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Is it legal to only copy all the words from a dictionary? I am dealing with a language that has only one published physical dictionary so far. I need a list of all words from that language. The dictionary has a traditional copyright text: All rights reserved. No parts of this book may be reprinted or reproduced or utilized in any form, without permission in writing from the author. It has not been possible to get in touch with the author. Is it fine to copy only the words from the dictionary without their definitions for educational and non-commercial purposes? | Under US law, words of a language are facts, which are not protected by copyright. Only creative expressions are protected. There are various aspects of a dictionary which are capable of protection, such as the pairing of a word and a translation, the organization of an entry (headword, POS information, the structure of sets of entries according to a grammatical analysis as in an Arabic dictionary). The order of presentation of the words could be protected (relevant for languages with complex morphology where words are grouped according to roots, rather than strict alphabetization). Finally, the criteria of selection for inclusion might involve a smidgen of creativity, but there is no creativity involved in publishing "all of the words that I collected". | Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights"). | Q1 and Q2 are definitely not copyright violations. Copyright protects original expression. Your questions are yours; the only things you are using are the names, and copyright doesn't cover them on their own. The quotation in Q3 might conceivably come under copyright. However in practice it is very likely to be fair use (unfortunately nothing is definitely fair use until a court rules on it, but I can't imagine a short quotation in a quiz being an issue). | Not having immediate access to the source doesn't preclude a finding of copyright infringement. If you have seen the source material, subconscious infringement can happen. However, in this example, both the short phrases doctrine and the merger doctrine would likely prevent the is_prime function from having copyright. Words and short phrases are not individually copyrightable, so the name would be free to take. Regarding the implementing code, if it isn't an exact copy (i.e. copy and paste), courts will apply the abstraction-filtration-comparision test. They may find that you took the selection and arrangement of instructions from the original source, albiet using different names. That selection and arrangement would probably be considered a substantial similarity and, if not for the merger doctrine, infringement. However, given the limited number of ways to express the prime-detection algorithm means that the expression of that idea has merged with the idea, and thus is not protected by copyright. (Or in some jurisdictions, merger is a defence to infringement rather than a bar to copyrightability). | Anything that somebody writes is copyrighted, even if you call it a "press release". That means that nobody can copy it without permission. If you hand it out to a bunch of people and write "press release", the only reasonable interpretation of the designation "press release" is that you are granting permission to copy (as well as paraphrase). | 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. | 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. | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. |
Is it illegal to modify url data? Say i did something like https://SomeSite.com/variableThing=**MyValue** instead of https://SomeSite.com/variableThing=**DefaultValue** Can I be held accountable for any errors that the variable generates on the server end. The servers are probably owned by my local organization, and I have not agreed to any statements the software my organization is using. | Awareness of consequences If you knew (or had reasons to suspect) that the server end implemented something like (whether intentionally, or by way of a bug/omission): if variableThing == **MyValue** { causeALotOfTrouble() } — then yes, you pretty much can be held accountable. Otherwise highly unlikely. By default, it is reasonable to expect that servers handle/filter/sanitise user input properly no matter where the request comes from, so modifying a URL is merely seeking certain data from the server — which it is free to supply or deny. For example, if MyValue is an SQL injection attempt, then yes. If it is trying to filter out the results by a certain criteria, then no. | You are referring to Section 29.22 of the Copyright Act of Canada. This allows for format shifting for private purposes but only if the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy and the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made among some other conditions. In the case of downloading a copy from the internet, the source is likely an infringing copy (violating the first condition) and you wouldn't have legally obtained the copy of the work from which the reproduction is made (you don't even have the copy from which the reproduction is made, since it is on a remote server somewhere). | If the app (and the service accessed from the app) truly doesn't have any EULA, ToS, or license agreement, to include restrictions on reverse engineering, you can probably create an alternate front end, so long as you aren't using their logos, etc. However, their data may be a different beast, depending on the nature of it. For example, extracting data from Twitter would potentially violate Twitter's license on the original text copyright held by the authors in question. Wikipedia explicitly includes redistribution in their license agreement with authors/content creators. If all you are extracting and storing is the temperature at a particular weather station, you might have less of a concern. Anything beyond merely factual runs the risk of a copyright infringement as you store the data in your own database. | Ok, so it looks like there really are many questions being asked. 1) Is it illegal to host / own / operate a private server for games that require a server of such? And why? 2) Is it illegal to host / own / operate a private server for WOW? And why? 3) Is it illegal to join a private server for games that require a server? and why? 4) Is it illegal to join a private server for WOW? Answers 1 & 2) This depends on the game that is being hosted. There are many games that require servers in which this is not only legal, but encouraged by the company. MineCraft is one that comes to mind. You can host MineCraft servers, and even modify the server code. You can even charge for this service. However,for games like WOW, In short, yes if the server is profiting or If the server is running stolen or leaked software or If the server is distributing client files. If the server was recreated from the developers own mind, and was only compatible with the WOW server, then it's a bit more gray and depends on the Judge's level of understanding of technology. 3 & 4) This comes down to the EULA. If the EULA is like MineCraft, then you are good to go. If the EULA is like WOW, which forbids both modification of the client and participation on emulated servers then it is a violation of EULA. If WOW did not have the second part of "participation on emulated servers", then a user could modify on the router level to point to a private server. | IANAL, just a programmer with an interest in legal rules. Due to the very permissive nature of the MIT license, no, it does not appear that anything illegal has been done. Specifically, the section to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software (emphasis mine) grants everyone the right to modify your code and share those modifications, provided one includes the license. Since this person has included your license (including your copyright notice), they have followed the conditions of the license and are able to share your stuff. Legally. Ethically, I still think its ****. This might be a good starting point in selecting a license (note the Modification column). https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses The CC-BY-SA license family, as mentioned by Ron Beyer in comments is on this list, for example. TL;DR: You unfortunately granted a more permissive license than what you wanted/needed to. This was a BadThing(TM), analogous to giving too broad of access rights to a method or class. Determine your desired permissions, then select a license that matches what you'd like to grant. | 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. | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | 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. |
Trying to remember Right of Way rules for this situation I had a negative experience on the road recently, and I want to know if I was in the wrong. It's a simple situation: I am leaving a parking lot preparing to turn left on to a main road, another car enters the left turn lane preparing to enter the road I'm leaving. I was there first, so I go ahead to make my left turn, but the other car begins to move as well. We both stopped a few feet from each other, the driver gestures frustratedly for me to go, so I do, and then they blow passed me on my right, even though they were in the left turn lane. Who was in the wrong for the confusion, who was being unsafe? I'm not sure intersection rules apply here. Should I have yielded because they are on my right? Here is a road like the one I was on with the cars in the positions I'm talking about. I would be the blue one: | You broke so many rules At “T” intersections without “STOP” or “YIELD” signs, yield to traffic and pedestrians on the through road. They have the right-of-way. When you turn left, give the right-of-way to all vehicles approaching that are close enough to be dangerous. If you have parked on the side of the road or are leaving a parking lot, etc., yield to traffic before reentering the road. But there was no collision so, no harm, no foul. | In my State (Louisiana, USA), pedestrians may walk on the side of the road. No guidance is given on how fast they should walk. Pedestrians are not allowed to walk in the middle of the street. In the US, the laws for this will vary by state. Louisiana has statutes that say that pedestrians are bound by traffic laws, and obstruction of traffic is not legal on foot or in a vehicle. Basically, consult your local laws. §216. Pedestrians on highways or interstate highways A. Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent highway. B. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction. C. It shall be unlawful for any pedestrian to cross an interstate highway, except in the case of an emergency. D. Upon conviction of a violation of this Section, a court may order, in lieu of the penalty provisions provided in R.S. 32:57, that the offender perform three eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program. §213. Crossing at other than crosswalks A. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. B. Between adjacent intersections at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked crosswalk. "Highway" means the entire width between the boundary lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel, including bridges, causeways, tunnels and ferries; synonymous with the word "street". | In Spain, most traffic offenses are usually considered administrative sanctions and involve just a relatively small fine, and perhaps losing some points in your licence. In those cases, if the driver if the vehicle cannot be established (your example, or a far regular one of a parking violation in which the officer did not see who did park it and will not wait by the side of the parker until the driver appears), the fine just goes to the registered owner. When the fine is reported to the registered owner of the vehicle, he can report who was the actual driver who broke the law at the time of the offense. I do not know what would happen if the person named does not recognize his responsability, but my guess is that the owner has to pay the fine (HINT: do not lend your car to someone who cannot be trusted). If the infraction is so excessive that it becomes a matter of penal law then there must be a trial and then the accused must be established without reasonable doubt, so in that case such a stunt maybe could work. | Silence is not cause. However, this may not prevent a search. The officer does not need to tell you that he has probable cause, he must simply have it in order to conduct a search. If he obtained the probable cause before he pulled you over (this is likely), then he will order you out of the car and search over your vociferous (and silent?) objections. If the officer does not have probable cause, searches anyway, and can't come up with a convincing one in time for the court date, then yes you have a claim. But remember, just because the officer didn't inform you of the cause doesn't mean it didn't exist. Always consult an attorney before any legal action. | Although the local mechanic was suggested by you he was paid by the dealer, and hence was acting as the dealer's agent in the repair. If the dealer did not want to accept this then they could have simply insisted on doing the repair themselves. The dealer is responsible for the actions of their agent, and they cannot run out the clock on the warranty simply by failing to repair the fault. You could write to the dealer saying that you will accept their third repair on the understanding that the fault and two attempts to repair it predate the expiration of the warranty and hence you retain the right to return the car if this third attempt at repair does not remedy the problem. Or you could simply insist on returning the car for a refund. If they won't take it, write a letter stating that either they agree to take it back or you will take action in the county court to recover your money. Most businesses will conceed at this point because spending time in court is expensive even if you win. I say "write" because that means they can't deny agreeing later on. You can of course hand them the letter yourself rather than sending it by post. | The 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. | To be very straightforward, yes, a police department would very likely have records of their past interactions with you in the form of police reports. They cannot just throw them away because it's been scrubbed from your public record. They detail the interactions the police officer had with you. That being said, those records would not show up in a general inquiry into your record, because those records are meant to protect the officer and the department as a reference point they can go back to in case some dispute arose in the future. If a police officer really wanted to find them, they'd have to do a bit of digging for them. The difficulty in finding them would depend on what system the particular police department uses to store those records. Smaller departments may just file them in a cabinet somewhere, whereas larger ones may actually have their own searchable database. But a traffic cop out on the street is only gonna see what you're seeing at the DMV - nothing. There is also a formal NCIC database, but traffic violations would never end up in there. That is a national database that basically stores red flag persons of interest (think stolen vehicles, sex offenders, and gang members). Sometimes multiple departments within a state will share their information with each other, but a department's database is usually kept to that department only. Also keep in mind court records. The court case that had a violation removed under such and such conditions is still gonna be a public record. Those records would generally be available to a judge overseeing your case so if you repeatedly end up in court for the same thing, they're gonna know and they're gonna stop scrubbing it from your record or offerring certain options because you're clearly not learning your lesson. Many laws allow you to have one offense stricken per year and similar stuff like that, but that kind of stuff doesn't just permanently disappear. They have to keep record of it in order to know you've already had your once per year etc. Also a note about parking violations: not all of those are actually issued by police. If it was issued by a private firm then that is not something that would ever show up on your record. It would just be in a database somewhere with whatever private firm issued the fine. Those kind of tickets get sent to collections and hurt your credit score if you don't pay them, rather than affecting your driving record. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. |
Computer Misuse Act 1990 vs Police and Justice Act 2006 I am studying towards a qualification called CREST CPSA, reading through their syllabus guide here. It covers some sections on Law that I was hoping to clarify on here. On PDF page 6/20 it covers the following: Knowledge of pertinent UK legal issues: • Computer Misuse Act 1990 • Human Rights Act 1998 • Data Protection Act 1998 • Police and Justice Act 2006 Impact of this legislation on penetration testing activities. Awareness of sector-specific regulatory issues. I had not previously heard of the Police and Justice Act 2006, and after doing some digging online I could not understand the difference between that and the Computer Misuse Act 1990. They both seem to cover computer crimes, albeit one has a slightly lower maximum sentence... | Part of the 2006 Act (sections 35-38) amends the 1990 Act. You can read more about the effect and purpose of the changes in the explanatory notes. Some particular highlights: The changes were made to reflect EU law, a Framework Decision of 2005 on information security, and to be compatible with a Council of Europe agreement on the same topic. There is extra coverage to make sure it is an offense to do something to enable unauthorized access at a later date, or by someone else. There is also extra coverage to catch denial-of-service attacks. There is a new offense for creating hacking tools, as opposed to doing any actual hacking with them. This also covers distribution of lists of login credentials and the like. These reflect the changed landscape of computer security now that we have more pervasive Internet connectivity than in 1990, and a generally more sophisticated marketplace for computer crime. | This article is a useful introduction to restrictions on political advertising in the EU, where §3.4 (p 33) covers Italy. Silenzio elettorale is covered by art 9. of Norme per la disciplina della propaganda elettorale. The statutory situation is not entirely clear to me, but the main controlling fact relevant to the internet question is that AGCOM issues rules. An English legal analysis (from an Italian law firm) is here. Their undernourished analysis of the silence period is Finally, Italian legislation prohibits political propaganda on election day and on the day before. Although AGCOM is not competent for ascertaining infringements of said prohibition, it considers important to call everyone to turn the attention on these provisions. Indeed, they are important to guarantee effective protections of the constituents. As such, in the Authority’s opinion, the prohibition applies to all media. Clearly, the law applies to internet platforms. What is not clear is whether the prohibition as applied to web pages is against "adding content", or does it require the elimination of previously-distributed content and scrubbing of links to such content. Perhaps the matter will be clarified in court one day. | Only Parliament has the power to define crimes in law (well, also in the UK there are common law crimes, where ages ago the courts defined punishable wrongs). The police have the power to enforce existing law, but not the power to create new crimes. Part of police power is the power to use force to enforce laws. If a person is trying to kill another (which is a crime), the police can use force to stop the person from committing this crime. Police power can be statutorily encoded (Parliament passes a law saying what police can and cannot do), or it could be part of common law. As for laws regulating a suspect, there may be a specific statutory prohibition – "you may not reach into your pocket" – or there is a common law inference to be made, that if the police have the power to order you to not reach into your pocket you may be forced to comply. The subtle distinction here is that if it is a crime to reach into your pocket when told not to, you can be prosecuted and imprisoned. If there is no such crime, you just have the consequence that you can be roughed up to some extent for disobeying the police order. One act of Parliament is the Offences against the Person Act 1861 §38 which says Whosoever . . . shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, NB "assault" does not require physical contact: creating apprehension suffices. Another law is the Police Act 1996 §89 which says Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both These laws do not exhaustively list all of the things that are forbidden (e.g. they do not say "may not bite. nor scratch, nor kick..."), instead, the prohibitions fall under the general rubric of assault and resisting. Under the circumstances, it is possible that the person could be criminally prosecuted, but even in lieu of a prosecution, it is strongly probable that the police use of force in this instance was lawful. One would have to await the outcome of investigations and litigation to know for sure. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | 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. | I finally found the actual transcript of the voir dire part of the case mentioned in the question. http://www.groklaw.net/articlebasic.php?story=2012090614295190 As can be evidenced from the transcript, the judge has specifically instructed the two jurors working as engineers at the local tech companies that they'd have to "forget" what they know about both the software engineering and the patent law itself, too, starting their work on the whole case with a completely clean sheet, using a very simple criteria for making decisions: One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide. Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here. Then, after a short break and a consultation with the lawyers, where Oracle seems to have expressed some concern to having the computer experts be on the panel, which subsequently prompted the judge to declare the following to the two potential jurors who worked at Cisco and HP: So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying? You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works. Since both jurors had so much software and patent experience that they couldn't disregard it easily, they were thus both excused (page 95 of 224). All right. I think it would be too hard for you to sit in this case and sort out what you knew already against what is proven or not proven here, and itwould not be fair to the parties to have that extra burden even though you two actually know something about the subject. It's in a way too bad, but it's for the best. So you two are excused to go back to the jury assembly room. Thank you. The other instructions that the judge gives to the potential jurors is also worth reading (starts on page 36 of 224) The full transcript is at http://www.groklaw.net/pdf3/OraGoogle-942.pdf. In summary -- jurors are only allowed to talk to one another when the deliberation process starts, and, no, they are not allowed to bring any "baggage" to the case at stake. | It is not entrapment because entrapment must be done by officers of the State (police usually). A member of the public inducing another to commit a crime is not entrapment and not a defense to having committed it. Entrapment is a "thing" in Ireland as it is in all common law jurisdictions, however, the specific limits on what police can and cannot do vary by jurisdiction. Police posing as underage children to catch pedophiles is legal throughout Australia (i.e., not entrapment). Police are more restricted in Canada and the USA but I believe that online "trawling" by police is legal in those jurisdictions too, however, they must remain more "passive" than Australian police. Yes, there is a crime being committed, the crime of attempting to engage in underage sex. It doesn't matter that the actual crime attempted is impossible to commit because the "victim" is not actually underage. Evidence is evidence – it doesn't matter who collects it. However, amateurs in the handling of evidence are more likely to botch it up in a way that would allow the defense to have it ruled inadmissible than professionals (although even they can botch it up). | 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. |
What is the legal basis of diplomatic immunity? I'm guessing there was an intentional convention/treaty on universal diplomatic protocols (is it one of the Vienna conventions?) But suppose one sued or prosecuted a diplomat in a court of the host country; what legal basis would the judge dismiss it on? Must the international treaties be implemented as domestic laws adopted by the national legislature? Such as the GDPR is implemented in the Data Protection Act 2018 in the UK, and the ECHR is in the Human Rights Act 1998 for England, Wales and Northern Ireland. Is there a more general principle that states that domestic courts can only cite national statutes and not international agreements directly? I'm thinking tangentially of judge baraitsers dismissals of appeals to us UK extradition treaty's clause barring extradition on political offences of last year. Conversely and for perspective I suppose that the American constitution hails ratified international agreements as also the law of the land..? | You are indeed thinking of the Vienna Convention on Diplomatic Relations of 1961. This codified a portion of existing customary international law on diplomatic immunity. It is the result of several years of legal negotiations at establishing a common set of rules that would be generally acceptable. The basic concept of immunity for ambassadors is very ancient, and there is still a body of customary international law that was not codified. For example, the 1961 Convention only deals with permanent missions, not temporary ones like for multinational summits. The history and practice are also helpful for interpreting the Convention itself, such as when considering the scope of diplomatic duties which are protected, as opposed to extracurricular activities which might not be. In the UK, the Convention is implemented by the Diplomatic Privileges Act 1964. This mostly repeats the relevant parts of the Convention text, in Schedule 1, and also includes sections integrating those provisions with domestic law. As far as the courts, section 4 says that If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. This means that what happens procedurally in a UK court is that someone wanting to claim immunity must come with a letter from the Foreign Secretary attesting that they are a real diplomat and not just making it up. The court then considers, from that fact, what legal consequences follow, depending on the type of diplomat involved (e.g. heads of mission have broader protection), the nature of the case (criminal case where the diplomat is accused? civil case where they are the respondent?), etc. That is a matter of interpreting the Convention, plus maybe customary international law - it doesn't mean the diplomat gets to wave their certificate and end the proceedings. The purpose of section 4 is to avoid the court entering its own fact-finding process about whether someone is a real diplomat. That is felt to run the risk of the court causing diplomatic offence by accident - consider Israel and Palestine and China and Taiwan for potential pitfalls. The doctrine of "one voice" obliges the courts to follow the executive's lead. Prior to the Act of 1964, diplomatic immunity was covered by several other enactments, but with the same basic model for implementing immunities in court. There were different regimes for Commonwealth countries and others, which is not the case any more. The first such Act was passed in 1708 after an embarrassing situation with the then ambassador from Russia, who was imprisoned for his debts, angering the Tsar. In general, domestic courts in the UK can take account of customary international law if it is relevant. They can also look at treaty texts, even ones the UK has not signed, to help interpret international law. (In the same way, they can look at academic articles, travaux préparatoires, etc., which have no formal status as law.) If the UK signed the 1961 Convention but did not pass the 1964 Act, then courts might be able to treat the Convention as "background" - but would still be bound by the 1708-1955 Acts on the topic, as far as the actual procedure and rules to follow. A diplomat would not be able to avail themselves of their specific 1961 rights, unless perhaps there was some gap or ambiguity in the domestic law where they could squeeze in an argument that the Convention supplied the proper interpretation of whichever point of customary international law was involved. | There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ. The host country probably has jurisdiction because a military base, unlike an embassy, is not generally immune from domestic criminal law jurisdiction, although the host country is within its rights to decline to exercise that authority and the status of forces treaty with that country would control. The belief that the military cannot prosecute the perpetrator under the Uniform Code of Military Justice because the perpetrator is a civilian who is not subject to the UCMJ is mistaken, and the easiest way to address the issue may be to point this out to the responsible JAG officers and commanding officers with jurisdiction over the case. Generally speaking, as set forth more fully below, the UCMJ does apply to civilians on military bases. See 10 USC 802(a)(11) and 10 USC 802(a)(12). There is also probably U.S. civilian criminal law that is applicable to civilians on a military base much like other federal territories. Historically, these offenses could be presided over in ambassadorial courts of the U.S. ambassador to the country in question, but the current practice is for such prosecutions to be made by the Justice Department before a U.S. District Court judge (I believe from the U.S. District Court for the District of Columbia, although I may be mistaken on that point). Who Is Subject To The UCMJ? Section 802 of Title 10, set forth in the block quote below expressly states who is subject to the Uniform Code of Military Justice. Mostly, the UCMJ applies to members of the U.S. military, broadly defined, with some of the potentially close cases described with specificity. A lot of the detail in this definition goes to the issue of when non-active duty military personnel (1) are subject to the UCMJ, (2) are subject to state versions of the UMCJ in lieu of the UCMJ, or (3) are not subject to the UCMJ at all. The UCMJ also applies to some civilians and people who belong to other military forces, most of which involve (1) people who are civilian employees of the military or civilian military contractors, (2) civilians and members of foreign militaries who are traveling with the military or present on military bases, and (3) prisoners of war broadly defined. These exception cases are emphasized in bold in the blockquote setting forth 10 USC § 802 below. (a) The following persons are subject to this chapter: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it. (2) Cadets, aviation cadets, and midshipmen. (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (4) Retired members of a regular component of the armed forces who are entitled to pay. (5) Retired members of a reserve component who are receiving hospitalization from an armed force. (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial. (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces. (9) Prisoners of war in custody of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field. (11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war. (b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. (c) Notwithstanding any other provision of law, a person serving with an armed force who— (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. (d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of— (A) a preliminary hearing under section 832 of this title (article 32); (B) trial by court-martial; or (C) nonjudicial punishment under section 815 of this title (article 15). (2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was— (A) on active duty; or (B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President. (4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces. (5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not— (A) be sentenced to confinement; or (B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)). (e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2)) | No. There are almost no constitutional lawyers (at least, that I have seen make pronunciations on the subject) who seem to think that this is a serious means of forcing a no deal Brexit; such an attempt would be obviously unconstitutional and would almost certainly be injuncted in court within hours of such an order being issued. Orders of council cannot stymie an Act of Parliament, this is a well established constitutional principle. See https://davidallengreen.com/2019/09/brexit-padfield-and-the-benn-act/ | "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). | 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. | If the FBI has reason to believe they have committed a crime under US law Being an official of a foreign (or domestic) government in a military or civilian capacity does not make a person immune from US law except in the specific case of diplomatic immunity. There are some US laws that apply even if the perpetrator is not and has never been in the US, for example, computer hacking and fraud. So, if the FBI has probable cause they can ask for and get an arrest warrant. If the US were at war with this person’s country then, barring war crimes or crimes against humanity, military action against the US is not a crime. Naturally, exactly the same circumstances apply to US citizens vis-a-vis foreign laws. | The general answer is "yes." Who ever said that only one set of laws applied? Jurisdiction isn't a matter of "one country's laws matter here, let's find out which one it is." All jurisdiction means is that your laws apply to the conduct, not that no one else's can as well. Broadly, there are a few sources of jurisdiction that are generally considered legitimate (to at least some degree) in international law: Territoriality: You have jurisdiction over actions performed in your territory. You also have jurisdiction over crimes where just one part of the crime happens in your jurisdiction (e.g. standing in country A and shooting someone in country B), or even if it just has a significant effect in your territory. Nationality: You have jurisdiction over crimes committed by your citizens anywhere in the world, regardless of whether or not they were breaking the law of wherever they were. Passive personality: You have jurisdiction over crimes committed against your citizens anywhere in the world. Protective: You have jurisdiction over crimes directly harming core state interests, like counterfeiting your passports or sabotaging your warship. Universal: A handful of crimes (like piracy or genocide) are so serious that every country in the world can exercise jurisdiction. If you catch a pirate, you can punish them. These are accepted to different degrees. Passive personality and protective jurisdiction tend to be iffier; territorial jurisdiction is unquestioned (although if it's just based on effects in your territory, it becomes a bit iffier as well). But any of them can be a basis for jurisdiction. If multiple countries have jurisdiction, whoever actually has the offender decides who will try them (jurisdiction to make an arrest is limited to the country in which the arrest is made). So: If you're located in a country, you have to comply with their laws, and they can regulate just about whatever they want, including what you're doing to foreign computers. The foreign country can also generally regulate what you're doing, because part of what you're doing is happening on their territory. Even if both you and the computer are in a foreign country, you may have to answer to the courts of your country of citizenship. Depending on what exactly you're doing, the protective principle may come into play. For instance, if you hack into a computer on a foreign military base, the foreign country could prosecute you for endangering their security. If you're coordinating a genocide, universality applies and anyone can prosecute you. If you hack the computer of a foreigner, passive personality may apply, although this tends to be controversial. | Julian Assange's current litigation is an appeal to the High Court, pursuant to section 108 of the Extradition Act 2003, against the Home Secretary's extradition order of 17 June 2022. The procedure for extradition appeals to the High Court is set out in section 3 of Part 50 of the Criminal Procedure Rules 2020. Rule 50.20 requires Assange to apply for leave to appeal by filing an appeal notice which identifies his grounds of appeal. There is also a requirement to file skeleton arguments under Practice Direction 50E in Division XI of the Criminal Practice Directions 2015. Rule 50.30 provides for an extradition appeal to be determined in appropriate cases by a divisional court. That is what happened in the last appeal, United States of America v Assange [2021] EWHC 3313 (Admin). The "specialist court within the King's Bench Division of the High Court" which determined that case is known as the Administrative Court. The Administrative Court is quite similar to the Court of Appeal and its senior members sit on both courts. The last appeal was determined by the Lord Chief Justice and a Lord Justice of Appeal. So, it would not be surprising if the orders made for case management of this Administrative Court proceeding adopted the practice of the Court of Appeal. The practice of "perfection of grounds of appeal" is described in section A8 of the Court of Appeal Criminal Division Guide to Commencing Proceedings (July 2021). In that jurisdiction, perfected grounds "consist of a fresh document which supersedes the original grounds of appeal and contains inter alia references by page number and letter (or paragraph number) to all relevant passages in the transcript," which may not be available when the grounds are first prepared. Practice Direction 50A emphasises the importance of expedition in extradition appeals, especially "where the issues are such that further information from the requesting authority or state is needed." It is likely that the case management orders made in Assange's appeal allowed him to file some initial grounds of appeal and later "perfect" them, possibly after receiving documents that were not available when the grounds were first lodged, or a grant of leave to appeal. This accords with the normal use of the verb "to perfect" in legal contexts (eg. the perfection of a judgment or security interest), which the Oxford English Dictionary defines as: To complete or finish successfully; to carry through, accomplish. In early use also: † to bring to fulfilment or full development (obsolete). Now chiefly Law and Finance. |
Are there law firms that reputedly specialize in techniques or functions, rather than subject matter? By "subject matter" I refer to branches of law such as torts, criminal law, environmental law, etc. By "techniques or functions" I refer to things like cross-examination, or forensic analysis, that is constructing fact sets or time lines to beat the opposition. Or the following: Suppose I'm dealing with an opponent who has made mutually inconsistent or contradictory assertions in previous proceedings. Are there law firms that specialize in catching and highlighting such inconsistencies in court? | I think what you're talking about is probably quite rare. There are certainly law firms that market their ability to thoroughly investigate the facts, aggressively question or impeach hostile witnesses, present compelling evidence at trial, or make persuasive oral arguments. But I don't think I've ever heard of a firm that treats any particular litigation tactic as its specialty rather than treating it as part of its specialization in domestic relations, DUI defense, employment law, etc. If you think of litigating at different stages of a case as "techniques or functions," then I'd point to the various firms that consider themselves trial specialists, or appellate specialists, or even Supreme Court specialists. Even then, though, any of those specialties is going to involve a variety of discrete techniques or functions. A trial lawyer needs to do investigations and cross examinations and closing statements, and a Supreme Court specialist needs to be able to petition for cert, draft merit briefs, and give oral arguments. | In the common law (The legal system used by the U.S. among many other nations), courts are "adversarial" as opposed to "Inquisitorial" like in Civil Law systems. What this means is that when in court the prosecutor and defense are pitted against each other in debating the questions of the case. All questions can be boiled down into questions of law and questions of fact. This is opposed to an inquisitorial system, where the prosecutor, defense, and judge are working to answer these questions in a fact finding forum. Because of this, in Common law, the judge takes the role of "Trier of Law", i.e. he is the arbiter of what the law says. The Jury will talk the role of "Trier of Fact". Essentially, if the prosecutor and defense attorneys are in a competition against each other, the judge will serve as the referee and decide whether something is allowed to be discussed in trial and whether the jury should count it. Because of this, the judge cannot call out objectional behavior by one side or the other as it would call into question his/her ability to be neutral in his assessment of the law. Thus it is the burden of the opposing party to object to something that is objectional. Failure to object means that the the side that should object is okay with this activity by opposing counsel, so the judge must allow it. Sometimes, objections are raised at trial for the sole reason that they will be part of the appeal of the case. Appeals can only call raise Questions of Law, which again, is the judge's domain. Thus the judge can't object, since we operate on the fact that the judge is neutral. If the judge is not neutral, than the case can be overturned easily by an appellant court. Essentially, the "Objection" is similar to a coach playing sportsball asking a ref to review a play on the sportsball field. Under this game rule, however, the judge is there to make the call if and only if he/she is asked to make it. Otherwise the objectionable action is permitted to stand. | Yes. Lawyers are generally subject to a malpractice lawsuit, essentially the same as doctors and other professions. A successful claim generally requires proof that the lawyer's services fell below the standard of care for attorneys, and that it resulted in some injury to you. | This is a great question because it's a useful vehicle for understanding a cross-cutting principle of law: baselines and exceptions. I find that thinking of law as a system of baseline rules and exceptions to these rules is a great way to organize and make sense of the mess that is 'the law.' A police officer testifying about what you told them, whether it helps you or hurts you, is hearsay. So, as you correctly pointed out, the baseline assumption is that that testimony can't come in. But, the hearsay rule is famous for having a ton of exceptions to it. Two relevant exceptions here are: (1) statements against interest, and (2) prior inconsistent statements. If what you told the police officer was a direct admission of liability, or a statement that contradicts the theory of the case that you're presenting to the jury, either or both of these exceptions are going to kick in and make that hearsay admissible. These exceptions are not going to kick in, however, for hearsay statements that help you. A humorous, but related, aside, is that there's some jurisdictional differences in how far the 'statements against interest' exception goes. In some jurisdictions it only applies to admissions of liability, but in other jurisdictions it also applies to simply embarrassing statements. My evidence professor illustrated this by, out of the blue, mind you, saying, in class, "I stopped wetting the bed when I got to college," and then explaining that in the latter type of jurisdiction, that statement would be admissible. He then paused after the class had finally stopped laughing and said "that's not true, by the way...I stopped in high school." | I'm 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. | can you hire a witness as your lawyer to exclude their testimony? That is pure fiction and misleading. Unfortunately scenes like that contribute to keep people ignorant about the law, which then makes it easier for courts to dissimulate their recurrent miscarriage of justice. But Purdue University v. Wartell, 5 N.E.3d 797 (2014) is an example where the Indiana courts did the right thing, and is pertinent to your question. There, Purdue University first assigned an investigator in regard to plaintiff's grievance, and thereafter the University tried to withhold information under pretext that the investigator was also its lawyer and thus that the information was protected by the privilege. Because that person hitherto had been portrayed only as an independent investigator, the Indiana courts concluded that Purdue University was estopped from invoking the attorney-client privilege (as well as the work-product doctrine). Thus, the guy in the film or series who said to be "screwed on Kardashian" reflects pure cluelessness about how the law supposedly operates. I have not seen the plot of that film or series, but the information that the friend-lawyer obtained prior to becoming O.J.'s attorney would not be protected by the privilege because it was not obtained in preparation for O.J.'s defense. If there were one star witness on the opposing side and they happened to be a lawyer, could you simply pay them off by hiring them as your lawyer? This question is somewhat unclear to me, but I will mention that lawyers have a duty to disclose to their potential or actual client any conflict of interests. The rules of so-called "professional conduct" discourage lawyers to ignore conflict of interests in that this conflict may impair their "services". And, as I explained previously, any information that a lawyer obtains as witness rather than as attorney in the matter is not protected by the privilege. Thus, as for If you committed a crime at a law-firm and everyone who witnessed it was a lawyer, is there any rule preventing you from just hiring all of them? the answer is: Nothing prevents the criminal from hiring all of them, but that information is not protected. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | No, but the USA is special! In COMPARATIVE LITIGATION RATES from HARVARD, JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS, the authors J. Mark Ramseyer & Eric B. Rasmusen argue that for routine normal cases, the US is no more or less litigious than anywhere else in the developed world, specifically, they make comparisons with Australia, Canada, France, Japan and the UK. However, they do say: Why, then, the American notoriety? It does not result from the way the legal system handles routine disputes. Instead, it derives from the peculiarly dysfunctional way courts handle several discrete types of disputes. In several discrete areas, American courts function in a manner one can only describe as disastrous. American courts have made the bad name for themselves by mishandling a few peculiar categories of law suits. In this article, we use securities class actions and mass torts to illustrate the phenomenon, but anyone who reads a newspaper could suggest alternatives. This strange and peculiarly American phenomena of courts making huge payouts for a small number of cases skews perception of risk and leads to, for example, US hotels dismantling water slides. |
