile app for learning vocabulary. Functions: - User can create lists (eg. personalities, phrasal verbs etc.) and add words to the list with definitions. - These list can be made public. If users were to copy dictionary definitions, for instance Oxford or Cambridge) and make the word lists public, is it a copyright infringement? Am I responsible for this activity? Can dictionary owners charge me against copyright issue? | If users were to copy dictionary definitions, for instance Oxford or Cambridge) and make the word lists public, is it a copyright infringement? If the dictionary entries are protected by copyright then your user has infringed that copyright by posting the dictionary entries. Am I responsible for this activity? No. But you may be responsible for removing it if you get a request. Can dictionary owners charge me against copyright issue? If you follow the procedures outlines in the DMCA you can be protected from liability. | In the US, you cannot copyright facts. See, for example, Feist Publications Inc v. Rural Telephone Service Co, where a phone book was held to be not copyrightable. You can, however, copyright a particular arrangement of facts, if there is at least a spark of creativity involved. You can't copyright a recipe, but you CAN copyright a cookbook. In general, you're OK if you copy the fluid capacity from the manual, so long as you don't copy the manual itself. | The Google terms of service do not prohibit using their translate programs to create something that you sell. TOS for using their API would be irrelevant, since that isn't what you're doing. There is no clear copyright issue: as far as I can tell, there is not yet any case law suggesting that the output of a program can be owned by the copyright-holder of the program. (Copyright must be held by a legal person, i.e. an actual person or a corporation, and a program cannot yet be a legal person). A human-performed translation is subject to copyright protection since what is protected is that which is created by the (translating) author, and a program lacks that creative element. A translation owes its existence to the program-user using a particular tool to create the work, be it a pen or a translation program. What is unclear at present is whether a person using machine translation in a permitted fashion to create a derivative work thereby gains copyright to that derived work. | The word "use", for purposes of trademark law, is a term of art meaning it is used in a way that may be a violation of law if not licensed. Not all uses of trademarks are violations. Similarly, there is a difference between using the name of a company and the brand of products or services sold by that company. In any case, using a trademark or trade name to REFERENCE a company or brand is not a trademark infringement. For instance, I don't need any license to tell you that I own a Dell or HP or Apple product, or that my software will run on a Dell or HP or Apple product. The use of a logo is, however, more sensitive and likely to require detailed legal analysis, if not an actual license. | 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. | You probably own the copyright, since this wasn't an explicit part of your job. However, there may be other legal reasons which preclude you from using them anyway; copyright isn't all there is. Since you are in the middle of an active dispute, you should consult an actual lawyer (which I am certainly not) for legal advice. | http://www.wipo.int/edocs/lexdocs/laws/en/dk/dk091en.pdf is the Copyright Law in English for Denmark. You should probably try to find a Danish version to ensure the translation is accurate. Chapter 2 lists the exemptions from the general rule that you need the copyright owner's permission to use their IP. Unfortunately, the usage you have made does not meet the requirements for private use (s12): digital copies may only be shared among the members of one household, placing them on the web extends beyond your household. It may meet the requirements of educational use (s13) providing that your school has met the requirements for Extended Collective Use (s50). For photographs, this seems unlikely, such arrangements are usually limited to songs and television works. Under Chapter 6b, you are permitted to use "orphaned works", however, this requires that you have made a diligent search for the owners and have been unable to either identify or locate them. Copyright violation is subject to both penal sanctions (fines and in egregious violations imprisonment) (s76) and damages (s83). TL;DR Yes, you could be sued. Yes, the copyright holder would probably be successful. No, it is extremely unlikely they would bother. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. |
Do I need to give credit to the original writer if I rewrote something in my own words? Situation Suppose I have built a computer program which fetches articles from websites, rewrites them and posts them. Since I'm rewriting the article I think copyright law is not violated since information can not be copyrighted on its own. Questions Do I need to give credit to the original article writing website even after rephrasing the article? Can websites declare web scraping to be illegal? What if the program mimicks the human behaviour? | Ideas are not Subject to Copyright Copyright does not protect ideas. This is true in the US, in the UK, and under the copyright laws of every country that I know of. Article 2 paragraph 8 of the Berne Copyright Convention reads: The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. If the ideas of a work have been so re-written or recast as not to constitute a derivative work, the original author has no rights over the new work, which becomes a separate work with its own copyright. In such case there is no legal requirement for any credit or acknowledgement, at least not under copyright law. Also the use of a work whose copyright has expired, or is for some other reason in the public domain and not protected by copyright, may be legally made without acknowledgement of the author, or even under a false designation of authorship. Plagiarism Passing someone else's work off as one's own is generally considered to be plagiarism. Some people consider that using significant parts of another's work without proper credit is also plagiarism. Plagiarism is not a legal matter. It is considered highly improper in the academic and journalistic worlds, and may carry serious consequences there. It is considered unethical by many in other situations as well. However, it does not constitute copyright infringement, and copyright law cannot be used to prevent or punish plagiarism that is not also infringement. Works Created by an Automated Process or Script Whether an automated process can (at the current state of the art) truly extract facts and re-express them to a degree that would constitute a new, non-infringing work, I tend to doubt. Whether even sufficient alteration could be made by an automated process to reliably constitute fair use, fair dealing, or have any similar exception apply I also doubt. The US Copyright Office Compendium of Copyright practice (an official publication of the US Copyright Office) states in item 307: The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) Similar legal limits on AI authorship apply in many other countries. Fair Use Fair use is a specifically US legal concept, and generally does not apply in any other country, although I understand that Israel has closely followed US law in this matter. Fair use is defined by 17 USC 107. That law specifies four factors which a court must consider in making a decision on whether a use is a fair use. particularly important is whether the new work will harm actual or potential markets for the original, and whether it will serve as a replacement for the original. US Courts also often consider whether a new work is "transformative", that is whether it serves a significantly different purpose than the original does. For example, in a popular song, lyrics are often intended to have an emotional effect. In a textbook on verse, the same lyrics may be used to demonstrate poetic technique, rhyme, meter, etc. That would be a transformative use. The presence of proper attribution or credit is often a significant factor in the decision by a court as to whether a use is fair. Using another's work without proper credit is significantly less likely to be found to be a fair use, although credit is not an absolute requirement of fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and the various questions on this site tagged fair-use for many more details on fair use. Fair dealing and Other Exceptions to Copyright In the UK and some commonwealth countries, there is a doctrine known as "fair dealing" It is somewhat similar to fair use, but is generally more limited. In other countries there are various "exceptions to copyright". Some countries have a few broad exception, some have many narrower exceptions. India, for example, has more than 28 separate exceptions. What is covered varies from country to county. Exceptions for teaching, comment and analysis, and news reporting are common. Article 9, paragraph 2 of the Berne Copyright Convention (linked above) recognizes such exceptions, stating: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The convention goes on to state, in article 10, that: (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon. Thus article 10 paragraph 3 of the Berne Copyright Convention establishes an international norm that works used under an exception to copyright, such as fair use or fair dealing, shall be properly credited. Web-Scraping The law on computer scraping is still under development, and varies from country to country. If a site operator makes it clear to users that scraping is unwelcome, it may be unlawful, depending on the rules of