When Does A Vehicle in Repossession Status Become GTA? My question is when does a vehicle in repossession status become Grand Theft Auto? I'm an IT professional living in Oregon where I work for a gov't agency. Around January 2019, my co-worker, "Joe" had a mid-life crisis. He got divorced, quit his job and flew overseas to live with a woman he met on-line. About 2 weeks ago, Joe returned. He's trying to find an IT job and eventually bring his fiancee over. My supervisor had lunch with him. Before Joe left, he told us he had bought 2 used vehicles. My supervisor said that Joe told him that he stopped paying on them when he left the country. He just called the loan company and asked if he could start paying on them. They said he could but it was too late - the repo paperwork had been issued. Joe is living on a friend's rural property outside of town. He has the vehicles stashed there. It doesn't sound like he's going to turn them in. I'm concerned that if he gets charged with two felonies, he'll have trouble getting a job flipping burgers, much less an IT job. | A car loan is technically called a "secured debt" and some states have a law called "defrauding a secured creditor", or something similar, that can cause mere failure to pay a debt or to voluntarily deliver the collateral to the creditor to become a type of theft or another crime in some circumstances. Usually, even then, there must be evidence of an intent to defraud the creditor and not merely an intent to fail to perform a promise to a creditor. For example, in Colorado there is a criminal offense entitled "Concealment or removal of secured property" at Colorado Revised Statutes § 18-5-504 which states: If a person who has given a security interest in personal property, as security interest is defined in section 4-1-201(b)(35), C.R.S ., or other person with actual knowledge of the security interest, during the existence of the security interest, knowingly conceals or removes the encumbered property from the state of Colorado without written consent of the secured creditor, the person commits a class 5 felony where the value of the property concealed or removed is one thousand dollars or more. Where the value of the property concealed or removed is less than one thousand dollars, the person commits a class 1 misdemeanor. But, the default position at common law and under the Uniform Commercial Code, is that merely passively not paying a debt or passively not turning over collateral for debt to a creditor is not a crime. | If the common law applies (i.e. there is no statute that changes it) then it depends on if the item was lost, mislaid or abandoned. The US has statute law dealing with lost money but that is not the question here. Property is generally deemed to have been lost if it is found in a place where the true owner likely did not intend to set it down, and where it is not likely to be found by the true owner. At common law, the finder of a lost item could claim the right to possess the item against any person except the true owner or any previous possessors. Property is generally deemed to have been mislaid or misplaced if it is found in a place where the true owner likely did intend to set it, but then simply forgot to pick it up again. For example, a wallet found in a shop lying on a counter near a cash register will likely be deemed misplaced rather than lost. Under common law principles, the finder of a misplaced object has a duty to turn it over to the owner of the premises, on the theory that the true owner is likely to return to that location to search for his misplaced item. If the true owner does not return within a reasonable time (which varies considerably depending on the circumstances), the property becomes that of the owner of the premises. Property is generally deemed to have been abandoned if it is found in a place where the true owner likely intended to leave it, but is in such a condition that it is apparent that he or she has no intention of returning to claim it. Abandoned property generally becomes the property of whoever should find it and take possession of it first, although some states have enacted statutes under which certain kinds of abandoned property – usually cars, wrecked ships and wrecked aircraft – escheat, meaning that they become the property of the state. For your specifics: If I purchase merchandise in a physical store, and then (accidentally or not) leave the merchandise at the store after I've paid for it, is the store allowed to resell that merchandise to another customer? This would be mislaid property and if they cannot find you and you do not return to claim it after a reasonable time (which would be different for a Mars bar and a Boeing 747) then it is theirs and they can do what they want with it: including sell it to someone else. How does this scenario differ from leaving personal items at the store that I purchased elsewhere? It doesn't. | California Vehicle Code, division 3, chapter 1, article 1, section 4000: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. (Section 38010 defines "off-highway vehicles", essentially agricultural, construction, and other vehicles that are never driven on state roads) Article 2, section 4156: (a) Notwithstanding any other provision of this code, and except as provided in subdivision (b), the department in its discretion may issue a temporary permit to operate a vehicle when a payment of fees has been accepted in an amount to be determined by, and paid to the department, by the owner or other person in lawful possession of the vehicle. The permit shall be subject to the terms and conditions, and shall be valid for the period of time, that the department shall deem appropriate under the circumstances. Article 7, section 4850: The department, upon registering a vehicle, shall issue to the owner two partially or fully reflectorized license plates or devices for a motor vehicle, other than a motorcycle, and one partially or fully reflectorized license plate or device for all other vehicles required to be registered under this code. The plates or devices shall identify the vehicles for which they are issued for the period of their validity. Article 9, section 5202: A license plate issued by this state or any other jurisdiction within or without the United States shall be attached upon receipt and remain attached during the period of its validity to the vehicle for which it is issued while being operated within this state or during the time the vehicle is being held for sale in this state, or until the time that a vehicle with special or identification plates is no longer entitled to those plates; and a person shall not operate, and an owner shall not knowingly permit to be operated, upon any highway, a vehicle unless the license plate is so attached. A special permit issued in lieu of plates shall be attached and displayed on the vehicle for which the permit was issued during the period of the permit’s validity. Divsion 17, article 1, chapter 1, section 40000.1: Except as otherwise provided in this article, it is unlawful and constitutes an infraction for any person to violate, or fail to comply with any provision of this code, or any local ordinance adopted pursuant to this code. In short, yes, you need a license plate or equivalent temporary registration permit to drive on the highways; California is a bit unusual in that it requires license plates for parked vehicles as well. | A financial institution (including a pawnbroker) cannot unilaterally change the terms of an agreement and obeying the law. This section in particular limits the interest rate to 2% per month. It would be illegal and a misdemeanor to raise the interest rate above the statutory limit. They also cannot change (shorten or lengthen) the maturity date of the loan, nor can they obligate you to wait until the maturity date to pay off the loan. They are in a bit of a bind if they lost their FFL. There is nothing illegal about transferring inventory to another store. They cannot compel you to redeem the item immediately, and you cannot compel them to violate the law and keep the item without the required license. In case what happened is that you went past the original maturity date because there is no viable public transportation to the new location and you've gone over the 30 day "grace" period (hence the extra charges), you might successfully argue in (small claims) court that the shop is responsible for your tardiness. The fact that the item is located 40 miles away is not per se an unconscionable burden on you, but if it is impossible or very expensive for you to get there because of the new location, they could have some responsibility to mitigate the situation (e.g. give you a ride to and from). | My recollection is there's a big difference between money and property. I found a 1929 law journal article that supports my recollection. The owner of stolen property is entitled to have it returned. If the person who obtained it from the thief didn't know it was stolen, the person didn't commit a crime, but must give up the property and is not entitled to any compensation (unless the person can get compensation from the thief). A person who innocently receives money is the holder in due course, and gets to keep it. The victim's only recourse is to get compensation from the thief. | You didn't consent to being ripped off. You did however fail to grasp the terms under which you were permitted to park on their property, and you failed to pursue an alternative (such as looking for change; using a credit card). It is possible that you should have known that this was a no-change-given machine, since one can often see that there is no mechanism on these machines whereby you can actually get change. However, if you have clear proof that you owed $6 and you paid $10, then 4 of those dollars are properly yours, and there is a reasonable chance that you could prevail in a suit against them. There is even a greater chance that they would refund the difference, just as a sensible business practice. "Exact change" is legal and can even be the law, especially in government-run transportation systems. | Yes, in Florida Florida Statutes Title XL Section 715.07 provides: (2) The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances: (a) The towing or removal of any vehicle or vessel from private property without the consent of the registered owner or other legally authorized person in control of that vehicle or vessel is subject to substantial compliance with the following conditions and restrictions ,,, Subsection (2) goes on to specify how close the towing firm must be located to the site from which the towing occurs, required notification of local police, requirement to stop towing if an owner appears and pays the specified fee while towing is in progress, prohibition of kickbacks, required signage warning of a tow-away zone, required responsiveness of the towing and storage company to requests for recovery of the towed vehicle, signage on the tow truck, liability for damage to the towed vehicle, and other things. Subsection 2 paragraph g also provides that: A business owner or lessee may authorize the removal of a vehicle or vessel by a towing company when the vehicle or vessel is parked in such a manner that restricts the normal operation of business; and if a vehicle or vessel parked on a public right-of-way obstructs access to a private driveway the owner, lessee, or agent may have the vehicle or vessel removed by a towing company upon signing an order that the vehicle or vessel be removed without a posted tow-away zone sign. Subsection (3) prohibits towing under this section of: law enforcement, firefighting, rescue squad, ambulance, or other emergency vehicles or vessels that are marked as such ... So under 715.07 (2) (g) a car placed as described in the question, which would seem to be "obstruct[ing] access to a private driveway" may be towed if the "owner, lessee, or agent" engages a towing company who complies with the various requirements to do so. The owner or "person in control" of the car will have to pay a fee (half price if such a person appears before the towing is complete), the property owner does not (and may not) pay, but is liable if damage is done to the vehicle that is towed. As for best practices, while an "obstructing" vehicle may be towed even in the absence of any signage, placing signs as described in detail in 715.07 (2) might be a good idea, as it places drivers clearly on notice, and avoids any argument about whether a vehicle is "obstructing" or not. Since such signs must include the telephone number of the towing company, selecting a company in advance is needed before posting such signs. There is apparently no need to call the police to order such a tow. If possible it might be a good idea to notify the driver personally as well. The person ordering the tow must be the "owner or lessee" of the property, or be authorized by the owner or lessee. It would be a good idea for there to be a written authorization. There is no mentio0n of an HOA in the law. An HOA or an officer of an HOA could be an "agent". HOA rules or bylaws are apparently not required. Yes, in Maryland For comparison, I checked the state law for Maryland on the same subject. It has a law generally similar, Although different in detail, to the Florida law. As in Florida, the property owner or owner's agent may order the towing, with no need to call the police or obtain a court order in advance. As in Florida, there is specific required signage. As in Florida, the vehicle owner must be notified. As in Florida, there are a number of specific requirements imposed on a towing company which performs such tows, and the obvious assumption is that there will be companies who do such towing on a regular basis. The page "Key Provisions in the New Maryland Towing Law" (posted by a law firm that represents community associations) gives a detailed summery of the law, including additional laws in specific counties. The actual state law is at Maryland Code, Transportation § 21-10A-04. It provides that: (a) Unless otherwise set by local law, a person who undertakes the towing or removal of a vehicle from a parking lot: (1) May not charge the owner of the vehicle, the owner's agent, the insurer of record, or any secured party more than: (i) Twice the amount of the total fees normally charged or authorized by the political subdivision for the public safety impound towing of vehicles; (ii) Notwithstanding § 16-207(f)(1) of the Commercial Law Article , the fee normally charged or authorized by the political subdivision from which the vehicle was towed for the daily storage of impounded vehicles; (iii) If a political subdivision does not establish a fee limit for the public safety towing, recovery, or storage of impounded vehicles, $250 for towing and recovering a vehicle and $30 per day for vehicle storage; and (iv) Subject to subsection (b) of this section, the actual cost of providing notice under this section; (2) Shall notify the police department in the jurisdiction where the parking lot is located within 1 hour after towing or removing the vehicle from the parking lot, and shall provide the following information: (i) A description of the vehicle including the vehicle's registration plate number and vehicle identification number; {other specified ID information} (3) Shall notify the owner, any secured party, and the insurer of record by certified mail, return receipt requested, and first-class mail within 7 days, exclusive of days that the towing business is closed, after towing or removing the vehicle, and shall provide the same information required in a notice to a police department under item (2) of this subsection; (4) Shall provide to the owner, any secured party, and the insurer of record the itemized actual costs of providing notice under this section; (5) Before towing or removing the vehicle, shall have authorization of the parking lot owner which shall include: (i) The name of the person authorizing the tow or removal; (ii) A statement that the vehicle is being towed or removed at the request of the parking lot owner; and (iii) Photographic evidence of the violation or event that precipitated the towing of the vehicle; (6) Shall obtain commercial liability insurance in the amount required by federal law ...; (7) May not employ or otherwise compensate individuals, commonly referred to as “spotters”, whose primary task is to report the presence of unauthorized parked vehicles for the purposes of towing or removal, and impounding; (8) May not pay any remuneration to the owner, agent, or employee of the parking lot; and (9) May not tow a vehicle solely for a violation of failure to display a valid current registration under § 13-411 of this article until 72 hours after a notice of violation is placed on the vehicle. Other US States Michigan Section 257.252d provides that: (1) A police agency or a governmental agency designated by the police agency may provide for the immediate removal of a vehicle from public or private property to a place of safekeeping at the expense of the last-titled owner of the vehicle in any of the following circumstances: ... (c) If a vehicle is parked in a posted tow away zone. ... (g) If the vehicle is hampering the use of private property by the owner or person in charge of that property or is parked in a manner that impedes the movement of another vehicle. Section 257.252e provides that: (1) The following courts have jurisdiction to determine if a police agency, towing agency or custodian, or private property owner has acted properly in reporting or processing a vehicle under section 252a, 252b(6) to (11), or 252d: (a) The district court. (b) A municipal court. Section 257.252k provides that: Except as otherwise provided in section 252l, an owner or lessor of private real property shall post a notice that meets all of the following requirements before authorizing the towing or removal of a vehicle from the real property without the consent of the owner or other person who is legally entitled to possess the vehicle: [Goes on to specify the size, placement, and content of required signage. These are not highly different from the Florida law.] So it appears that an obstructing car could in circumstances similar to those in the question could be towed in Michigan, but the police might have to be called. 257.252k seems to imply that the property owner can authorize towing, but 257.252d seems to require polite involvement. New Jersey NJ Code 13:45A-31.6 (Towing motor vehicles from private property) provides that: (a) A private property towing company shall not remove a motor vehicle from private property without the consent of the owner or operator of the motor vehicle, unless: The private property towing company has entered into a written contract with the owner of the private property to provide private property towing services; The owner of the private property has posted a sign, in a conspicuous place at each vehicular entrance, at least 36 inches high and 36 inches wide stating: i. The purposes for which parking is authorized and the times during which such parking is permitted; ii. That unauthorized parking is prohibited and unauthorized motor vehicles will be towed at the owner's expense; iii. The name, address and telephone number of the private property towing company that will perform the private property towing; ... [Several other things that must be included on the sign] The property owner has authorized the private property towing company to remove the motor vehicle; and The private property towing company tows the motor vehicle to a secure storage facility having the capacity to receive it that is nearest to the site from which the motor vehicle is towed. (b) The provisions of (a) above shall not apply if a motor vehicle is parked: On a lot or parcel on which is situated a single-family unit; On a lot or parcel on which is situated an owner occupied multi-unit structure of not more than six units; or In front of any driveway or garage entrance where the motor vehicle is blocking access to that driveway or entrance. So the NJ laws are roughly similar to those of Florida and Maryland, and do not require police authorization in such a case, and where the vehicle is "blocking access to [a] driveway or entrance." no signage seems to be required for towing to be legal. The NJ laws quoted above and other related laws are included in "Private Property and Non-Consensual Towing Companies; NJAC 13:45A-31.1 to 31.10" a PDF from the NJ Division of Consumer Affairs | Yes, in Orange County, CA, in a residential zone or on residentially-developed property, this is a code violation. Specifically you are looking at Title 3, Division 13, Article 1, Sec 3-13-4(11): Sec. 3-13-4. - Prohibited Conduct. Except as provided in section 3-13-6, exemptions, it shall be unlawful for any responsible party having charge or possession of any real property in county territory to:... (11) Keep, store, or maintain upon any premises under his/her control any abandoned, wrecked, dismantled, or inoperative vehicle, or part thereof, except as permitted by Table 3-13-6(c). You may store/work on this vehicle from a building or location that is not visible from the street, but you cannot work on or store the vehicle on the street or driveway. You might also be able to erect a 6' tall opaque fence around the car, provided the fence meets standards. The code making this illegal is a county ordinance for Orange County, CA, which is not applicable to other counties in California (other counties/cities may have their own ordinances). Codes which cover this sort of activity are generally made at the county or city level. They vary dramatically from location to location, and are often different based on the zoning of the property within the county or city. |
What is the name of a U.S. Supreme Court decision holding that government cannot conspire with private companies to censor protected speech? There was a supreme court decision that said that the government can't conspire with private companies to censor. Can anyone tell me the name of the case? | I'm not convinced that there is a U.S. Supreme Court case with such a clear holding. For example: May a private entity running a public access channel ban speakers based on the content of their speech—something a government entity running the same channels could not do? Yes, the Supreme Court held in a 5-4 opinion in Manhattan Community Access Corporation v. Halleck (2019). Why? Because the First Amendment doesn’t apply to private entities in this instance. You may be looking for one of the cases discussed in Halleck which notes (in the official syllabus) that: "A private entity may qualify as a state actor . . . when the entity exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 [1974]. The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 158 [1978]. Per the official syllabus in the link above, Jackson held that: The convergence between the actions of a state and a heavily regulated private utility company do not rise to the level of state action if the utility company has a partial monopoly in providing electrical service and uses a procedure that the state utilities commission finds to be appropriate under state law in terminating service to customers. As the linked material explains: A private entity performing a public function can be classified as a state actor, but merely being regulated and overseen by the state does not equate to performing a public function if the company is managed by private actors. In this decision, the Court placed limits on the public function doctrine, which otherwise could have grown into a massive exception permitting the inference of state action. Thus, heavy state regulation of a private entity still doesn't constitute state action which can violate a constitutional right, in this case, even though if the state has had greater control over the nominally private entity (e.g. appointing its board of directors), the private entity's actions would be state action. Per the official syllabus in the link above, the primary holding of Flagg Bros. was that: A warehouseman's proposed sale of goods entrusted to him for storage, as permitted by [New York State's Uniform Commercial Code] § 7-210, is not "state action," and since the allegations of the complaint failed to establish that any violation of respondents' Fourteenth Amendment rights was committed by either the storage company or the State of New York, the District Court properly concluded that no claim for relief was stated by respondents under 42 U.S.C. § 1983. In reaching this conclusion, the U.S. Supreme Court reasoned that: The challenged statute does not delegate to the storage company an exclusive prerogative of the sovereign. Other remedies for the settlement of disputes between debtors and creditors (which is not traditionally a public function) remain available to the parties. Though respondents contend that the State authorized and encouraged the storage company's action by enacting [the statute], a State's mere acquiescence in a private action does not convert such action into that of the State. In other words, enactment of a state statute authorizing private action is not state action that can violate a constitutional right. | most likely The government can't compel people to some sort of speech under the 1st amendment. Forcing a company to host people is compelled speech by the company. It is well established that the government can't compel a newspaper to host its messages as it wants. The key case might be Miami Herald Publishing Co. v. Tornillo 418 US 241 (1974). In this case, it was deemed unconstitutional that a newspaper would need to host speech of a political candidate the newspaper didn't like in the same amount it had used to disparage that candidate. While the Miami Herald brought the newspaper into the line by the action of the newspaper, Wooley v. Maynard 430 U.S. 705 (1977) held that the state could not force any citizen to host its motto. Or for the matter, any message. The State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. Pp. 71717. Forcing a public web page to host advertisement or speech from any government - or under the threat of the government action - is compelled speech and violates the rulings of Miami Herald, Wooley and other cases. However, there is a little light for the government under PruneYard, Turner Broadcasting and Rumsfeld. However, all of them don't cut here: Turner Broadcasting was about a service provider for radio that did not host its own speech. PruneYard is a shopping center that doesn't host its own speech and is only useful in California as there is a California constitution issue. And Rumsfeld dealt with military recruitment, which always is special. A similar Florida law was deemed to be very likely unconstitutional by the (federal) Northern District of Florida (Injunction Text) Addendum A joint lawsuit by NetChoice & CCIA was filed against Texas on 22nd September 2021 (Complaint), asking for a preliminary injunction. NetChoice puts its filings on their website. Further reading: Ken White - Make No Law podcast #11: Deplatformed Ken White - Section 230 Is The Subject of The Most Effective Legal Propaganda I've Ever Seen 01st December 2021 Update Indeed, the relevant parts of HB20 were put out of enforcement via injunction on December 1st, 2021, reasoning that: Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizing that “certain private entities[] have rights to exercise editorial control over speech and speakers on their properties or platforms”). Three Supreme Court cases provide guidance. First in Tornillo, the Court struck down a Florida statute that required newspapers to print a candidate’s reply if a 13 newspaper assailed her character or official record, a “right of reply” statute. 418 U.S. at 243. [...] In Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., the Supreme Court held that a private parade association had the right to exclude a gay rights group from having their own float in their planned parade without being compelled by a state statute to do otherwise. 515 U.S. 557, 572– 73 (1995). [...] Finally, the Supreme Court ruled that California could not require a private utility company to include a third party’s newsletters when it sent bills to customers in Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of California, 475 U.S. 1, 20–21 (1986). HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”). For example, if a platform appends its own speech to label a post as misinformation, the platform may be discriminating against that user’s viewpoint by adding its own disclaimer. HB 20 restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content. For these reasons, IT IS ORDERED that the State’ s motion to dismiss, (Dkt. 23), is DENIED. IT IS FURTHER ORDERED that Plaintiffs’ motion for preliminary injunction, (Dkt. 12), is GRANTED. Until the Court enters judgment in this case, the Texas Attorney General is ENJOINED from enforcing Section 2 and Section 7 of HB 20 against Plaintiffs and their members. Pursuant to Federal Rule of Civil Procedure 65(c), Plaintiffs are required to post a $1,000.00 bond. IT IS FINALLY ORDERED that Plaintiffs’ motion to strike, (Dkt. 43), is DISMISSED WITHOUT PREJUDICE AS MOOT. | The only relevant case heard by SCOTUS is Nixon v. US, 506 U.S. 224, where a federal judge was tried and convicted for actual crimes, but would not resign his position so continued to draw his salary. The key legal question was whether the matter is "justiciable" (meaning, not a political matter but a legal matter). Nixon's argument was that Senate Rule XI violates the Impeachment Trial Clause, and the court held that the question (more specifically what it means to "try") is nonjusticiable. White & Blackmun, and Souter, wrote concurring opinions (which might be called on in a subsequent impeachment case) that reminds the reader (and future court) what was not part of the holding of the court, and what might therefore allow future impeachment review. White writes The Court is of the view that the Constitution forbids us even to consider his contention. I find no such prohibition and would therefore reach the merits of the claim. I concur in the judgment because the Senate fulfilled its constitutional obligation to "try" petitioner. He observes that the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. But, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to "try" impeachment cases. When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being "a bad guy," counsel for the United States answered that the Government's theory "leads me to answer that question yes." Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process. Souter in his opinion states that One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply" 'a bad guy,'", judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. In other words, review of an impeachment is largely but not entirely off the table, at least until SCOTUS declares that impeachments are completely unreviewable, no matter what, period (unlikely to ever happen). | The right to free speech is a right that is guaranteed against the federal and state governments only. It is not a right that is secured against private individuals and corporations. It is also neither absolute nor unconditional, as there are a number of exceptions/limits. Alex Jones could not walk into your home and start "exercising free speech" and leave you with no recourse whatsoever to remove him from your home. If you don't consent to him being there, you may legally tell him to leave and have him removed by force if he fails to comply. Facebook etc. are the "homes" of the relevant corporations. They simply told Alex Jones to get out and go somewhere else. He retains his right to free speech; he simply never had a right to speak wherever he wanted. An always relevant XKCD. | The best course of action for Barr would be to file an objection to the subpoena in the proper court (probably the U.S. District Court for the District of Columbia) under or by analogy to Federal Rule of Civil Procedure 45(d) (which governs disputes over subpoenas in civil cases in the federal courts), if he thinks that there are matters he cannot lawfully divulge or thinks it is improper to divulge even if they are not privileged, and to let a judge decide. Generally speaking, in a civil action, you can only object to a subpoena by following this process and Congress has increasingly used the civil lawsuit discovery process as a benchmark. Failure to file an objection with the proper court, or at least in a response to Congress by the date required in the subpoena to produce the materials, will generally constitute a waiver of the objections that might otherwise have been asserted to the subpoena. Simply not responding without explanation by the due date would be a pretty clear case of Contempt of Congress which is the basis for both a civil action and criminal contempt charges. For example, in the Lynch case, cited below, the Court stated with respect to information that was withheld without any claim of privilege: Failure to provide any grounds for withholding particular records does not comply with the order or enable the Court to resolve defendant’s privilege claims as to those documents. Accordingly, defendant must produce the material withheld without any proffered justification. This said, in any dispute between Congress and the Executive Branch there is always some uncertainty, and the courts strongly favor negotiation and conferral between the parties before bringing these matters to a head. A general discussion of Congressional subpoenas can be found here, recognizing, however, that while there are a variety of grounds for redaction asserted in the Mueller report case, "Executive Privilege" is not among them and so the special considerations that apply to an assertion of executive privilege do not apply. The authority of the judicial branch to resolve these issues has been upheld, for example, in the cases of United States v. Nixon (U.S. 1974) and Committee on Oversight and Government Reform v. Lynch (D. D.C 2016) (both of which involved the more difficult scenario of an assertion of executive privilege in addition to the more ordinary assertions of privileges like the grand jury privilege). Not infrequently, the judge will review the unredacted material in camera (i.e. privately in chambers without showing it to the requesting party) to determine if the claim of privilege or other basis for redaction is really valid (e.g. maybe something that was redacted under the label grand jury testimony is not, in fact, grand jury testimony). But, there is case law to support the notion that Congress would have to demonstrate some specific reason why it doubts the accuracy of the assertions of the executive branch regarding redactions in this particular case to make it necessary for there to be an in camera review. In the Lynch case (which is a non-precedential opinion itself) the Court said: As for whether the redactions are what they purport to be, the Court notes that counsel for even the most disputatious parties are often called upon to trust each other, and that the judiciary relies regularly on declarations by the executive branch that matters redacted from FOIA productions are what they are described to be in the Vaughn index. See Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (holding that district court had not abused its discretion by relying on agency’s Vaughn index and declaration in determining whether a disputed document contained segregable portions); Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may rely on the description of the withheld records set forth in the Vaughn index and the agency’s declaration that it released all segregable information.”). The Court has been provided with no reason to believe that its assistance is needed to verify for counsel for one branch of government assertions made in pleadings by an officer of the court representing another, equal branch of government. If in the end, a neutral is required to read each individual redaction and confirm that what the Department claims is simply a name or a telephone number is in fact a name or a telephone number, the parties can arrange for that on their own. These discretionary issues are likely to be influenced by the partisan leanings of the particular judges involved. Another question is to whom a subpoena could be directed. While attorney-general Barr is one possible person to whom it could be directed, Mueller himself is another possible person to whom a subpoena could be directed and that might lead to a more tractable counter-party in the lawsuit and might simplify some of the conflicts of interest present in a subpoena of the attorney-general himself that in criminal contempt cases is enforceable by his subordinates, i.e. U.S. attorneys, who are required by law to bring such charges. | Because the nations that made the list (which was modified at the time of the SCOTUS hearing) were selected based on their ability to provide the US with documentation for vetting of immigrants (or rather their lack of an ability), not religion, and the courts give the legislature (Congress) and the executive branch (President) wide discretion when matters of security are involved as they are related to foreign relations where the Judiciary have very limited powers. The specifics of the law which the Executive order modifies do not limit the President beyond a bona fide reason for which the selection was made. The court also ruled that the document contains no mention of any religion specifically or any matters pertaining to religion, and that several nations on the list have no Muslim Majority (they cite 2, but I am only aware of Venezuela being on the list). Additionally, the nation of Chad was removed from the list after their standards were brought up to scratch. In the original opinion, they did say that the campaign remarks were considered in that they pointed to the plaintiff's standing in the case (you need to show a potential harm is inflicted on you by the law in order to get a court case. Or in other words, I cannot ask the court to hear a case on rights of a vampire, because I am not a vampire) but found that the request to probe for malice in the minds of the President and his staff was not an area they could tread as there was a good reason for the law and several prominent Muslim Majority nations were not included. Basically, if the government could show that the order was made by some objective standards that neither favored nor disfavored a religion, then it is not a violation of the first amendment. For five of the justices, the government satisfied this requirement.* *Note, I am still reading through the ruling... my PDF of it keeps crashing and I lose my place. | Publishing source code is protected under the First Amendment. Therefore the US government cannot stop anyone from publishing open source software, and once it is available from a web site it is impossible to stop anyone else getting it. However any kind of support contract (such as this) or other commercial arrangement would fall under the definition of "trade" and be banned. Update in response to comments about ITAR. The USA International Traffic in Arms Regulations still cover cryptographic software. However any attempt to prosecute an open source project for publishing cryptographic software would run up against the First Amendment. In 2008 the 9th Circuit found that open source cryptographic software is covered under the First Amendment, and hence the use of ITAR to restrict its publication is unconstitutional. The US government declined to push this case to the Supreme Court, and no other similar cases have arisen since. In the meantime strong open source cryptographic software has been made widely available from within the USA without US government permission (Linus Torvalds is resident in the US). In theory the US government might launch a case against an open source project, win the appeal in another circuit, and hence create a circuit split which the Supreme Court would have to resolve. However they have now had over 10 years to try this, and the longer they wait the less likely such a case is to succeed. | In the united-states, the First Amendment right to freedom of speech generally protects an adult who contacts a minor seeking contact information for her parents. Although there are several exceptions to the right to free speech, this speech falls within none of them. |
How unconventional or precedented was Judge Baraitser's claim that UK-signed international treaties are unbinding or even irrelevant to UK courts? How unconventional or precedented was Judge Baraitser's claim that UK-signed international treaties are unbinding or even irrelevant to UK courts? In ruling on Julian Assange's extradition, she dismissed the defenses contention that extradition for political offences was prohibited under the extradition treaty on the grounds that this provision was not included in the parliament-passed domestic UK legislation that implemented the treaty. It seems contrived that it shouldn't at least be heavily considered in gathering the context and spirit in which the extradition act was passed, even while on the face her legal reasoning that it shouldn't be binding on UK courts as their principal function is to interpret/apply the body of UK law. If it wasn't binding but only admissible as perspective for deducing parliamentary intent, then to dismiss it out of hand anyway suggests a biased political impetus to extradite Assange. Regardless, what is the validity and or precedent for the various components and degrees of this reasoning by Judge Baraitser? | The precedent is very clear and was accurately applied by the judge A treaty does not create domestic law and is only applicable to the extent that it is incorporated into domestic law. She extensively quotes the relevant precedents in the judgement at [42-49]. | Yes, this has come before the Court. Some prominent examples are - Mathieu-Mohin and Clerfayt v Belgium (1987), the first time Article 3 was before the European Court of Human Rights, on the complex Belgian system of balancing French-speaking and Dutch-speaking electoral institutions Matthews v United Kingdom (1999), on whether people in Gibraltar should be able to vote in elections to the European Parliament Hirst v United Kingdom (No 2) (2005), on whether the UK could have a blanket ban on voting applicable to all prisoners Riza and others v Bulgaria (2015), on selective interference with the electoral count In all but the first of these, the Court found a violation of Article 3 of the Protocol. At other times, it has given deference to a State's particular processes, or ruled that a complaint was inadmissible because it did not pertain to the covered type of election. You may be interested to read the Court's guide to its case-law on the topic (a 34-page PDF) which includes many more citations, and an explanation of the legal reasoning involved. | Hate Speech is not a crime in the United States. Rather, they have "Hate Crimes" which are charged only when the prosecution wishes to show that the crime was motivated by hatred of a protected class of people (I.E. the killer shouts a slur at his victim.). They cannot be charged in absence. Spoken word, advocacy for policies that favor one protected class over another, and other signs of hatred are not in and of themselves crimes. Unless a content provider is physically within Australia's borders, their is little legal recourse. The United States does not extradite anyone to a country to face charges for crimes that are not criminal offenses in the United States. Since the site promotes these ideas but has not used the ideas as a motivation to engage criminal activity, they would not extradite the accused individual(s). | See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22). | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | It seems to me that some commentators/articles have inadvertently conflated different legislation and a recent event involving the seizure of equipment from protester Steve Bray in Parliament Square. Some articles about Steve Bray have named or otherwise referred to the Police, Crime, Sentencing and Courts Act 2022 without an explanation of any link between that person and this law - to me there is no link in the context of Bray's equipment seizure (the police may have mentioned other newer powers to Bray). Among other things, section 143 of the Police Reform and Social Responsibility Act 2011 (as amended) explicitly prohibits the unauthorised use of "amplified noise equipment" (including but not limited to loudspeakers and loudhailers) within Parliament Square and (the amendment) "the Palace of Westminster controlled area". Westminster Council provides a map in pdf format of the respective areas: Appendix to Protocol for enforcement of provisions in relation to noise nuisance in the vicinity of Parliament. Before the PRSRA 2011, sections 137 and 138 of the Serious Organised Crime and Police Act 2005 gave the Home Secretary the power to prohibit the unauthorised use of "loudspeakers" in "designated areas" no more than one kilometre around Parliament Square. Part 3 of the Police, Crime, Sentencing and Courts Act 2022 amends the Public Order Act 1986 in relation to "public processions and public assemblies", including clauses related to "noise". Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and created the statutory offence of "intentionally or recklessly causing public nuisance". This more recent legislation has been criticised in relation to protests generally (not solely those that involve megaphones), e.g. by the Joint Committee on Human Rights its witnesses in their scrutiny of the-then Bill. Quote: The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance” which was previously an offence at common law. There is a wide range of non-violent conduct that may be caught by the statutory offence, which potentially criminalises some forms of peaceful protest. The offence carries a maximum sentence of 12 months if tried summarily and 10 years if tried on indictment. A person can also be issued with a fine.77 A number of our witnesses raised concerns about the impact of these changes and its compatibility with Articles 10 and 11 of the ECHR. We share some of those concerns. In summary the explicit prohibition of "amplified noise equipment" is limited to Parliament Square and "the Palace of Westminster controlled area" but one can easily imagine the police claiming that a protester's use of a megaphone is a public nuisance. | Like many other jurisdictions, in the UK sites like the Daily Mail are liable for the content they host. In other words, the legal issue here is they either do not have the staff available to (or simply do not want to) spend the time moderating the comment sections in order to remove potentially defamatory or otherwise illegal content. As Lag added in a comment below: another legal reason may be liability for publishing something that creates a substantial risk of seriously impeding or prejudicing the course of justice in some ongoing legal proceeding. Far easier to prevent it beforehand than moderate it (and risk missing it) later. Content on Twitter (for example, replies to their own tweets), on the other hand, is not the Daily Mail's problem to moderate. |
Is the German embassy in London bound by British accessibility law like the Equality Act 2010? Is the German embassy in London bound by the Equality Act 2010 and cabinet office guidance on medical mask wearing exemptions? The website explicitly state that in order to enter the Passport section of the embassy it is "required to wear a protective face covering (without valve)". Further it mentions that "In order to claim an exemption you will need to present a corresponding medical certificate in your name." So the general question would be whether the German embassy in London is bound by German law or by British law? | Laws of the host country do apply in foreign embassies, but the authorities of the host country may only enforce laws in a foreign embassy by invitation of the foreign diplomatic delegation. So the general question would be whether the German embassy in London is bound by German law or by British law? It is subject to both, but the embassy can decide to what extent British law applies. In the case of a mask mandate imposed by British authorities, the embassy may require its occupants and visitors to comply with the conditions imposed under British law. It could also refrain from imposing such a requirement. In fact, unless German law prohibits a mask requirement, it can impose a mask requirement on its own initiative even if there is none imposed by British law nor German law. Is the German embassy London bound by the Equality Act 2010 and cabinet office guidance on medical mask wearing exemptions? It is not bound, but it may comply voluntarily. | I can't find any specific laws or cases in the United Kingdom. In Australia, bag searches must be consensual - shopkeepers and even security staff have no power to search your person or belongings. It is for this reason that you will often be asked by security staff to open your bag, and move belongings around inside that may obstruct their view. If they attempt to force you to surrender your bags for search by physical force or by intimidation, you may be entitled to bring a claim for the tort of assault and/or battery. You need only prove that these occurred, without actual loss or damage. In any case, they do not have the power to arrest or detain you unless they believe you have committed a crime, and in those circumstances, only reasonable force may be used. You are under no obligation to remain in the store. If they detain you against your will and you are later found not to have shoplifted, you may be entitled to bring a claim for the tort of false imprisonment, which is, again, actionable per se (you need not actually show damages) and serves to vindicate a person's right to liberty. | Yes, it's legal. It would be lawful discrimination on objectively and reasonably justified grounds Here's why: On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. however, the company may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine): (1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c) participation in an activity by persons who share a protected characteristic is disproportionately low. (2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity. It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine): This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim. A clear example is provided: Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them. Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) (emphasis mine): Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158. That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below). However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality. While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful. | As in most cases it depends on the details. The length of a blade (> 44mm and width > 10) is important and the circumstances. Assume a fine to something up to € 10000, but a sentence up to 3 years is also possible. In Germany it is not crime (anything that can be fined or minimal sentence is less than 1 year is not a crime). I assume that they took your home address and let you leave the country, which alone is a sign that it not a crime. Since you were so smart to place this in your luggage, where it garantied to be found by airport security, you will probably get something in the range of the minimal fine. You also cooperated by giving a statement, which will assist to lessen the fine (you were after all caught red handed). Having it on your person in a public space, the fine would have be higher. Swinging it around among peaple in a threatening manner, will lead you into the range of a sentence. When the fine arrives, there will be bank transaction form. Go to the next post office or bank and pay it, retaining the receipt. Border control will not be interested in you (they only get alerts for proper criminals). Customs (Zoll) could be interested to enforce the fine, show them the receipt. Pay the fine and get on with your life. As to the U.S. Consulate (forget Embassy, State Department: they deal only in diplomatic affairs) all they will tell you is you must obey the laws of the country you are in assisted in getting an English speaking lawyer when requested send you bill for their efforts A Consulate deals with citizen affairs (administration, assistance). Most Embassies have a Cousulate department inside, but not all. In Berlin it does not. The Cousulate is about 20 Kilometres away from the Embassy. The right to call them is based on the Vienna Conventions 1815 and 1961. All countries that reconised these conventions are required to allow a foreigner to contact their Cousulate. A dual citizen, when inside the country where they are a citizen, do not have this right. | In Germany, had the store not called the police (or paramedics), they would have been charged for not doing so under Section 323c. Other jurisdictions will no doubt have similar laws. On arrival, being informed that you ran away - but thankfully paid with a credit card - the police will try to find you. They are not allowed to make a determination that you are just being foolish, but must assume you are a danger to yourself. At some point in the extensive bureaucratic matter, they will probably come to the conclusion that you have acted in a negligent manner. Once that has been done, you will be made liable for all entailed costs to the taxpayer. So your fear of being charged for threatening to commit suicide is the least of your problems. Your claim against the store is probably justified (the listed price is in most jurisdictions binding). Your reaction to that is not. Section 323c Failure to render assistance; obstruction of persons rendering assistance (1) Whoever does not render assistance in the case of an accident or a common danger or emergency although it is necessary and can reasonably be expected under the circumstances, in particular if it is possible without substantial danger to that person and without breaching other important duties, incurs a penalty of imprisonment for a term not exceeding one year or a fine. (2) Whoever obstructs a person who is rendering or wishes to render assistance to another person in such a situation incurs the same penalty. Sources: Section 323c - German Criminal Code (Strafgesetzbuch – StGB) | I'd rather not, but this might be compliant if you make sure that the personal data under your responsibility remains secure and protected even if it is processed abroad. Since the UK has left the EU, it is sometimes necessary to distinguish between implications of the EU GDPR and the UK GDPR. These are functionally equivalent, but in the matter of international data transfers the practical details have diverged. In my answer that you cited, I argued that any website processes personal data, and is thus potentially in-scope for the GDPR. If you cause another organization to process this personal data outside of the UK, you are performing an international data transfer (called “restricted transfer” in UK guidance). For example, such non-UK processing occurs if you use cloud services that run outside of the UK. The UK ICO has guidance on international data transfers. As in an EU GDPR context, you can only perform the transfer if the data remains suitably protected, or one of the exceptions applies. The data remains suitably protected if the target country was attested and “adequate” level of data protection, or if you have implemented appropriate safeguards. As of 2022, the list of countries considered adequate is generally equivalent to the EU list of adequacy decisions. Notably, the US is no longer on that list after the Schrems II decision that invalidated the Privacy Shield Agreement. Since this decision was made before Exit Day, it also applies in the UK. This leaves “appropriate safeguards” for UK→US restricted transfers. In the linked ICO page, read the section Is the restricted transfer covered by appropriate safeguards?. In brief, you will need to perform a Transfer Impact Assessment, and sign Standard Contractual Clauses with the US data importer. In a Transfer Impact Assessment (TIA), you check that the data remains protected despite the transfer into a country without an adequate level of data protection. There is no official guidance on conducting a TIA, but the IAPP has a template and the EU EDPB has recommendations on supplemental measures to protect data transfers, which might reduce the risk and affect a TIA in your favor. It's worth noting that the EDPB recommendations were written in the wake of the Schrems II ruling, and can be summarized as “compliance is impossible when using US-based cloud services”. But this is your assessment, and TBH it seems the UK is a bit more relaxed than the EU in this regard. The Standard Contractual Clauses (SCCs) are a pre-formulated contract that binds the foreign data importer to handle the data properly. In essence, this translates relevant aspects of the UK GDPR into contract law. Many service providers already provide a Data Processing Agreement that includes SCCs by reference, but you'll have to make sure that these contracts have been entered in a legally binding manner. Sometimes these apply automatically as part of the terms of service, sometimes you need to explicitly sign these documents. But SCCs are one detail where UK GDPR compliance and EU GDPR compliance diverges a bit. The old EU SCC templates from 2004/2010 can no longer be used and have been replaced. For compliance with the EU GDPR, the new 2021 SCCs must be used. For compliance with the UK GDPR, you have two options. You can either use the 2022 International Data Transfer Agreement (IDTA), or you can use the 2021 EU SCCs along with the 2022 UK International Data Transfer Addendum which modifies the EU SCCs in some details. Don't want to deal with TIAs and SCCs? Switch to a hosting provider that only processes the personal data under your control in the UK, or in a country with an adequacy decision (e.g. EU, Canada, Israel). | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. | 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.) |
Does the "Interstate Commerce Clause" prohibit local or state government from "boycotting" another state Recently I read that some municipalities in California are restricting "official travel" to Florida and Texas, presumable over legislation they consider objectionable. In the past, I know they've also implemented bans on government purchases from companies that reside in these states for similar reasons. Is this a violation of Article I, Section 8, of the U.S. constitution, or "Interstate Commerce Clause", or more specifically the doctrine of the "Dormant Commerce Clause"? | Under the commerce clause, a state cannot (without authorization from Congress), forbid its residents to travel to another state, nor tax such travel. It cannot prohibit imports from, or exports to, another state. It cannot tax products from other states in general, or from specific states, at a different rate or in different ways from products made within the taxing state. However, a state government may decide where its own employees will go on official business. It may decide where its own funds will be spent, and what products or services it will purchase for its own use. It may decline to purchase products from states with policies it disapproves of. It may forbid official travel that it would be responsible to pay for to such states, if it so chooses. It can probably also encourage its citizens and residents not to travel to or buy from such states, as long as it sticks to persuasion, and does not impose any penalty or tax on those who do so trade or travel, and also does not refuse to deal with people who do deal with the state it dislikes. | Such a law could probably be passed under the authority of the interstate commerce clause of the Constitution. Price controls on various products have previously been justified under that clause. | This question is controlled almost entirely by local municipal and county ordinances. It is not a question of federal law that is uniform across the U.S. and in most cases it is not even a question of state law. So, there is no single answer to your question. Most localities regulate this with some combination of hotel specific building codes (usually incorporated by reference from a uniform building code promulgated by a private non-profit organization as a model building code provision) and hotel specific local zoning ordinances. | The law works in the opposite direction of what you seem to be imagining. State courts generally have jurisdiction to hear lawsuits based on federal law, even without "authorization" from Congress. It is therefore perfectly normal to see lawsuits under Section 1983 , the Privacy Protection Act, or the Magnuson-Moss Consumer Protection Act being litigated in state court. Instead, when Congress authorizes a private right of action, it includes explicit language when it does not want cases heard in state court. This is the case with copyright, patent, and bankruptcy litigation, for example. | 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. | No. A governor could not be held liable in a lawsuit on those grounds. Governors in every U.S. state have governmental immunity from liability in tort (and a lawsuit for wrongful death is a kind of tort lawsuit) for their official actions, and there is no U.S. state in which this kind of lawsuit would fall within an exception to that governmental immunity. There is not private cause of action against a state government executive branch official under federal law for a violation of "Trump administration official guidelines for reducing the covid-19 mitigation." Indeed, it isn't clear that a federal statute creating such a private cause of action that purported to pierce a state law official's governmental immunity from liability, even if it were enacted, would be constitutional. In contrast, if a corporation violated such a guideline, the violation of the guideline would be evidence of negligence, although probably not conclusive evidence, in a suit for wrongful death by a non-employee brought against the corporation. | No. As a superior sovereign, the United States can sue states in federal court without restriction. I’m not sure if that would apply in state court, but the federal government doesn’t generally file cases in state court to begin with. States can also sue each other in federal court, having waived their immunity to lawsuits brought by other states when they agreed to Article III of the Constitution (although Congress has said that these lawsuits must be filed directly in the Supreme Court). | 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. |
Are there any laws against shrinking the Moon and claiming it as your personal property? Suppose I use a shrink-ray to shrink the Moon. And then I take the Moon to my house and use the Moon as a centerpiece on my table or something. By "stealing the Moon," have I broken any law? | You have no right to take the moon, by the Outer Space Treaty 1967. Article II of the treaty explicitly forbids you from claiming a celestial body such as the Moon or a planet as your own territory, whether by declaration, occupation, or "any other means". That would include "by shrink-ray". | I'm based in England, but I'm sure the principle is similar in Canada. The night club or concert venue is private property. When someone owns or rents private property one of the main things they are buying is the right to control who is present on that property, and generally they can use reasonable force to remove people who are not authorised. Security guards generally act as agents for a property owner, tenant or similar. | It isn’t theft Theft requires depriving the legal owner of possession permanently. In concept it’s closer to fraud than theft, however, copyright violation is its own crime - neither theft nor fraud. In casual usage, you can call it theft if you like - or pomegranate, or Howard. Whatever gets your point across. | 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. | The Constitution said people have the Rights to Properties. No it doesn't. There is no such provision. The closest I am aware of is the so-called "takings clause" in the Fifth Amendment, which reads: Nor shall private property be taken for public use without just compensation. There has been a good deal of litigation over just when when a "taking" occurs under this provision. The classic and most obvious case is the use of eminent domain to aquire actual title to the property by a government (Federal, State, or local). This is always a takign, and compensation nis required. The more questionable cases have occurred when some law or regulation leaves the owner with title, but significantly restricts the uses to which the property may be put, particularly when the existing use becomes unlawful. Courts have ruled in different ways in such cases, but I think the current standard is that when a regulation removes all, or almost all, economic value from the property there has been a "regulatory taking" and compensation must be paid. But as far as I know, a tax on the property has never been considered to be a taking inn this sense. | What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | 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. |
Is bypassing Content Security Policy illegal? In HTTP protocol, there is so called Content Security Policy (CSP) that (among other things) allows the creator of a site to disallow browsers to put the site framed inside another site. All mainstream browsers abide this "command" of the creator of a site. Is bypassing CSP (it can be done through a specifically crafted proxy server that removes or changes CSP) illegal (in the US and in Europe)? Note that changing HTTP headers by proxies is a common practice. I have an argument that it is legal: If I put another site inside my frame (plus buttons like Forward/Backward), then I just create a new WWW browser (running inside another browser) and creating browsers is not disallowed. Is this a valid argument? | No. CSP is a suggestion to browsers to implement some security checks. Bypassing CSP is no more illegal than using a browser that doesn't support it. | Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist. Once the company becomes aware of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this: [OnlyFans] provides templates for each successive warning - explaining why material has been removed, and that failure to comply with terms of service may result in the closure of the account. [emphasis added] The site operators also become liable if they have a general policy of tolerating illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file. The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular. The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically. So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does not say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this. | Your code is considered free speech (Bernstein v. United States) and you have allowed the use of the code via the MIT license. Since the application of your code is very generic and is not specifically targeting anyone. You probably are not criminally liable. This is simply writing a "Proof of Concept" for security testing purposes. That same way Metasploit, Nessus, and Nmap have actual exploit code but are considered tools of the trade. Now if you go around using your spyware on non consenting victims. You might get a visit from some people with guns and badges that have 3 letters on them. | Yes, you could do this be means of the EULA, provided you are not in the EU yourself. You only have to comply with the GDPR if you are offering a product or service to people that are in the EU. If you are making it clear that whatever you offer is not available to Europeans, you make your site exempt from the GDPR. | You're probably making an “international transfer” here, but that doesn't mean it is illegal. The GDPR has a very broad concept of “personal data” and of “processing”. Per Art 4(2), ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Which I would summarize as: pretty much anything you do with the personal data counts as “processing”. So yes, your non-EU servers would be processing the personal data in HTTP requests, even when those servers aren't directly storing the personal data. Chapter V of the GDPR applies to Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] Per this definition, the question whether an international transfer occurred is inextricably linked with the question whether the data is being processed in the destination country. The generally accepted interpretation here is that mere transfer through a country does not constitute processing. For example, if your requests happen to take a network route through other countries, that wasn't an international transfer. But your HTTP server is definitely doing processing, even if it doesn't store the data persistently. If the HTTP server is in a non-EU country, then you have to consider how this transfer of data is protected. You're supposed to uphold the high GDPR data protection standards regardless of where the processing occurs. Some countries have been granted an EU adequacy decision, meaning that their data protection laws are sufficiently similar to EU laws and no extra bureaucracy is needed for that transfer. The transfer still needs to be noted in your privacy notice (compare Art 13(1)(f)). In other cases, you may be able to rely on “standard contractual clauses” (SCCs), which are pre-formulated contracts provided by the EU that translate relevant GDPR aspects into a private contract between the data exporter and data importer. However, you as a data controller must make sure that the data importer is legally able to enter into that contract. For example, the terms of these SCCs are incompatible with US national security laws, meaning that US companies might not be able to enter into the SCCs. There are a couple of other ways to authorize international transfers, but they are mostly relevant for multinational groups of companies, or in exceptional situations. In any case, other GPDR requirements like the need to have a suitable contract with your data processors remain unaffected. Also unaffected is the obligation to implement appropriate technical and organizational measures to ensure the compliance and security of your processing activities (e.g. see Art 24 and Art 32 of the GDPR). For example, this may imply the need to implement suitable encryption. In the wake of the Schrems II ruling that struck down the EU–US “Privacy Shield” adequacy decision, the EDPB published recommendations on extra compliance measures that could allow SCCs to remain valid for EU–US data transfers. But it's not easy to defend data processing activities when potential adversaries include literally the NSA, and measures such as end-to-end encryption (E2EE) are incompatible with cloud services that are more interesting than backup storage. Practically speaking, I would reconsider an architecture that would allow failover of EU data processing operations to non-EU locations, unless those target countries are covered by an adequacy decision. If you need a high availability setup for EU activities, it may be more appropriate to maintain multiple deployments within the EU. | The purpose of the button is not to put liability on you, but to shield the website from liability. The website does not want you looking up information about drugs, deciding that a particular drug is right for you, causing yourself harm and then blaming the website. You may have acted unlawfully but you would have no liability because no injury (financial or otherwise) has been caused to the website. Clicking the button is an assertion that one is a medical professional. This is a false statement, so the website could sue you for the tort of deceit, but there is no injury, which is one of the elements of deceit. The website would not even get nominal damages. The button may also constitute a contract. In exchange for access to a website, you warrant that you are a medical professional. You are not, which is a breach of the contract. However, the damages are nil. Conceivably, if you passed the information on to someone else who misused it, there may be some injury to the website, and then you would have to compensate the website for that injury under one or both of the heads of liability described above. In terms of criminal liability, it is rarely an offence to make a false statement to a private body without some other aggravating element. For example, in Australia, it is an offence to make a false statement for financial gain, or to make a false statement to a government official (regardless of whether there is financial gain etc). But simply making a false statement is not by itself a crime. You may breach a computer law. The United States Computer Fraud and Abuse Act is pretty broad. Obtaining information from a computer without authority is an offence: 18 USC s 1030(a)(2)(C). The only exception is if the web server is in the same state as you and somehow nobody from outside the state can access it: see definition of 'protected computer' in 18 USC s 1030(e)(2). | Yes, you can. An excellent example is this very website - at the bottom of this page you will find a series of links in the footer, one of which is "Terms of Service". I think you will agree that most people using the Law SE are making no money from it or paying no money to use it and yet the terms of service sets out in black and white what a user of this site can do, and what the repercussions can be if they breach the ToS, so it serves a purpose as an excellent example for your question. | It's not illegal to say things in your profile. SE requires you to license your content to them on a non-exclusive basis pursuant to CC BY-SA 4.0. "Non-exclusive" means that you can also license the material to others on some other basis, e.g. CC0. In that case, a person who uses your material can rely on the other license that you granted. If SE wanted to, it could prohibit putting licenses in a user profile, in which case you would have to promulgate your more generous license elsewhere. |
Does any other country, besides the US, employ something substantially different from the ‘loser pays’ system? Although many of the jurisdictions that do employ the ‘loser pays’ system only do so up to certain limits, usually of modest amounts, nonetheless all the places I am familiar with have the expectation that some monetary compensation is due to the victor. Even for a jurisdiction such as Quebec, where such compensation is usually very modest, it’s quite rare for no money to be given. Are there countries, other than the US, that have differing expectations? | Fee Shifting In Various Jurisdictions Spain (at least as of 1984) has rules on fee shifting (or the lack thereof) very similar to the American rule. The other countries of the E.U. (as of 1984) had rules similar to those of Britain's loser pays rule, although there was significant variation in detail from country to country that made this less of an omnibus statement than it might seem. See Werner Pfenningstorf, "The European Experience With Fee Shifting", 47(1) Law and Contemporary Problems 37 (1984). Most countries with civil law systems (i.e. those systems based upon the civil code tradition of Continental Europe rather than the common law tradition of England or something else entirely) outside of Europe in Africa and Asia are derived from the French Civil Code (most of West, Northwest and Central Africa, for example), or the German Civil Code (Korea and Japan, for example), and probably have followed in the footsteps on their parent legal traditions on this issue. This is also true of most formerly Communist Eastern European countries. Most countries in Spanish speaking Latin America, however, have legal systems derived from the Spanish legal tradition (and national constitutions modeled on that of the U.S.), so other countries besides the U.S. and Spain without automatic fee shifting to a prevailing party are probably located in Latin America. Some of these Latin American countries, however. probably adopted fee shifting rules of their own, and many of these countries declared independence from Spain before Spain adopted its civil code, so the extent to which those countries follow the Spanish model may not be as complete as in countries that gained independence later on. It is also worth noting that, however, in most civil law countries, the fees that an attorney can charge are usually significantly more highly regulated than in the United States, so the possibility of extremely high litigation fees is lower. Furthermore, civil litigation, in general, involves lower attorney fees on average in civil law countries (and in Islamic law and Chinese style Communist countries) than in the United States, in litigated cases, because the process is less attorney resource intensive due to civil procedure differences. So far as I know, fee shifting is also not used in Islamic law countries, where the basic assumption is that the parties are often pro se (i.e. without lawyers) and the institution of a professional legal class post-dates the establishment of the relevant legal rules. I do not know what the situation is in the People's Republic of China or similar legal systems. The American Rule It also bears noting that there are many exceptions to the "American rule" in U.S. law. While the American rule does not shift attorney fees, fees for out of pocket litigation expenses such as filing fees, copying charges, and expert witness fees are shifted as a matter of course to the prevailing party. Most professionally drafted written agreements have fee shifting provisions. Many specific statutes (e.g. civil rights actions and many labor law and consumer rights enforcement cases) also have fee shifting provisions (sometimes one sided, sometimes two sides). Fees can also be awarded in certain kinds of breach of fiduciary duty litigation contexts and in cases involving a dispute over a "common fund". In divorce cases, litigation costs of both sides are often (really usually) allocated by the court in proportion to ability to pay, as "winning" and "losing" are ill defined. The biggest areas where fees shifting would be unusual in the U.S. would be in common law tort lawsuits, such as negligence cases (e.g. automobile accidents and slip and fall cases), strict liability products liability cases, defamation cases, intentional harm cases, and fraud actions. The American rule also applies in cases of oral contracts or contracts drafted by inexpert non-lawyers. Even in those cases various kinds of litigation misconduct can result in fee shifting. In U.S. tort cases, defendants usually have their attorney fees paid for by their insurance company, and plaintiffs often have an attorney paid on a contingent fee basis. Furthermore, awards by juries for non-economic damages and/or punitive damages often makes it possible for a prevailing plaintiff to receive full or nearly full economic loss compensation in such lawsuits, with the non-economic and/or punitive damages awards effectively providing resources to pay the attorney for the plaintiff on top of economic loss compensation for the plaintiff. | canada* What you describe is completely acceptable First, one of the goals of child support is to provide a similar standard of living in each household, so spending an amount on rent that happens to be a large portion of the child support amount is understandable. Second, the fact that the child only spends part of their time at Parent B's home is already accounted for in the computation of the amount owing. Child support in Canada is based almost exclusively on the income of the parents, taking into account the proportion of time the child spends with each parent. And this is all subject to any specific hardships of the paying parent. Only where a portion of child support is based on a special and extraordinary expenditure (e.g. a specific extracurricular activity, or medical insurance) is it expected the claimant make that specific expenditure. If they stop making that expenditure, then the child support add-on associated with that expenditure is removed. * I understand the question is directed to Arkansas, but I have provided an answer for those interested in Canadian law, in line with the guidance here ("Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions. If you do this, please tag your answer using the tag markdown: [tag: some-tag]"). | Small claims court was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed. | Other than the most exceptional cases, no... As a citizen (of any country), you are entitled to consular support but that does not extend to your country hiring a lawyer for you or representing you in court. It covers such things as facilitating communication with your family, attempting to ensure the trial is fair and repatriation at the end of your sentence - usually with you paying for your own transport. In exceptional cases, it is not outside the realm of possibilities that secretaries, ministers or their respective departments of foreign affairs get involved one may receive a representative. …but Citizenship is irrelevant to have the right to representation. In most liberal democracies, you are entitled to legal representation, in most autocratic dictatorships, you aren't, and there are a large number of steps in between. How this works depends on local law and custom but it usually works the same for citizens and non-citizens. In most jurisdictions you find, hire and pay for your own lawyer. Some jurisdictions may provide a lawyer for you without payment by you. How this works varies. For example, if you are accused of a crime in the united-states you are entitled to a lawyer that you pay for or, if you can't afford one, the state will provide one for you. In australia, this extends to civil and administrative matters as well subject to a means test, however, you are not entitled to free legal representation even if you are destitute - you are entitled to a fair trial which, depending on the circumstances, may mean the state pays for a lawyer. In china the state appoints a lawyer for you and you are not entitled to another - defendants rarely win in China. Each country may or may not make a distinction between citizens and non-citizens: the three above don't. | Unfortunately, you are probably not entitled to the redundancy / severance money since you weren't technically ever made redundant / laid off - there was no point in time where you were willing and able to work where they refused you, and I presume you were paid for all time worked. If you're concerned that they only changed their tune because they knew you had a better job already lined up - well, you can call their bluff or just use it as a learning experience. In what jurisdiction do you work? If the US, you could call their bluff, say you'd rather stay and see what they do. You would then keep the option of simply walking away with your stuff in a box any time you felt like it (assuming at-will employment and no contracts that state otherwise). | The amount requested has little or nothing to do with the amount, if any, eventually awarded. Once can sue "for 100 million dollars" and be awarded 100 dollars, and although it is rarer, one can be awarded more than the amount asked for when suit is field. That initial amount now serves as a peg to hang sensational news stores on, and nothing more. The plaintiff, and the plaintiff's lawyer, may consider that such publicity serves them well. Such inflated amounts are not grounds to dismiss the suit, so there is no downside to including them, except possibly negative publicity if people mock the demand. | Canada may have specific different laws, but in most countries any legal tender must be accepted for payment of a debt. There are subtleties; in the UK for example more than 20 one penny coins are not legal tender. Old coins or banknotes may cease to be legal tender at some point and can only be exchanged at a bank; it seems Canada's $10 bill is nowhere near that point. The biggest "loophole" is that a business owner doesn't have to allow you to create a debt. Say you go shopping in a supermarket for $40. You take your shopping, you now have a $40 debt. You take four $10 bills and hand them over, your debt is paid. At that point this $10 bill must be accepted. However, the shop owner could refuse to let you take the shopping if he doesn't like your bills. So you have no debt, so he doesn't have to accept legal tender as a debt. In a restaurant, where you typically eat your food, creating a debt, then he cannot refuse the $10 bill. And in a shop, this will not be good for his business. If my $10 bills are not accepted, then I will take advantage of my right to shop elsewhere. | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. |
Why doesn't the U.S. sanctions against individuals violate the bill of attainder law? Recently the United States has been applying sanctions against individuals, such as Vladimir Putin's adult daughters. This isn't a new thing by any stretch, but I wondered recently why this isn't considered a violation of the bill of attainder clause of the U.S. Constitution. Here are some possibilities I can think of: The sanctions are against non-U.S. citizens. (Presumably this could not be done to a political opponents' children.) Specific sanctions are handled by the executive rather than the legislative branch. Individual targeting is allowed if it's part of a legitimate foreign policy aim. (This answer suggests as much in response to a similar question about the fifth amendment.) Perhaps these sanctions avoid referring to specific individuals in some legally significant way. I'm not sure if any or all of these make a difference. | The Constitutional proviso of Article I, Section 9, Clause 3 states that "No Bill of Attainder or ex post facto Law shall be passed". This does not preclude a legal finding against the interest of an individual (e.g. a law can be passed whereby a person is punished for committing a certain act). It is important to understand that this clause means that Congress cannot pass a law declaring an individual to be guilty – this limits the legislative branch, not the executive or judicial branches. Congress can pass a general law and then the executive and judicial branches can enforce that law against an individual. Sanctions against an individual are routinely imposed by the executive branch (the IRS can fine you, Securities Exchange Commission can fine you, HUD can fine you, Homeland Security can sanction you in various ways...). Actions against an individual always start with the executive branch. You can contest an executive action on various grounds, such as "exceeds authority" or "unconstitutionality of underlying law", which then brings in the judicial branch. A "bill of attainder" would be a law passed by Congress that declares Katerina and Maria Vladimirovna to be guilty, end of story, and no such law was enacted. | 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. | The last part, about equal suffrage in the Senate, does not expire. The question is whether it can be itself amended out of existence. There has been no test of that possibility. This article argues that this may not be subject to amendment. There is only one way to find out for sure. The idea is that the original intent was that this is supposed to be an absolute clause, but of course that only speaks to original intention (and the original intention is not clear, as the article discusses). | The answer to your question, strictly in terms of whether they have the capacity to authorize states to violate international humanitarian law is yes. However, it is highly unlikely. It takes only one permanent member to veto such a resolution. Moreover, UN Charter Article 24(2) states that: ... the Security Council shall act in accordance with the Purposes and Principles of the United Nations ... and International Humanitarian Law would certainly be considered a principle of the United Nations. So, are they capable of passing a resolution in violation of International Humanitarian Law? Sure. Is it likely to happen? Almost certainly not. Having said that, if this happened, it would be a novel area of law, and while currently, international law suggests it would be binding and legal, it is possible that sanctions could be imposed if such a resolution were passed by the Security Council. | You have misread the DMLP page. In Pennsylvania, it is illegal to record a conversation if you are a party and if the other party does not consent. The fact that federal law doesn't ban something doesn't mean that states can't ban it. There is generally a presumption that when both the feds and the states can legitimately regulate something, the feds weren't trying to preempt all state laws on the topic. While people often say "federal law takes precedence over state law," the normal rule is that both laws apply; the federal law only blocks the state law if the feds wanted to block said state laws. So far as I can tell, the federal law has never been held to preempt two-party consent laws; the point of the federal law was to restrict recording, not extend it. It's like how federal law doesn't prohibit taking hostages inside the US to coerce a private company into doing what you want (anti-terrorism laws might, I guess, but the federal hostage-taking law doesn't); while the federal law excludes most hostage-taking in the US, that doesn't mean that it's legal to take hostages. Congress sometimes wants to establish nationwide standards for something, but the presumption is that they didn't. | The answer is "it depends on the protection." Even illegal aliens are afforded certain rights by the US Constitution. For example, that fact is one of the reasons for the prison in Guantanamo Bay. Another consideration, for protections or rights that are available to citizens but not to aliens, is that the determination of citizenship or alienage must be subject to the right of due process. Without that, the executive branch of government would be able to, for example, remove or exclude anyone from the United States, or commit anyone to indefinite immigration detention, simply by asserting that the person is an alien, without review by the judicial branch. There is a discussion, with references, here: https://www.law.cornell.edu/wex/alien. This mentions the fifth and fourteenth amendments, as well asthe fourth, as applicable to aliens. Pertinent quotations (emphasis added): Aliens also receive treatment very similar to the treatment that U.S. citizens receive in the context of the judicial system. For instance, the Fifth and Fourteenth Amendments of the United States Constitution apply to aliens residing within the United States. As such, the courts guarantee aliens the right to due process of law and equal protection of the laws. Courts have generally construed the Fourth Amendment as applicable to aliens as well. The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures. Congress has the preeminent power in terms of passing statutes that regulate immigration and alienage. Consequently, the United States Constitution enables Congress to delineate the rights, duties, and liabilities that accompany legal immigrant status. Congressional power in this realm, however, must comply with the qualification that any law resulting in disparate treatment between aliens and citizens must bear some relation to a legitimate goal impacting immigration law. When a law treats an alien differently from a U.S. citizen, courts treat the law as inherently suspect and apply strict scrutiny when considering the law's constitutionality. States possess the power to confer additional rights on aliens within their respective jurisdictions. While states may not pass regulations affecting aliens that directly conflict with federal laws or the U.S. Constitution, states may pass other regulations if they bear some rational relationship to a legitimate state interest. State law controls the right of an alien to hold real property in the particular state. Under common law, the alien had property rights similar to those of citizens. Currently, most states have enacted statutes following the common law, but a few have forbid aliens, ineligible for U.S. citizenship, from holding or acquiring real property. These laws have resulted in some successful challenges by aliens who claimed the laws were unconstitutional. ... When invoking federal question jurisdiction, federal statutes provide aliens with access to the federal court system in the following three scenarios: allegations of civil rights violations by the federal government, allegations of Equal Protection Clause violations by the federal government, and allegations of violations of the Refugee Act of 1980. A strict reading of the text sheds some light on the matter. For example, many constitutional rights are specified by limiting the power of congress; such a limitation applies to all people under the jurisdiction of federal law. For example, the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Similarly, some rights explicitly granted by the constitution are typically granted to "the People," without reference to nationality. The Fourth Amendment: The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (The question of whether "the People" implies "of the United States" may explain the qualifier "generally" in the sentence above discussing applicability of the Fourth Amendment.) Some rights are granted specifically to "persons"; the courts appear to have concluded that this applies to everyone regardless of nationality. The Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Finally, some rights are expressed as procedural rules applying to the courts. As with limitations on congress, these apply to anyone who is party to a relevant action. For example, the Sixth Amendment applies to "all criminal prosecutions": In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The Seventh Amendment applies to all "suits at common law": In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. | I don’t believe there is an aggravated violation due to his disability, but it is quite likely that a court will find that to be a violation of his rights. Florida’s stop and frisk law 901.151(2) would indicate the original stop and temporary detention was valid, but once the item in his back pocket had been identified, 901.151(3) requires that the detention be immediately terminated. After the identification, he was no longer being legally detained, it was thus either an illegal detention and a violation of his 4th amendment rights or a consensual encounter under Florida law, and if consensual no requirement to Id. But just because it was a violation of his rights doesn’t mean that he will automatically win a lawsuit if he brings one. Jones v. State, 584 So.2d 190 (Fla. 5th DCA 1991) holds that you can’t be charged with resisting arrest without violence (aka 843.01), when the arrest itself is unlawful. I suppose Hodges could be charged with “obstructing” which is covered by the same statue, but more ambiguous than “arrest”. | As far as I understand, no. In Canada, everyone has the constitutional right to be free from any cruel or unusual punishment, under the Canadian Charter of Rights and Freedoms: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. If you're guilty of a crime, well then, you're guilty. You're either going to be tried in court (and if you were guilty of that crime, then you will probably be found guilty), or you will plead as such. Before being tried, you could try to plea bargain with the prosecutor: plead guilty and be sentenced to a lesser charge. Say you were charged with assault with a weapon or causing bodily harm. You thought that the punishment was cruel or unusual - and thought that the trial judge had made an error in the law. In this case, you can make an appeal to a higher court. There are also other things that can factor this: mitigating and aggravating circumstances. If many circumstances are mitigating, then it may make way for a lower punishment, and vice versa with aggravating circumstances, where punishment may be higher. Again, this is something where if something was erred, you can appeal to a higher court. However, just because you think a sentence is too long won't constitute cruel or unusual punishment. In R. vs Latimer, the Supreme Court of Canada ruled that minimum sentences, even if within special circumstances, will not constitute cruel or unusual punishment, and be upheld. Originally, he had been sentenced only to one year, based on the recommendation of the jury. He had been charged with second-degree murder. The Supreme Court reinstated the default punishment: A life sentence with no eligibility of parole for ten years. |
How acceptable (mainstream/marginal) is the discussion about replacing the human rights with the natural law and to delete human rights chapters? One law professional (who holds a doctorate) has started discussion about human rights vs natural law in our country (which is an Eastern European country). She refers to the book Le Droit et les Droits de l’Homme (Right and the Rights of Man) by Michel Villey and argues that human rights are irrelevant and inconsistent and judicially almost nonsense and that they should be replaced by natural law and rights emanating from natural law. She also proposes to delete the chapters from the constitution that codifies the human rights. I am not a law professional (I am software developer with a bit work in a computer science and I am interested in the formalization aspects of the law e.g. by ontologies and deontic/modal logics), that is why I can not estimate the common sense of her proposal rightly. That is why I am putting this question before the community of more professional people - how (academically) acceptable are such discussions and proposals? Is it the academically acceptable practice to argue about such questions or is it a marginal view? Actually AFAK the sciences are very open to innovations and discussions. E.g. there are proposals for lab-created universes, medical research for regaining youth, computer science research about hypercomputation (going beyond the Turing barrier), etc. Scientific communities are very cautious about such topics, but still the adherence to the research standards and sound methodology (and not the theme or boldness of propositions) is the key factors that decide whether some paper is going to be accepted or not. So - I guess, that maybe law science community is ready for such discussions (natural law replacing human rights) as well? | how (academically) acceptable are such discussions and proposals? Some academic somewhere has probably discussed it, and did not breach strong academic norms by doing so. Is it the academically acceptable practice to argue about such questions or is it a marginal view? It isn't taboo to argue such a position, but it is highly marginal and extreme. It is even more extreme in Eastern Europe (nominally in the civil law tradition) than it is in common law countries (which have more of a natural law tradition), and would be least marginal in the U.S. which has a strong natural law tradition, although it would marginal even in the U.S. Legal positivism (i.e. the law is what legislators and the governmental process including courts and citizen ballot issues says it is), is very strong now compared to prior eras and stronger in civil law countries than in common law countries. The battle between natural law and legal positivism was mostly won by legal positivism by the late 19th century although the debate continued indifferent to the reality on the ground. Philosophically, human rights are often viewed as an enlightened codification of natural law (which sometimes justifies its extraterritorial application), but it would be rare for someone who was a strong supporter of natural law to argue that human rights codifying natural law should be disfavored (really, that kind of reasoning is mostly seen in pre-modern Confucian legal arguments in China as part of the Eastern rule of law v. rule of man argument that tends to favor rule of man on the theory that any codification can be twisted by sneaky lawyers). | How does it not go against the equal protection clause? People had argued poverty is an analogous ground but it is not recognized. You may find the arguments outlined in William Head Institution v. Canada (Commissioner of Corrections) useful to respond to your question, but you certainly do not have to agree with those arguments. The main arguments there include The Charter is not a document designed to protect economic rights and freedoms, in so far that "the worth and dignity of the human person" is not threatened. Poor people form a disparate and heterogenous group without a central personal characteristic. The Charter protects "discrete and insular minorities". Poverty is not immutable and changing it does not come with unacceptable personal cost; in fact, most people would be happy to become not poor. It is also necessary to understand section 15 or the constitution is not designed to create a "perfect" society. They must be read in conjunction of social and political "progress" or understandings of the society and interpreted so that it is "practical" and "pragmatic" under such understandings. Directing government policies in minute details are not the role of the constitution or the judiciary. Taking to the extreme, the equal protection requirement could require the government to assess all its policies at an individual level to ensure literally everyone does not benefit more than any other person under any law. But most people do not believe that should be done and it will paralyze essentially all governing activities. As another answer has showed, court fees can be unconstitutional for other reasons. But in general, court fees serve an important purpose to fund the judicial system and encourage non-judicial resolutions of disputes so reasonably compensated judges can have a reasonable caseload; in some sense, the courts are self-serving (but also serve the interests of the society in general so everyone is not suing everyone for every small things). With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make. The above is by no means a justification of barriers of access in the justice system. But it is mostly a political problem that the judiciary should (and does) steer clear of other than for exceptional situations. | For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. | No, there is no obligation to repeal It is common for statutes held to be unconstitutional to be left on the books decades later, and for others which quite likely would be so held if anyone tried to enforce them to be similarly left for even longer periods. It is somewhat less common for state constitutional provisions, but it does happen, and as those commonly take more than a simple legislative act, there is even less motivation to go through the troublesome process in such cases. There are even a few provisions in the US constitution which have become obsolete, but not actually amended away. For example, the so-called 'three-fifths compromise', which counted slaves as worth 3/5ths of a person for computing representation, was effectively repealed by the Civil War and the 13th amendment, but was not formally removed. That section was actually formally replaced by the 14th. | This happened despite the fact that the marriage and Bible verses requirement were almost surely illegal and similar things have happened on and off, mostly in rural courts with non-attorney judges, for pretty much as long as the U.S. has been a country (and earlier). The trick is that the orders take effect unless someone appeals them, and since deals like this are usually a result of a plea bargain which waives rights to an appeal, and even if the result is simply imposed by the judge, one has to consider if taking the case up on appeal, having the sentence reversed, and then having it remanded to the same judge for resentencing would be worse from the perspective of the defendant, given the broad authority of a sentencing judge in a minor case like this one, than simply accepting the illegal sentence. Also, cases that aren't appealed never create precedents and aren't generally available among resources used by legal researchers, so they systemically evade documentation in easily available sources. | For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table." | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. |