the country or countries involved. When a Terms of Service (TOS) document constitutes a binding contract or agreement that users must accept, and when such an agreement prohibits scraping or other automated access, that prohibition may be enforceable. in Craigslist Inc. v. 3Taps Inc., 942 F.Supp.2d 962 (N.D. Cal. 2013) a US Federal district court held that sending a cease-and-desist letter and enacting an IP address block is sufficient notice of online trespassing, which a plaintiff can use to claim a violation of the Computer Fraud and Abuse Act (CFAA). However, that decision has been criticized by many, and was not a Circuit court or Supreme Court case. In the recent case of Van Buren v. United States, 593 U.S. ___ (2021) the US Supreme Court narrowed the application of the language in the CFAA making access that "exceeds authorization" criminal. In the case of HiQ Labs, Inc. v. LinkedIn Corp. The Supreme Court addressed the question of whether scraping a public website after a cease-and-desist letter has been sent constitutes a violation of the CFAA (this was the fact pattern in Craigslist v. 3Taps). The Court sent the case back to the Ninth Circuit for reconsideration. The Ninth Circuit Court reaffiremd its prior decision that when the website had been made publicly accessible, the CFAA did not apply, even in the face of a C&D letter. This seems to overrule 3taps. Note that other means of prohibiting scraping may still be legally sound and enforceable. See "hiQ Labs v. LinkedIn" from the National Law Review. (This article and the decision it reports was brought to my attention via a comment by user Michael Seifert.) The article "Web Scraping Watch: Cases Set to Clarify Application of the Computer Fraud and Abuse Act" discusses these cases in more detail, but does not incloude the latest ruling in the HiQ Labs case. Conclusion Unless the results of the "rewrite" done by the "program" are sufficiently original to be neither a quotation, a fair use, nor a derivative work, but a new work using the same ideas, they will need to qualify under fair use or some other exception to copyright (unless permission has been obtained). This may well require a proper attribution of the original article. In any case, such credit is considered to be ethically mandatory by many. The web-scraping done to obtain the initial data may or may not be lawful, depending on the contents of any TOS document, and whether the relevant laws make such a document enforceable, which is still not a fully settled point under the law, and which varies by country. Personally, I would think giving proepr credit much easier and safer than trying to justify not doing so, but that is not law, just my opnion. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | There is no special exemption where academic work is unprotected by copyright. You can quote from academic sources to the same extent that you can copy from non-academic sources, without getting permission. In fact, it is legally impossible to tell if a source of "academic" versus "non-academic". Attribution is not particularly relevant for copyright, what matters is permission (when required). It may be that a copyright holder will grant permission for an extensive quote provided you attribute the source, and it may be that academic publishers or authors are more willing to grant permission than other publishers / authors. On the other hand, many academic works are very expensive, so that distributing the text for free may have more "effect on market", and may result in disinclination to grant permission to quote. On the third hand, such quotes are more likely to be squarely directed at the "commentary" motivation behind fair use law. The point here is that there isn't a special law about just academic sources. | You are in general correct, KBurchfiel. A code snippet such as import math; or For i := 1 to 10 print i; has no originality, and is not protected by copyright. A post eplaining the meaning an usage of such a snippet might well be original enough to be protected by US copyright, indeed it probably would. But the code on its own would not be. Anyone could read such a post, and if s/he understood it, use the code snippet and not be in violation of copyright, not compelled to place the entire program in which such a snippet was used under a CC-=BY-SA license. The creative commons people would prefer that a CC license not be applied to a publication that is not protected by copyright, and if it is so applied it is legally meaningless. But they have no legal way to enforce such a preference. A stack exchange post that consisted of nothing but such an uncopyrightable code snippet, with no explanation r discussion, might well be downvoted or even deleted. But that is a matter of site policy on what is a useful answer, not a matter of copyright. Using an excerpt from a copyrighted work so small that the excerpt alone would be uncopyrightable, would probably be fair use under US law, and might well be fair dealing in UK law. Something that is fair use does not compel the reuser to abide by the terms of a CC license, because those terms apply only when the content could not be reused without the CC license's permission. However, a code snippet does not need to be very much more original than the above examples before it becomes copyrightable. Whether it can be used via fair use rather than via the CC-BY-SA license is a very fact-based decision (the usual four-factor analysis is spelled out in 17 USC 107).. But if the snippet can be rewritten to express the same concepts but in a different expression, then there is no copyright issue, and again the CC license will not apply. If the snippet is complex and original enough to be copyrightable (a fairly low bar) and it is re-used unchanged, under conditions where fair use does not apply, then the CC-BY-SA license's terms must be complied with for the use to be legal. That is several "IFs" however. The exact details of a specific case will matter in such cases, there is not one rule for all snippets, all posts, or all programs. | You are in breach of Copyright. Plain and simple. Certain websites allow you to use the website content as long as a link is made, but the website must clearly state that. You may also use a tiny portion of the content if it falls under Fair Use, where "Fair Use" does not mean "I want to". The best thing to do is not to do it. You can't copy anybody's work without consent. If you're thinking about Google specifically then they offer multiple APIs so that you can use their content in a wide variety of ways. | It's allowed by the Creative Commons Attribution -ShareAlike license, and intentionally so. The Wikimedia Foundation wants things like this to be possible; that is part of the goal of open content. (This license is also used on Stack Exchange content, so the same applies to e.g. this answer.) However, it is important to remember that this is not a public-domain equivalent license. If you copy from a Wikipedia article (or an SE post), you must comply with the "Attribution" and "ShareAlike" requirements. Attribution: You must give credit to the author. For Wikipedia articles, which typically have many authors, a link to the page is sufficient; editors agree to this in addition to the license when they save their edits. For Stack Exchange content, a link to the post itself should be enough. (To get a link to a post, click the "share" link below the post.) ShareAlike: If you modify the content, you must release your modified version under the same or a compatible license. You can't copy this answer, add more information (or translate it into another language, or make any other change), and keep an all-rights-reserved copyright on it, or release it into the public domain; your version must also be released under CC BY-SA. As long as you follow these requirements, copying is allowed and encouraged. | If you create a new work that is derived from or based on someone else's work, it is a derivative work, and you cannot do so without permission from the original copyright holder. If the original work is made available under a CC-BY_SA 4.0 license, you have permission, but it comes with conditions. One of those is that you must attribute the original work -- you must say what work yours is based on and who created it. Another is that you must license your own derived work under the same CC-BY-SA license (or a compatible one). This does not mean that your work is not copyrighted -- it is. But it does mean that you must grant to others the same rights that the creator of the work you used granted to you. That is what the "share alike" or SA part of the license means. if you don't like that, you should not use a work licensed under CC-BY-SA terms to create your own work. If you publish your work but fail to grant that license to others, you are infringing the copyright of the work you used, and could be sued. Note that if you had created a compilation rather than a derived work -- for example if you created an album of images from various sources, some of them under CC-BY-SA licenses, you would retain a copyright on the collection as a whole, and that would not have to be under CC-BY-SA. But in this case you say that you used the other person's image as a background for your own illustration. That is creating an "adapted" or derivative work, i am fairly sure, and invokes the share alike clause of the license. You might also want to consider the different case mentioned in If I include an unmodified CC-BY-SA work in a book, does the whole book have to be CC-BY-SA? | Person A has to have created the data to hold copyright; for most kinds of data this has no legal effect because facts are not protected by copyright. A mineable database probably does not have the necessary creative elements for copyright. An algorithm is not protected by copyright (it might be patented). Person C's program is copyrighted. The product created by D is probably copyrighted, depending on what degree of creativity is involved in their transformation. If the transformation is automatic then no, but if creative judgments are applied to the output of the program then maybe. Though the resulting product is another database of facts, and the facts cannot be protected. In terms of "using the model", only C and possibly B have any control. If it is necessary to validate the software using A's data and A has kept the data secret, C might negotiate with A to use the data, in order to complete his program, and that could give A some interest in the program. |
Does California v. Greenwood apply to trash still on private property? In the 1988 case California v. Greenwood, the U.S. Supreme Court held that no warrant is needed to search or seize garbage that is placed on the street for collection, as there is "no expectation of privacy". Where I lived in the 1980s, garbage cans did not need to be taken down to the street. They merely needed to be placed outside, on or near the driveway. Garbagemen drove motorized scooters (like the Westcoast Mailster, but with an open hopper on the back) up driveways, got out, dumped the garbage into the hopper, and then drove off to the next house. (Eventually the scooters would transfer their load to a full-sized garbage truck.) The garbage cans never left the proximity of the home (not even 10% of the distance to the street), and never left private property -- not the street, not even onto a public right-of-way. However, the garbage cans were visible from the street. Is a warrant needed for search or seizure while the garbage is still on private property, as in the garbage cans in this situation? (I suppose authorities could wait until the scooter returns to the public street with the garbage, but that's not what I am asking here.) | 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). | 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). | Note: I am not familiar with Washington law, but I can make an educated guess as to what is happening here. I am guessing that the couple in question are the joint registered owners of the motor vehicle. In many jurisdictions, motor vehicles are treated differently from "normal" things, they are treated as inherently dangerous and thus ownership carries a certain set of responsibilities. (Similar to e.g. owning a firearm, which carries with it certain restrictions on how it can be stored, for example.) One of those responsibilities is to keep track of who is operating the motor vehicle. Therefore, unless the operator of the motor vehicle can clearly be identified without incurring unreasonable cost, tickets for traffic violations are generally addressed to the registered owner, who can then forward them to the responsible operator. (Note that "unreasonable cost" does not have to be monetary. It could also be an invasion of privacy: it is less invasive to just ask the owner to identify the operator than to e.g. surveil the owner's property to find out who is using the vehicle or run facial recognition against the owner's family, friends, and colleagues.) In many jurisdictions, there is a form attached to the ticket (or downloadable from some website) which will look something like this: I accept the ticket: [ ] I do not accept the ticket [ ] because … I was operating the vehicle, but I did not run the red light [ ] I was not operating the vehicle [ ] … the vehicle was operated by: name ___, address ___ … I do not know who was operating the vehicle at that time [ ] If you claim not to know who was operating the vehicle at the time in question, that might have other consequences. In some jurisdictions, you can then be ordered to keep a logbook, for example. If the vehicle then gets caught again and you again claim to now know who was operating it, or you cannot produce the logbook, you might get fined for violating the court order to keep a logbook. | New Jersey is not a community property state, but it is an equitable distribution state. This means that in a divorce marital property is divided, not automatically 50-50, but in a way that seems financially fair to the supervising judge, or according to an agreement entered into by both spouses. This also means that the state considers a car bought during the course of the marriage "marital property". There are also special rules for property bought before May 28 1980, which do not seem to apply in the case in the question. However, "marital property" mostly applies when a marriage ends which the question says is not in view here. NJ does allow for a car to be titled to only one, or to both. A title with both names may read "John Doe OR Mary Doe" or "John Doe AND Mary Doe". In the AND case both spouses must sign to sell or borrow against the car, in the OR case either signature will do. If only one name is on the title, that person must sign to sell or borrow. If it comes down to a dispute, the person whose name is on the title can decide where it is to be garaged, and who has permission to drive it. If the "sporty" car is in the name of both parents, either could move it to some other location, and either could move it back. Going back and forth could easily get ugly. If both names are on the 'sporty' car's title with an OR, the husband could sell it without consulting the wife. if there is an AND he would need her to agree. If the older car is in the husband's name alone, he could deny the wife or the son the right to drive it. The wife could, of course, buy a different older (used) car and allow the son to use it. Obviously it would be a good idea if the husband and wife came to a voluntary agreement about all this, but no law requires them to do so. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | One legal notion of "abandoned property" pertains to tenants leaving things behind after they leave – clearly not applicable. A second regards e.g. bank accounts that haven't been used for a while, again, clearly not relevant. The law regarding goods dropped in the street, and so on, is here. The law starts by saying Any person who finds a thing lost is not bound to take charge of it, unless the person is otherwise required to do so by contract or law, but when the person does take charge of it he or she is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property, or saves any domestic animal from harm, neglect, drowning, or starvation, shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. Any person who takes possession of a live domestic animal shall provide for humane treatment of the animal. Also relevant is the fact that stealing lost property is a crime: One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft. There is no specific legal definition of "lost", so the courts would look at the facts and ask whether the property was indeed "lost" – clearly, it is not. Property that is intentionally placed somewhere and is unattended is not "lost", and there is no law declaring open season on unattended property. This is true of bicycles, as well as unofficial ballot boxes. | Assuming, pending information about the jurisdiction, that this happened in the US, the answer is it depends. As described in Justia's Vehicular Searches article and Wikipedia's Motor vehicle exception article, Under US law police can search a motor vehicle without a warrant if they have probable cause. This doctrine was first stated by the US Supreme Court in Carroll v. United States 267 U.S. 132 (1925) and later modified or repeated in Husty v. United States, 282 U.S. 694 (1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949). All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42 (1970), the Court broadened the rule to evidentiary searches. See also Coolidge v. New Hampshire, 403 U.S. 443, 458–64 (1971) In Preston v. United States, 376 U.S. 364 (1964) the Court ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrant-less search at the convenience of the police. Subsequent cases have widened the scope of the exception, although the probable cause requirement has remained, and stops must have at least "articulable and reasonable suspicion". In the case of an ordinary traffic stop, the police may conduct a Terry-type search, based on "articulable suspicion". However, if the police arrest the driver, that is grounds to search the car under Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and New York v. Belton, 453 U.S. 454 (1981) Under Michigan v. Thomas, 458 U.S.(and Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67 (1975); United States v. Ross, 456 U.S. 798, 807 note 9 (1982).) police may remove the car for a search elsewhere if they have probable cause to believe that there is contraband (such as alcohol, drugs, or weapons) in the car. Thus the arrest justified a search, as described in the question. It might not have justified the tow if there was not probable cause to suspect contraband. But that depends on the detailed facts, and judging those is beyond the scope of this site. In Collins vs Virginia (2018) the Court ruled that a warrant-less search of a car parked on the owner's property and within the curtilage was not justified. (The "curtilage" is the area near the house which gets additional Fourth Amendment protection, almost as if it were inside the house). However, in that case no arrest was made at the time of the search, and the search was based on an officer recalling the car having been used to elude arrest some two months previously, not just a few minutes before, so that case may not apply in the situation described above. If there was no probable cause, any evidence found might be subject to suppression, and a suit for damages under sec 1983 might be brought against the officers and the police force, but that would depend on the specific facts, and would in practice require a lawyer skilled in such matters. | There is no legal obligation of the police or any of its officers to reimburse you. It comes within a police powers exception to the 5th Amendment obligation to provide compensation for takings. Sometimes a government will compensate someone even though it has no legal obligation to do so, but this is unlikely to happen. A petition for certiorari from 10th Circuit decision of Lech v. City of Greenwood Village (10th Cir. October 29, 2019) recaps a lot of the relevant law and arguments for changing it (the petition was subsequently denied by the U.S. Supreme Court). The question presented in the petition was: Using explosives and a battering ram attached to an armored personnel carrier, the Greenwood Village Police Department intentionally destroyed Petitioners’ house. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. The question presented is whether there is a categorical exception to the Just Compensation Clause when the government takes property while acting pursuant to its police power. (To be clear, Texas is in the 5th Circuit and not the 10th Circuit, but there is not a circuit split on this particular issue between any U.S. Court of Appeals Circuits, and the Texas Supreme Court has not taken a contrary position.) Needless to say, that fact pattern was even worse for the innocent citizen, because law enforcement had more discretion and time to make a conscious decision about how to respond to the "bad guy" (an armed man wanted for shoplifting and resisting arrest) in the house to which the suspect had no connection. You could sue the "bad guys" who were involved in the shootout (if known) for causing an incident that foreseeably damaged your car, or you could make a first party insurance claim with your own car insurance. |
Can an auto policy cover their insured when they intentionally ram someone else’s vehicle? Problem: Alice is a policy holder for uninsured/under-insured motorist losses with insurer A; Bob has most likely no insurance coverage for intentional losses he caused at least not to property damages with insurer B. Bob intentionally rams Alice’s vehicle on a public road; insurer B denies intentionality on behalf of Bob, and declines liability; however, not on the grounds that Bob is not covered for intentional losses. Alice reports the matter to her insurer, and they assume liability, but once they receive the denial not based on lack of coverage, insurer A denies liability. Now the onus is on Alice to prove that Bob did not, in fact, not have coverage, and was “uninsured” by a reasonably clear standard. This could be met by a showing that it would be illegal for insurer B to insure Bob since neither insurer A or Bob owes a duty to Alice to reveal their contract. In fact, all laws in effect at the time of entering into the contract is, as if by reference, cited in the contract itself therefore, the public policy would, by the operation of law, void a provision that would allow such a coverage. ADDITIONAL FACTS: Bob is bankrupt, and insurer B denies liability on alleged facts based on evidence it will not share absent a court order that which it interprets so as to conclude Alice is at fault instead of admitting on Bob's behalf a finding of intentional wrongdoing, and deny liability on the basis of lack of coverage. Questions: Is it against public policy to insure a motorist for intentional property damage caused by the insured with their vehicle to another’s property excluding covering any damage to the property of the insured? Is it, in the State of California or is it prohibited by federal law? And if so, what laws or precedent prohibits it? Primarily interested in the above jurisdictions, but any other would be interesting for comparison! | My findings so far are: It does appear to be against public policy at least in California and Oregon. In California outlawed statutorily — Ins. Code § 533 provides: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” Also on point is Civ. Code, § 1668: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." Affirmed, for e.g., in Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638, 39 Cal. Rptr. 731, 394 P.2d 571 (Cal. 1964) “[A]n insurer may not indemnify against liability caused by the insured's wilful wrong (Civ. Code, § 1668; Ins. Code, § 533; see, e.g., Abbott v. Western Nat. Indem. Co. (1958) 165 Cal.App.2d 302, 305 [ 331 P.2d 997])” In Oregon, Outlawed by case law: “Despite variations in the language of the policies, this court has interpreted various policy provisions excluding insurance coverage for intentionally-caused injuries similarly. [...] For an exclusion from insurance coverage for intentional conduct to apply, "[i]t is not sufficient that the insured's intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches." [Citation.]” Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (Or. 1994) | The correct term for this insurance is personal liability insurance - it is neither compulsory nor common in common law jurisdictions. However, some aspects of it may be bundled with other insurances like homeowners, landlords and contents insurance. Liability for damage in common law flows either from a breach of contract or a tort. Of course, if you intentionally cause harm you have crossed the line from civil liability to criminality and no insurance will indemnify you. For your specific examples: [I]f, say, a candle falls over and I burn my flat? If your lease prohibited you from having open flames then this would be a clear breach of contract and you would have to pay for the damage to the flat (and your own property, of course). If your lease was silent on this, then you would be liable if you were negligent and each party would bear their own losses if you weren't (i.e. it was a pure "accident"). What if a flower pot falls from my windowsill and accidentally kills someone? The passerby has no action under contract as they don't have one. They can sue you, or the landlord, or the body corporate (or all three) for negligence - the landlord's and/or body corporate's insurance would respond and if it included a waiver of subrogation (most do), the insurer could not sue any of the other parties for their losses. What if my trolley bumps into an old lady at the supermarket and I break her hip? What if I walk on my friend's glasses and break them? You have no contract with either of these people so they cannot sue you under one. If they can prove negligence then you have to pay for the damage. If it is, instead a pure "accident" then they bear the cost. However, for the old lady, she is way more likely to sue the supermarket as they will have insurance. It is not as useful in the UK as it is in France due to the need for the plaintiff to prove a breach of contract or negligence. In the UK, you are not responsible for accidents you cause - only accidents you cause negligently. | Knowingly selling a car with an incorrect odometer reading is a crime unless this is disclosed properly. It also gives rise to a right of private action, that is the buyer can sue. The California Vehicle Code, Article 10. Odometers includes the following provisions which might be relevant to this issue: Sec 28050 It is unlawful for any person to advertise for sale, to sell, to use, or to install on any part of a motor vehicle or on an odometer in a motor vehicle any device which causes the odometer to register any mileage other than the true mileage driven. Sec 28050.5. It is unlawful for any person with the intent to defraud to operate a motor vehicle on any street or highway knowing that the odometer of such vehicle is disconnected or nonfunctional. Sec 28051 It is unlawful for any person to disconnect, turn back, advance, or reset the odometer of any motor vehicle with the intent to alter the number of miles indicated on the odometer gauge. The US National Highway Transportation Safety Agency (NHTSA), part of the federal DoT, has a page on "Odometer Fraud". It mentions that such fraud is a crime under federal law, as well as under state law. It advises reproving such fraud to the NHTSA in cases of bulk fraud, and reporting individual cases to a state agency. it gives links for both purposes. The US DoJ has a page on "THE FEDERAL ODOMETER TAMPERING STATUTES" It lists 49 U.S.C. § 32703(2).(Tampering); 49 U.S.C. § 32705(a)(2). (false statement); U.S.C. § 32703(4) (conspiracy) and 49 U.S.C. § 32709(b) (criminal penalties). 49 U.S. Code § 32705 provides that: (a) (1) Disclosure Requirements.