What was The initial state of the statute book, and how was it seeded? If one was to successively roll back each most recent act of Parliament until the earliest traceable one in the chain, when would that act have been from, and what was the state of the statute book at the time when that initial act was passed? Obviously unlike in the U.S. there is no constitution establishing the framework of law making and keeping, the powers of the parliament and crown, etc. So then also how is the whole system of government and separations of powers etc in England and the U.K. defined? Does the answer to this differ between different parts of the U.K.? | Organically rather than by design, laws and courts preceded the theoretical constitutional basis. Kings developed a practice of legislating in council, rather than solo, meaning that their edicts went out not as "the King decrees XYZ" but "the King, with the assent of the archbishops, bishops, abbots, barons, etc., decrees XYZ". This eventually became the Parliamentary system, wherein only Parliament could make laws (especially about raising taxes) and the King alone could not. Because of the gradual evolution, it's not easy to point to the first such statute or even the first proper "Parliament". The form was not settled. Nowadays we expect Acts to start with a set "enacting formula", to be published in a set way, and to be called "Acts" at all. Earlier laws lacked these elements. It was common for Parliaments to transact a variety of business, such as appointing officials or distributing money, without strictly distinguishing a category of what we would now call a "public general Act", something setting out broadly applicable rules under the tenor of law. To take an early example, the Domesday Book was undoubtedly commissioned by William I in council in 1085, but we could argue for a long time whether that really counted as a law made by the King alone or through a proto-parliamentary approach. The Assize of Clarendon in 1166 is closer - we have the text and it refers to the counsel of all the barons - but still not obviously "an Act". Magna Carta came in 1215 and was repeatedly confirmed by successive monarchs in slight variations; only the 1297 version is currently deemed to be an Act still partially in force. At the same time as this legislative activity, a bewildering array of courts applied essentially customary law for local cases. If you commit a murder in Durham in 1300 and would like to not be executed, then you would be appealing (I think?) to the mercy of the Prince-Bishop in his own court. A few dozen miles away and the process and authority was different. Things gradually became more uniform and systematized, and by the sixteenth century there was enough critical mass of legal philosophy to try to "explain" the legal system more formally and in recognizably modern terms. We may as well take Edward Coke's Institutes of the Laws of England (1628-1644) as a turning point: four volumes setting out a comprehensive view of what English law was all about. In contrast, take Bracton's similar work of 1235, which was the first real analysis of case law in England. Bracton was writing in a context without a general idea of precedent, and where the binding extent of Roman civil law was not clear. By Coke's time that was well established. But they are both trying to make sense of the law as they found it: giving explanations for the data, if you like. (A parallel course was taking place in Scotland with its institutional writers, although they ended up with a different system from England's. They were equally trying to explain what they saw.) Some of the early modern authors contributed to figuring out which decisions of past Parliaments or councils should be taken to be Acts, as such. Coke, in particular, also set out the criterion that an Act should purport to have been made by all three of the King, Lords and Commons. Our modern consolidated versions of the statute book derive from this time, and on legislation.gov.uk you can see the oldest Act still in force, The Statute of Marlborough 1267. That's different from the oldest Acts ever made, as discussed above, a more slippery concept. Ideas such as the separation of powers are reverse-engineered in this way. Indeed, it's not obvious that Britain has that separation. It may not be the right way to understand the governmental and legal order that has developed. John Locke might have thought it would be a good idea, but Walter Bagehot denied it was a useful frame for analyzing the interrelationships of various public bodies. | As a matter of law, the Duchy is correct, because a superior court of record agreed, and dismissed the arguments made on the other side. The cited claims from Republic come from a case in the First-Tier Tribunal (EA/2010/0182) about whether the Duchy was a "public authority" for the purpose of the Environmental Information Regulations 2004. The FTT said that it was, since either the Duchy or the Duke were carrying out certain functions of public administration (as the harbour authority for St Mary's Harbour on the Isles of Scilly), and whichever one it was, the Duke was in charge of the Duchy; and meanwhile, the Duchy appeared to have some elements of legal personality, as cited in the question above. This decision was appealed to the Upper Tribunal, The A-G for the Prince of Wales v the IC and Mr Michael Bruton [2016] UKUT 0154 (AAC), which disagreed as to the Duchy being a body with its own separate identity - see paragraphs 71-102 - and reversed the ruling below. The basic issue is that the Duchy of Cornwall was brought into being by a royal charter of 1337. It predates modern common-law or statutory developments about bodies corporate, income tax, corporation tax, and so on. It also precedes the not-exactly-modern developments of the limited scope of royal authority and the prerogative, norms of statutory construction, the Crown as separate from the royal person, and other apparatus of constitutional monarchy. It is true that it sits uncomfortably in the modern world, as a sui generis feudal creation that is not something we would create today. However, as a matter of law, the UT said that what counts is what the Duchy is, not what it ought to be. Figuring out the law means looking at the actual law as opposed to ancillary indications, such as what Duchy officers have said from time to time, or administrative actions of the Health and Safety Executive. Parliament has had the opportunity to consider the position of the Duchy several times and has so far declined to change it. The charter of 1337, which was deemed to be an Act of Parliament by a court case in 1606 (!), grants land and privileges to the Duke of Cornwall, whoever that might be from time to time, and with a reverter to the Crown when there is no Duke. The UT found that this "creates something that has similarities to a trust, but without trustees" (there was a nascent body of law relating to trusts in 1337, but it was nowhere near its modern flourishing). Unlike with the creation of the Duchy of Lancaster, this charter does not incorporate the Duchy as an entity in its own right - the "Duchy" is just a word used to describe the possessions of the Duke or King held under the charter. If it is a separate entity then that is not because of the charter. The UT examined various of the claims made in the FTT but rejected them, saying that "such examples cannot create such an entity or body and each investigation of the submissions based on them that took place before me showed such statements or implications to be wrong (e.g. that the Duchy owns Highgrove was shown to be wrong by the production of the Land Certificate)." It also rejected the idea that the people who administer the Duchy could be regarded as some form of partnership or unincorporated association, finding that they had not come together in that fashion. It said that therefore, the only remaining route to the Duchy being a corporation would be if the other primary legislation dealing with its management had created it as such by "necessary implication". Those Acts, of 1844, 1863 and 1982, deal with accounting and management for the Duchy of Cornwall. From their context and content, the UT said that they seem to envisage the property in question as belonging to the Duke (not the Duchy) as "the legal owner of the assets etc. comprising the Duchy estate", and that "the relevant officers and employees work for the Duke, or the Duke’s guardian when he is a minor, or the Sovereign when there is no Duke, and not for an entity or corporation called the Duchy." Therefore: [T]he Duchy of Cornwall or the Duchy is no more than a name that has been used correctly to describe the possessions of the Duke of Cornwall (the Duchy estate), or to the Duke (or his title), or collectively and conveniently to describe the officers and persons who from time to time act for and on behalf of the Duke as the owner of the Duchy estate. Save to the extent that it is a reference to the Duke as a natural person the Duchy of Cornwall has no legal personality and is not a person, body or entity that has its own functions and powers or a separate identity of its own. Although this was not before the UT, it would seem to follow for tax purposes that if the Duchy is not a body corporate, then it is not liable for corporation tax under the Corporation Tax Act 2010 - see section 1121, which defines "company" for that and the companion Corporation Tax Act 2009. It also does not fall within section 443, "Companies controlled by or on behalf of Crown", firstly because if it's not a company, then that section fails immediately, and secondly because "Crown" here refers to the Crown in the sense of governmental public functions, not the Queen (or her family members) personally. | 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). | 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. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | They still have the power They generally don’t because: Most activities of a criminal nature no matter how novel can be shoehorned as a new instance of an existing crime. Parliament is much more pro-active in its legislative agenda. The judicial system moves much more slowly. | 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. | 1. You need to read and utilize law textbooks, the MOST UPDATED editione. Try to access a library of a university that has a law faculty. Failing that, try a local library — but local libraries may not stock (pricey) law textbooks, or their most updated edns. I scanned Jonathan Herring, Criminal Law Text Cases Materials (2020 9 edn), beneath for you. But the NEWEST edn is 2022, 10 edn, as at May 23 2022. Herring updates his book every 2 years. Two other leading textbooks are Smith, Hogan, and Ormerod's Criminal Law (2021 16 edn), and Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law (2020 13 edn). 2. Look up the Act of Parliament in the Table of Legislation. See scan beneath. 3. Finally, you shall find the cases expatiated in the body, and cited in the footnotes! See scan beneath. |
Is an official patient/physician relationship required for HIPAA to apply? Inspired by a tweet I saw a moment ago: https://twitter.com/shanselman/status/1511783399580581888 She's a nurse and not only do I know that her sister in law N**** is coming in from out of town, she had a BBL and is worried about leakage while on the plane. I think this is a Hipaa violation? Names censored. In this case, does the profession of the lady talking about her sister in law, medical nurse, automatically mean that HIPAA applies and she is illegally sharing private medical data without patient consent? Or does HIPAA only apply to medical professionals when the data concerns that of one of their official patients? | The rule applies to "A covered entity or business associate", who may not "use or disclose protected health information" except as permitted. The set of covered entities and business associates is pretty large, and certainly covers nurses, also secretaries working for the hospital or insurance company. It is not restricted to the doctor-patient relationship. However, the restriction is not absolute: a patient can consent to the disclosure of such information: but, the consent must be written. This raises an interpretive challenge, in case patient A reveals a medical fact to a friend B who happens to be a medical professional. Person B probably is a "covered entity", since they are undoubtedly A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. The information also is "protected": 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. Para 5 on prohibited uses and disclosures explicitly lists the prohibited disclosures (genetic information for insurance underwriting, sale of PHI), so idle gossip is not explicitly prohibited. It is also not explicitly allowed. But again, the regulation says: may not use or disclose protected health information, except as permitted or required by this subpart Nothing in the rules limits the obligation of a "covered entity", in terms of how they came to be in possession of PHI. Given the definition of "covered entity", the fact of being a covered entity is a property does not depend on obtaining information electronically. So without written consent, B who is a covered entity cannot gossip about A's medical status. | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. | Merely encouraging people not to vaccinate via educational and political communication without purporting to provide individualized medical advice is probably not the practice of medicine and protected by the First Amendment's protections for freedom of speech, rather than constituting medical malpractice. Also, many anti-vax individuals (I couldn't quote a percentage) do so out of religious conviction and are protected not just by the freedom of speech in the First Amendment, but also by the free exercise component of the freedom of religion under the First Amendment. Generally speaking, it is harder to find a legal grounds for disregarding the free exercise of religion than it is to find a legal basis to regulate otherwise free speech. For example, commercial speech is subject to more rigorous regulation than private political and educational speech, which is why there are no private businesses taking anti-vax positions in their advertising. The theory is that courts are not in a good position to make general determinations of the truth of policy positions or statements about general truths as opposed to what happened in a particular transaction or occurrence. This is in part because a ruling by the right court at the right time can preclude the correctness of its determination from being revisited indefinitely and from time to time, accepted conventional wisdom and scientific consensus at one time are revealed later on to have been wrong with more discussion and investigation. I think that this is unlikely to be the case in the vaccination area, but the whole point of the First Amendment's protection of these kinds of issues is that we can't know in advance what will continue to be widely accepted and what will turn out to be mistaken. But, if someone in a medical diagnosis and treatment profession (e.g. M.D., D.O., physician's assistant, or nurse), were to advise a patient in a capacity as a medical care provider not to vaccinate, and as a result that person's child got sick from a disease that vaccination could have prevented, there probably would be medical malpractice liability. A somewhat similar issue arises when health insurance companies or government agencies set rules on providing care. In those cases, it isn't uncommon to have a physician or other medical professional placed on a committee or in an office such as medical director, with that person making the call and exposed to liability although not in the same way as a treating medical professional. A case about a month ago found malpractice by an insurance company's medical director (the company was United Health) to be a huge liability for both the medical director and the insurance company. | The GDPR has an exemption for purely personal or household activity. Creating a family tree seems purely personal as long as you don't publish it. You're also allowed to freely share the tree as long as it stays within that purely personal scope. Your proposed restriction of only showing data of blood relatives seems excessively strict. But assuming that this exemption wouldn't apply, there'd probably still be no problem. The GDPR does not require you to always obtain consent. It requires that the purposes for which you process personal data are covered by some legal basis. Consent is one such legal basis, but legitimate interest is another. You can likely argue that you have a legitimate interest to create a tree of your (extended) family. The legitimate interest must be weighed against the rights and freedoms of the affected persons. For example, contact information could be used for stalking. The balance of the legitimate interest check can be changed if you adopt suitable safeguards. Your idea of only sharing data with close relatives would be such a safeguard, but it might not be necessary. When you rely on legitimate interest, the affected person can object to further processing, furthermore they can request to be erased from your records. A request for erasure can be denied if there are overriding grounds to keep the data. E.g maybe only contact information has to be deleted but names, dates, and relations might be kept. You should notify persons when they are included into your records. It is your obligation as the data controller to make these decisions. If someone disagrees they can sue you or lodge a complaint with a supervision authority. Note that dead persons are not natural persons in the sense of the GDPR, and have no privacy. However, national laws may provide such protections. | If you are worried that some secret will become public, you should find and meet with an attorney, not a financial adviser or other nonlawyer. Your attorney is able to shield your secret information from disclosure in ways other professionals cannot. Raise any credit score issues you're concerned about. In general, the public has a right to access judicial records. See Nixon v. Warner Communications, Inc., 435 US 589, 597 (1978) (noting that the right is rarely litigated and not clearly defined). That right is not absolute; some records can be sealed, which means that the public can't read them. Local rules govern when that happens. I don't think the existence of a civil lawsuit could be made secretly except in special circumstances. Likewise, the plaintiff usually must identify herself, except in special circumstances. A plaintiff should assume that everything about the lawsuit--who filed it, against whom, what evidence arises, the trial, and who wins and loses--will be public. | 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. | Assuming that the documents were either true, or Manning reasonably believed that they were true, there would be no cause of action for defamation. Many of the documents disclosed would have been confidential in some sense, but usually a violation of a confidentiality statute has a criminal sanction associated with it, but does not carry with it a private cause of action – in part, because conceptually, the party actually harmed is considered to be the government and not the person about whom information is revealed. It is also possible that Manning could utilize the state secrets privilege as a defense and have such a suit dismissed on the grounds that a full and adequate defense of the claims would require the disclosure of official state secrets. For example, if a covert agent were murdered due to a wrongful disclosure of information, usually official disclosure of the fact of being a covert agent would be required to prove the case, and that evidence would be barred by the state secrets privilege, effectively barring the lawsuit entirely. Constitutional claims of privacy violations under the 4th Amendment generally relate to the wrongful acquisition of information and not its wrongful disclosure. The constitution bars unreasonable search and seizure, not unreasonable disclosure of information. The only privacy tort that might be applicable is "Public disclosure of embarrassing private facts." (A sister privacy tort, Intrusion upon seclusion or solitude, or into privacy affairs, is directed at the collection of data phase and not the dissemination phase). See Restatement of the Law (Second) of Torts, §§ 652B and 652D. But, this tort raises serious First Amendment concerns and has not been widely adopted. Realistically, this tort is unconstitutional in the absence of an affirmative contractual or quasi-contractual duty not to reveal facts that runs to the person making the disclosure, and in general, Manning would not have that kind of relationship. The classic public disclosure of embarrassing private facts case would involve a lawyer's or psychotherapist's revelations about a client. Also, in the case of the public disclosure tort the basis for damages is largely personal emotional distress and violation of trust, as opposed to damage to reputation, per se. The requirement is that the disclosure be embarrassing or breach of contract, not that it harm someone's reputation since you have no legal right to a reputation that differs from the truth. | I did not write "confidential" on my letter, but I assumed a business proposal is automatically considered as a confidential material. An incorrect assumption unfortunately. Unless you have a confidentiality agreement (NDA) with the first company, they and their agents are not under any legal obligation to keep information you share with them confidential. How is the legal situation here? There is none on your side. You lied about a direct question asked and were caught in the lie. Company A had no obligation to keep what you sent confidential. Even if they did, that may not (depending on how the confidentiality agreement is worded) keep the employee of company A stating that they had received the same proposal. Chalk this one up to a lesson on confidentiality and honesty in business. There are no reasonable assumptions of confidentiality in business unless you specifically state that they are confidential or are provided as part of a confidentiality agreement. |
What other ways are used to record court proceedings other than "stenographers?" Nearly all court proceedings are accompanied by a written record, generated by court stenographers. From what I understand, courts occasionally use "sound" recordings in place of stenographer records. The original recording is not made available to the public but transcripts are. When, where, and why is this done? Are court proceedings ever filmed or otherwise visually recorded? It seems that facial expression, hand motions, vocal intonations, etc. are part of the body of evidence on which a judge or jury decides a case. So is this type of record ever made available, and if so, when? | From what I understand, courts occasionally use "sound" recordings in place of stenographer records. The original recording is not made available to the public but transcripts are. When, where, and why is this done? In Colorado this is done in all limited jurisdiction court proceedings (i.e. the courts where misdemeanors and smaller money claims and evictions involving premises with fairly low rents are tried), and in most general jurisdiction court proceedings unless the parties pay for live transcription at their own expense. Transcripts are made when there is a sound recording only upon a request submitted to the court that then outsources the request to independent contractor transcriptionists. This is a fairly recent development and there may be live stenographers (also known as court reporters) in some general jurisdiction courts still today in Colorado, but it is profoundly less expensive to tape record a hearing or trial and just transcribe them upon request at the expense of a party, than it is to have a live stenographer make a verbatim record of every hearing or trial. In limited jurisdiction courts typically only about one in a hundred cases is appealed, and in general jurisdiction courts typically about one in ten cases are appealed. The marginal cost of an audio recording that isn't transcribed, once the courtrooms are wired for sound, is negligible (perhaps $10 per day (or less) for storage media). The marginal costs of a live stenographer or transcriptionist per day is on the order of $240+, which adds up over the course of a year. In the limited jurisdiction court, live court reporting would cost about $24,000 per day of trial in cases that are actually appealed (since only about 1% of cases are appealed and those cases would have to bear the entire cost of the transcription system). In general jurisdiction courts, live court reporting would cost about $2,400 per day of trial in cases that are actually appealed (since only about 10% of cases are appealed and those cases would have to bear the entire cost of the transcription system). In contrast, with sound recordings, the cost per day of trial actually appealed in limited jurisdiction courts would cost $1,240, and in general jurisdiction courts it would cost $340. These are judicial branch expenses small enough to be financed with court filing fees. Depositions prior to a trial are often handled by a live stenographer and sometimes handled by a videographer as well, but almost never conducted with sound only recordings in the absence of extreme circumstances like a blizzard that makes it impossible to secure the court reporter's attendance (in part because there is almost always a desire to have a transcript made and because the stenographer can confirm spellings and ambiguous sounding words with the deponents and counsel during breaks avoiding errors in the final product). Are court proceedings ever filmed or otherwise visually recorded? Depositions and court proceedings are sometimes filmed. A video of a deposition can be presented to a judge or jury in lieu of testimony when the witness is not available or to impeach the testimony of the witness. It is unusual in Colorado for court proceedings to be visually recorded. But, in Alaska, there is a state constitutional right to participate in most kinds of court proceedings and legislative hearings by video conference (because geographically, Alaska is about a third the size of the continental U.S. and thinly populated with large roadless areas), so I presume that in Alaska, court proceedings are routinely videotaped. Some courts in the U.S. do initial appearances and arraignments in many criminal cases by closed circuit television from the jail, before a judge in the court house, in order to reduce the need to transport prisoners from the jail to the court house for a perfunctory five minute hearing which is not evidentiary, and there may be video recordings of those proceedings as well. Many federal courts and some state courts do status conferences and similar minor procedural hearings by telephone conference call and those are usually audio recorded without a live court reporter. In Colorado, all oral arguments in appeals (except those rare cases that are secret such as juvenile cases and rare cases involving the details of trade secrets) are live streamed and podcast over the Internet. Many other appellate courts (but not the U.S. Supreme Court) do this as well. But, transcripts of oral arguments at the appellate level are rarely considered in further appeals. The video (or in the case of U.S. Supreme Court hearings, previously transcripts only and now audio as well) are released for PR reasons and for public transparency, reflecting appellate court's role as law making institutions, not for the litigants themselves. It seems that facial expression, hand motions, vocal intonations, etc. are part of the body of evidence on which a judge or jury decides a case. So is this type of record ever made available, and if so, when? A deposition or other videotape provided as evidence in a case at trial is part of the record on appeal that an appellate court may consider. And, a judge or jury may consider things like facial expressions, hand motions, vocal intonations, etc. in those cases. But, video of the court proceeding itself is simply a basis for preparing a transcript that will become part of the court record. Appellate courts in common law systems are forbidden from considering things like facial expressions, hand motions, vocal intonations, etc. of witnesses testifying in a trial. This is part of the credibility evaluation function that is reserved entirely to the judge or jury who is the trier of fact in a case. The only time a video of a trial court proceeding itself would be considered would be as evidence in a different trial arising out of events that took place in the courtroom itself. For example, suppose that a court bailiff goes berserk and starts shooting jurors for no reason in the middle of a trial that was being videotaped. That videotape could be considered in a criminal trial of the court bailiff for assault with a deadly weapon or murder, or in a civil case brought by the jurors or their surviving next of kin, for battery or wrongful death. The appellate court of the criminal or civil trial of the bailiff could consider the videotape, but an appellate court considering an appeal of the proceeding that was being videotaped could not. This is basically just a historical artifact. If videotape had been in existence at the time of the Norman invasion in 1066 CE, appellate courts in common law countries would no doubt have the right to review questions of both fact and law, rather than merely law as they do today. In civil law countries, such as those of continental Europe, judges take notes regarding evidence, but there is no verbatim record of the proceedings and any assertion that the judge was mistaken about the facts is resolved by retrying the disputed facts over again in a second instance court proceeding, a process reflecting even more rudimentary court resources than those existing prior to tape and video recording were invented. | A subpoena is nothing more than court process compelling someone to testify as a witness or to produce documents in their possession, custody and control, or both, usually in connection with a court case. Most people who are subject to a subpoena are not being asked to offer testimony that could implicate them in a crime. They simply have evidence relevant to a case. For example, bank records are routinely subpoenaed to generate evidence that can be used in a civil or criminal case against someone, even though no one accuses the bank of doing anything improper. Many witnesses are also just not bothered to testify or actively don't want to testify, even though the evidence would not personally reflect poorly on them in any way, if they are not compelled to do so. For example, they may simply be very busy at profitable activities, or may fear retaliation from people involved in the case. Also, subpoenas are not infrequently issued where the witness is personally happy to testify but needs court process to get permission to be away from work or other obligations. A subpoena can also overcome legal obligations to not voluntarily provide information even when it is not legally privileged. For example, a lawyers ethical obligation not to voluntarily share information about a client (even information that isn't attorney-client privileged like the existence of an attorney-client relationship or the amount of money that the attorney holds in a trust account for the client's benefit) is broader than the attorney-client privilege and a lawyer can be compelled to provide such information by subpoena. To invoke the 5th Amendment in a case where you are not a defendant, you must have some good faith belief that your testimony would expose you to criminal liability, something that the vast majority of witnesses under a subpoena do not. You cannot invoke the 5th Amendment, for example, to protect yourself from having to testify regarding something that may be highly embarrassing and may even constitute a violation of the law, but is not a crime. For example, you can't invoke the 5th Amendment to prevent yourself from having to admit under oath in court testimony that you cheated on your boyfriend with someone else, or that you forgot to lock up the office the night before it was burglarized, or that you lied about having won a military decoration that you publicly claimed to have won but really didn't, or that you are in default on your mortgage, or that you are out of legal immigration status. The 5th Amendment can also not be invoked to prevent you have having to testify about violations of professional ethics that are not crimes. For example, an attorney could be compelled to testify that she failed to keep confidential information private by telling her bartender client secrets. A subpoena is basically useless against a defendant in a criminal case, who has the right not to be compelled to testify in his or her own case. But, in a civil case, you can subpoena someone to testify against themselves and they then have the choice of invoking the 5th Amendment and having an adverse inference entered against them (usually resulting in them losing the case if they are a party to it), or not invoking the 5th Amendment and testifying even though truthful testimony on the subject may be incriminating and may be used against you in a criminal prosecution. Someone can also be compelled to testify regarding matters that could be self-incriminating in a civil or criminal case if someone with authority to do so (generally the relevant prosecuting attorney) grants the person compelled to testimony immunity from prosecution (usually all that must be granted is immunity from prosecution based upon the testimony offered, called "use immunity", which is still less than someone admitting to criminal conduct might need to feel comfortable if testifying voluntarily). | At least for the US, there's a good overview in The Atlantic of the SCOTUS benchmark case concerning home recording, still applicable in these days of DVDs and streaming content and torrents and thepiratebay.org: ...the Supreme Court's decision to allow home recording in the landmark 1984 case, Universal Studios vs. Sony Corporation of America, went 5-4; one justice flipping and you wouldn't have to imagine that alternate reality because you'd be living it. See http://www.theatlantic.com/technology/archive/2012/01/the-court-case-that-almost-made-it-illegal-to-tape-tv-shows/251107/ The case revolved around whether recording a television program was "fair use" under copyright law. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. See https://www.copyright.gov/fair-use/more-info.html So yes, you can make yourself a copy, because "that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement, but is fair use." https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc. Time shifting as in watching it later, and much later again, as long as you don't distribute that copy, sell admission to watching it, and anything else reasonable when it comes to only you using the copy. | Yes, what you're describing is very common. There is an entire industry built around helping lawyers prepare and assemble presentations for opening and closing arguments. I've seen people use PowerPoint, timeline software, and all sorts of things. Google "trial presentation vendors" for examples. | There isn't to the best of my knowledge, any single document that tells courts to follow precedant or when and how to do so. Each State, and the Federal government, has a set of court rules of procedure. These will indicate, among many other things, the form that should be used in citing previous cases, but that is about form, not content -- about how to cite a case, not about when a court should or should not cite one. Some precedents are what are called persuasive. These are from other court systems: say a different state, or even another country. These also include rulings from other courts at the same level, say from a different district, or even from lower courts. Other precedents are binding. These are from a superior court to the one where the case is cited. In a state's lower court, rulings of that state's supream court are binding. In Federal district courts, rulings of the Court of Appeals for the same Circuit, and of the US Supreme Court are binding. In Federal appeals courts, rulings of the US Supreme Court are binding. They are also binding in state courts on matters where the US constitution is involved, or where Federal law supersedes state law. Prior rulings of the same court are strongly persuasive, but not strictly binding -- a court can overrule its own precedents when it thinks the law or justice requires this, although most courts are reluctant to do so. Or more often it can distinguish a previous ruling, saying, in effect: "that previous ruling is still valid, but this is a different case in such and such a specific way, so the result is different". Students in law school spend a good deal of time learning how precedents are cited, and how they should be used, learning what sorts of things are controlled by precedents, and how to find the precedents that apply to a particular case. When they become lawyers and then judges, they taken this body of learning with them, and use it in writing decisions, and opinions that explain those decisions. New law from the legislature can reverse previous court decisions, except in the case of decisions interpreting the constitution (federal or state). Amendments can change the constitution. Judges must adapt to such changes in the law. To a significant extent our system of precedent is a matter of tradition, going back largely to the common-law courts of England, although it has been modified by specific legislation in many ways, as well as by more recent court decision and practice. It is passed on in law schools, in legal apprenticeships of various kinds, and in individual court decisions. | How does John protect himself from false claims (e.g. if the woman decides to roll down the stairs and blame him)? It would be very helpful if John has evidence of Oxana making false statements about him or others, and/or of Oxana threatening to make them. False accusations are common --and hardly ever prosecuted-- in a context of divorce. Examples of that are police reports (here and here) and excerpts of court proceedings that ensued during my father's (desisted) proceedings to divorce his 2nd wife (for additional excerpts, see also at 22:49-24:29). According to one of those police reports, my father's 2nd wife allegedly extorted him with "You'll have to pay me even until my ring!" (see page 15 of the pdf file) at the time they were going through the divorce proceedings he filed. Based on your description, it is not far-fetched that John could end up experiencing a similar mess as reflected in these police reports. Note: I don't know whether the poorly written quote from page 15 of the pdf was my father's translation of their interactions or whether he merely transcribed them to the police. Is there any downside to basically putting a camera in every room of the house except hers? John is strongly suggested to check Ohio law to avoid criminal charges. For instance, Michigan statute MCL 750.539d(1)(a) prohibits to "Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.". As a wife, Oxana would be reasonably entitled to that privacy in rooms other than --and including-- her room. Moreover, placing cameras in every room will not preempt false accusations. For instance, Oxana could still calumniate John by falsely alleging that he and the daughter went to a hotel to have intercourse. How do you find a good divorce lawyer? Before you even decide to retain a lawyer, see this report about New Jersey Family Court, where judges and attorneys allegedly are in the habit of dragging divorce cases for as long as it is profitable to the lawyers (obviously, at the expense of the parties pursuing the divorce). I don't really follow --and have never litigated-- divorce matters, but the multi-year divorce & custody case of Tsimhoni --formerly presided by Michigan infamous judge Lisa Gorcyca-- illustrates that NJ is not the only state where parties fall prey of legal malpractice. John should search for Ohio court opinions related to divorce matters and get acquainted with the applicable concepts, laws, and doctrines. For that purpose, one free, very useful resource is http://www.leagle.com/leaglesearch . Court opinions usually cite relevant statutes, whence John can get an idea of what laws are decisive on divorce matters. Is it reasonable to ask for some sort of record of past outcomes (are there standards to provide full and complete records like for financial companies)? It is reasonable, but no, there are no such standards at all. An attorney will most likely allege grounds of attorney-client privilege, the extensive time that would be needed to redact court documents, and possibly other excuses to deny John's request. Instead, John should go to the court in his county and study as many files of divorce cases as he can. A number of courts display some information of cases in their website. For example, some Michigan trial courts have deployed Odyssey (see here and here), whence a party could search from home whether an attorney has litigated cases in that court and how long they've taken. To see the contents of complaints/motions/etc., John can read them only in the courthouse, unless the county court has configured Odyssey (or its equivalent) to allow the public to read the contents from elsewhere. I don't know what progress Ohio courts have made on this. Regardless of the attorney's transparency to share with John any redacted records about his performance, another important variable is the judge. In this regard, see the next item. Is it reasonable to ask to pay way less if the lawyer fails to get certain terms? Unfortunately, that is neither reaonsable nor realistic. Just from meeting with John, it is impossible for the attorney to know aspects such as: whether John is truthful and the meritorious party; how much trouble Oxana will cause during the divorce proceedings (see the aforementioned police reports); how vexatious the opposing counsel will be; whether John will weaken or sabotage his case during an unforeseen situation or lose control as a result of exasperation; whether the case will be presided by a judge who follows the law (instead of incurring personal bias or influence trafficking); if the judge engages in influence trafficking instead of following the law, whether the attorney is in cozy terms with that judge; whether the opposing counsel is in even cozier terms with that judge; in the event that the matter is appealed, any of the three previous items may apply; whether the parties settle (or John desists for whatever reason). Given the multitude of unknown/uncertain variables and possible outcomes, no person (attorney or otherwise) could establish beforehand the semi-contingent pricing that you have in mind. Do the lawyers even do anything other than fill out paperwork? Yes, they do, but that doesn't necessarily mean that what their work is any effective. Even if the lawyer is diligent, the court might negligently fail to enforce its own orders. | A "preliminary hearing", of the kind depicted in the Perry Mason novels, is a procedure in California and some other states. It is an alternative to a Grand jury proceeding. It is used to determine whether there is probable cause to put the defendant on trial. Such hearing are mostly rather routine, and rarely reach the level of drama shown in "Perry Mason". But the prosecutor does present witnesses, which the defendant's lawyer can cross-examine. The defendant may, but rarely does, also present witnesses. Note that Mason stories sometimes involved a full trial, not just a preliminary hearing. Gardner, who wrote Perry Mason, was a practicing attorney in CA, and most of the law as he shows it was accurate when he wrote, but he often showed legally possible but highly unlikely events to improve the drama of his stories. | If the suit is to be filed in the US, the first step is to officially register the copyright. No US copyright infringement suit can be brought until the copyright has been registered. The registration process includes a formal declaration as to who the author is (or authors are). (I believe this statement is made under penalty of perjury.) Once the registration issues, the certificate of registration is admissible evidence of the facts stated in it in a us court. Indeed 17 USC 410 (c) provides that: (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. In other countries, the testimony of the plaintiff in a copyright infringement suit is itself evidence that the work was created as stated. In either case, it is possible for the defendant to challenge the assertion and claim that s/he is the actual author. Showing when and where the work was first published can usefully corroborate the plaintiff's testimony. Having included a copyright notice in the initial publication may be of value, but if the notice only lists the pen name, it is not of much value. Records of the platform on which a work has been published may help in verifying the identity of the author. So may the testimony of others who saw or read the work, or who were told about it by the author. An author's own copies may be of value, if they carry a timestamp, as computer files generally do. But computer timestamps are not usually secure. Timestamps on email generally are reasonably secure, and could establish that the content existed and had been transmitted on a specified date by a specified person. But none of this will matter unless the defendant claims that the plaintiff is lying in claiming authorship. Unless that happens, the plaintiff's testimony will usually settle the matter. A person whose work seems to have been infringed would usually be wise to consult a lawyer with experience in copyright suits. Such a lawyer could advise if it is wise to bring suit at all, and if it is, what evidence will probably be needed. |