—Under regulations prescribed by the Secretary of Transportation that include the way in which information is disclosed and retained under this section, a person transferring ownership of a motor vehicle shall give the transferee the following written disclosure: (a)(1)(A) Disclosure of the cumulative mileage registered on the odometer. (a)(1)(B) Disclosure that the actual mileage is unknown, if the transferor knows that the odometer reading is different from the number of miles the vehicle has actually traveled. (a)(2) A person transferring ownership of a motor vehicle may not violate a regulation prescribed under this section or give a false statement to the transferee in making the disclosure required by such a regulation. (a)(3) A person acquiring a motor vehicle for resale may not accept a written disclosure under this section unless it is complete. Ther is a page "How To Fight Odometer Fraud" from Jalopnik which mentions tht there is a private right of action, so that one can sue to enforce the above federal law, and also under various state laws. (This page also discusses how to detect and confirm tampering in some cases.) A page "California Lemon Law Lawyer Discusses Odometer Fraud" discusses how suits may be brought in such cases. This page, is of course, intended ti induce people to hire this law firm for such suits. It seems that such suits can include the award of attorney's fees and other costs. This makes it more attractive to consult a lawyer before proceeding with such suits. Many lawyers will offer initial consultations at little or no cost, so it may well be worth such a consultation. | Is there a way to accept civil liability without admitting a criminal violation? Are you allowed to tell the police, “I accept full responsibility for the accident, but I don’t wish to discuss what happened”? You can allow a default judgment as to liability to enter in a civil case (and then possibly even have a contested adversarial hearing on damages), or you can reach a settlement dismissing the case with prejudice in exchange for payment of a certain settlement without admission of liability. Indeed, this is what actually happens in about 90%+ of car accident cases that aren't resolved at trial or in a motion for summary judgment (something that is quite rare in a car accident case). Likewise, you can plea "no contest" or even being convicted following a trial of a traffic violation in connection with an accident, without the outcome of the traffic case having a binding effect on the outcome of a civil case, even though this seems contrary to the logic of how results in one case determine issues in other cases (called "collateral estoppel"). Basically, this rule has been enacted in most U.S. jurisdictions (usually by statute but in some rare cases by judicial decision), in order to prevent local traffic trial cases from turning into expensive high stakes battles that are really about liability for huge economic damages, in a traffic court process designed to efficiently deal with disputes in the tens to thousands of dollars at stake, rather than the tens of thousands to millions of dollars that are at stake in a personal injury case where there have been serious injuries. However, while the outcome and plea in a traffic case in not binding in a civil lawsuit involving a related accident, any testimony given under oath in one case can be used in the other case in almost all circumstances. | Under U.S. law, when you hire someone and they are injured while doing work for which you hired them, the ordinary tort law regime does not apply. Instead, you are in the worker's compensation regime, under which the employer is strictly liable for the injury. Whether the employee or the employer was at fault in any way (negligent, grossly negligent, reckless, or intentional) is largely irrelevant (except that worker's compensation insurance does not cover the employer's intentional harm to workers which is the employer's responsibility to pay on an uninsured basis). This applies to all injuries on the job, whether or not they are related to the work, and whether or not anyone involved with the employer actually did anything wrong. For example, an employer has strict liability for the injuries of a convenience store clerk sustained by the clerk in an armed robbery of the convenience store where the clerk is working undertaken by felon who escaped from prison hours before due to the carelessness of the prison guards. Usually, that injury is fully insured if the employer has the legally required worker's compensation insurance in place, but the penalty for not having it in place is most commonly that the employer has liability to the full extent, if not greater, than the employer's worker's compensation insurance would have if it was in place. Worker's compensation recoveries are limited to actual economic damages like lost wages and medical expenses, without regard to non-economic harms like pain and suffering and worker's compensation plans also have a very limited death benefit when the worker has no dependents. But these limitations on damages don't always apply when the employer fails to have worker's compensation insurance in place. Worker's compensation liability varies from place to place, but in most states it applies to independent contractors who have not put in place worker's compensation insurance for themselves as well. In your example, Fred has full liability for Barney's injuries. Uriah does not have liability for Barney's injuries due to his good faith belief that he was acting in self-defense or defense of others. But note that Fred's strict liability for Barney's injuries does not preclude a third-party from having liability as well, both to Barney (for damages for which there is not employer liability under the worker's compensation regime such as pain and suffering, and/or in the case of an intentional tort like the armed robbery of the convenience store, punitive damages), and to the employer/worker's compensation insurer for a subrogation claim to recover the amounts paid to Barney as a result of the third-party's negligence or intentional acts. | I'm assuming you are talking about something like this You didn't specify where you live, but in many places it is illegal to block the sidewalk with a car. I just looked up my local ordinances and it is there. In fact, it is your driveway, but often the land up to and including the sidewalk is considered part of a public easement. Typically you are required by law to maintain any grass in the easement, but if the sidewalk were to fall into disrepair, the local government would fix it. Information on easements can also be found in your local ordinances, here is an example in my area. Should I fight this ticket? You can try, but I doubt you will win. Is there anything I can do to my driveway to allow me to actually use it? I would suggest asking on Lifehacks. And post a link here to your question if you do, I'd be curious to know what they come up with. | Misrepresentation At common law, if you are induced to enter a contract by a material misrepresentation then you can rescind the contract and/or sue for damages. The person concerned would have to prove on the balance of probabilities that: the misrepresentation was actually made, which, if it was only verbal and there were no independent witnesses will be problematic, the misrepresentation caused them to enter the contract. If the dealer were to deny everything, and it came down to a "he said, she said", then, on the evidence, the person should lose. The facts are equally consistent with the buyer making an unprompted mistake as to the model of the car. Unfortunately, while most cases are compelling when you only have one side's story; when both sides get to have their say the facts become less easy to determine. Outside of misrepresentation, the person can complain to whatever government consumer protection agencies there are in Florida. | Given that you voluntarily turned the car over to the buyer, it isn't your car anymore. The correct procedure would be to file a civil case against the buyer for breach of contract, where he would have been required to turn over the pump or compensate you monetarily. You both violated the law and are subject to punishment. Forgery is a crime in California punishable by up to a year in county jail. Stealing a car is grand theft, which has a range of penalties from misdemeanor to up to 3 years prison, depending on your prior history and the circumstances. You can file a complaint with the police over the forgery, and it will inevitably be revealed that you stole his car. So you should call an attorney right away to try to get yourself out of this mess. Your main interest would be not getting prosecuted for grand theft, or at least minimizing the penalty. Assuming that he did indeed forge your signature (a signature on the title is required, and surely DMV would not issue a new title without a signature, but you don't indicate what evidence you have that he forged your signature), he could be motivated to cooperate – your respective attorneys can work out an equitable arrangement. The windshield issue will probably be central to the case. Did you crack the windshield after you struck the deal? Did he have an opportunity to inspect the car? Did you fail to disclose a material fact that affects the value of a car? If you replace the windshield, that could tilt the scales of justice in your favor. Get a lawyer and try to keep it out of the courts. |
Can I put up a joke sign on my private land that reads "Active Minefield"? I own a few acres (in the USA) and want to put up a joke sign that says "Active Minefield". A friend mentioned that is illegal. I am not so sure, ergo looking for opinion or references. I understand classic free speech examples like you can not yell "Fire" in a movie theater. Since this sign is on private land and will only be visible when you are on the property, I would love to have a legal opinion. My alternative is to put up a sign "Keep Out: Testing Lasers from Space" which is a derivative of this idea and (IMO) would be considered humor. I know there is a line, how and where is that "line" defined? | My alternative is to put up a sign "Keep Out: Testing Lasers from Space" which is a derivative of this idea and (IMO) would be considered humor. I know there is a line, how and where is that "line" defined? This distinction captures the key point. If your sign stating "Active Mine Field" would, in the overall context, be understood as humor and not as a true statement of fact, it will be protected by the First Amendment. If, however, someone is basically defrauded by a sign, because it appears to a reasonable person to be making a true statement of fact upon which a person reasonably relies to their detriment (or perhaps could reasonably rely to their detriment for criminal law purposes), then it is probably not protected. For example, suppose that your "Active Minefield" sign causes the fire department, when responding to a wildfire next door to your property, to take the long way around your property or to call in the bomb squad at great expense. You could have civil liability as a result. Similarly, if the fire department refused to respond to a fire