Do decisions of British courts have any effect on other English speaking jurisdictions around the world today? I’ve heard it said that various troubling decisions by British courts would set precedent binding upon many English speaking jurisdictions all around the world. I suppose this is in common law/commonwealth jurisdictions but surely there must be a fork in their respective legal cannons upon obtaining independence from the U.K.? How does this exactly work with many of these states having their own parliaments? | Contemporary decisions of domestic British courts (e.g. the Supreme Court) are not binding in foreign jurisdictions. They may be persuasive for courts there, because there is a common legal tradition and the U.K. judiciary is often considered to be quite good. Some countries have preserved a right of appeal to the Judicial Committee of the Privy Council (aka "The Queen in Council"). This body is basically the same judges as the Supreme Court but sitting in a different room. As the JCPC their decisions are precedential in wherever the appeal came from, and potentially elsewhere if the law in question is the same. Corollary: JCPC decisions are not precedential for British courts, unless the JCPC goes out of its way to say so. In these cases, the JCPC applies the law and constitution of the origin country, which can include retained pre-independence British laws as well as the common law. That country could pass a subsequent statute or constitutional act overriding the JCPC's decision (as Parliament could in the U.K.), so that country retains ultimate control even though one of "its" courts is a shared one sitting in London. This arrangement can cause dissonance. For example, some Caribbean countries would like to execute people, but that is prohibited in the U.K.; the JCPC continues to permit executions to go ahead in some cases, even though that would be illegal if the same judges were in a different room hearing a British case. There are very occasional cases from Brunei, whose law is determined by the Sultan and includes aspects of Islamic law not known in the U.K. legal tradition. | There is a general EU anti-discrimination directive 2000/43 which in Article 3(1)(h) which applies the standards to housing. This document analyzes Czech anti-discrimination law. If you were discriminated against on the basis of being English, that could support legal action. There is no current EU or Czech legislation that guarantees a right to operate in the language of your choice. There have been calls to create some such legislation. Such legislation would be the implementation of Article 21 of the Charter of Fundamental Rights of the EU, which says that Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. There is under Article 9 of the European Charter for Regional or Minority Languages a right to use regional or minority languages in judicial proceedings, but there is no generic "right to use your own language". There are occasional cases where governments are sued because their actions linguistically discriminate. As observed here, there was a case in Belgium where the government was sued for not subsidizing French education in non-French territories, but the court said that "Art. 14 cannot be interpreted as guaranteeing children or parents a right to obtain instruction in a language of his choice". | Gaining UK citizenship at birth would not count, the law stipulates "after having attained the age of 18 years", so it is explicitly ruled out. (Also, gaining UK citizenship at birth involves no formal declaration.) The scout promise would not count. It doesn't involve swearing allegiance to the Queen, only promising to "do your duty to the Queen"; and an American could argue they have no duty to the Queen. (Also, you might well not have repeated it after 18.) On the face of it, the Oath of Allegiance for the OTC would count - it looks pretty much exactly what the law-makers had in mind. On the other hand, the oath is almost exactly the same as that taken by Members of Parliament, and Boris Johnson took it first in 2001 - but didn't renounce his American citizenship until 2017. (Perhaps it wasn't until 2017 that he finally drew the American authorities attention to the fact he had taken the oath.) | The precedent is very clear and was accurately applied by the judge A treaty does not create domestic law and is only applicable to the extent that it is incorporated into domestic law. She extensively quotes the relevant precedents in the judgement at [42-49]. | 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. | Ohwilleke's answer (i.e. 'there isn't a simple answer') covers the general principles clearly. But for your specific situation (England and Wales, appeal to the High Court Chancery Division or Court of Appeal), the answer is "Do nothing irrevocable if possible; if necessary, apply for interim directions to the Court". The Chancery Masters are used to this sort of application, and though somebody will presumably be diappointed by the decision, the trustees have no liability. | This is an interesting hypothetical. In this scenario, Country Z does not have jurisdiction to enforce such a law on foreign nationals, unless Country Z has an extradition treaty with Country A. Generally, however, these types of laws would never be enforced as they are egregious abuses of government, and could possibly be elevated to the International Court of Justice if Country Z actually charges any individuals with such a crime. In these instances, however, war is a very unlikely scenario, since this would often be expensive and any escalation would most likely be small skirmishes that would lead to an eventual ceasefire, with the encouragement of the international community, without the involvement of UN Peacekeeping troops. | Yes It's not uncommon. In fact I am aware of at least one case where the trial judge referred it to appeal before he made his decision on the basis that whichever way he decided the law was so unsettled that grounds for appeal would occur. In that case the court of appeal called up the trial judge to sit on the 3 judge appeal a) because he knew the case and b) because you don't get to not make a decision because it's hard sonny-jim. |
Are instructions for over-the-counter drugs legally binding? While it is a crime to use certain drugs or to use prescription drugs in a way not prescribed by your doctor, what about over-the-counter drugs? If, for example, the instructions of an over-the-counter drug say you should take it once every six hours, but due to circumstances on a certain day, you decide to take it an hour early (five hours), would you have committed a crime? (If the answer varies by state, we can use Ohio's jurisdiction.) | In Ohio, it is not actually a crime to not follow the instructions for a prescription drug. The relevant prohibitions are in ORC Chapter 2925, where §2925.11 prohibits possession of certain substances under certain conditions. "Controlled substances" are determined via the CSA schedules down to Schedule V, covering some but not all prescription drugs (e.g. not statins). The prohibition is stated as a blanket prohibition against any who "knowingly obtain, possess, or use a controlled substance or a controlled substance analog", followed by a list of exceptions such as pharmacist or manufacturer, and finally (d) Any person who obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs if the prescription was issued for a legitimate medical purpose and not altered, forged, or obtained through deception or commission of a theft offense. Nothing demands that you follow the pharmacist instructions. However, there are certainly scenarios where you are not following instructions (triple dose of codeine to feed the habit, prescription issued in response to a patient's deceptive medical claims), where possession of the substance would then be illegal. Apart from that, there is no criminal penalty attached to not "taking on an empty stomach" either for prescription drugs or OTC drugs. | Yes to attempted murder and conspiracy to murder. No to murder Although the particular example you raise looks like entrapment and law enforcement can’t do that in the United States. Putting that aside, factual impossibility is not a defense in common law jurisdictions. Conspiracy to murder someone who can’t actually be murdered (because they are already dead or, as here, don’t actually exist) is still a crime. Legal impossibility, however, is a defense. Something is legally impossible where it is impossible to meet one of the elements that define the crime. Most crimes require that something physical be done, for example, murder requires the perpetrator to kill the victim (among other things), so you can't commit murder on a dead or non-existent victim. However, crimes in the nature of "Conspiracy to X" or "Attempted X" often only rely upon intention even if it is impossible to do the thing intended. To illustrate the difference: if it’s illegal to smuggle cocaine across the border and I, being an idiot, get caught smuggling what I think is cocaine but is actually table salt, I’m guilty of attempted drug smuggling. This is factual impossibility but a legal possibility. I'm not guilty of drug smuggling because that crime requires that I actually smuggle drugs. This is both a factual and legal impossibility. if, however, the day before I do it, the law against cocaine is repealed, then whether I smuggle table salt or actual cocaine, I’m not guilty of either crime even if I think it’s still a crime. This is legal impossibility. | I can’t think of any laws against pretending to commit a crime, per se. For example, undercover police officers often pretend to buy or sell illicit goods, to see who will take them up on the offer. However, pretending to commit some crimes could be a crime. if you intentionally pretend to be violent or unstable, and this “puts another person in reasonable apprehension of imminent harmful or offensive contact,” that could be common assault. | Illegal weapons Weapons are defined and are made illegal by statute. In many states, it is illegal to possess brass knuckles. For example, California penal code 12020(a)(1) makes it illegal to possess "any metal knuckles", "writing pen knife", "any leaded cane", among other things. I don't know of any state where it is illegal to pick up a stick, or keys, etc. So, yes, there is a legal distinction between your four scenarios. The mechanic is committing a crime by merely possessing the brass knuckles. The others are not committing a crime by the mere possession of the things you mention (unless there are states where they've been made illegal). Effect on a self-defense analysis Courts would have the jury go through the same self-defense analysis in each of these cases, regardless of the legality of the weapon used. We've described that analysis here. A pure self-defense analysis does not factor in the legality of the weapon that is used. But, if the weapon has been made illegal because of its disproportionate ability to injure, etc. that might weigh against the reasonableness of the force that was used when choosing to use that weapon in self-defense. Possession of an illegal weapon might also weigh against the credibility of the owner of that illegal weapon. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | It would basically be illegal, regardless of what a contract says: contracts are subordinate to the law. So the question comes down to whether the law unequivocally requires OT for shifts longer that 8 hours. These sorts of governmental fact sheets are not absolute statements of the law, they are guidelines about what is most commonly applicable, and to determine if there are any exceptions, one must consult the actual law. The fact sheet says "After working eight hours in a day an employee must be paid time-and-a-half for the next four hours worked", which is somewhat different from "in a shift". The (summarized restatement of the) law says that an "averaging agreement" is legal (if in writing), so if that allows working more than 8 hours in a shift, that could be consistent with (does not override) the law. To really know, you have to read the actual law. The section on maximum hours and overtime says 35 (1) An employer must pay an employee overtime wages in accordance with section 40 if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week. (2) Subsection (1) does not apply for the purposes of an employee who is working under an averaging agreement under section 37. So 3 shifts of 12 1/3 hours would be legal, and perhaps typical in a hospital. The "average hours" part of the law says an employer and employee may agree to average the employee's hours of work over a period of 1, 2, 3 or 4 weeks for the purpose of determining the employee's entitlement, if any, to overtime wages under subsections (4) and (6) of this section and wages payable under subsection (8) or (9) (b). as long as there is a clear advance agreement (as in a contract). This still limits hours worked without overtime to 40 hours/week (on average), and then there is still an upper limit of 12 hours: An employer under this section who requires, or directly or indirectly allows, an employee to work more than 12 hours a day, at any time during the period specified in the agreement, must pay the employee double the employee's regular wage for the time over 12 hours. Since the law is stated in terms of "day", we better see what a "day" is: "day" means (a) a 24 hour period ending at midnight, or (b) in relation to an employee's shift that continues over midnight, the 24 hour period beginning at the start of the employee's shift; so you can't force an employee to work 12 hours without overtime (without an averaging agreement), simply by splitting a 12 hour shift across midnight. It is thus possible for a contract to do things that superficially appear to be contrary to the "most common situation" factsheet representation, but the law itself is not overridden by such a contract. | The general rule is, anything is allowed unless it is forbidden (and not that you can only do things that are expressly permitted). The logical structure of law may be a bit more challenging than procedural programming logic, since it may require a global knowledge and evaluation of the entire code (typically but not absolutely, the scope of the search for "unless otherwise" conditions is restricted to "in this chapter"). In other words, the law is a set of propositions which must all be true, and unlike actual execution of instructions in a sequence, law is to be interpreted simultaneously but hierarchically (that is: the order in which clauses are written is not significant). The appearance that the law is self-contradictory is largely illusory, though the resolution of the conflict may require a careful reading of the law and knowledge of jurisdictional hierarchy (federal law is superior to state law, which entails a particular resolution of the apparent conflict). Sometimes there are real conflicts, which usually result from using words in conflicting ways (note the practice of re-defining words "in this chapter/section/title"). The reason why law is not a science is that law is normative, not descriptive: it dictates what is allowed (a determination made through the political process), and does not attempt to discover what independently is. The reason why the legal process cannot be implemented in software is that software does not yet correctly interpret natural language, and law is written in natural language following interpretations based on judgments of what choices a reasonable would make. Perhaps if you propose a piece of law that you think is contradictory, it would be possible to show how the contradiction is illusory. |
Where does the term common law come from? The term for the legal system derived from the medieval English system is generally Common Law, as opposed to for example the Roman Law or the system derived from the French Code Civil (Civil Law). I guess the term common law is somehow related to the term commonwealth. In either case, where does the common law term itself come from and refer to? | Common law is so called because it was "common" among all the courts in England, with Court A relying on decisions from Court B, and vice versa. | canada The language is clear in context Covenants and easements are interpreted using ordinary contractual interpretation: Connick v. Owners, Strata Plan VIS7092, 2022 BCCA 52. This means that interpretation should give the words "their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract... The meaning of words is often derived from a number of contextual factors": Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53. A court would have no difficulty determining who "King Charles III, King of England" refers to. | I take that to mean that section 14 alone should not be construed to give a department the power to sue under sub section (1), nor the ability to be sued under sub section (2). Rather, if some other law, or some other section of that law confers such a power or ability, section 14 indicates how the power should be used, that is, gives the proper procedure. But if no such other law is in effect, section 14 alone won't do. If the law has simply said: civil proceedings under this Act by the Crown may be instituted by (a) the appropriate government department in its own That might have been construed to grant such powers to every "appropriate " department, which apparently was not desired. | If the parties agree the sky is green then that is taken as fact by the court common-law Common law courts are adversarial and exist to resolve the dispute between the parties. That may involve them making a decision on what the facts are on the evidence if those facts are in dispute. If the parties agree on the facts then the court will not enquire into whether those facts are objectively correct. This is so fundamental that virtually the first thing that happens in a case is the parties submit an agreed statement of facts which tells the court “nothing to see here, move along.” | It means what it says The person who owns the land has a right to a seat in the parish church and, if there are not enough seats then they get one and other people have to stand. This is all pretty archaic but it stems from English law where parishes were geo-political and not just religious. Who got to sit was decided by the church-wardens and parishioners had a right to a seat without payment - visitors could be charged. However, some parishioners had an additional right by virtue of their office or landholding to a seat before other parishioners. The United States is in some ways a legal “time capsule”. Many common law countries have progressively codified the common law which tends to “fossilise” the law since judges are no longer able to say “well, that was a sensible law then but it’s clearly outdated so I’m changing it”. Since the United States did this earlier and harder than most other jurisdictions and has a natural progression back in time from the west to the east you get these lovely little anachronisms. | Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side. | In theory "legalese" is English: you will find every word in the dictionary, and the rules of grammar are exactly the same. However in practice it is true that legal documents are often written in a very specific style. There are a number of possible reasons for this: The document must say what it intends very precisely. Most regular language is quite sloppy and ambiguous, but lawyers share with computer programmers the need to ensure that what is said is precisely what is meant. A legal document exists within a legal system in which certain words or phrases carry very specific meanings. For instance in the UK the words "in trust" when talking about money or property will automatically import a huge body of law (and its also possible to have that law apply even if you don't use the magic words). Lawyers know about these things, and will write a document to either invoke or avoid those bodies of law as they see fit. Related to (2) above, laws and legal precedents give lists of things that must be done or proved. Legal documents will often follow these lists using the same terms in order to avoid future challenges. For instance US patent law specifies what must go into a patent application, so you had better follow the format and use the same subject headings. Within patents in particular, the patent office manual allows a patent to be rejected because of informal language that leaves the patent unclear. Patent lawyers and examiners have evolved an informal set of conventions about how things are said. If you use these conventions the examiner will have a much easier time understanding what you mean. Its not "cargo cult", more a specialised language. (Note: the following is about the US patent system, but similar considerations apply everywhere.) Lets take a look at an example patent picked at random: The abstract lists the key elements of the invention in very abstract terms, such as "vibrating mechanism" and "power source". If you were writing this in "informal" language you might mention a specific power source such as a battery. But doing so limits your invention: what if something other than a battery (such as a super-capacitor or spring-driven generator) is used? That would be a separate invention not covered by your patent. So patent lawyers take time to think and ask about generalisations. The next interesting part is the Claims. These set out precisely what is and is not covered by the invention. If the Claims don't cover it then its not in the patent. The format of each Claim is defined in 35 US 112, so if you don't do it like that it won't count. Finally we get to the Description. This is intended to explain the invention to "any person skilled in the art". It also needs to explain the prior art and show why the invention is new and useful, because those are statutory requirements. Much of this is in fact written in an ELI5 way, if the 5-year-old had swallowed a dictionary. The reason is that any little thing omitted or assumed can be used by a future challenger claiming that the hypothetical "person skilled in the art" would have failed to understand or know it. So lets take a sample paragraph from this patent (numbers refer to diagrams in the patent): The electrical connection 22 may include a circuit device that transforms a DC power provided by the power source 26 to AC power for the vibrating mechanism 28, which circuit devices are known to those having ordinary skill in the art of circuit design. This anticipates a possible variation on the invention and stops it being patented separately. It asserts that the "circuit devices" are known, so it doesn't need to describe them in detail. If that assertion wasn't there then someone might challenge the patent on that point, but since the assertion has been accepted by the patent examiner it is presumed to be correct. Note the "... ordinary skill in the art ..." phrase: this is explicitly calling out to the language in Title 35. You might imagine that such a variation would be obvious, and therefore not patentable. However it is very difficult for a court to decide in hindsight whether something would really be obvious to a person skilled in the art; you wind up with each side hiring expert witnesses who will give competing testimony as to whether it seems obvious to them. As a result the courts have set a very low bar to a claim that something is "non-obvious". The language used throughout a patent is of vital importance: infringement cases can hinge on the most trivial of linguistic issues. This blog post by a patent lawyer has a list of examples, including this one: For example, in Chef America, Inc. v. Lamb-Weston, Inc., Chef America tried to protect a cooking step for heating a dough at a certain temperature inside an oven. But Chef America drafted the claim to read “heating the . . . dough to a temperature in the range of about 400 degrees F. to 850 degrees F.” The Federal Circuit reasoned that “to” is not “at” and, thus, the claim required the dough (not the oven) to be heated to the specified temperature. The Court then ruled that the claim was not infringed. In fact, under the Court’s claim construction, this claim could not possibly be infringed unless one wanted to make burned dough. See also this case on "partially" not including "totally", and this post on why the word "disclosure" is now used instead of "invention". Patent lawyers call this kind of thing "patent profanity", i.e things you simply do not say. So if you don't use this kind of "legalese" in your patent the following things are much more likely: Your application will be rejected because the examiner cannot understand exactly what your invention consists of. Trivial variations on your invention will turn out not to be covered. Someone will challenge your patent on the grounds that you didn't explain everything that a "person skilled in the art" might need to know. | Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions & language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws). |
Liability for explosive theft prevention A man in New Orleans, USA, developed a method to prevent thieves from breaking into his car by rigging a flashbang to detonate if someone broke in. A flashbang is an explosive device that triggers a temporarily blinding flash of light and a loud noise. Such devices stun and disorient people who are nearby. https://www.youtube.com/watch?v=pQqb2k717Sg Could this man be liable for injuries caused by the explosive device? | Yes. This sounds equivalent to the famous case of Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). A shotgun trap was set up in an abandoned house owned by Edward and Bertha Briney. A thief broke in and was seriously injured. After the thief had served his sentance for the attempted theft he sued the homeowners and won $20,000 in actual damages and $10,000 in punitive damages. | Examples Detention: A person suspected of a felony can be detained at gunpoint (and, in many jurisdictions, subject to "citizen's arrest"). A more clear example is when you encounter someone committing a felonious assault. You can brandish your gun and order them to stop. If they do stop, then you cannot shoot them unless there is no alternative to preventing them from inflicting grievous bodily harm on another. Defense: If you reasonably feel that another person poses a real and grievous physical threat, you can brandish a gun in defense. A common example is the slight woman followed into a vacant alley by a large man. She can brandish a gun to keep him at bay, but she cannot shoot him if he is not making explicit threats and (supposing one accepts the "Tueller rule") makes no aggressive motion within 21 feet of the woman. Law One helpful explanation of the distinction, by a MO attorney citing the MO Supreme Court: While deadly force can only be used to meet the threat of deadly force, the threat implied by brandishing is justified by a low level threat. “When a person has reasonable cause to apprehend on the part of another a design to inflict a great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished he is justified, and has the right, ‘to avert such apprehended design,’ and in proper circumstances the right of attack may be essential to the right of self-defense.” More detailed analysis can be found of California Penal Code 417 (California's law against "Brandishing," which is similar to brandishing laws in most states): [I]f you were lawfully defending yourself or defending another person, California's self-defense laws will excuse your otherwise criminal act. You lawfully act in self-defense or in defense of others when you reasonably believe that you or another person is about to suffer imminent harm, and you fight back with no more force than is reasonably necessary to defend against that danger. I.e., sometimes it's enough to say, "Stop!" But sometimes it's necessary to present a gun for the bad guy to get the message. Additionally: Simply drawing or exhibiting a weapon isn't enough to justify a conviction for 417 PC. In order for prosecutors to convict you of brandishing a weapon or firearm, you must do so in a rude, angry, or threatening manner. The same law review provides illuminating comparisons with the related offense "Assault with a Deadly Weapon" (ADW — CA 245 PC). | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? | In Florida, as in most common-law jurisdictions, you may legally use force to defend yourself and others from someone else's imminent physical assault. Florida makes it explicit. 776.012 Use or threatened use of force in defense of person. (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. The force you're defending against must be imminent, though. You can't just believe you may be in danger; you have to believe you are. Further, you must reasonably believe not only that use of force is necessary to defend against that danger, but also that you have to use that much force. Once you believe any of those statements to be false, or any of those beliefs become unreasonable, you're no longer protected by 776.012. If you continue to use force past that point, you're no longer defending; you're attacking. Yes, there may be criminal charges. I mean, use of force is illegal by default, and justified or not, you did just knock a guy out. The government has a duty to ensure that your use of force was lawful, and if it finds reason to believe otherwise, you may be charged. Yes, you might be held liable for the attacker's medical expenses. Mix Tape Guy is likely to try to sue in any case. He has some small chance of winning, partly because civil and criminal trials present different burdens of proof. If you weren't charged, or were found not guilty (and didn't get off on a technicality), then that chance remains pretty small. But if you are tried and found guilty of assault, you're much more likely to lose. Yes, you might be held liable for damage to the restaurant etc. Same story as with Mix Tape Guy. The outcome will depend heavily on the outcome of the criminal trial. If you weren't charged, or you were found not guilty, then you're less likely to have to pay to fix the restaurant. If you're tried and found guilty, you'll almost certainly have to chip in. | California law has a general defense of necessity. It appears that it's not in statute, but rather comes from common law. It's described in what appears to be the official jury instructions at CALCRIM 3403. The defendant is not guilty of (insert crime[s]) if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); (He/She) had no adequate legal alternative; The defendant’s acts did not create a greater danger than the one avoided; When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; A reasonable person would also have believed that the act was necessary under the circumstances; AND The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true. It seems like all six requirements would apply in your hypothetical case, so if you could prove them, you'd be off the hook for a violation of Cal. Penal 148(a)(1) as cited by user6726. | The "felony murder" doctrine, which applies in most of the U.S. (including California), holds criminals engaged in "dangerous felonies" responsible for any deaths that occur during the commission of such crimes. In the given example, the hostage taker and anyone who is an accessory to that aggravated assault would, if convicted, also be guilty of murder for deaths that occurred in connection with the incident, regardless of their intent. | 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. | You aren't liable unless you do something stupid with them. Possessing keys doesn't make you the owner, it makes you someone with keys. That said, we could probably come up with negligent things you could do that would be a problem. Like have a huge heroin party (let's assume this is a thing) filled with minors in the back yard. The family of an overdosed kid would have a good action against you personally for being so negligent, and also probably against the homeowner and their insurance as the property owner. If the party turned wild and the house burned down, the owner would likely have good action against you as well. I doubt this is really a problem for you, so there's no need to worry. |
Does the Supreme Court simply rubberstamp the prevailing social consensus? In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) the US Supreme Court ruled that slavery was legal. In Plessy v. Ferguson, 163 U.S. 537 (1896), the US Supreme Court ruled that segregation was legal. In Obergefell v. Hodges, 576 U.S. 644 (2015), the US Supreme Court ruled that same sex marriage was a constitutional right. In all these cases, it seems that the Supreme Court makes its ruling only according to the prevailing social norm. It would be unthinkable for the US Supreme Court to make the Obergefell decision in 1800, for example. So what exactly is the role of the US Supreme Court? Is it to make decisions based on timeless, universal principles? Or is it simply to rubberstamp the prevailing social consensus? | Does the Supreme Court simply rubberstamp the prevailing social consensus? No. Structurally, The Supreme Court Is Designed To Lag Behind Social Consensus U.S. Supreme Court justices are political appointees with discretion over how laws are interpreted and enforced in the U.S. that cannot be reviewed by any other body, in the case of constitutional law, and can only be second guess by Congress and the President acting together, in the case of statutory law. Since U.S. Supreme Court justices serve for life, they tend to be lagging indicators of the political preferences of past Presidents. Plessy v. Ferguson was influenced by post-Reconstruction judicial appointments trying to salvage what it could from the end of the slavery regime for former slave states, although Congress could have overruled it with new legislation if Senators from Southern states hadn't filibustered that kind of legislation in the U.S. Senate. Still, while the law changes slowly, and the U.S. Supreme Court is often a lagging indicator of the prevailing social consensus, it is not frozen in time either, both because legal norms change over time, however slowly, because statutes and constitutional amendments change the environment in which the U.S. Supreme Court operates, and because sometimes the law commands them to do so. For example, in 8th Amendment jurisprudence (the prohibition against cruel and unusual punishments), the "unusual" part of "cruel and unusual" has always incorporated prevailing social consensus, by design and by virtue of the express constitutional text. Precedent Still Matter Precedents also matter, however. U.S. Supreme Court Justices, while they may be influenced by a political ideology that had a lot to do with why they were nominated in the first place, are not simply legislators in robes. While the U.S. Supreme Court is well known for its partisan split votes on close political issues, there are many areas of law where the U.S. Supreme Court is still far less partisan than elected officials, and often, split decisions in the U.S. Supreme Court on less politically charged issues are not along partisan lines. U.S. Supreme Court Justices cross partisan lines far more often than elected officials do, and the amount of partisan line crossing that takes place in courts below the Supreme Court that have a legal duty to follow the precedents of courts superior to them is even greater. At the time of Dred Scott and until the 13th Amendment was passed in the wake of the U.S. Civil War, slavery was legal and its legality had never been seriously doubted in U.S. legal precedents. Precedents at the time, including a series of highly sensitive legislative and constitutional compromises already agreed to by other parts of the government, supported this ruling, whether or not it was good policy. Obergefell v. Hodges, followed a nearly unanimous groundswell of support for the position that the U.S. Supreme Court ultimately took from state courts and lower federal courts, applying a variety of precedents already in place going back to Griswold v. Connecticut, 381 U.S. 479 (1965), which affirmed that the fundamental rights found in the Fourteenth Amendment's Due Process Clause "extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs," but the "identification and protection" of these fundamental rights "has not been reduced to any formula," and Loving v. Virginia, 388 U.S. 1 (1967), invalidating laws prohibiting interracial marriage. The lesser known cases of Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating a Wisconsin law limiting the right of non-custodial parents to remarry), and Turner v. Safley, 482 U.S. 78 (1987) (allowing prison inmates to marry without state permission) had also established a constitutional right to marry. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down a Colorado law that barred local governments from protecting gay rights. In 2003, the Supreme Court in Lawrence v. Texas struck down Texas’ sodomy law - and in turn invalidated sodomy laws in 13 other states - making private, consensual, adult sexual activity between same-sex couples legal across the U.S. In United States v. Windsor (2013), the Supreme Court held that a same sex couple legally married in Canada could not be denied the federal estate tax spousal deduction invalidating Section 3 of the Defense of Marriage Act as unconstitutional. The same day, in Hollingsworth v. Perry (2013), the Supreme Court held that California Proposition 8 (note that a majority of voters in this very liberal state passed this measure in 2012 suggesting that allowing same sex marriage was not the prevailing social consensus) which prohibited California from recognizing same sex marriages lawfully entered into after a couple prevailed in a 2009 court fight to secure same sex marriage rights under prior California law was unconstitutional. In 2015, SCOTUS responded not to a public opinion social consensus, but to a legal consensus among U.S. appellate judges driven by its own precedents. Many states in which judges struck down same sex marriage bans before the U.S. Supreme Court took up the issue did so in states where same sex marriage was not popular, because fifty years of accumulated precedents from 1965 to the present strongly pointed in that direction. As a result, on the eve of the Obergefell decision, 37 states and the District of Columbia already recognized same-sex marriage, and only 13 states had bans. Those bans were mostly struck down as a result of lower courts interpreting existing U.S. Supreme Court precedents like the ones mentioned above, and as a result of legislators seeing the writing on the wall and wanting to take credit for the inevitable. The act of nationalizing the right to same-sex marriage also reflected the reality that even though the constitution allocated regulation of marriage to the states rather than the federal government, as a general matter, that allowing a particular couple's marriage to be recognized in some U.S. states and not others, was basically unworkable in a country with freedom of travel between states. SCOTUS Often Establishes The Prevailing Social Consensus Also, while sometimes the U.S. Supreme Court does give official recognition to the prevailing social consensus (which is closely related to what becomes law by one means or another anyway), perhaps more often, a U.S. Supreme Court ruling establishes and changes the prevailing social consensus. Support for interracial marriage in opinion polls, which wasn't terribly high when Loving v. Virginia was decided in 1967, soared after the U.S. Supreme Court declared it to be a matter of constitutional law. A question from a 1968 international Gallup poll underscores the extent of U.S. opposition to interracial marriage during this period. This question, which asked Americans and those in 12 other nations whether they personally approved or disapproved of marriage between whites and nonwhites, found even broader U.S. opposition than the 1965 question. More than seven in 10 Americans (72%) disapproved of white-nonwhite marriages, in contrast with only 21% of residents in Sweden, 23% in the Netherlands, 25% in France, 34% in Finland, 35% in Switzerland and 36% in Greece. Opposition outweighed support in Austria, Canada, West Germany, Norway, Uruguay and Great Britain, but to a far lesser extent than in the U.S. The 1965 and 1968 U.S. reactions to interracial marriage appear contradictory, but this is because each question measures a different dimension of public opinion. The 1965 question asks for people's views on the legality of interracial marriage -- whether it should be a crime -- whereas the 1968 question merely asks Americans whether they personally approve. Americans' personal views on interracial marriage eventually changed, but it took decades for majority support to emerge. In 1978, more than a decade after the Loving case, only 36% of Americans approved, while 54% still disapproved. Not until the 1990s did public approval cross the 50% threshold, registering 64% in 1997. Gallup's latest update, in 2013, shows 87% approving. (Source) Support for same sex marriage has followed a similar pattern after Obergefell v. Hodges was decided. Roe v. Wade (creating a constitutional right to medical abortion) and Griswold before it (creating a constitutional right to contraception and clearly establishing the concept of substantive due process rights to privacy), likewise dramatically changed public opinion on these issues. So, while the U.S. Supreme Court is sometimes a lagging indicator of a social consensus that is already prevailing, its moral authority and the inability of any other political actors to overcome the legal force of its rulings has also caused it to be a major driver of social consensus going forward. For example, until Brown v. Board of Education (1954), Plessy v. Ferguson was widely accepted as a legally fair standard and the support really only entirely collapsed when the U.S. Supreme Court said otherwise. Indeed, Brown v. Board of Education probably was pivotal in shifting public opinion in a manner that led to the adoption of the Civil Rights Acts of 1964 that finally put teeth into the political resolve to end racial discrimination that had begun in earnest in the Reconstruction era. | This is from an opinion piece (albeit by Law profs.) so you'll have to bear/excuse the tone and check the details... but seemingly there some similar laws introduced earlier this year, on different topics though: But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. My opinion is that the comparison falls short on (2), as the [plaintiff] students seem to have to be from the same school, so it's not as broad as SB.8., in terms of who can sue. (N.B. found a more in-depth news article on the Florida sports law. Some of the writeups on this aren't totally clear on that though, just saying "another student" can sue. I couldn't find the exact text of the law insofar.) The promoter of SB.8, actually gave some inspirational examples in an interview, and they are somewhat older: And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense. (Hat tip to a Politics.SE answer for this latter quote.) Again, I didn't check the details... I suspect there may be some divergence from the strict letter of the (1) requirement. I bet (Medicaid) fraud is criminal as well. It seems the Chick-fil-A law failed to do its (immediately) intended job because it was attempted to be used against a city municipality, but the suit was dismissed (on appeal) due to governmental immunity... The private enforcement of the Medicaid fraud issue was apparently passed because of the huge backlog that existed at one point in the state/agency enforcement in Texas: The Office of Inspector General was lambasted in a state review last year [2015--seemingly] for, among other things, a massive backlog of cases and a failure to recover significant tax dollars from providers it accused of fraud, sometimes incorrectly. N.B., these are referred to as qui tam cases, but they don't quite entirely substitute the plaintiff, at least not in the insurance cases that were won: So-called qui tam cases allow whistleblowers to file lawsuits alleging fraud on behalf of the government. If the claims turn out to be legitimate, state and federal laws award a finder’s fee of between 15 and 25 percent of the total settlement or judgment. Interestingly higher awards are possible if the government declines to intervene, but they are still not 100% going to the private initiator (under the False Claims Act)--from Wikipedia: If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases may potentially receive a higher relator's share, to a maximum of 30%. As Wikipedia also notes, some such laws that entirely left the prosecution to a private entity were found unconstitutional, at the federal level e.g. In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented "a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice". Of some note, the FCA requires that the complaint actually be served on the government and not the actual defendant. This basically ensures that the gov't is notified of all such actions. The Texas-specific legislation on qui tam fraud cases actually seems to mirror the federal one pretty closely: A whistleblower under the Texas Medicaid Fraud Prevention Act [TMFPA] may be entitled to an award between 15% -25% if the state intervenes in the case. If the state chooses not to participate in the litigation, then a whistleblower may be entitled to an award between 25% – 30% of the amount recovered. Nonetheless, a court may reduce the award if the court finds that the action is based primarily on information disclosed by someone other than the person bringing the action. [...] Note: Changes to the Texas laws were enacted by Acts 2015, 84th Leg., ch. 1 (S.B. 219). | Indian Constitution provides for a Federal government in which power of states and centres are clearly enunciated. If there is a dispute over any issue Supreme Court can decide whether State government is correct, or whether Central government is correct. Any law of Parliament affects the entire population of India, and so all states are affected by that law. If any state government considers that the law is not as per constitutional norms, it can easily go to the Supreme Court for decision. So, the observation of the Supreme Court that a state is bound by the law of Parliament, is incorrect. If an individual can file such a case, a state is also entitled to file it. The Supreme Court should decide it on the basis of merit. So I think the observation of Supreme Court in this case is not correct. | 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. | Let's back up. It's premature to say that SB 8 "avoids the constitutional restrictions on banning abortions". The constitutionality of SB 8 has not been resolved; the Supreme Court said so explicitly (page 2). In fact there is good reason to think that is unconstitutional under existing interpretation of the Constitution per Roe v. Wade and the like. (Whether the court will actually follow existing interpretation is another question, of course.) But the courts do not determine the constitutionality of laws just because someone asks them; they only do so when it needs to be decided to resolve a particular case. For instance, if a person is charged with a crime, they can challenge the constitutionality of the law under which they are charged, and courts will address that question unless the case is resolved some other way. There are also ways that a person who wants to violate the law can pre-emptively sue the government to prevent them from enforcing the law, if they can show such enforcement is likely to affect them. The issue in SB 8 is that since it wouldn't be the government enforcing the law, it's unclear who an abortion provider can pre-emptively sue. In Whole Woman's Health v. Jackson, they tried to sue the State of Texas, its courts, and a private party who they thought might be likely to sue them. The SCOTUS majority found that none of those defendants were relevant. However, if and when an abortion provider actually does get sued, there'll be a clear case which has proper parties and is ripe, and courts then will have to consider whether SB 8 is constitutional or not. So if your hypothetical gun control statute were treated similarly, the law might avoid pre-emptive challenges, with a chilling effect on gun sales. But sooner or later, someone would probably violate the law (maybe deliberately as a test case), and the courts would consider whether it was constitutional or not. Under prevailing interpretations of the Second Amendment, they'd probably find that it wasn't. A key difference, of course, is that abortions are much more time-sensitive than gun purchases; being temporarily blocked from having an abortion is much more consequential in most cases than being temporarily blocked from buying a gun. The other subtext is that, although SCOTUS said their decision in Whole Woman's Health is not based on the constitutionality of SB 8, it's widely suspected that several of the justices are not all that keen on the constitutional right to abortion found in Roe v. Wade, and might look to overturn Roe when it comes up. As such, they may not be very motivated to look for procedural avenues to block SB 8 in the short term, since they might be inclined to uphold it in the long term. The dissenters in Whole Woman's Health certainly thought those avenues were available. But in the case of your hypothetical gun control bill, if a majority of justices were pretty convinced that the law was unconstitutional, they might try harder to come up with grounds to block it pre-emptively. | To the title question, yes, of course, Justices are subject to the law same as anyone else is (at least in theory; whether actual practice bears that out is another matter). Chief Justice Roberts (and the rest of SCOTUS, and a good chunk of the judiciary to boot, and then some) was a named defendant in the case Shao v. Roberts that was appealed to SCOTUS. The Justices all recused themselves rendering the court short of a quorum and leaving the prior appellate court decision to dismiss the case sua sponte in place. However, Justices essentially police themselves. As the head of the judicial branch they are largely independent of Congressional or Executive attempts to control how they go about their business. Recent calls to create a legal code of ethics for Justices exist because such a code perhaps cannot, and currently does not, exist under the current constitutional order. As such Justices make their own decisions on when to recuse (see my answer here for further details). Your hypothetical justice would do the same, and the court would proceed as it always does whether they do or don't. | When you get married is possible to have contract renouncing both parties right to a divorce. No. That clause would be redundant, materially indistinguishable from breach of contract, and otherwise unenforceable. It is redundant because the legal definition of Marriage (Black's Law Dictionary) states that it is "A contract, according to the form prescribed by law, by which a man and woman [...] mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife". Thus, the perpetuity as expressed in the term whole lives preempts the conceiving of an eventual separation. Insofar as marriage is legally cognizable as a contract (see legal definition), it might specify or imply remedies in the event that one or both spouses decide(s) that substance of marital relationship no longer exists; that is, in the event that a breach of that contract occurs. A court may order to the breaching spouse performance of certain acts (for example, alimony) in accordance to statutory law or common law. However, a prohibition to divorce goes beyond the scope of what is legally permissible. The U.S. Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984) helps explaining why a prohibition to divorce would be unenforceable: "In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty." If that is not possible how much can you limit the right to a divorce with a contract or something similar? There is no possible limit or requisite duration of a marriage, as that would inherently infringe a person's fundamental element of personal liberty mentioned in the Roberts case. | The Fifth Amendment, and all the other amendments in the "Bill of Rights" (numbers 1-10) were universally understood when passed to be restrictions on the Federal Government only. The courts treated them that way through the end of the US Civil War. This was made definite in the US Supreme Court case Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) Since the passage of the Fourteenth Amendment the courts have decided that most of the provisions of the bill of rights also apply to actions by the states. A few do not apply, such as the requirement that indictments be by a grand jury, and the Third Amendment ban on quartering soldiers in private dwellings. This was done through a somewhat roundabout mechanism -- the Supreme Court decided that the protections of the Bill of Rights were included in the Due process clause of the 14th. As a result not all the provisions were made applicable at the same time. (Most were held to be incorporated during the period from 1925-1985. Gitlow v. New York, 268 U.S. 652 (1925) thru Roberts v. United States Jaycees, 468 U.S. 609 (1984)). Modern legal opinions sometimes discuss incorporation as if it was a fact from the passage of the 14th in 1868. But the actual gradual process is clear in the case law. For example, the Sixth Amendment right to counsel in criminal cases was first incorporated in Powell v. Alabama, 287 U.S. 45 (1932), but only for death penalty cases, and only if "special circumstances" existed, such as a defendant who was illiterate, far from home and support, or feeble-minded. Later cases gradually found "special circumstances" in more and more fact patterns, and in Gideon v. Wainwright, 372 U.S. 335 (1963) the Court extended the right to all felony cases. It has later been extended to misdemeanor cases if jail time is a possible result. A similar history could be spelled out for the Fifth Amendment's protection against self-incrimination, or for the Fourth's against search and seizure, particularly the "exclusionary rule". I, and a number of legal scholars who have better rights to an opinion, think that the 14th's "Privileges and Immunities" clause would have been a more sensible means to this end, but for various reasons that isn't how it was done. Justice Thomas seems to be trying to reverse this -- he has made comments in a number of opinions of late that various things should be protected under the Privileges and Immunities clause of the 14th, rather than the Due Process clause.. Even if the Court adopts this theory, it probably won't change many outcomes. That is how the Fifth, and other Bill of rights Provisions like the Fourth (search and seizure) and the First (free speech and religion) have been applied to restrict the states. None of these provisions directly restrict private individuals. In some cases, courts have said that while individuals may not be forbidden to do things that are forbidden to governments under the Bill of Rights, the courts will not help you do such things, such as by enforcing contracts to do them. No person shall be held to answer for a... crime "held to answer" here means prosecuted in court. Only governments do that. That provision forbids criminal court cases that do not start with a grand Jury indictment. it is one of the few Bill of Rights provisions which the Supreme Court has held do not apply to the states. But in any case it is purely procedural. It doesn't say that crimes may not be prosecuted, nor that they must. It says only "if you want to try someone for a crime, this is a step you must go through." The other provisions of the Fifth all do apply to the states, such as the ban on double jeopardy, and the protection against self-incrimination. does that mean that government can declare it legal for citizens to kill a particular person? No. That would violate the Fifth Amendment's Due Process clause if don3 by the Federal Government, and the Fourteenth Amendment's Due Process clause and its Equal Protection clause if done by a state. It would probably also violate the provision against Bills of Attainder, and perhaps the provision against cruel and unusual punishment. Once upon a time, several hundred years before the US was founded, the government of England did just that. It was called "outlawry". For certain crimes, the punishment was to be put "outside the law". An "outlaw" (in this older sense) was not protected by the law. Anyone could kill an outlaw, or steal from one, and the legal system would do nothing about it. The US has never used outlawry. |