on your property due to such a sign, your insurance company might have a ground to deny your insurance claim for damages that a prompt fire department response could have prevented. And @user6726 points out circumstances where there could be criminal liability, although there, as in the civil case, the First Amendment would require those criminal statutes to be employed in enough of a common sense fashion to only be invoked in cases where a reasonable person would believe the sign to be purporting to be a true statement of fact in the overall context of the situation, in order to withstand an "as applied" constitutional challenge to a facially valid statute. So, a "space lasers" sign (at least as of 2022 when there are no such things) would probably not give rise to legal or civil liability, but an "Active Minefield" sign without something involved in the presentations to clearly indicate that it is a joke (or a fictional depiction for temporary theatrical purposes, for example) to a reasonable person, could result in civil or criminal liability. Similarly, if the sign was very artistic and also had pictures of Bugs Bunny and Coyote chasing each other, and images of obviously fake "land mines", or if the sign were accompanied by a picture of cow turds everywhere that made clear that the "minefield" was a field full of excrement rather than high explosives, it wouldn't be actionable. | You don't just want to ask, you are required to obtain a license (or in other terms: the OK of the author*). Your game is based on a book. That makes your game a derivate work. Under berne convention, any signer state has to make sure that the author* has the right to authorize any derivate. That includes translations, films, or games. Without a license, you violate copyright law. It doesn't matter if your game is free. To stay safe, you need to obtain a license. Quite some authors would be happy to cut a deal, license or guidelines for fan-projects. As an example, the late Sir Terry Pratchett OBE has specific guidelines on what is ok and what not. Ask your author* about these questions and consult a Lawyer! Only then make your fan project! * This means the author, their estate or whoever they assigned their rights in the work to. Some examples: For that teenage wizard in a private castle charter school that'd be a certain J.K. Rowling. For those hairy-halflings running all over the continent hunted by orcs that'd be the J.R.R. Tolkien-Estate. And for those space wizards using blades from solid light that'd be The Walt Disney Company or one of their subsidiaries. | 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. | Your rights notwithstanding, the government has the power to do such things under appropriate circumstances. First, you would have to be in violation of some ordinance, for instance in Columbus OH you are a violator if the grass is over 12". This should generate a notice informing you what the issue is and giving a deadline for remedy. If you don't comply by the deadline, they are then empowered to send out guys with tools, and the city will bill you for the work. You could call them and ask what the deal is. They might say "We put the notice on your gate", or "we mailed it to you". From a legal POV, the onus is on them to be sure that you're notified. It would be a good idea to verify that this isn't a scam. [Addendum] Bryan TX kindly provides a video about code enforcement, and gives a link where you can go directly to the section of interest (starting 0:43). Your description of the situation is at variance with what they say is the law (12"; 7 day advance notice whereafter they will correct the violation. They also say no notice is required for second violation within a year; $100 administration fee added to costs; lien will be placed on property if unpaid). I assume that your back yard is publicly visible: they recognize that "when the area observed is plainly visible, from a vantage point where the Code Officer has the right to be there, there is no reasonable expectation of privacy". That could include visible from a neighbor's property if the inspector has permission from the neighbor to be there. Otherwise, there's a simmering 4th Amendment problem (assuming that they didn't get a search warrant). | Who Owns The Bunker? Your relative obviously owns the cellar up to their land property boundary. The people who own the other land would have originally been the owners of that portion of the bunker, assuming that it was not permissive (if it was permissive, an easement by estoppel probably would have arisen). So, then the question is, whether the people in the chain of title to the relative acquired ownership of that portion of the bunker by adverse possession. Normally, adverse possession is acquired when someone occupies land under a claim of right that is open, notorious and hostile. While the use of the bunker would be "hostile" in this case (because the other property owners didn't have access to the bunker), it is not at all clear that it was "open and notorious". Indeed, apparently, the other land owners weren't aware that it existed. So, there would probably not be "squatter's rights" in this situation. Also, adverse possession can't run against the sovereign, so to the extent that the bunker goes under public land (e.g. a public street), that also can't be adversely possessed and that portion of the bunker remains the property of the sovereign land owner. @PaulJohnson in a comment to another post notes that: It sounds like your relative has one of the secret bunkers built for the "Auxiliary Units" who were to wage guerilla war from behind the lines after a successful German invasion. bbc.co.uk/news/av/uk-37947840/… If this were the case, and the government authorized its construction, there would probably be an implied easement that would allow the bunker to be the property of the person owning the entry to it, rather than the other property owners. But, as you note, proving that case would be difficult. It might be possible to scour declassified civil defense records from the WWII era to determine if this was the case, but you might need to employ an archivists or historian to get to the bottom of this question. What if they sell it? Suppose that they do sell it. What happens? Since title is certificated in Britain, there would be no title insurance company to compensate the buyer if someone later claimed to own the property. Your relative would have a warranty of title inherent in the deed to the portion of the property that is legally described in the deed (unless the property were sold by a quitclaim deed specifically disavowing any promise that what was sold was owned by the seller), but that warranty would probably not include the portions of the bunker outside the boundaries of their lot because that is not included in the legal description of the property on the property certificate or the deed. So, if it was sold, the buyer might not have any claim against the seller if the buyer did not get good title to the entire bunker, and would have no one to sue at all, if your relatives died before litigation over ownership of the bunker arose. The buyer might sue your relatives for common law fraud if the bunker were described in the marketing materials for the sale, but if they were told that some of the bunker went outside the lot and that its legal status was unknown, or if the property was sold by a quitclaim deed, that suit would probably not be successful. Other Options Depending upon whether the owner is on good terms with his neighbors, the owner could probably buy the subsurface rights or some sort of easement to that property from the neighbors under whose land it runs, and might even be able to purchase such rights from the local council where it runs under a street. Negotiating the price would be tricky. On one hand, it doesn't hurt the other owners at all. On the other hand, they have the power to deprive your relatives of all use of the property. Often deals like this are done for nominal consideration between people on good terms with each other, but for extortionate prices when people are not on good terms with each other. | You can read the relevant law, 18 USC 715. That law defines "Golden Eagle Insignia" as the words “The Golden Eagle” and the representation of an American Golden Eagle (colored gold) and a family group (colored midnight blue) enclosed within a circle (colored white with a midnight blue border) framed by a rounded triangle (colored gold with a midnight blue border) which was originated by the Department of the Interior as the official symbol for Federal recreation fee areas. The legal prohibition is: Whoever, except as authorized under rules and regulations issued by the Secretary of the Interior, knowingly manufactures, reproduces, or uses “The Golden Eagle Insignia”, or any facsimile thereof, in such a manner as is likely to cause confusion, or to cause mistake, or to deceive, shall be fined under this title or imprisoned not more than six months, or both. In interpreting the law, you have to deal with the "and/or" problem that sometimes laws are sloppy with the use of "and", and there is a law about "and" that it means "or" when necessitated by context. The courts could be faced with the question of whether it refers to "both the words and the object", or "either words, or the object, or both". This issue, for this law, has not been tested. However, "The Golden Eagle" referring to actual birds is commonly used, and it is not reasonable to think that Congress intended to ban use of that phrase (First Amendment issues). The law actually refers to a completely different object, visible here, which bears negligible resemblance to the picture you provide. It is not obvious from the picture whether the eagle object on the train is protected by copyright, so you would have to research the