Is Browser-Fingerprinting legal when I transfer/ store only the hash of user related attributes? Is the following pseudo code, being executed within the browser, compatible with GDPR? sha256(fonts + useragent + plugins + ..) Notice: It doesnt store the actual attributes on the server, only the hash of these is transferred, so that the server cant conclude what the real values were. | It doesn’t make you exempt from the GDPR if that’s what you’re asking The hash you produce is linked to one (or a small number) of computers and it therefore serves as an ID number. Because that ID number is linked to the owner of the computer it is personal information and if you are collecting it, you must comply with the requirements of the GDPR - valid legal reason, deletion when no longer required, deletion on request, data security etc. | From ACRO's Subject access - further guidance web page: Why do I need to supply proof of ID? We need to be confident that we provide your personal data to the correct person, which is why we ensure we have sufficient proof of identity before we disclose any information. It also helps us to ensure we make a correct match on the PNC. As for this proof of ID (personal data) provided when submitting a Subject Access Request, ACRO's Privacy policy states: We gather information about site usage to help the development and improvement of services to the public, and to protect the integrity of our systems from malicious users. At the moment this information consists of: Statistical information obtained using Google Analytics. No information collected can be used to identify individual users. For more details about how this affects your privacy please visit the Google Analytics Privacy Centre. If you don’t want to send information to Google Analytics, an Opt-out Browser Add-on is also available or you can configure your browser to let you to choose which, if any, cookies are allowed to be created. Information obtained by our content management system to examine what people are searching for, what they find and occasions where no results are returned. Information collected can’t be used to identify individual users. Information provided by users through online forms; it's held in our UK-based secure data centres and is retained in line with the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679, and our retention policies. However, I have not been able to locate publicly available copies of the retention policies referred to in the emboldened text. | Yes. Art 13 requires you to provide “the identity and the contact details of the controller”. You are the data controller. Your name and address are necessary to establish your identity. Using AdSense means you're offering an internet society service commercially. In that case, there's also probably some EU fair competition directive that was implemented in your countries national law and will provide equivalent requirements. For example, my country Germany has a far-reaching Impressumspflicht. Not sure if this is the most relevant EU law, but Art 22 of Directive 2006/123 requires that your country passed laws to ensure that you make available “the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means”. I think you would be in scope of this directive since you're acting commercially. This legally mandated self-doxxing is unfortunate for private bloggers, but it's also essential for making it possible to enforce data subject rights: if you were to violate someone's privacy rights, how could they sue you if they don't know where to serve you with a lawsuit? However, all things are a balancing act. These requirements are not intended to limit freedom of expression. If you're just trying to communicate something to the public without jeopardizing your anonymity, then paradoxically social media services can be more attractive. | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. | The GDPR does not prescribe how information should be pseudonymized and does not even define the term properly. Yet, pseudonymization is suggested as an safety measure in various places, so that pseudonymization should be implemented wherever appropriate. The most useful guidance the GDPR gives is by contrasting pseudonymization with anonymization, where it says that pseudonymized data is still personal data because the data subjects can be identified using additional information (see Recital 26 GDPR). In contrast, re-identification is not reasonably likely for truly anonymized data. A common technique for pseudonymization is to replace identifying information with a pseudonym, for example replacing a name with a random numeric ID. However, this can only be considered pseudonymous if the mapping between the ID and the real value is not available to whoever uses this data. Replacing individual fields in a data set might not be sufficient for pseudonymization because apparently non-sensitive fields could still enable indirect identification. This requires careful analysis taking into account the entire context of the data, so it isn't possible to say whether merely removing names + email addresses achieves pseudonymization or anonymization. What you are doing is redacting parts of sensitive data. I think this is a pretty weak pseudonymization method since it still leaks partial information about the true value, and leaks information about the length of the redacted value. It is possible to argue that this is OK (e.g. if you can show that you have multiple similar redactions so that you achieve a level of k-anonymity). But by default, such partial redactions are likely to be unsafe. Completely removing the sensitive data is much safer. The “Article 29 Working Party”, a pre-GDPR EU body, has published an opinion on anonymization techniques in 2014 (PDF). It does not account for the GDPR's specific phrasing, but provides an overview of pseudonymization and anonymization techniques and puts them into context of European data protection law. It considers how such guarantees guard against attacks such as singling out data subjects, linking multiple records of the same individual, and making inferences about the data subject. In this guidance, pseudonymization techniques that are suggested include encrypting or hashing the sensitive data. However, the guidance warns that such techniques do not provide strong protection against singling out or linking records of the data subject. A bit earlier, the UK ICO had published guidance on personal data, including on the matter of anonymization and pseudonymization (PDF) with some good examples. For determining whether a data set has been successfully anonymized (or pseudonymized), they suggest a motivated intruder test: could someone without specialist knowledge or skills re-identify the data subject? In your example, such a person should not be able to infer that a record about Stxxx Axxdxrxn is about a Steve Anderson. In my opinion, your pseudonymization approach would fail the motivated intruder test unless you have multiple records that could all be about Steve Anderson (compare k-anonymity). | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. | The GDPR does not mandate specific features, but that any processing is lawful and transparent etc. So what would be the purpose of storing a revision history? Once that is clear you can work out an appropriate legal basis (e.g. a legitimate interest) and then figure out which data subject rights apply. For example, let's assume that there is a security interest in keeping a revision history, so that (a) mistaken edits can be rolled back, and (b) the user can be notified of possibly unauthorized changes. This would be a legitimate interest primarily of the account holder, secondarily of you as the system operator. Of course, such security requirements have to be proportional, but I'd see that as given when there's a payment method on file. You are required to apply appropriate safety measures and to apply the data minimization principle. E.g. is it necessary to store this revision history for all eternity? No, one or two months will likely be sufficient. Who should have access to this data? If the purpose is to defend against unauthorized access, it could make sense to only give out this data on request, and otherwise only make it available to support and security staff. Now we can discuss how this interfaces with rectification or deletion. That the user is able to rectify their data themselves is very good. However, that doesn't imply a prohibition on keeping a revision history: the revision history indicates what data was stored at what point in time, and is by definition correct. This assumes that you are not using the revision history for any other purposes. When the legal basis is a legitimate interest, a request for erasure has to be preceded by (or implies) an objection (opt-out) to further processing. The objection must weighed against the legitimate interest: the objection can be denied when there are overriding grounds to continue processing. This might be the case for a security purpose: if someone with unauthorized access can just erase their traces, the purpose cannot be achieved. But perhaps the user could opt out when they create their account? Or opt-out later, but with some delay to still achieve the security purpose at the time of opt-out? In any case, erasure is required when the data is no longer necessary for its purpose – this ties back to picking an appropriate retention period, as discussed above. So it's not really possible to provide a general answer, and it really depends on the specific purpose you are trying to achieve. | If you process any personal data, you do need to provide notice to the data subjects per Art 13 or Art 14 GDPR. Personal data is any information relating to a (directly or indirectly) identifiable natural person. It seems you are processing personal data including as addresses, PayPal accounts, and IBANs. Thus you're in scope of the GDPR. The GDPR does have an exception when data is processed for “purely personal or household purposes”, but that very likely does not apply to you. The German Datenschutzkonferenz (DSK), a cooperation of the German supervisory authorities, has published a handout on information obligations, listing which information has to be provided in a privacy notice: https://datenschutzkonferenz-online.de/media/kp/dsk_kpnr_10.pdf Such a privacy notice can be fairly short if you're don't doing anything special, in particular if you only use the data as necessary to fulfil the sale contract and then as legally required (e.g. for keeping financial records). There are privacy notice generators that can help with the boilerplate, but be aware that some are significantly outdated, and that in any case you have to fill in the information about your concrete processing activities. You have guessed correctly that you will need to inform your customers about your data retention periods. Your privacy notice will get more complicated if you also want to use this data in other ways, for example for marketing purposes. That would also require you to think about appropriate legal bases (e.g. legitimate interests, or consent). |
What is the difference in England between regulations and an Act? In England for example sometimes are cited the coronavirus regulations rather than say the Highway and safety Act. What are the differences between these two types of instruments? | An Act is what's called Primary Legislation, where as Regulations are Secondary Legislation. An Act of Parliament is a law that both Houses of Parliament have agreed to and which has received Royal Assent. These Acts may include provisions for secondary legislation which is law created by ministers (or other bodies) under powers given to them by the Act. The UK's Legislation website says this: 'Primary legislation' is the term used to describe the main laws passed by the legislative bodies of the UK e.g. Acts of the UK Parliament, Scottish Parliament, Welsh Parliament and Northern Ireland Assembly. It also includes Acts passed by historical parliaments, other primary legislation for Northern Ireland and Church of England Measures (legislation for the established church in England passed by the General Synod of the Church of England). These types of legislation are sometimes referred to as 'statutes' and the term 'the statute book' refers to the whole of the statute law currently in force. Whereas: 'Secondary legislation' (also called 'subordinate legislation') is delegated legislation made by a person or body under authority contained in primary legislation. Typically, powers to make secondary legislation may be conferred on ministers, on the Crown, or on public bodies. For example, the Office of Communications (OFCOM) is given such powers by the Communications Act 2003. The main types of secondary legislation are Statutory Instruments, Statutory Rules and Orders, Church Instruments. There are three main types of UK Statutory Instrument: 'Orders', 'Regulations', 'Rules'. However, there is no limit imposed on the descriptions that may be given to Statutory Instruments. Other examples include 'Scheme', 'Direction' and 'Declaration'. Different types of instruments serve different functions, but they all have the same legislative force. Prior to 1948, when the Statutory Instruments Act 1946 came into force, the equivalent instruments were known as 'Statutory Rules and Orders'. For example, Part 2A of the Public Health (Control of Disease) Act 1984 allows for the making of secondary legislation regulations such as (the now revoked) The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 Secondary Legislation is still subject to Parliamentary scrutiny as it must be approved (the affirmative process) or not rejected (the negative process - and the one applicable to the majority of SI) by Parliament. | Yes, but the difference is in nuance, not substance Illegal means “not according to or authorized by law” and lists unlawful as a synonym. Unlawful means “not lawful” with illegal as a synonym. So, by definition, they mean the same thing and can be used interchangeably. Illegal does carry a slight hint of being more egregious than unlawful and would be more often used of criminality than of a parking offense but it’s not wrong to use them interchangeably. | There are many Procedure Rules are they just that - the rules that need to be followed i.e. the "what". Whereas a Practice Direction is "how" a Rule should be implemented, or as Wikipedia puts it, a supplemental protocol to rules of civil and criminal procedure in the courts – "a device to regulate minor procedural matters". | Because the ordinance does not say "and from each entrance", it cannot be interpreted to mean that the signs must both be visible and readable anywhere in the area as well as being visible and readable from the entrance. The use of distinct prepositions in the conjuncts means that the notice requirement can be satisfied by different signs: it's not that a sign has to have both properties. | 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. | In summary, At the time of writing, Michael Gove has overall ministerial responsibility for making planning regulations, with a good part of the role delegated to Rachel Maclean as Minister of State for Housing. The detail of regulatory verbiage is the work of civil service lawyers, based on policy formed within the department as a result of the general political process. There are various rules for how these functions arise and get transferred around government, described below. The Secretary of State can make regulations about flag display These pieces of secondary legislation, as their names suggest, are made under the authority of the Town and Country Planning Act 1990. Several sections of the Act empower regulations to be made by "the Secretary of State", e.g. in s.220(1) we read Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety. and the full Parliamentary procedure for making them is spelled out in s.333. This comports with the regulatory preambles, e.g. for the 2007 regulations, saying: The Secretary of State for Communities and Local Government, in exercise of the powers conferred by sections 220, 221, 223(1), 224(3) and 333(1) of the Town and Country Planning Act 1990, makes the following Regulations "The Secretary of State" means a specific Secretary chosen by the Prime Minister Note that the Act just said "the Secretary of State", whereas we have just read about a specific Secretary. What's going on here is that primary legislation just wants to say "whoever in Cabinet has a job that is most relevant", since functions get transferred around, departments created or abolished, etc., and nobody really wants to update a zillion Acts every time that happens. Instead, there is a framework pattern where powers will be given to "the Secretary of State" generally, but will be executed by a specific one according to the division of responsibilities in the government of the day. That will sometimes be just a matter of agreement within Cabinet, but at other times be encoded in secondary legislation - a "Transfer of Functions Order". Those Orders are also needed to handle special situations like - transferring property and legal obligations when departments are created, merged, split or abolished making amendments to legislation which did happen to mention a specific minister ministers who are not a "Secretary of State" as such, but hold another ministerial title, such as "Lord Privy Seal" These Orders are made under the Ministers of the Crown Act 1975, and are in the form of orders of the King on the advice of the Privy Council - which is to say, that the Prime Minister decides who does which jobs. Historically, this is something of an accident, since the number of Secretaries of State has increased along with the scope of government, and it was convenient to appoint lots of people to the same formal office rather than invent fresh jobs - especially in the days before ministers were paid. In any case, flag decisions would currently be made under the authority of the minister responsible for planning affairs, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove. That comes from a 2021 order when that position was created, inheriting all functions from the Secretary of State for Housing, Communities and Local Government. Those in turn derive from a 2018 order taking them from the Secretary of State for Communities and Local Government, and so on back in time. SoS authority can be exercised by other people who work for him Additionally, the SoS can delegate functions to junior ministers; for example, the 2021 regulations state that they are Signed by authority of the Secretary of State for Housing, Communities and Local Government Christopher PincherMinister of StateMinistry of Housing, Communities and Local Government Intra-departmental delegation of functions also requires the agreement of the Prime Minister, although some functions must be performed by the Secretary of State personally. That relates to the so-called "Carltona doctrine", named for a 1943 court case Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, which establishes that a minister is generally responsible for his whole department, and that when some function is conferred on the Secretary of State, it usually doesn't mean that he has to do it himself. Most administrative functions are like that, although the actual laying of secondary legislation before Parliament has to be done by a member of Parliament, i.e. a member of the ministerial team. Following the downfall of Mr Pincher, the junior minister responsible for planning is currently Rachel Maclean, so she would be likely to be taking lead responsibility for putting through planning regulations. So all this doesn't mean that Mr Gove personally decides which flags fall into which category, although observers of his career know that we can't rule that out. But he is responsible for the actions of his department, and the secondary legislation would be laid before Parliament in his name and on his instructions. On the making of flags and sausages Regarding "how and on what considerations" these decisions are made, I have no specific knowledge for flag-related policy. But in general, the secondary legislation is written by civil service lawyers on the basis of government policy, and then approved (or at least not disapproved) by Parliament. For example, after Brexit, the EU flag was removed from the list. The mechanism would be that various people who had never heard of the Town and Country Planning Act became upset about flying of the EU flag, and either wrote to ministers or were Cabinet ministers already. Internally to the department, there would have been a mandate to stop the flag being flown, civil servants would figure out the legal steps, and draft the statutory instrument. In the end we get a regulation saying In Class H in Schedule 1, in paragraph (b) of column (1) omit the words "the European Union,". even though only planning experts would know or care about "Class H in Schedule 1". Similar remarks apply to the companion regulation giving prominence to the Union flag over the Scottish flag, which was a political reaction in Westminster to the SNP-led government in Scotland. Someone who is upset about a regulation, or just wants it to be different, may be able to challenge it through the political process in the same sort of way. There are also avenues for judicial review, if regulations have been made in a way which is irrational, or exceeding the scope of what the original Act allowed, or other similar reasons - but these are difficult to pursue in court. For example, it is more than three months since the 2021 regulations were made, so it is now too late to mount a judicial challenge. | I'm based in England, but I'm sure the principle is similar in Canada. The night club or concert venue is private property. When someone owns or rents private property one of the main things they are buying is the right to control who is present on that property, and generally they can use reasonable force to remove people who are not authorised. Security guards generally act as agents for a property owner, tenant or similar. | This an instance of the general rule ignorantia legis neminem excusat: ignorance of the law is no excuse. If the municipal ordinances state that a particular place does not allow parking at certain times, then if you park there you have violated the law and will get ticketed. There is no requirement that there be signs prominently posted saying that you must obey the law in this particular location. A law might itself require there to be postings, for example speed limit law pertaining to school zones typically are stated in terms of "posted" boundaries. Assuming that the ordinance doesn't have such a "as posted" requirement, you have no legal leg to stand on, and the burden must be shifted to your political leg. If, for example, you were in Pennsylvania, 75 PaCSA 3353(d) permits local parking ordinances: The department on State-designated highways and local authorities on any highway within their boundaries may by erection of official traffic-control devices prohibit, limit or restrict stopping, standing or parking of vehicles on any highway where engineering and traffic studies indicate that stopping, standing or parking would constitute a safety hazard or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic. Signs are kinds of traffic control devices. Since PA does not statutorily prohibit overnight parking, any local restrictions on overnight parking would require signage. Thus restriction such as this one that "The following vehicles shall not be parked between 9:00 p.m. and 6:00 a.m. on the streets...", applying to commercial vehicles among others, would require a sign. That borough has an interesting ordinance stating that In the event of a conflict between the Codified Ordinances of the Borough of Lansdale and the provisions set forth in the Pennsylvania Motor Vehicle Code at 75 Pa.C.S.A. §§ 3351 through 3354, as amended from time to time, the provisions of the Codified Ordinances of the Borough of Lansdale shall control. Generally speaking, local ordinances are subordinate to state law, so this provision is legally questionable (although: the borough does not actually deny the signage requirement, so technically this is not a conflict, it is just ignoring state law – if there is no signage). The borough could of course argue that they were unaware of the state requirement to post no-parking signs, but ignorantia legis neminem excusat. |
Can (public) schools monetize data collected from students (13+) in the US? Does CCPA impact whether or not this is allowed? Is it implicitly implied that information can be collected by attending school? Is there different guidance for public (government-managed and nonprofit) vs private schools? Monetize = sell to third parties | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | 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. | Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies. If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.) However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use. | You cannot be compelled to sign a form indicating that you agree to something. However, your lack of agreement does not override a policy that they have authority to set. There is a contractual way that this could work out for them, depending on what exactly the document is. To be a contract, the parties must agree to the terms voluntarily, and if you do not agree to the terms, there is no contract. A 10 year old child cannot be bound to a contract, anyhow, so the child's consent is legally irrelevant, though strategically a good idea in the sense of alerting the child to their obligation. To be a contract, both sides must offer something that they are not already obligated to provide. What is the school offering? On the school's side, they might claim "We offer an education", but as a public school, they already have that obligation. Schools have broad authority to impose rules in order to operate, so in lieu of a successful lawsuit that the district overstepped their authority and violated someone's constitutional rights, the school could have a policy prohibiting use of a cell phone in school. Paired with such a policy, they can grant conditional permission, subject to the parent (and symbolically, the child) agreeing to certain terms. Since they are not obligated to allow cell phones at all, they are offering something of value to you, and you have a contract. The cell phone owner could try suing the school for keeping the phone, but the suit would fail because there was a breach of the contract. A strategy probably not worth pursuing is arguing that the confiscation clause is unconscionable (which would void the contract, which entitles the child to have a cell phone at school). Confiscating the phone is not theft, since the intent is not to permanently deprive the owner of their property (just as it is not theft when you have to leave guns or recording devices at the security desk). If a student were to take a forbidden thing without the owner's authorization (such as a gun, or a phone) and it was then confiscated, the rightful owner might be able to sue the school – as long as their hands are clear (if they had no knowledge that the thing was taken and used in an unauthorized manner). In this case, the parent clearly knows and authorizes. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | You don't say who is telling you that you need to do these things, and it does matter. Educational institutions are required to maintain a discrimination-free environment, so if a student makes inappropriate remarks to another student, they have to address the matter (if they ignore it, saying "Boys will be boys", they can get sued). They will have previously spelled out procedures for addressing such accusations, which probably include giving a good talking-to to the guilty party, and maybe some harsher sanction like suspension. The school district might then have in mind a parent-teacher conference, with the underlying threat being to turn the matter over to the police: did the letter come from the school district? A minor can commit a crime, such as assault or threatening: in Oklahoma, this includes Ok. Stat §21-1172, which makes it a crime to send a message that is obscene, lewd, lascivious, filthy, or indecent, and a first violation of the law is a misdemeanor. For an adult, the penalty can be a year in prison and $500 fine, but that is unlikely for a minor. There may be a hearing in Juvenile Court with some disposition, and if the charges are proven then the court has wide latitude in meting out punishment. Did the letter come from the juvenile court system? The Oklahome law regarding children and juveniles is here. When the Office of Juvenile Affairs engages in "the intake process", they are investigating the case to make a recommendation to the DA. "Intake" is defined as a mandatory, preadjudicatory interview of the juvenile and, if available, the parents, legal guardian, or other custodian of the juvenile, which is performed by a duly authorized individual to determine whether a juvenile comes within the purview of the Oklahoma Juvenile Code, whether nonadjudicatory alternatives are available and appropriate, and if the filing of a petition is necessary Since "intake" is juvenile justice jargon, I assume this is a legal proceeding, not a parent-teacher conference. An actual criminal charge might result from the hearing, which is brought about by a referral. Because detention is a real possibility, consulting an attorney is wise. Whether or not it is a good idea to have the attorney present for the proceeding is something only your attorney can say (in his professional judgment). There is really no way to know in advance what they already know. | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | FERPA protects the privacy of students' records, irrespective of their age or grade level. Age is generally only relevant in determining who can assert those privacy rights. When you enter school at age 5 or whatever, your parents make your privacy decisions for you. When you turn 18, you become an "eligible student," i.e., eligible to assert or waive your privacy rights without parental oversight. |
Can the Judiciary change the due process outlined in a law? I recently came across an article reporting that the India's Supreme Court has passed a judgement which has the effect of diluting the THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989, enacted by Parliament, the apex legislative branch of Indian Government. Earlier, a private individual could be arrested immediately when the victim filed a complaint. Now, the judgment provided for a seven day period where the SSP (District Police Chief) would direct DSP to inquire into the matter and based on the findings, the latter would either arrest the accused or dismiss the allegation. Furthermore, public servants are now granted pseudo-immunity i.e. no automatic arrest, as their appointing authority would now have powers to sanction the arrest if they are an accused. In an earlier stance, the same court passed a judgment which also seemed to dilute the provisions against domestic violence. My question concerns with Separation of Powers, a fundamental feature of Indian Constitution as well as of modern Democracies. Judiciary as I understand should not and must not pass orders or judgement which are of the nature of enacting or amending executive actions or legal statutes. Judiciary may struck down or read off those parts of a concerned text if they violate Constitution. Even Article 142 of the Constitution, which Supreme Court tends to use liberally to impart justice, doesn't explicitly empowers it to engage into such [mis]adventures. What I want to know is : Whether such judgment can be construed as ultra vires of the Constitution? Alternatively, is judicial overreach constitutionally permissible? If not, what recourse can the Indian Parliament undertake to nullify such judgment/order? [Optional] Had there been such cases in other Democracies? Were they too ultra vires? | 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. | Because the 1860 law that criminalised “unnatural” sex is unconstitutional In essence, Navtej Singh Johar v. Union of India decided that criminalising sex between consenting adults violated the Constitutional right to equality. You have a Law in the Constitution that says people have to be treated equally. You have another law that says people in same-sex relationships are to be treated differently. The law in the Constitution wins. According to the BBC: Thursday's decision was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra and was unanimous. Reading out the judgement, he said: "Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional." Another judge, Indu Malhotra, said she believed "history owes an apology" to LGBT people for ostracising them. Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy. The courts in India, like they are in most common law/civil law jurisdictions are interested it questions of law. Questions of sin and morality they are happy to leave to religion. | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. | Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare | "Contempt of Congress" does not extend, in a legal sense, to insulting Congress as a whole, one house, a committee chair, or a member. (Congress and its committees have power to require both members and witnesses to abide by its rules of decorum, which forbid such insults, but as far as I know the remedy is merely to remove the disorderly person.) Contempt of congress is defined by 2 USC 192, which provides that: Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. Note that this is a Federal criminal statute like any other, and Congress does not normally "declare" a person guilty, much less "apply the imprisonment penalty". Charges would have to be brought before a federal court, and the person convicted by a jury, or by a judge if a jury trial was waived. Congress does have the "inherent power" to hold trials for contempt itself, but this has not been done since 1934. This power was upheld by the Supreme Cout in Anderson v. Dunn 19 U.S. 204 (1821) A conviction under 2 USC 192 for refusal to answer questions on the part of a witness under subpoena was upheld against a First Amendment challenge in Wilkinson v. United States, 365 U.S. 399 (1961) In that case, according to the Wikipedia article, a standard for testing subpoenas was declared by the US Supreme court: As announced in Wilkinson v. United States, a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. Thus, in considering such charges, it is a proper defense that the subject matter of the hearing was not withing the power of Congress to investigate, or that the questions were not relevant to the subject. The court would consider these issues if they were raised by the defense. But the political "merits" of the investigation -- whether it is a wise use of the Congressional power, would not be considered. | (The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.) But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding. When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this). Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections. Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights. | Decisions that break with precedent do happen with some regularity, but far "from all the time" in the US. When they do happen, they are generally only at the top level of a state or federal court system, that is a State supreme Court (or equivalent, some states use a different term) or the US Supreme Court. There are several factors which discourage judges from simply ignoring precedent. First of all, all the training a lawyer receives teaches him or her to respect precedent, and to find rules by examining past cases. precedent is literally the stuff with which a lawyer works, rather more than the wording of statutes (although those are also important). Secondly, as a lawyer works as a litigator, judges will usually ground their decisions on precedents, particularly in appellate cases, explaining their decisions largely in terms of how they conform to or extend precedents. Thirdly, if a lower court judge fails to follow precedent, that judge will often be criticized by an appellate judge or justice, often in the course of an opinion overturning the lower-court judge's ruling. This does not feel pleasant to such a judge. Fourthly, decision that fail to follow precedent are often (although not always) criticized by legal scholars, particularly in law review articles and treatises. Fifthly, lower-court judges who often fail to follow precedents, are less likely to be recommended by senior judges for promotion to appellate positions. However, the actual appointments are controlled by politicians (in most cases) not other judges, so this factor may not be as strong it it would first seem. Only once a judge gets to the level of the Supreme Court of a state, or the Federal Supreme Court, is that judge (now a Justice) expected to alter precedents as needed, and most justices have said that they make such changes only reluctantly. I am not aware of any US state or federal statute or regulation that specifically;y requires judges to follow precedent. The most common way to alter precedent is not to overrule or ignore it, but to distinguish a prior case. This happens when a judge says something like: In the previous case of A v B when had situation X which lead to outcome Q. But in this current case we have the very different situation X1. In the case of X1, the outcome should be S instead of Q. If the new case becomes persuasive the old case A v B may apply to only one specific set of facts that almost never comes up, and the new rule apply to almost all other possible situations. The old case may cease to be cited or applied without ever being formally overruled. And, of course, where the rule is statutory, it may be changed if the legislature alters the law. If the rule is constitutional, it may be changed by a constitutional amendment. For example the 1830s case Barron v Baltimore held that the US bill of rights did not apply to the states, only to the Federal Government. But after the 1868 14th amendment, courts started to incorporate much of the bill of rights into the Due process clause of the 14th, and apply it against the states. This took place gradually, mostly during the period starting with 1898, up until about 1970, but with some incorporation coming as late as 2010 (Heller) | Only for certain parts of the constitution, and not for the parts you are asking about. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens."13 For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of ... nationality."14 The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."15 When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.16 Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? - David Cole, Georgetown University Law Center |