creation of the eagle. A number of art works with eagles are out of copyright, a number are still protected. | Can a restrictive covenant deny a land owner the right to use a road on their own property? Yes. A restrictive covenant could impose such a limitation, although usually a court would disfavor that interpretation of a covenant unless no other reasonable interpretation is possible from the language of the covenant. This is basically because it would be lawful (at common law anyway) to convey the land in its entirety to the covenant beneficiary, so it is lawful to convey a lesser interest to that person. It isn't inherently unconscionable unless it makes the property subject to the covenant landlocked with no access to a public road, in which case some mandatory doctrines regarding a right of access would probably apply. Often this would be done to create a private drive across the "front lot" (which has direct access to a public road by other means) when the "back lot" of a parcel was conveyed by the owner of the combined lot to the new owner of the back lot. A covenant might be chosen instead of an outright conveyance of the dogleg of road because it retains mineral rights in the servient estate owner, because it clearly allocates property tax payment duties to the underlying owner as part of a larger economic deal, and/or because it could make a transaction possible that would otherwise be prohibited by subdivision requirements applicable in that locality. The restriction might also reduce the servient estate owner's liability for accidents arising from use of the covenant access easement, since it would ordinarily vest all maintenance and use regulation in the dominant estate owner. Some other common easements that deny the servient estate owner all use of land for a period of time are easements to allow staging of road construction activities, and easements incident to mineral rights in states where destruction of the surface is allowed if it is later restored when the minerals are extracted (such as Wyoming). | We have no way of knowing when this happened, but it is probably a fact, recorded some time in the past. Utility companies very frequently obtain a right-of-way (easement) which gives them certain rights to your property. Typically, this happened a long time ago when a previous owner agreed. As for gas pipelines, that typically includes "don't plant trees" restrictions. The easement is usually recorded in the county office where deeds are filed. The legal basis is generally "because you agreed, or some previous owner agreed". You can get a copy of the easement to see if "no trees" is actually part of the agreement. If yes, no point in arguing, if not, you could hire a lawyer if they are demanding that they are threatening you. They are allowed to be concerned and to ask you to cut trees regardless, but if it's not required by the terms of the easement, you can say "No, I'd rather keep my tree". |
Can a company prevent you from leaving and work for another company? Can a company prevent you from leaving and work for another company? Working at a company with a toxic boss and a toxic culture and I am wondering if they may try something funny on me. Is that possible, and what are the recourse? I don't think there's any clause in my contract. At least, I only remember there being a salary mentioned on my contract, and people kept leaving every 9 months or less than that. So is there anything I should be worried about? | As the comment by Ron Beyer mentions when a company wants to impose such restrictions they are normally done through non-compete, non-solicitation, and non-disclosure agreements, as well as via trade secret law. Note the word "agreements". "Restrictions on working in the field" are simply a form of non-compete agreements. A company cannot, legally, simply impose such agreements on its employees. It can require an employee to sign such an agreement as a condition of employment, and it can often require such an agreement from a departing employee as a condition of a severance payment. Exactly what is covered by such an agreement depends on its terms, and those vary widely. In most US states there are limits on the scope and duration of such an agreement. In some states the restrictions can be broad and of fairly long duration, in others they must be narrow and of fairly short duration. An agreement that goes beyond a given state's limits will not be enforceable in court, if the defendant brings that fact up. Trade secret law can prevent an employee from disclosing the trade secrets of a former employer to a new employer, or indeed to anyone else. But that does not prevent a former employee from getting a new job in the field, as long as the employee does not disclose any trade secrets. If an employee has signed, or is asked to sign, such an agreement, it is a good idea to consult a lawyer with employment law experience. If the state is known, I could edit this answer to include the limits, if any, on such agreements in that state. | The crucial phrase is "in ihrer Eigenschaft als Mitglieder". This restricts the prohibition on receiving benefits from the gGmbH to benefits you'd receive because you are a partner. It is common to have more than one legal relationship with a (g)GmbH, and being a CEO or otherwise employed by one is a typical situation. The snippet from the law does not restrict what benefits you may receive in your CEO role, just those in your partner role. The distinction is also relevant for regular GmbHs: If you are the CEO of a GmbH as well as a partner, then your salary as CEO is taxed differently than your share of the profits. But typically the tax on salary will be higher than the tax on profits, so there is little incentive here to overpay yourself. | Does an employer have to provide drinking water to their employees? Yes they do; consult the Welfare at Work publication by the HSE. It is also stated in the Health and Safety at Work Act 1974 schedule 3 s10. Can you simply leave if your workplace's water supply stopped working? Not necessarily, I would consider factors such as time the workplace has been without water, whether the employer was prompt in fixing the issue, how impactful to work the lack of water was, was free water accessible in a nearby area etc. These are things that would support your case if you wanted to take your employer to court. Though it doesn't say you wouldn't be allowed to leave work, I'm not sure if the pure fact that the water supply has stopped working would be enough to justify you simply leaving the premises. | Is transferring money from a company where you're a director to a company where you're an employee considered money laundering? No. The scenario you outline seems too broad and generic. There are many possible, lawful reasons why company B could transfer money to its supplier, company A. Some examples are payment for the services that company A provided, an indemnization/settlement, and a buyout. The mere fact that B's director/shareholder is A's employee does not render the transaction(s) money laundering. Also, the statutory elements of money laundering vary by jurisdiction. | There are regulations governing occupational safety, whereby e.g. an employer can be fined for forcing employees to work in a literally toxic environment, for instance breathing chlorine gas. You could file a complaint with a state or federal agency (OSHA). You would need to hire a labor lawyer to get advice about your specific circumstance, to see if there is indeed a provision that covers what you describe, though I doubt it would. OSHA's blurb on disease don't obviously cover your situation (they describe situations that govern healthcare workers in intimate contact with infectious materials). However, certain diseases such as TB or Ebola cause a general health quarantine to be imposed, so if a worker comes in with such a disease, action would be taken by the health department. This does not cover sniffles, and probably not pertussis (but that's a local decision). There are also regulations pertaining to disabled employees, whereby an employee who is disabled by having a severely compromised immune system can be entitled to reasonable accommodation, for example allowed to work in a closed room away from others (if the job is not a receptionist job). That entitlement only applies to the employee, and is controlled by objective health danger (requires a doctor's note), and not the comfort level of the employee. | 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. | Short Answer It might or might not be an anti-trust violations depending upon the states where the employers and employee are located. But, as a practical matter, it is almost impossible for an employee to prove an anti-trust violation without an insider leaking a "smoking gun" document or a company admitting to improper conduct, before a lawsuit is filed. Long Answer There is considerable regional variation regarding the extent to which legal arrangements to limit employee mobility are legal. For example, historically, Massachusetts is notorious for enforcing such limitations strictly. In contrast, California is famous for refusing to enforce such restrictions. In general, the Northeast is strict, the West is lenient and other states are in between, but it is really a state by state issue. (Incidentally, weak non-competition laws have been empirically shown by economists to be better for the economy in the sector where they might be applied but are not applied.) Usually these legal restrictions on employee mobility are imposed unilaterally by the employer without conferring with competitors, and sometimes remedies for a violation of these non-competition arrangements are limited to the employee and not the hiring company (although this is hardly universal - the intentional interference with contract tort historically