Ahmaud Arbery defendants invoke Georgia State Law as a Defense in Federal Court It is my understanding that three defendants face a Federal hate crime involving the shooting death of Ahmaud Arbery. In April 2021, all three men were indicted on federal charges of one count each of interference with rights (a hate crime) and one count each of attempted kidnapping, while the McMichaels were also charged with separate counts of using firearms during a crime of violence. Furthermore: The next day on May 11, the U.S. Department of Justice responded that the Justice Department's Civil Rights Division, the FBI, and the U.S. Attorney for the Southern District of Georgia "have been supporting and will continue fully to support and participate in the state investigation. We are assessing all of the evidence to determine whether federal hate crimes charges are appropriate."[121][122] In April 2021, all three men were indicted for federal crimes – one count each of interference with rights (a hate crime), one count each of attempted kidnapping, and one count for each McMichael of using a firearm during a crime of violence.2 Waycross Judicial Circuit District Attorney George Barnhill issued an opinion prior to the arrest of the three defendants: On April 1, Arbery's autopsy report was given to Barnhill.[78] On April 2, Barnhill wrote a memorandum to Glynn County police, recommending that no arrests be made.[11][12] Barnhill wrote that the McMichaels were within their rights to chase "a burglary suspect, with solid firsthand probable cause";[31][78] that "Arbery initiated the fight"; and that Travis McMichael "was allowed to use deadly force to protect himself" when "Arbery grabbed the shotgun".[78][79] Barnhill cited Georgia's citizen arrest law, dating to the Civil War era, as justifying the killing of Arbery (the Georgia law says that either a crime must be committed within the citizen's "immediate knowledge", or there must be "reasonable and probable grounds of suspicion" for a felony crime). Barnhill alleged that videos of Arbery entering the home under construction on the day of the shooting showed Arbery "burglarizing a home immediately preceding the chase and confrontation. It is my understanding that defendants will seek to invoke state (Georgia) laws as a defense: The legal defense being argued by the defendants accused of murdering Arbery is that they were only attempting to perform a lawful citizen's arrest IANAL: I would think Federal precedent does not enable (i.e. forbids) citizens (including retired law enforcement) to perform arrests or other law enforcment activities through the use of deadly force (i.e. giving chase with firearms, resulting in a fatality and then claim self-defense). Does a claim of exercising state law, permitting citizens arrest, have any weight? Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? If so, any clarification is appreciated. | Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different. Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were "without legal cause." An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law. Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the "finder of fact," which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence. | In the US, only crimes that involve death or crimes against the state can be punished with death, see Kennedy v. Louisiana, 554 U.S. 407 (this was a child rape case and execution was held to be unconstitutional). There is a consideration of "proportionality" whereby execution is not an option for all crimes involving death. The court doesn't include or exclude non-death cases, they explicitly kick the can down the road ("We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State"). Therefore, there is no ruling that bars execution for treason, but there is for rape and burning someone's stack of hundreds. This is a list of 2008 pre-Kennedy non-murder "surviving" state capital offenses (most of the cases listed in the article are for rape, which was ruled unconstitutional): Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington) Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.) Drug trafficking (Fl., Missouri) Aircraft hijacking (Ga., Mo.) Placing a bomb near a bus terminal (Mo.) Espionage (New Mexico) Aggravated assault by incarcerated, persistent felons, or murderers (Mont.) However, in Washington the death penalty is now unconstititional. The Missouri penalty for treason has been since reduced to a maximum of life imprisonment. On the other hand, Florida still has a "capital drug trafficking" penalty if you import 300+ kg of cocaine, knowing that "the probable result of such importation would be the death of any person" (death does not have to actually result). Here is a list of federal crimes that allow execution, which includes only large-scale drug trafficking, espionage and treason in the non-death crimes. | There are great jurisdiction by jurisdiction differences in the statutes of limitations that apply to crimes. Some jurisdictions have no statute of limitations for any serious crime (e.g. Canada and if I recall correctly Virginia). Others have statutes of limitations for almost all serious crimes other than murder (e.g. Colorado). Where there is a statute of limitations, the primary issue is that the ability of the prosecution and defense to secure reliable evidence that will allow a jury to enter an accurate verdict. This potential to conduct a fair trial can be compromised by a delay in pressing charges. Alibi witnesses can die or disappear to someplace that they can't be located, the location of the alleged crime can change in ways pertinent to proof, memories of witnesses in general can fade. Records or correspondence that could show intent can be destroyed. This is particularly a burden for an innocent criminal defendant who did not know that he or she needed to prepare a defense and gather evidence to respond to criminal charges. Some states toll statutes of limitations during a period of a victims minority or incapacity when brining charges may not be feasible. Other states have a long statute of limitations in rape cases where there is DNA evidence available that can conclusively tie a defendant to the scene of the crime (lack of consent would still have to be established), but a shorter statute of limitations in other rape cases. Murder and fraud are the most common offenses to lack a statute of limitations, in the first case, because it is considered the most serious crime and because the victim is unable to report the crime, and in the latter case, because fraud, by its nature and by the perpetrator's design, may go undiscovered for very long periods of time. Is there a line of reasoning to decide which classes of crime have a limited window for prosecution? While I've given some examples of the considerations that apply, ultimately, this is a legislative and political decision and not a legal one. You can't determine by reason alone which classes of crimes will have a limited window for prosecution. Different legislative bodies make different decisions on the same issues at different times and in different places. | 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. | This reflects a typical division of labor. Normally, the Department of Justice investigates civil rights violations, which it has a division set up to do, while local authorities handle ordinary homicide charges arising (in this case) under the D.C. Code (as another answer notes, this instance didn't obviously fall under Congressionally enacted federal criminal homicide statutes, although there may be some room for ambiguity in that determination, but see Coleman v. United States, 334 F.2d 558 (1964) ("The [District of Columbia] area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'")). Certainly, the DOJ investigation, itself, did not exonerate the officer of a homicide charge, which remained open to be resolved. An internal Capitol Police inquiry subsequently cleared the law enforcement office of homicide charges: An internal investigation has cleared a U.S. Capitol Police officer of any wrongdoing in the fatal shooting of Ashli Babbitt during the siege of the Capitol on Jan. 6, the law enforcement agency announced Monday. The Justice Department previously said the officer would not face criminal charges in the killing of the 35-year-old California woman, who was shot as she tried to force her way through a set of doors deep inside the Capitol. . . . The probe by the U.S. Capitol Police exonerated the officer for his use of force. The department said in a news release outlining the investigation that the officer’s actions were within department policy, which allows deadly force only when an officer reasonably believes they are protecting themselves or others from serious physical harm. The departmental policy described in the news article above closely tracks D.C. Code § 5-351.01 governing when the use of deadly force by a law enforcement officer is justified, which is an affirmative defense to criminal homicide and battery charges. The D.C. Code also expressly recognizes the authority of the Capitol Police as a law enforcement force in the District. A recent general federal law analysis of use of force considerations is described in a July 10, 2020 report of the Congressional Research Service, in light of pending legislation. Of course, Babbitt's next of kin could bring a wrongful death action under the civil rights laws for money damages seeking to second guess the DOJ determination. | I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state. | Criminal cases The answer in the case of criminal charges in the federal system and in the vast majority of U.S. states is that you can almost never recover legal fees you incur defending a criminal action. There is such a thing as a lawsuit for malicious prosecution, and there is such as thing as a lawsuit for a civil rights violation caused by bringing baseless charges, but in both circumstances one must demonstrate that the charges were brought without probable cause. But, in most cases of serious criminal charges like this one, either a grand jury probable cause finding, or a preliminary hearing probable cause finding, both made well prior to a trial, will conclusively preclude a malicious prosecution or civil rights lawsuit. (Also, prosecutors have absolute immunity for their discretionary prosecution decisions, and judges have absolute immunity for their judicial decisions, and you can't sue jurors unless they accepted a bribe or something like that.) But, the standard of proof necessary to establish probable cause is much lower than the standard of proof necessary to convict. A very small minority of states allow for reimbursement of fees upon an acquittal, but even then, it is often necessary to prove by a preponderance of the evidence that you were actually innocent, so a dismissal on procedural grounds or an acquittal at a criminal trial where the prosecution must show beyond a reasonable doubt that you are guilty, is not sufficient to show that it is more likely than not that you are innocent. Likewise, you are not entitled to recovery for indirect financial damages caused by criminal charges. As you correctly imply, this is a very harsh rule that can mean that wrongful criminal charges can ruin you. On the other hand, if you are unable to afford an attorney, and a public defender is appointed for you by the state, you do not have to reimburse the state for the public defender's fees if you prevail and are acquitted. A minority of states, however, require that you reimburse the state for the public defender's fees if you are convicted along with other court costs, fines and restitution awards. For what it is worth, only about 1% of criminal charges brought result in an acquittal at trial. Most cases are resolved through a pre-trial plea bargain, a voluntary dismissal by a prosecutor who acknowledges that there is no case against you prior to trial, or a conviction of at least something at trial. About 10% of cases go to trial and about 10% of cases that go to trial result in an acquittal or hung jury (in very round and approximate numbers that vary greatly from jurisdiction to jurisdiction and by type of case). Also, probably at least 10% of acquittals are of people who were factually guilty, because juries get it right something on the order of 90% of the time when cases go to trial. But, the vast majority of acquittals result in a vast injustice to the defendant (although not as great as when a judge uses the factual basis of the events from which you have been acquitted to enhance the sentence against you on other charges which is done from time to time in both the federal and state legal systems in a practice that is unfair but not necessarily sufficient to overrule those sentences on appeal). Civil cases The situation in a civil case is different and too broad to answer in one question. There are some civil cases where a prevailing defendant is entitled to attorneys' fees and costs, while there are others where a prevailing defendant is not. The default rule, called the "American Rule" is that a prevailing attorney is not entitled to attorneys' fees and costs of a defense. But, there are myriad exceptions to that rule that vary by type of case, by the particular details of how a case was prosecuted, and by legal jurisdiction within the United States, that are not easily summarized. For example, in Colorado civil cases, some of the more common grounds for an award of attorneys' fees to a defending party are: (a) a two-sided contractual fee shifting term, (b) dismissal of the case before filing an answer for failure to state a claim when tort claims were asserted, (c) a determination that the suit was groundless, frivolous or vexatious, (d) violation of certain rules relating to disclosure of information to the other party, (e) a statutory fee shifting provision in the case of a claim based upon a statutorily created right which is present in some statutes but not others. | Yes The Prosecutor for the local jurisdiction could formally file charges. No complaint by Rock is legally required, and given the video evidence available, Rock's testimony might not be as essential as a victim's testimony often is. But if Rock were to testify that the fight was staged, and no real assault occurred, the case would probably fall apart. That would not be good for the prosecutor's reputation, and might well be a reason not to proceed without a clear statement from Rock. See also: "Pressing charges" - is it needed to bring a charge? |
Are 'war crimes' written down in laws? There's a lot of talk about 'war crimes' at the moment. I guess there must be a international 'war crimes act' that says what's illegal like you're not allowed to kill civilians or use chemical gas bombs but are they written down anywhere? | "War crimes" are codified in international treaties (especially the Geneva Conventions), and in determinations by courts and in statutes made in domestic legal tribunals. This is one area of law, however, where it is often considered acceptable to impose criminal liability on people in a country that have not adopted a relevant treaty, and have not adopted domestic law prohibiting the conduct, on that theory that it is mandatory, globally binding, customary international law which it is proper for third parties to impose upon people and countries that violate it. The analysis in the case of war crimes is not as contractarian as in other areas of international treaty enforcement and international law. | 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. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | 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. | 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.) | It is almost totally legal. Federal law prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status, and Ohio law (ORC 4112) does extends the prohibition to ancestry and military status. So if the reason is "she's (not) a soldier", it's illegal, otherwise it is legal. |
What is the proper way of handling non-USPS packages for long-gone tenants? I moved into a rental home around 2 years ago immediately on the heels of a previous tenant. I experienced the usual "mail overlap" period of a few weeks, during which I was happy to pass letters & small packages either back to our carrier. These trickled away and I felt like things had settled. Then, the first "big box" came. It seems the previous tenant works in sales/marketing, and about once a month I've gotten large packages from various marketing firms. Most of these are shipped via non-USPS carriers (UPS & FedEx are most prevalent here, though I've occasionally seen DHL as well). Initially, I tried taking these to our property managers, but they informed me that they had no forwarding info for the previous tenants and that I should follow up with the delivery folks instead. Our landlord was similarly stumped regarding getting in touch with the former tenants. I spoke to a couple drivers and was told that they could take them, but that they would likely be redelivered. I tried this and had the packages redelivered multiple times by different drivers before giving up. I called both UPS & FedEx and was told that I could hang onto the packages for the tenant or destroy them (I got this from both different companies twice - I didn't believe it the first time, either). FedEx offered me the option of adding a special rule that packages addressed to the previous tenant would not be delivered here, but there's a further complicating factor - we share almost the same name. Whereas I'm "Kyle Robins" (pseudonym), the former tenant was "Kyle Robinson" (also pseudonym - but really, the similarity is kind of creepy). So when I suggested taking advantage of the "don't deliver to this person" feature, the rep was kind enough to warn me that there may be some missed mail due to name confusion. I do a significant portion of my business online and a few missed packages could translate to "can't pay my rent this month", so that's a pretty big concern for me. Ultimately, the same rep informed me that I could hold or destroy the packages. I tried calling some of the companies listed on the package return addresses, but most of them are just printshops and couldn't give me any info about specific ordering companies I could call to try and rectify the situation. A few suggested I open the packages to get more info, but honestly opening a package not meant for me scares me more than just throwing the whole box out uninvestigated. After over a year of having these poster-sized packages accumulating in a corner, I tossed the lot of them into the bin. Since then I've received others and done the same, but it worries me more every time I do so. I'm approaching the 2-year mark with no contact from the former tenant, and I'm curious: is there a proper way to handle this situation? Does the US Code mentioned here apply to non-USPS vendors as well? I feel like I've done everything I could be reasonably expected to so short of buying a shed to store "other-Kyle"'s boxes for him, but I don't want something important to slip by for both of our sakes! As a clarifying point: These are all large, mostly unmarked boxes - nothing hand addressed or customized. There were some similar packages left in the attic when we moved in full of pamphlets/foldouts/posters, leading me to believe these are the same sorts of things. Anything obviously personal has come & gone via USPS - I suppose I would just hold an obviously personal package or Amazon delivery from another carrier indefinitely. | Focusing on the legal question, the obstruction of correspondence statute would not be applicable to UPS package deliveries. To repeat 18 USC 1702, Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. Private package delivery services deliver to the porch (pr similar), not to an authorized depository (such as a mailbox). They are not "mail", and they have not been in the custody of the postal service (unless they have, where USPS actually makes the delivery). Such deliveries constitute unsolicited goods / unordered merchandise, since they were not things that you requested. There are state and federal rules to the effect that you may accept such goods as gifts, and you have no obligation to return the goods. Here is the Washington state law for example, and here is what the FTC says about it at the federal level. The intended recipient cannot impose an obligation on you to store and guard his possessions, nor can a delivery service impose an obligation to safeguard property that they are responsible for. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | The tenant wouldn't be involved in this at all. The tenant rents from the landlord, and the landlord gives them an account number where the tenant sends the money every month. How would the tenant be involved with you? Actually, if I was the tenant and I was told to pay the rent to some third party, that would be the reddest of all red flags to me. As a landlord, you buy insurance that covers exactly that situation. It's called "rent guarantee insurance". It's cheaper, and the insurance company doesn't pay enormous sums up front. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | There's a lot of variables here, as many leases are built in different ways within the leeway allowed by law. You will want to contact a local lawyer to see how you can mitigate the damage to yourself, and contact your landlord and see if you can re-negotiate the lease. If the landlord doesn't want to re-negotiate, you're probably facing eviction if you can't come up with the full rent by yourself; many leases don't allow non-related adults to live on the premises if they're not on the lease (this can also result in eviction). However, your roommate will also get an eviction record and be responsible for any damages if the lease survives long enough to cause an eviction. Actually having a random person move in from Craigslist might also cause your roommate to suffer additional liability if they're not allowed to sublet their lease agreement, which many leases do not allow (landlords like knowing who's living on their properties). Having them move in might cause both you and your roommate to be evicted. You probably don't have any rights to sue your roommate until actual damages occur (in other words, after you've already been evicted). You should speak with your landlord as soon as possible to get a new lease. An eviction record will cause problems for your roommate as well, so you might urge them to consider staying long enough to get things sorted out legally. When you ask your landlord, simply ask something like, "My roommate wants to move out. What are my options?" They will tell you what they are willing to accept. | I assume the lease does not clarify what the effective date for cancellation of utilities should be: when you "officially abandon" the property, or when the 30-day notice elapses. Who is responsible for the damage? At least under a principle of equity, the landlord is responsible for the damages. That is because, once you have returned the keys and officially abandoned the property, you have no control on how or whether utilities are consumed or (ab-)used thereafter. For instance, if sometime after the 30th of July a person breaks in that rental unit and extracts tremendous quantities of power or gas, that would lead to the inequitable outcome that the utilities company would charge you if your name is still in the utilities company's records. Similarly, it would be unreasonable and inequitable to expect you to essentially insure the landlord (by keeping your name on the utilities) despite his full awareness that you no longer are there. | Since they have allready given you a form to fill that you have sent back with the original receipts, I will assume that the major preconditions have been fulfilled (mainly that they have asked you to come in writing and have not exclude reimbursement). This a case of civil law based on §670 BGB. Since they have not fullfilled their obligation, you must send them a reminder (Mahnung) in the form of a registered letter, requiring them to do so within a reasonable timeframe (like 10 working days after receipt of the letter). look for standard letters on this topic (Mahnungen) The letter should be descriptive in nature (i.e. a Judge, after reading a copy of the letter, will understand the whole situation). Nowadays such a letter should be sent through your local Amsgericht, so that they can certify that your copy of the letter was included in the original letter. If they don't react to this, then you must charge them. This is a basic description of the needed method. Look up the details of the process and/or for someone to assist you. Section 670 Reimbursement of expenses If the mandatary, for the purpose of performing the mandate, incurs expenses that he may consider to be necessary in the circumstances, then the mandator is obliged to make reimbursement. Sources §670 - German Civil Code (BGB) Wer trägt die Reisekosten für das Vorstellungsgespräch? - ingenieur.de |
Can I get reimbursed if police shot the window of my car during a standoff? My car was parked in the parking lot of a large chain grocery store, upon returning to my car I found the police in a standoff with a suspect with my vehicle right at the center. I asked if I could move my car but the officers got angry and started ignoring me. SWAT team got called in and it ended with them firing and shattering my rear window with their bullets. Officers were unprofessional and ignored my concerns. This took place in the great state of Texas. Is there anything I can do to get them to pay for my broken window? I have the incident on video. Updated: I forgot to add that I was standing there for 3 hours before any shots were fired, plenty of time to let me move the car. | 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. | Threatening to report the uninsured driver to avoid payment would be blackmail and illegal / criminal. As a result, they are not going to do this. Reporting the uninsured driver on the other hand is their civic duty. So they can get your friend into trouble, but they can't get around paying. Is your friend insured now? If not, tell him to get insured IMMEDIATELY. And if they are very lucky, the other company doesn't figure out your friend was uninsured, and they get away with it when they make a claim. Alternatively, tell them to figure out how much the damage is, how much the repair will cost, and whether it is worth taking the risk. | In germany, you are likely charged if you actively interfere. Let's preface this with the fact, that in Germany, people have a duty to aid in case of accidents, as long as you don't endanger yourself. The absolute minimum is to call the emergency service and not obstruct those that render aid. However, just not rendering aid is rarely charged. However, since a few years, people that slow down to make videos of crash sites or who stop to look at an accident, and in doing so block emergency helpers, are now almost routinely charged with obstruction of emergency workers, together with possibly other charges like assault and insult. One of the most prominent cases was in 2017, where the person attacked emergency workers and police. He was sentenced to 4 months for the various assaults and bodily injury. Based on this case (where the person was just sentenced for resisting police and assault), it ultimately lead to a new law. One of many cases that started in 2023 had a similar pattern but the charge is based on the new law: § 323 c Abs. 2 StGB - not delivering aid and obstruction of aiding persons. This law allows up to one year of prison time for hindering any person rendering aid. Also, creating pictures at accident sites that depict people or corpses and sharing them in a manner that is humiliating to the victims in itself can be a breach of § 201 a StGB - injury of privacy by means of photography. This can get a sentence of up to two years, and would most likely be joined by a charge of not delivering aid and obstructing helpers. Do note that this is not covering photos that were made for example as evidence of the situation or not shared with third parties. Being in peril yourself... When you technically are in peril yourself, you don't have to render aid. Being stupid like grabbing your carry-on luggage isn't technically covered by the law, and because the person is in danger themselves, it will be very hard for the prosecution to decide if they want to prosecute. If Alice just grabs her carry-on in panic and nothing happens as she evacuates, charging will be extremely unlikely, as in, the chance is nigh nonexistent. Bob, who steps out of the way of others while he calmly takes his things is not interfering with the rescue, and thus charging him is most likely not going to happen. But Charly, who blocks the path of everybody because he wants to go to the other end of the plane to get his luggage and does not let anybody pass and thus increasing the danger of the situation (or even cause death) might break the threshold that the prosecution is willing to prosecute to make an example out of him. The more egregious his behavior was, the more they might look into if other charges can become applicable. However, those other charges are usually not from the blocking or inaction, but from an action against someone that is in the same peril as the actor. If Dora during the building fire grabbed a fire axe and smacked it over someone's head while he was trying to evacuate her, so she could get her items from another room, that would be dangerous mayhem (§ 224 StGB, Gefährliche Körperverletzung). | What law in the U.S. governs when you need to pull over for a traffic stop? Specifically, Massachusetts? Refusal to submit to a police officer, Mass. Gen. Laws Ann. ch. 90, § 25 (2016) governs. The relevant part reads: Any person who, while operating or in charge of a motor vehicle . . . who shall refuse or neglect to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment . . . shall be punished by a fine of one hundred dollars. What about a police standing on the side of the road, waving you over? (perhaps at a speed trap) If the police officer is on a uniform and displays his badge, probably. What about a police just standing on the side of the road, looking at you? Assuming the police officer doesn't "signal" you to stop, you would be okay under this statute. Whether he is legally justified in asking you to stop is a separate issue outside the scope of you question. Bottom Line: Someone who doesn't want to run afoul of this law should stop whenever they think a police officer is pulling them over. | It's illegal to (temporarily) break an item The commercial car park owner may not aim the camera at Alice garden. However, even if it does so, breaking the camera or damaging it is still illegal - as one of the various forms of destruction/damaging of property colloquially called vandalism. Do note that the very article and the clasification of laser OP links to points out that *even a low-powered "pet-safe" IIIb/3R laser leaves out burnt-out pixels with a pinkish surrounding. These might not be enough to prevent identification when not aiming the laser into the camera, but they are damage to the sensor. The very article also describes how the camera damage progresses even after exposure, possibly due to the high power lasers. However, even if no such damage occurs, the owner of the camera is (temporarily) deprived of its legal uses while the laser is pointed on it, which is in many jurisdictions enough to count as theft. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | You can be under arrest before you are handcuffed and the police officially read you your rights. The problem from the citizen perspective is that there is no bright line test that tells you whether you are under arrest, and the courts can find that there was no arrest at a point where the suspect was handcuffed and confined to the back of a police car (United States v. Bullock, 632 F.3d 1004) – you can be merely "detained" for an investigatory stop while in cuffs. One test that might be used is asking if you are free to go about your business. A reasonable person could decide whether they were under arrest by the nature of what the officer says. For example, if he says "It would help us if you could stand over there" or "...if you could sit down", it is reasonable to conclude that this is an urging but not a command. On the other hand, if he says "Sit down, now!", it is unreasonable to think that that is a mere suggestion or plea, it is an order. There is no specific Arizona law that says when police can order you to do something, nor is there a specific law saying that force may only be used in such-and-such circumstance. There generally are guidelines for police conduct, and the guidelines tend to grant much leeway to officers (until it gets to be a recurring problem and the guidelines are changed). An example is Seattle, whose police manual reduces the question to the statement that "An officer shall use only the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lives of the officer or others". But this does not say whether one must obey police orders. In Oregon v. Ruggles the court sympathetically notes that Whether a particular police order is “lawful” is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as “Stop!” can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. But Oregon has a statute, ORS 162.247(1)(b), requiring you to obey a lawful order by police. The court found that you don't have to know whether the order is lawful. Arizona has a related statute, ARS 13-2508 where resisting is defined as intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest including the means of "Engaging in passive resistance" (which is "a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest"). Arizona law frames the resisting crime in terms of "effecting arrest", which is different from what Oregon law says: (a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or (b) Refuses to obey a lawful order by the peace officer or parole and probation officer. But even if an individual in Arizona is not chargeable with resisting arrest for failing to sit (because the officers were not effecting an arrest), that does not mean that police cannot order you to sit – it just means that it's not a separate crime to fail to comply. | The answer provided by Dale M is half right, but there are a few things that I think are wrong. Firstly, the actual reality of the situation doesn't matter. What matters is that you act in a reasonable manner, performing assessments of the situation as a reasonable person would do. If you misread the situation, and end up killing a police officer that was acting in a lawful manner, it doesn't necessarily mean you were acting unlawfully yourself. Because police officers are generally exposed to situations where they would be forced to use their firearm, that obviously would impact how a reasonable person would see the situation, but the test for reasonableness would not go out the window. In addition, even if you were found to not be acting in a reasonable manner, there is certainly a question if you would be found guilty of a lesser charge of manslaughter rather than murder. It's possible the self-defence claim would be upheld as an imperfect defence. |
Can I use images fetched by Google Image APIs to use as content images on my webapp? I have a webapp where people can manage their packing plans for outdoor activities. In those packing plans they can add items like backpacks, boots, etc. They are also able to upload images for backpacks. I assume that users might search for those images with the Google image search, download them and upload them in my webapp. Is this somewhat illegal in Europe (Germany)? I am a bit unsure since a user can upload arbitrary images on every platform like here on stackoverflow I can simply upload an image of a backpack as my profile picture. This isn't considered a problem with copyright/usage laws is it? | If the image is protected by copyright (as most modern images are), the uploading it as a profile picture or using it on a web site is copyright infringement unless one has permission from the copyright owner, or an exception to copyright applies. If copyright infringement occurs, the owner can sue for damages, or issue a takedown notice, or both, but does not have to do either. In the vast majority of cases, no one will do anything about such infringements if the owner (or the owner's authorized agent) does not. All the above is true in all of Europe and North America, ad in most other countries as well. Permission can be granted directly by the copyright owner to a user, or granted by the owner releasing the image (or other wrk) under a license. Google's general developer TOS Document](https://policies.google.com/terms#toc-content) reads (in relevant part): Google content Some of our services include content that belongs to Google — for example, many of the visual illustrations you see in Google Maps. You may use Google’s content as allowed by these terms and any service-specific additional terms, but we retain any intellectual property rights that we have in our content. Don’t remove, obscure, or alter any of our branding, logos, or legal notices. If you want to use our branding or logos, please see the Google Brand Permissions page. Other content Finally, some of our services give you access to content that belongs to other people or organizations — for example, a store owner’s description of their own business, or a newspaper article displayed in Google News. You may not use this content without that person or organization’s permission, or as otherwise allowed by law. The views expressed in other people or organizations’ content are theirs, and don’t necessarily reflect Google’s views. It would seem that each Google service has its own terms which indicate in what ways one may use Google content. It would further seem that content originally obtained from others and distributed by Google will have some set of permissions granted by the uploader. These must be checked for each image, I would think. There is no single one-rule-fits-all answer. I gather that the APIs will have methods for determining which images are from Google itself, and which from others, and some method for indicating the permissions that accompany an image. A user of these APIs must learn how to extract ownership and permissions metadata for an image obtained via the API, and how to use it (or not use it) in accordance with the available permissions. Now let us look at exceptions to copyright. These vary by country. Several European countries have an exception for "personal use" which might cover the profile pictures, but probably will not cover general use on a web site. There are exceptions for "news reporting" which might cover images illustrating recent news events. Some have exceptions for educational or instructional use. The UK (and several othe countries) have the concept of fair dealing which bundles several exceptions together. This might cover an image used in a personal profile, use of images in news reports, and limited educational use, but will probably not cover general use on a website. The US has the concept of fair use which is rather complex, but does not specifically include a "personal use" exception. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and other threads here tagged with fair-use for more on this. It is somewhat unlikely that any of these exceptions will cover general use on a web site of images obtained via Google APIs and used beyond the permissions listed in the metadata accompanying the image. But it will very much depend on the specifics of the case. If the image fetching is doe not by you in building a site or an app, but by your app's users who may then use them improperly, strictly speaking that is each user's own responsibility, you cannot effectively police what your users do, and have no duty to try. It will be a good practice if you include text explaining to your users that not all images are free for general use. You might want to link to the Google TOS. If the API returns metadata indicating the permissions status of each image fetched, yo0u might well want to provide this metadata in a useful form to your users. You might even want to allow a user to filter images obtained by permission status. But whether this is practical or useful to users will depend on the purpose and design of an app. | If that is the licence that Uber are operating under then they are breaking it. This is not legal in that Google can sue them for copyright breach. However, this is the licence that Google offer to the average person on the street for which they pay Google nothing. It is entirely possible that Uber and Google have come to terms on a completely different licence arrangement which may involve Uber handing over slabs of cash (or not) and not needing to attribute. Google is free to offer licences on different terms to different people. | 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. | First of all, Google's TOS says we reasonably believe that your conduct causes harm or liability to a user, third party, or Google — for example, by hacking, phishing, harassing, spamming, misleading others, or scraping content that doesn’t belong to you And you ask: But suppose a researcher, say based in UK, managed to work around them, get a big amount of data from Google searches and use it to publish some research. You're confusing methods with results. Someone uses methods to get a result, but if the results are not legal, the methods are usually illegal, too. Would the above depend on how they circumvented Google's checks (i.e., by using lots of proxies)? The words "or scraping content that doesn’t belong to you" means just that; it does not give any wiggle room for the actual method used to scrape. Could they get, theoretically, into trouble? Very much so. The researcher would have at least civil liability, and possibly criminal exposure. Would they, practically? Google can be very not kind to people who break their TOS. And Google has lots of money to spend on lawyers and court fees to enforce their TOS. Google would probably be able to easily prove the data came from their servers, and would probably have server logs to help prove it. And see user6726's answer for specific legal citations in the US and UK. | I am not a lawyer, and none of the following should be seen as legal advice. While it is always best to assume every image has a copyright.... In your scenario... traditionally if you are selling a product, there's generally no harm in using images of that product to assist in the sale. But even then photographer copyrights should be considered. Images of products may not only contain copyrighted material within the photo, but the photo itself is probably also copyrighted by the photographer. Just blankety taking images from other web sites is a poor practice in general and will customarily just get you into trouble. However, many manufacturers or distributors will actually provide resellers with product images. You can check the product manufacturer's web site for a "press" or "media' section. There are often downloads provided in those areas. I don't know hairdressing.. but as an example, General Motors has a special web site known to GM car dealers where the dealers can download high resolution images of the cars and products for ads, etc. I've done work in the past for a GM dealer who provided me with the web site and log in details so I can get product imagery. In addition, few manufacturers will take umbrage that you are using their images to sell their products. They want their products to look as good as possible wherever they may be displayed. In many cases, they may prefer you use supplied images rather than use your own. Customarily you would include a disclaimer in the footer somewhere: The product names, company names and product images used on this web site are for identification purposes only. All trademarks and registered trademarks are the property of their respective owners. Note, I am referring to images from the manufacturer's web site, not from competing businesses. If you are building a site for "Bob's Hair Styling" it's unethical to take images from "Kate's Hair Dressing" for your use. Stick to the manufacturer... if selling Paul Mitchell products, check the Paul Mitchell web site for available product images. | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | It is unclear whether WINE is infringing copyright or if it can rely on a fair use defense. The CAFC held that: that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection In that light, if WINE had original content in the structure, sequence, and organization of its API, the CAFC would likely also find that it is entitled to copyright protection. However, because this issue is outside the scope of the CAFC's exclusive jurisdiction (this is a copyright issue, not a patent issue), the holdings are not binding in any other circuit. Each circuit is free to review anew the copyrightability of APIs when such a case comes up. My guess is that this is the reason the Supreme Court declined to hear an appeal on CAFC's Oracle v. Google opinion. To address your fair use question would be simply speculation, because fair use is always assessed case-by-case, and even in WINE's closest analogy (Oracle v. Google), the CAFC remanded the fair use question back to the trial court, and that question hasn't been decided yet: we remand for further consideration of Google’s fair use defense in light of this decision | You probably can. There are a few questions here. First, is the message protected by copyright? In general, it probably is, but there are many exceptions that might allow you to use it without permission. Unfortunately, these exceptions vary from jurisdiction to jurisdiction. The exceptions tend to allow the use of small excerpts of a work for various sorts of purposes that don't undermine the copyright holder's ability to profit. That leads to the second question, which is why you are using that message. If you're including it in your source code so you can test whether a message generated at run time is in fact that message, that's one thing, and it's probably okay. On the other hand, if the owner of the copyright sells a database of all its message strings, and you're compiling a similar database that you also intend to sell, that's probably not okay. A third question concerns the Firefox license terms. It's entirely possible that they allow you explicitly to do what you're considering, in which case it doesn't matter what copyright law says about it. On the other hand, Firefox is open source software, and under some open source licenses, if you incorporate any of the source code in your own product, you are required to release your product's source code under the same license. If you're not already planning to do that, you should consider carefully whether including that error message would trigger that provision (if there is one) of Firefox's open source license. |
When is a war not illegal? In conjunction with the Russo-Ukranian War, many newspapers call the war an illegal war. I figured, any war would be illegal, since an attack on a sovereign nation seems to me the opposite of a legal action. Under what circumstances would a war be considered a "legal" war? As in a war, were neither side is doing anything illegal by waging the war. | 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). | 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. | As with all international law, it depends on "who says so": I will draw on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War as most relevant. Article 3 distinguishes combatants from non-combatants, saying that Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. They then specifically prohibit murder: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture but this only applies to non-combatants. There simply is no prohibition against killing combatants (unsurprisingly). Liberia acceded to that treaty, so for instance if one of their soldiers murdered a non-combatant, in principle they should try that soldier for the crime of murder under Liberian law. If some random dude (not a soldier) murders anybody in Liberia, in principle they should try him for the crime. Soldier may kill enemy soldier, even when the killed soldier is sleeping and poses no immediate threat to the soldier who kills him. That's the nature of war. In the case of Massaquoi, he might have been prosecuted by Sierra Leone, but negotiated immunity in Sierra Leone in exchange for information on his RUF colleagues. There was no such tribunal or arrangement w.r.t. his involvement in Liberia, and Finland opted to conduct an extraterritorial trial based on war crimes (not the killing of combatants). His acquittal was based on the lack of evidence that it was him that did the reported deeds (I don't know if there is a publicly available judgment, but it is 850 pages and in Finnish, so toivotan onnea projektille. | 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. | Can any one uses this law to sue US for killing people in Iraq for example? No. This proposed law is limited to suing people or organizations involved in supporting terrorism in the US. The problem with it is if it becomes law and is used, the precedent will be set to allow lawsuits against foreign actors for such decisions. So a middle eastern government, e.g. Iraq or Iran, could pass a law allowing lawsuits against those who could be in some way responsible for war crimes during the Iraq war. So someone could sue the individuals directly responsible, their commanders for not stopping them or preventing them, the organization to which the individuals belonged, the government of the individuals, the members of the coalition, and the United Nations. And this would be done in that country's courts, not international courts with some claim to impartiality. The proposed law is a bad idea, but quite popular. There were some low level members of the Saudi Arabian government who supported actions taken by the group involved in the 9/11 attacks. The families of the victims are understandably annoyed by this. And yes, they are actually seeking justice, just not in the best way. This wouldn't make a good basis for blackmail, as there is no way to stop it. Blackmail is based on offering two alternatives and allowing the victim to pick one. This wouldn't be controllable like that. Once launched, it would be difficult to pull back. | In a democratic country, they cannot be sued successfully. Freedom of speech is for the citizens, not the government. And it is a company doing the banning, not the government. So the situation is totally different in two significant ways. (That assumes laws not too different from the USA. Obviously a country might have laws that make it illegal for companies not to publish what a political party says). | "Does threatening to attack cultural heritage constitute conspiracy to commit a war crime..." Almost certainly not. It's a threat to commit a war crime, but is probably not illegal in and of itself. On the other hand, if the Commander In Chief were to ask his generals what would be involved in mounting a cruise missile attack on the Meidan Emam in Esfahan, that would be conspiracy to commit a war crime (as would supplying the requested information). | Some people seem to believe that just because something happens 'in the internet' it is somehow outside normal jurisdictions. Wrong. In may be harder to investigate and prosecute crimes in the internet, but the laws apply all the same. There are some problems when it is unclear 'where in the world' something did happen -- in the jurisdiction of the perpetrator, the victim, or the service provider? But problems of jurisdiction apply e.g. to international fraud cases in the non-web-world as well. In many jurisdictions, the informed and voluntary consent makes some things legal which would otherwise be illegal. For instance, if two boxers get into the ring, it is understood that each of them did consent to be hit by the other. But usually two fighters could not legally agree to a fight to the death, because even if there are laws on assisted suicide, they do not apply to a fight. Insults, libel, and slander are not on the same level as homicide. There are jurisdictions where they are not prosecuted without the request of the victim. But an insult might also violate other laws, e.g. disturbing the peace. So don't bet on such an app unless you know for sure which jurisdictions are involved. |
Is it okay to push someone off your property if you've told them to leave but still didn't. Germany I was in a fight with an apartment mate of mine. I have told her to leave my room after she took the remote and turned off my tv, but she did not leave. So I pushed her out of my room, she then proceded to slap and punch me in the face 5-10 times which I haven't retaliated to, just kept telling her to stop and that I do no want to harm her. My question is: am I in the wrong for forcefully pushing her out of my room after telling her to leave, in the whole fight I have bruised her wrist by preventing her from bashing my head and also I have bruised her leg by phisically pushing her out of my room. I did not hit her, I only pushed her out. I only need advice based on the laws of Germany, thank you. | An act in self defense is legal (StGB §32): "(1) Whoever commits an act in self-defence does not act unlawfully". However, "(2)'Self-defence' means any defensive action which is necessary to avert a present unlawful attack on oneself or another" – removing a trespasser is not necessary to avert an unlawful attack. This does not apply to removing an annoying person. Under §223, physically assaulting a person is a punishable offense. Pushing a person is one form of assault (so is punching them or pummeling them, perhaps a more severe form depending on the physical damage done). However, the response is also criminal because it goes past that which is necessary to avert the assault (a push is not a license to commit mayhem). Under §§33-35 there are defenses for excessive self-defense ("Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty"), which don't seem applicable in this situation (rage is not the same as fright). | The police will order you to stop and then you have to obey. The moment you annoy the police in a way that is hindering their work (such as blinding them with a flashlight), they can demand you to stop. if you don't comply, then you are committing a misdemeanor. For example, Virginia calls this "refusal to aid [an] officer in execution of his office" and it is worded so widely, that the officer asking you to shut up and you don't, then you are guilty. If the order is in any way justifiable, then you not following the order is... well, criminal. Plus, if you did not comply and they pulled out their handcuffs and you still don't comply with their demand, you are now resisting arrest, which at least in Virginia is again, a misdemeanor. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | “You put that, of course, respectfully?” You bet your ass Heydon is telling Newlands off. Knock down drag out fights in a courtroom are more subtle than in a barroom and the judge always wins. First we have the trivial issue that the barrister interrupted the commissioner while he was speaking! This is extreemly disrespectful and Heydon was pointing that out by calmly but sarcastically suggesting that the interruption should have started with “With respect ..,”. The clear implication that the interruption should not have happened at all. It doesn’t matter if you disagree with what the court is saying, you don’t interrupt, you wait for your opportunity to respond. You will be given it. That’s respect. More germanely, the barrister is in a tricky position. I don’t know what came before the video starts but it was clearly one Newlands did not expect but that Heydon thought was foreseeable. Newlands is trying to hide behind “I haven’t been instructed on that” but is having trouble because the client (or at least, the client’s representative) is in the room and can instruct him right now. Not being prepared in court is also disrespectful. At a rough guess, just the people you see in the video are costing somebody north of $10,000 per hour. You don’t show up for the big game, tell the coach you can’t play because you forgot your boots but that it’s not your fault. Particularly when the person standing behind you is holding your boots. | Etiquette is not "above" the law in the sense that an etiquette rule excuses a violation of law. However, at least in the US, the police are not required to investigate every alleged violation of law, nor is a prosecutor required to proceed against every lawbreaker, and the decision to proceed may be influenced by a perceived etiquette violation. It should also be mentioned that while a third person has no right to prevent you form talking to anyone who is willing to talk to you (unless the 3rd person is the parent of guardian of an underage person you wish to address), it is not in any way illegal to instruct you not to do so, even if the instructions are incorrect as a matter of law. Assaulting you is, of course, a different matter. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | In Germany, had the store not called the police (or paramedics), they would have been charged for not doing so under Section 323c. Other jurisdictions will no doubt have similar laws. On arrival, being informed that you ran away - but thankfully paid with a credit card - the police will try to find you. They are not allowed to make a determination that you are just being foolish, but must assume you are a danger to yourself. At some point in the extensive bureaucratic matter, they will probably come to the conclusion that you have acted in a negligent manner. Once that has been done, you will be made liable for all entailed costs to the taxpayer. So your fear of being charged for threatening to commit suicide is the least of your problems. Your claim against the store is probably justified (the listed price is in most jurisdictions binding). Your reaction to that is not. Section 323c Failure to render assistance; obstruction of persons rendering assistance (1) Whoever does not render assistance in the case of an accident or a common danger or emergency although it is necessary and can reasonably be expected under the circumstances, in particular if it is possible without substantial danger to that person and without breaching other important duties, incurs a penalty of imprisonment for a term not exceeding one year or a fine. (2) Whoever obstructs a person who is rendering or wishes to render assistance to another person in such a situation incurs the same penalty. Sources: Section 323c - German Criminal Code (Strafgesetzbuch – StGB) | 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. |