arose to punish companies that induced employees to violate non-competes and duties of loyalty of existing employees of the suing firm). The anti-trust dimension comes from the agreement between competitors to honor each other's non-competition agreements, which is meaningful because in the states where Apple and Google are headquartered, non-competition agreements are basically unenforceable so this collusion between competitors has an effect in excess of the default legal situation in the absence of collusion. If Apple and Google had instead both been based in Boston instead, where their non-competition agreements were enforceable against both the employee and the new employer as a default rule of law, their agreement would probably not have violated anti-trust laws because they would simply be agreeing to follow the generally applicable law that would apply in the absence of a collusive agreement anyway. Thus, without knowing the default rules of law in the relevant states, and without knowing if there was actually an actual agreement between the competitors, you can't sue for an anti-trust violation. One of the recent revolutions in federal civil procedure, the Twombly case, arose in an anti-trust situation and held that a complaint for an anti-trust violation is not sufficient unless the person bringing suit has actual knowledge of the existence of a collusive agreement between competitors and does not merely infer the existence of such an agreement from the facts and circumstances available to the general public. It is not permissible to sue first and then use subpoenas and other pre-trial discovery procedures to determine if there was actually an express collusive agreement between the competitors rather than having their behavior arise for other reasons (since under Econ 101 microeconomic principles, marketwide price fixing by all participants and completely non-collusive perfect competition are indistinguishable as they both produce a uniform price in the marketplace for a good or service). Since this information is usually impossible to obtain prior to brining suit without an insider who leaks a smoking gun document, as a practical matter, it is usually impossible for an individual employee to prevail in an anti-trust lawsuit alleging collusion between competing firms. Under federal anti-trust laws, circumstances that have the de facto identical results to illegal collusion between competitors, where this is not actually collusion, are usually not actionable (i.e. you can't prevail in a lawsuit based upon those claims). | 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. |
What is the legal term for a conviction that the individual has completed the punishment for? I am writing an employment contract and want to explain that, we run criminal record checks on everyone. if an individual has finished the punishment for their crime then that's ok as long as they declare it. if an individual has not finished the punishment for their crime, they should declare it. If an individual has a conviction that they are yet to be punished for, I understand that this is a "pending conviction". Is that correct? If the individual completed their time in prison for the crime, is this legally known as a "spent" conviction or a "time served" conviction or something else? I am in England so British terminology would be much appreciated. | "Awaiting sentencing" either remanded in custody or on bail. "Sentence completed" which may, or may not, after time become "Spent" (see here) and note that: It is against the law for an organisation to obtain information about an individual’s spent cautions or convictions unless the law specifically states that they can ask an exempted question; usually when someone is applying for a job or role that is exempt from the Rehabilitation of Offenders Act 1974 Source For completeness: checks are made with the Disclosure and Barring Service (DBS). | Murder Which is the unlawful taking of a life with intent to do so. However, the doctrine of self-defence can make killing lawful: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. if the prosecutor is of the opinion that the force used "is reasonable in the circumstances" they may not lay charges. If they do lay charges the judge may decide that there is no case to answer before going to trial if self-defence applies. If there is a trial this will probably be the strategy the defence employs and they may or may not be successful. If convicted the penalty is life imprisonment. Also, there is no UK law: there is the law of England and Wales, the law of Scotland and the law of Northern Ireland. | The maximum determinate sentence for anything (outside of military law) was 21 years (in 2013 increased to 30 years for serious terrorism offenses). The law on penalties §43 says that In a sentence of detention, a time frame is set which should not normally exceed 15 years and cannot exceed 21 years. Breivik was tried once for the crime of intentional murder, and convicted -- 21 years is the sentence. I believe that Norwegian law does not have the "multiple counts" system that the US has whereby an act can be punished under multiple sections of the law or for each victim. He performed an act of killing with very many victims, so no penalty longer than 21 years is allowed. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant. | Was the case Sealed? Or is it considered to be Private? Those are two different cases. I was not able to find any laws regarding sealing, or expunging records of Name Changes, but was able to find the Utah Law for Criminal Records. I can only assume they draw from one another. All that being said, assuming your whatever case is sealed, then Some records are sealed. In these kinds of cases, even information about the existence of the case is not publicly available. A person seeking access to a sealed record must petition the court for permission to unseal the records. Rule 4-202.03 states that, ....no one may access a sealed court record except by order of the court. A judge may review a sealed record when the circumstances warrant. From that I can assume that, The records are not public. The records will not show up in a routine check The records will be known only if a there is a court order. Comparing it with the Expungement Act, Continued Use of Sealed Records After sealing, BCI continues to index and maintain all expunged records of arrests and convictions, but the records will not be released to the public. BCI will not divulge any information contained in the expunged records to any person or agency without a court order, unless authorized by statute to do so. Upon request, the following organizations may receive information contained in expunged records: the Board of Pardons and Parole Peace Officer Standards and Training federal authorities, unless prohibited by federal law the Division of Occupational and Professional Licensing and the State Office of Education Both cases above require a court order to get that seal record information. However, from what I gather only expunged criminal records can be access upon request by the Division of Occupational Licences. Bottom line, it sounds like you are safe to mark is no previous name, but you may lose your license in the future if something goes south. I will recommend you to get a professional look into the word of the law and provide you with a written statement of the actual law. Another thing you can try is write to the court who sealed your case, present them the situation and explain what you have found so far, and ask for guidance. | Under current law, an "infamous" crime, for the purposes of the Fifth Amendment, is one which carries a sentence of imprisonment for more than one year, or death. In other words, "infamous crime" is now a synonym for "felony". For context, the Fifth Amendment reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury [...] So the definition of "infamous" would control which crimes must be prosecuted by an indictment from a grand jury. The Federal Rules of Criminal Procedure, Rule 7 describes which crimes must be prosecuted by indictment, and its accompanying notes link this to the "infamous" criterion: (a) (1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year. [...] Note to Subdivision (a). 1. This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *”. An infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 114 U.S. 417, 427; United States v. Moreland, 258 U.S. 433. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. 753f [now 4082, 4083] (Commitment of persons by any court of the United States and the juvenile court of the District of Columbia; place of confinement; transfers). Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime. | What is going to happen, could I get fined, placed in jail etc? Your summons should have explained the specific violation you're being charged with, and you could look up the relevant sections of the law. Assault is defined in Chapter 12 of the New Jersey Code of Criminal Justice. There are several types, and again, your summons should explain which one you are being charged with. My guess is it will probably be "simple assault", paragraph (a) (right at the beginning). This is defined as a "disorderly persons offense". Upon conviction, a disorderly persons offense is punishable in New Jersey by a term of up to 90 days in jail and probation, (section 2C:43-2 (b) (2)), and a fine of up to $1000 (section 2C:43-3 (c)). This represents the maximum. I do not know what kind of sentence is actually likely. It could depend on common practice in the state, the prosecutor's opinion of the severity of the crime, and the judge's discretion. A lawyer would be best qualified to help you find out how to contest the charge, or to receive a lesser sentence if convicted. |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.