On the acquisition of legal rights to sanctioned YouTubers' frozen funds Note: The following is a thought experiment. Since I am no legal scholar, it is highly likely that its wording needs a lot of improvement. Suggestions for improvement would be most welcome. Suppose that the Government of Syldavia has upset the US Government. Suppose further that the latter retaliates with crippling sanctions. As a consequence, Syldavian YouTubers, whose main source of income is now frozen due to the aforementioned sanctions, are at risk of destitution. Suppose that a few amoral investors start a vulture fund to exploit Syldavian YouTubers' predicament. This fund would acquire the legal rights to willing Syldavian YouTubers's frozen funds at a very generous discount, then kindly request that YouTube unfreeze the aforementioned funds. Which clauses of YouTube's Terms of Service would be violated? Which US sanctions would be violated? | There is no law against driving a hard bargain If you were describing real estate owners rather than YouTube channel owners we’d have a term for them: a motivated seller. There is no law against using the fact that someone is desperate to sell to negotiate a lower price: that’s just good business. In general, common law legal systems do not involve themselves in whether a price agreed between two parties was fair: if you want to sell your original Picasso for $1 or pay $1m for a used tissue, that’s up to you. If you have ethical issues with that, don’t do it but it’s not illegal. Legal issues can come up where you are the cause in some way of the motivation. A lender foreclosing on a mortgage is ok. A lender offering to buy the property to avoid foreclosure is not. The first is just enforcing the terms of the contract, the second looks like undue influence and unconscionable conduct. Some countries have laws against profiteering and you would need to look at the legal definition to decide if this is or isn’t profiteering. In the US, it isn’t because their laws only deal with profiteering that damages the government. Some US states have laws against price gouging but these are usually to prevent charging too much, not too little. Which clauses of YouTube's Terms of Service would be violated? None. YouTube does not have any terms about selling your digital assets and we know it happens. Which US sanctions would be violated? It’s impossible to say without reading the sanction. If it’s illegal to transfer money to the sanctioned people then the whole plan falls over because you can’t pay for the channel in the first place. | Copyright Law: Probably Not so long as you are not hosting anything other than a link. (This is a secondary source) Even if academics and technology enthusiasts prefer an absolute right to link on the Internet, the business world has an interest in regulating what information is shared.66 Businesses will protest free linking to their materials if it interferes with their sales or marketing messages.67 If a website operator *1090 desires to restrict certain content from being linked to or integrated in another site, the operator can require a password to view the site or can technically disable outside sites from in-line linking to images or media hosted by the site.68 Youtube ToS: You may have an issue with ToS 4. D. if you have ads on your webpage. Service here is defined as "by using or visiting the YouTube website or any YouTube products, software, data feeds, and services provided to you on, from, or through the YouTube website " But it does seem to allow you to use an embedded player in your site if you wanted. ToS 4. F. | Only a court can decide if use is fair. As Dale stated, we will know whether it was or was not legally fair when a court decides, and it ceased to be appealed. Unfortunately, there is no formula. Remember that fair use is an exception to rules that make copyright infringement illegal, so it occupies a narrow space practically by definition. Fortunately this was already decided (yes, I recognize that this is an old question) Judge Katherine B. Forrest decided in favor of your favorite YouTuber: The Court has held that the Klein video constitutes fair use, and further that the Klein video does not infringe plaintiff’s copyrights. and further that: But even if this Court held the Klein video is not fair use, the Court would still dismiss Claim II because defendants clearly had a subjective “good faith belief” that their video did not infringe plaintiff’s copyrights. Cf. Lenz, 815 F.3d at 1153. It is undisputed that defendants understand the concept of fair use and have an established practice for ensuring their videos make fair use of copyrighted material. But that answer isn't entirely satisfying, is it? Let's get specific. Fair use seems to be something that should be clear to both parties: the copyright holders and the user of copyrighted content. While it is true that the percentage of original content may be of concern, there is no specific percentage nominated in Title 17 Chapter 1 Section 107 of the US Code. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. It takes vigilance on the part of both parties to cohabit this narrow law. Fortunately, YouTube has recently taken measures to ensure that use that should (presumably in their view) be judged as fair will remain live on their site while a dispute process is pursued. This procedure resolves cases outside of formal legal battles, which can be costly for both parties. However, YouTube has pledged to pay legal fees of content providers that are sued for copyright infringement, in special circumstances (esp. when the use was fair, and when a claimant is abusing, again presumably as determined by some legal counsel at YouTube). They discuss similar matters in their FAQ page. Why did YouTube let an abusive claimant remove my video? YouTube takes action to address cases of abuse and misuse in our copyright takedown processes. While we cannot comment on specific cases or our processes, we do look into abuse of our copyright tools and processes, and have a zero-tolerance policy for claimants we've deemed abusive. Misuse of the copyright process (for both takedowns and counter notifications) can result in termination of an account. And remember that courts love precedent Future cases will likely leverage the decisions made in the case you mention. And while the following does not have any real legal value, you may find comfort in knowing: there are many YouTubers out there that heavily leverage others' content, and their videos are still up. Again this is not strictly speaking a precedent, but you can safely assume that in cases where a high-profile YouTuber (say CinemaSins, for instance) uses content from many content owners, and uses a great deal of it, they will likely have come up against claims of unfair use, and have emerged with an intact channel. The aforementioned avenues that YouTube provides should be utilized wherever possible to stay out of court. | The U.S. could pass a law directing Apple to create software for fair compensation. Similar statutes have been passed in wartime compelling companies to do all sorts of things and companies don't have all of the rights of individuals. If it can be done (not obvious in the case of existing products in the market place), it might be possible for the government to compel it to do so; if it can't be done, it can't be compelled and not all things are possible retroactively. There would also be a constitutional contracts clause issues with such a law impairing contracts between Apple and its customers when applied to existing phones retroactively. Whether it could require Apple to create a law enforcement back door depends upon whether 4th Amendment privacy rights trump the creation of a means to do so. There is an expectation of privacy in electronic records, but it is not absolute. But, there is no law on the books requiring this from Apple. It does not flow naturally from existing powers of law enforcement under existing statutes. It goes beyond what a subpoena would ordinarily require someone to do, and a subpoena is the main means by which governments compel people to provide information. In my opinion, a court faced with that question would rule that a statute requiring Apple to do this prospectively would be constitutional, but no such statute exists. However, this is currently an open legal question because there is no statute of the kind that have been litigated in a manner that produced a binding precedent. | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | If by "streaming," you mean "having my web browser create temporary copies of media from an online source so that I can view it," then Canadian law is unclear. I can't really do better to demonstrate than to cite a few articles on the subject. According to Alex Buonassisi and Jennifer Marles of IP law firm Oyen Wiggs: [...] it is not entirely clear that receiving an unauthorized stream of a copyrighted work in Canada does not infringe copyright. At best, this activity could be said to fall within a grey zone. According to Sandy Kang writing for law school blog IP Osgoode: As for users of such websites, it is currently uncertain whether their act of streaming video would be found to infringe. According to Michael Geist, a University of Ottawa law professor specializing in IP: The most controversial sources are unauthorized streaming websites that offer free content without permission of the rights holder. [...] Those accessing the streams are unlikely to be infringing copyright, however. As you can see, there is a variety of expert opinions on whether streaming pirated movies is an infringement. The section under debate is 30.71 on temporary reproductions, especially subsection (b): It is not an infringement of copyright to make a reproduction of a work or other subject-matter if (a) the reproduction forms an essential part of a technological process; (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and (c) the reproduction exists only for the duration of the technological process. I don't want to duplicate what articles above have already stated, but I'd like to dive deeper into Bishop v. Stevens, [1990] 2 S.C.R. 467, cited by the first two articles as a similar case (reaffirmed in 2015 after a few rounds of statute amendments). In it the Supreme Court held that prerecorded "ephemeral" copies used to facilitate a broadcast was an infringement. The key piece of reasoning is: [... the broadcaster] has not established that, at the time of their enactment, the sections of the Act providing for the right to broadcast a performance must have been understood to include the right to prerecord. Even now it remains fully possible, and quite common, to broadcast live performances. To me, there are two key differences why this logic might not directly transpose to the streaming pirated movies situation: "Ephemeral" prerecorded copies aren't necessarily "temporary" copies within the scope of section 30.71 above, particularly subsections (a) and (c) might not strictly be met. This case discusses the point of view of the broadcaster which is analogous to the hoster, not the end-user. While making ephemeral/temporary copies might not be strictly necessary for broadcasting, viewing online content necessarily creates at least a temporary copy on the end-user's computer. Two other random notes: None of the involved sections have a "reasonableness" or "should have known" clause whereas they are present in other parts of the Copyright Act. This means whether its legal should theoretically depend strictly on the facts (i.e. if it turns out to be illegal, pleading "oh I didn't know it was pirated" won't work). Funny enough, I don't actually see anything in the law that would differentiate between streaming online pirated video and your example of something illegal being aired on TV provided its digital (presumably some part of the TV has a temporary copy too). | What is allowed and what happens are different things; this is why we have police, courts and prisons. If everyone followed all of the laws all of the time we would need none of these. The videos are copyright and without the permission of the copyright holder (the NFL) you cannot reproduce or distribute them. A defense to copyright violation is if the usage is fair use or fair dealing. What you see on line is: Done with permission of the NFL Fair use as it is being used to comment on or analyze the performance; like a critic's book review. Unlawful and not pursued (yet) because the NFL considers it not worthwhile. | No, it's not illegal... Ads are shown as a contract between the site that hosts it and the advertising company. The contract does not stipulate that customers need to buy something, in fact, the contract can't force the customer to buy anything! At best, the contract can pay the hosting site based on the ad being shown, clicked, or any sale made after it. ...but you will do exactly the opposite Advertizement is made to put your own brand into the head of people. In fact, most ads don't have any effect on people. As I am writing this, ads for a kid TV, travels to Turkey and the primetime films for the weekend on the TV-station I have on are shown. I have no intention of consuming any of these advertised products. Impact of a campaign is measured by two metrics: people reached, and people responding. People reached is measured in clicks. People responding is measured in changes in earnings or sales. Clicking the ad increases the reached rating. If the rating is bad, the ad campaign is just ineffective... which leads to the most paradoxical thing: Bad advertisement and good advertisement both lead to more advertisement - bad to level out the missing response, good to maximize the response. By clicking on the ad you just funnel more money to the ad industry. When does it get illegal? [DDOS] The only way it would become illegal is if John Doe sets up a computer - or rather a botnet - and has that network click the ads thousands of times per second. Google can handle easily 83,000 searches per second, twitter gets more than 9000 tweets that are distributed to millions of people, Tumbler and Instagram handle together about 2500 posts per second. In fact, every second, more than 100000 Gigabytes of traffic run through the net. To have an impact on one site, you need to be truly a large number of calls... and then it is called a DDOS. DDOS is illegal under the CFAA, in this case 18 UC 1030: (a)Whoever— (5) (A)knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (b)Whoever conspires to commit or attempts to commit an offense under subsection (a) of this section shall be punished as provided in subsection (c) of this section. In the UK, you'd break the Computer Misuse Act of 1990 section 3, because denying someone else service via DDOS is unauthorized, clearly unauthorized, and prevents access to any data (the website) on any computer (the server): (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— (b)to prevent or hinder access to any program or data held in any computer But can a DDOS be protest? [NO!] Anonymous attempted to petition to make DDOS a legal form of protest in 2013. The petition got 6,048 of the 25000 signatures needed to warrant an answer by the white house - unlike people in 2016 asking for a Death Star. At least it prompted Joshua I. James to write a research paper about the proposal in March. He too points to the CFAA and Section 5A, especially the sentence I quoted above. Among a lot of stipulations, he points out that internet protest in the shape of a DDOS would need to follow the same rules as a legal protest on the streets - which for example demands that entrance to businesses can't be blocked, and one is not allowed to harass employees and customers. According to the general rules for legal protest as given, there are still a number of challenges. First and foremost, entrances to businesses should not be blocked. In terms of DDoS, if sustained denial of service takes place, then access (entrance) to the server (business)is effectively blocked. This means that, at a minimum, sustained denial of service should be considered as a non-legal approach to protesting. Thus, he concludes sustained DDOS is per se can't be a legal protest, and even a non-sustained DDOS would impact people using the site in a way they will deem harassing - which means that even a non-permanent DDOS can't be a legal protest. And then comes the final blow: DDOS, unlike a real protest on the streets, can't, by its very nature, inform people of why there is protest, even if it were a form of protest! This means that nobody knows it is meant to be a protest and not a normal DDOS, and as it can't convey what the action is about, it can't be a proper protest. |
To what extent, and by what legal authority, do patent holders have a duty to share their patents This is a spin-off from Do patent holders have an obligation to make their patents available? To what extent? and particularly from this answer by Robbie Goodwin. In that answer Robbie Goodwin asserts that: patents exist to help their holders exploit whatever it is, without sharing. In an exchange of comments following this answer, the same user asserted: That patent holders are protected from the worst excesses of sharing their knowledge does not give them any duty to share. and later asked: If you [think] patent holders have a duty to share anything, where is that written? What d'you think "others can make use of the ideas without infringing the patent" means? Keeping all this in mind: To what extent do patent holders or applicants have a legal duty to share their knowledge and discoveries with others, or with the public at large? What laws or legal regulations impose such a duty? How can others benefit by such disclosures by the patent holder, during the term of the patent, without infringing the patent? How can others benefit by such disclosures by the patent holder after the patent expires? I am hoping for answers that cite law, case law, or other reliable sources. I am particularly interested in US patent law, but am also interested in the law for any and all other jurisdictions, and answers based on the law of any jurisdiction are welcome. | The constitutional basis for all US patents is Article I, Section 8, Clause 8, of the US Constitution, which grants Congress the power: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. See "Intellectual Property Clause" from Cornell's WEX Legal Information Institute. US Patent law requires an applicant to include with a patent application "disclosures". As the page "Patent Disclosure: Everything You Need to Know" from UpCounsel states: [A] patent disclosure is a public claim of data about an invention. In general, it is any part of the patenting process in which data regarding an invention is disclosed. A good disclosure tells someone else how to create the product. [Emphasis added] The U.S. Constitution gives Congress the right to offer exclusive rights to people for their inventions for set periods of time. This is only if and when the inventor agrees to adequately disclose the invention in writing. [Emphasis added] A formal patent disclosure ... stipulates a set of claims regarding the invention, as well as other data that reveals the unique nature of the product. It should be expressed in writing with the United States Patent and Trademark Office (USPTO) as part of the patent application. What Is Included in a Patent Disclosure? The Specification. A primary disclosure or "specification" is a main document in a patent application. It describes the ways in which the invention is innovative compared to similar inventions and explains the scope of monopoly the applicant believes he or she has to the invention. The specification describes the item and the way to make and to use it, in clear and exact terms. Someone in the field must be able to reasonably create it with these instructions. Further, the specification notes the patent application filing date on which inventor can the rely. It also offers evidence that the invention belongs to the person in question. The Enablement. This explains how to create the object and how someone in the field can do so. The instructions cannot be vague or unclear, but must be exact and detailed. When the patent expires, the enablement should still be usable. This section should include any figures or drawings, with explanations. Again, you will want to show how your invention is special. So, you might want to include many details and different variations of the invention. Later, many of these variations may be deleted from the document as unnecessary. This section may be numerous pages long. Best Mode Requirement. The path revealed must be the best way of creating the item within the author's awareness at the time of filing. Therefore, it may include specific or unique techniques. There should be no concealment. A poor-quality disclosure can risk the appearance of concealment. [Italics added] Claims. This area tells the reader the exclusive rights the patent offers to the inventor.... The official page "Duty of Disclosure, Candor, and Good Faith" from the USPTO cites 37 CFR 1.56 on the duty to disclose information material to patentability. This regulation provides, in the relevant part: A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim ... These disclosures include the state of prior art, as kown to the applicant and the applicant's associates. The page "BEST MODE: Noncompliance with the Duty of Disclosure is Not an Option" states: When you apply for a patent in the United States, you have a legal duty to disclose prior art that could be used to reject your application — in essence, information that may be used against you by the examiner of your application. While persons accused of a crime have a right to remain silent, so as to avoid self-incrimination, inventors applying for a patent have no such right. To the contrary, an inventor’s failure to comply with the duty of disclosure risks any resulting patent being unenforceable. The page "THE PATENT BARGAIN AND THE CURSE OF RETROACTIVITY" states: One of the requirements for the USPTO to issue a patent is that the applicant’s claimed invention be fully disclosed in the application and published in the patent. This is sometimes referred to as the “patent bargain.” This is at the opposite end of the spectrum from trade secrets law, under which a company can sue for © misappropriation of a trade secret but only if it takes reasonable measures to maintain confidentiality of the trade secret. ... Under patent law an inventor must fully disclose his or her invention before enforceable patent rights come into being. This disclosure requirement is sometimes termed the “patent bargain,” under which an inventor gains the right to exclude others from practicing a patented invention in exchange for disclosing the invention so that it may be known by the public and indeed practiced after the patent term has expired. ... [Emphasis added] In general a patent application is not just a description of a specific industrial process. It includes the research by which that process was discovered or developed. That research can benefit others in the same field, and so "promote the progress of science and the useful arts" in helping others to do further research and make further discoveries, which can often be done without infringing the patent itself. Of course, once patent protection expires, anyone may use the patent, and the final patent documents are supposed to include sufficient information that "one skilled in the art" will be able to build the invention or use the process that had been patented. This is in contrast to the situation which would exist had the inventor retained the discovery as a trade secret. In that case no one would have been able to use the patented discovery until some other person independently discovered and disclosed it. | In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage. | The Person and the University do need to come to an agreement. Universities usually have clear guidelines and arrangements for intellectual property, eg. In line with UK legislation, the University owns all intellectual property or other materials developed by its employees, unless explicitly stated otherwise. Students are not employees of the University and therefore legally own any intellectual property arising from their research as long as all of the creative intellectual input has been that of the student. When a researcher is both a student and an employee ownership of intellectual property will normally be determined by whether the intellectual property was created during the researcher’s duties as a member of staff or a student. University of Leicester (my summary) What should I do if I think I do have an idea or invention worth protecting? Have a look at the Research Strategy and Innovation Office website about where to start: University of Glasgow | Anything that helps you with your business and that you keep secret is a trade secret. The "keeping it secret" is an important part. Competitors are free to discover the same information themselves and use it, but stealing it from you is illegal. If a contractor needs to learn this information to do their job, you make them sign a non-disclosure agreement or confidentiality agreement which forbids them to pass that information on. That way, it remains a trade secret. If the contractor gives your trade secrets away, that is breach of contract and you can sue for damages. If a competitor pays your contractor to give them your trade secrets, that's not just illegal, it's criminal. On the other hand, if the contractor puts the information on his blog for example where everyone can read it, without having been enticed by someone to do this, then I believe your trade secret is gone and competitors can use it. Same as if you left documents on a park bench and your competitor finds them and reads them. You have to keep a trade secret a secret; if you fail to do so you lose. Asked about patents: If there is a non-disclosure or confidentiality agreement in place, then nobody can apply for a patent. The whole idea of a patent is that you get legal protection in exchange for disclosing your invention. Applying for a patent would mean violation of the non-disclosure agreement. | 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. | To answer the specific questions you asked: Can I use the publication to perform ECC without being under patent protection? Can an academic publication be under patent protection? The answers are: No, that academic paper does not provide any protection from patent litigation. Yes, an academic paper can publish the details of an invention, and that in no way voids the patent. The issue is the timing of the publication; the patent was filed in 1998; the academic paper was published in 2002. Once a patent is filed, the inventors (or anyone else, for that matter) can publish the patent, and that in no way invalidates the patent. To provide any protection against a patent, the prior art needs to be "prior", that is, earlier than the filing date of the patent. Now, this particular issue is made a bit tricky because there does appear to be prior citations of this invention. The whole reason this invention is called the "Montgomery ladder" (not Montgomery multiplication - that's something else) was because it was first published by Peter Montgomery in 1987. One would think that would invalidate the patent. However, I'm not an attorney; I cannot advise you to proceed under that assumption. Instead, I would suggest you follow the advice of Joao; there are plenty of elliptic curve routines out there; use one of them. | 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. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. |
If a request for personal data is made under the GDPR rights but the requestor refuses to give ID for verification what should the company do? A request for personal data to be deleted is made under the GDPR rights but the requestor refuses to give ID for verification and only provides an email address. | If the data controller has “reasonable doubts concerning the identity of the natural person making the request”, then “the controller may request the provision of additional information necessary to confirm the identity of the data subject” (Art 12(6) GDPR). Until the data subject provides this information, the request is paused. But what are reasonable doubts, and what additional information can the controller request? The GDPR itself provides no clear guidelines, though general principles apply – the additional information must be necessary, adequate, and proportionate for the identity conformation purpose. The controller's obligation to comply with access requests must be balanced with the controller's obligation to ensure the security of data by rejecting invalid requests. Just accepting any request without any verification would also be a breach of the GDPR. For example: If the company identifies data subjects by email address, then demonstrating control over the email address would be an appropriate verification step. But just mentioning the email address would not be enough since it could be someone else's email address. If the company provides a website where data subjects have created user accounts, then being able to log in to the account would be an appropriate verification step. In these examples, asking e.g. for government photo ID would not be appropriate because that doesn't help strengthen the link between the person making the request and the personal data being processed. Such data collection would be disproportionate and unnecessary. In contrast, if you walk into a bank and ask for a copy of your data, it would be entirely appropriate for them to ask for government ID because (a) the higher general risks warrant stronger checks, and (b) such ID will help confirm that the person making the request is indeed the proper account holder. The bank will also have been legally required to request ID when the account was originally opened, so that asking for ID as an identity verification measure during this later request won't involve collection of more data than they already have. (These examples were made up by me and are not official, but read on.) The EDPB has issued draft guidelines on the right of access 01/2022, which also discuss the issue of additional information for identity verification in sections 3.2 and 3.3. In particular, paragraphs 73-78 talk about IDs: 73. It should be emphasised that using a copy of an identity document as a part of the authentication process creates a risk for the security of personal data and may lead to unauthorised or unlawful processing, and as such it should be considered inappropriate, unless it is strictly necessary, suitable, and in line with national law. […] it is also important to note that identification by means of an identity card does not necessarily help in the online context (e.g. with the use of pseudonyms) […]. 75. In any case, information on the ID that is not necessary for confirming the identity of the data subject, […] may be blackened or hidden by the data subject before submitting it to the controller, except where national legislation requires a full unredacted copy of the identity card (see para. 77 below). […] 76. […] Example: The user Ms. Y has created an account in the online store, providing her e-mail and username. Subsequently, the account owner asks the controller for information whether it processes their personal data, and if so, asks for access to them within the scope indicated in Art. 15. The controller requests the ID of the person making request to confirm her identity. The controller's action in this case is disproportionate and leads to unnecessary data collection. […] Example: A bank customer, Mr. Y,, plans to get a consumer credit. For this purpose, Mr. Y goes to a bank branch to obtain information, including his personal data, necessary for the assessment of his creditworthiness. To verify the data subject’s identity, the consultant asks for notarised certification of his identity to be able to provide him with the required information. The controller should not require notarised confirmation of identity, unless it is strictly necessary, suitable and in line with the national law […]. Such practice exposes the requesting persons to additional costs and imposes an excessive burden on the data subjects, hampering the exercise of their right of access. 77. Without prejudice to the above general principles, under certain circumstances, verification on the basis of an ID may be a justified and proportionate measure, for example for entities processing special categories of personal data or undertaking data processing which may pose a risk for data subject (e.g. medical or health information). However, at the same time, it should be borne in mind that certain national provisions provide for restrictions on the processing of data contained in public documents, including documents confirming the identity of a person (also on the basis of Art. 87 GDPR). Restrictions on the processing of data from these documents may relate in particular to the scanning or photocopying of ID cards or processing of official personal identification numbers. To summarize: controllers can request IDs only in comparatively niche scenarios, and must then take additional safeguards to protect the sensitive document (e.g. instructing the data subject to redact parts of the ID, not making copies, and immediately deleting the ID after successful verification). A lot here comes down to national laws, which may explicitly require or forbid use of the ID in this context. The EDPB guidelines are not binding or normative, especially since this guidance is still in the public consultation phase. However, the guidelines present an overall consensus of the national data protection authorities in the EU, and the guidelines are regularly cited by courts. In practice, many controllers do ask for disproportionate amounts of data. Sometimes this seems to be an attempt to discourage data subject requests, which would clearly be non-compliant. In some cases, this is due to a narrow interpretation of “reasonable doubts” in which they try to eliminate any doubt about the identity. If the data subject and data controller cannot agree on a suitable identity verification process, then the data subject can: Art 77: lodge a complaint with a data protection authority, and/or Art 79: sue the data controller in court, both for compliance (fulfilling the request) and for compensation (if damages were suffered). It is worth noting that the data controller is responsible for being able to demonstrate compliance (Art 5(2) accountability principle), such as demonstrating the apparent reasonable doubts to a supervisory authority or to a court. When the controller requests ID, the controller has the burden of proof to show that this is compliant. | Let's assume that I created a mobile app for iPhone that is tracking rides on a bike [...] So the app is processing that data in the way I programmed it but I as a person do not have access to that data. I assume in such case I am not the data controller according to GDPR because I do not have access to that data is that correct? Yes, as far as I can see that is correct. The GDPR defines a data controller as someone who "determines the purposes and means of the processing of personal data" - you just provide a tool, you don't control for what purposes your customers use their ride data. This is also discussed in this question: How does the GDPR apply to software developed by one company and used by another? What if additionally to that I will program my app for example in such way that it will sometimes send current GPS coordinate to an online service controlled by external company such as Apple [...] But still my app would send this data directly to Apple server so I will still not have any access to that data. Does this change anything and does GDPR now apply to me? Yes, and yes. In that case, you are telling Apple to process data for you, so you would become the data controller (because you "determine[s] the purposes and means of the processing of personal data"), and Apple is a data processor for you. That means also the usual mechanisms kick in - you need to inform your users about this processing, you need to make sure Apple plays by the rules, etc. etc. I also do not know if Apple save this request on their servers or if they just automatically convert received gps coordinates to a name and return the answer without saving the request. This is exactly the kind of situation the GDPR is meant to address. Under GDPR, saying "I do not know what X does with the data" is not an option. This is something many companies tried in the past, that is why GDPR explicitly assigns responsibility to the data controller (i.e., you). As explained in a EU document, What is a data controller or a data processor?: The duties of the processor towards the controller must be specified in a contract or another legal act. For example, the contract must indicate what happens to the personal data once the contract is terminated. A typical activity of processors is offering IT solutions, including cloud storage. [...] So, no, you cannot just say "I do not know if Apple saves this request". Instead, you must make a contract with Apple which says whether (and how, and for how long...) they save the request, and you must inform your users about this in your privacy policy. And if Apple refuse to make such a contract with you, you must find a different company to work with. | It seems clear that this is personal information under the GDPR. If you are subject to the GDPR, you need to have a "lawful basis" to store or process such information. (You are subject to the GDPR if you are locates in the EU, or if your users are. My understanding is that it is location at the time the app is accessed that matters, not a user's citizenship. I am not totally sure about that, however. Unless your app is limited to non-EU access, it it probably safest to comply with the GDPR) The degree of precision of your location data will not matter -- a specific city is quite enough to make it personal data if it can be tied to a specific person. There are various lawful bases that may be relied on for processing and storage, but explicit consent is probably the one with the widest applicability. To use consent as the lawful basis, you must present an OPT-IN decision to the user, and record the results. If the user does nothing, the result must record lack of consent. You may not use a pre-checked consent box or another mechanism that has the effect of an opt-out choice. You should be clear about what information will be stored, and how it will or might be used. You will also need to consider how your app will function for those who do not consent, and how to handle requests to withdraw consent. So if an app obtains user consent to store location data in a manner that complies with the GDPR, it may store user location data. The consent should make the possible uses of the data clear. If the data is to be shared, the consent should make the possible extent of sharing clear. Some previous questions and answers here on law.se dealing with GDPR consent that seem possibly relevant: User consent required under GDPR What provisions should I make regarding GDPR consent when users do not sign themselves up? GDPR - Withdrawn user consent Opt Out Consent under GDPR | Neither the GDPR, nor the CCPA, nor any other data protection law that I am aware of, requires that when information is deleted on request, that similar information not be collected and stored in future. Under the GDPR Article 6 there would have to be a lawful basis for any processing, including storage, assuming that the GDPR applies to the directory in question. There could be a claim that such processing was lawful under article 6(e) "performance of a task carried out in the public interest". I do not know if any such claim has been adjudicated. Thus there is no need to hold a database of previously erased records to determine if a new record should be blocked as "previously deleted". The Wikimedia Foundation, which runs Wikipedia, I believe takes the position that the GDPR does not apply to Wikipedia, I am not sure of their detailed arguments. But surely articles on well-known people, such as a former US president, would be covered under the same provisions as would cover news reports and historical books about such a person. Perhaps that would also come under article 6(e) | The scope of the GDPR is entered when personal data is being processed in a structured manner. Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). "Peter attended the meeting on the 14th" is personal data. "That woman with the blue handbag said she wanted to return on the 25th" is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. "On the 14th, we had 25 attendees" is not personal data. Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data is processed wholly or partially with automated means (e.g. computers, smartphones), or forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists) If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means: having a clear purpose for processing selecting a suitable Art 6 legal basis for that purpose (e.g. consent or a legitimate interest) only processing the minimum data necessary for achieving that purpose determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects There are of course some complexities in the details. When the legal basis is "consent" (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using "legitimate interest" (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur. Regarding point 1, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like "0-4 attendees, 5-9 attendees" for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals. Regarding point 2 and 3, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this. On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&M's EUR 35 million fine back in 2020 (summary on GDPRHub.eu). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed. In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles. | Per Art 12(6), they are allowed to ask for additional identify verification: where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject. Additionally, Recital 64: The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests. There is no consensus regarding what this means in practice: Must the controller use all measures that they can be reasonably be required to use? Or only those measures to verify the identity to a reasonable level of certainty? I agree with you that asking for a passport is excessive, and that email verification would be sufficient. However, that is just my personal opinion. The GDPR can also be interpreted in a way that asking for a copy of your passport is OK. Where they process a copy of your passport, that is personal data as well. You also have data subject rights with regards to this processing, for example the right to be informed of the purpose of this processing and of when the data will be deleted. If it is only used for the purpose of verifying your identity, the copy of your passport should be deleted immediately afterwards. The data controller may have additional obligations because a passport or ID card is a very sensitive document. E.g. Art 87 allows member states to impose additional rules. Most sensible controllers will therefore want to avoid processing passports, unless they only operate in specific EU member states. | From Article 4 of the GDPR: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; The fact that you can use the ID in your database, along with the value returned by the cookie you set to identify the user makes it personal data. The favorite colour is information relating to an individual. The fact that it is connected to the cookie ID means that it is personal data. | The GDPR does not prescribe how information should be pseudonymized and does not even define the term properly. Yet, pseudonymization is suggested as an safety measure in various places, so that pseudonymization should be implemented wherever appropriate. The most useful guidance the GDPR gives is by contrasting pseudonymization with anonymization, where it says that pseudonymized data is still personal data because the data subjects can be identified using additional information (see Recital 26 GDPR). In contrast, re-identification is not reasonably likely for truly anonymized data. A common technique for pseudonymization is to replace identifying information with a pseudonym, for example replacing a name with a random numeric ID. However, this can only be considered pseudonymous if the mapping between the ID and the real value is not available to whoever uses this data. Replacing individual fields in a data set might not be sufficient for pseudonymization because apparently non-sensitive fields could still enable indirect identification. This requires careful analysis taking into account the entire context of the data, so it isn't possible to say whether merely removing names + email addresses achieves pseudonymization or anonymization. What you are doing is redacting parts of sensitive data. I think this is a pretty weak pseudonymization method since it still leaks partial information about the true value, and leaks information about the length of the redacted value. It is possible to argue that this is OK (e.g. if you can show that you have multiple similar redactions so that you achieve a level of k-anonymity). But by default, such partial redactions are likely to be unsafe. Completely removing the sensitive data is much safer. The “Article 29 Working Party”, a pre-GDPR EU body, has published an opinion on anonymization techniques in 2014 (PDF). It does not account for the GDPR's specific phrasing, but provides an overview of pseudonymization and anonymization techniques and puts them into context of European data protection law. It considers how such guarantees guard against attacks such as singling out data subjects, linking multiple records of the same individual, and making inferences about the data subject. In this guidance, pseudonymization techniques that are suggested include encrypting or hashing the sensitive data. However, the guidance warns that such techniques do not provide strong protection against singling out or linking records of the data subject. A bit earlier, the UK ICO had published guidance on personal data, including on the matter of anonymization and pseudonymization (PDF) with some good examples. For determining whether a data set has been successfully anonymized (or pseudonymized), they suggest a motivated intruder test: could someone without specialist knowledge or skills re-identify the data subject? In your example, such a person should not be able to infer that a record about Stxxx Axxdxrxn is about a Steve Anderson. In my opinion, your pseudonymization approach would fail the motivated intruder test unless you have multiple records that could all be about Steve Anderson (compare k-anonymity). |
Can a company actually become GDPR compliant? Is there such a thing? (This question could be expanded to other auditing procedures too) How do huge multinational companies that want to become GDPR compliant start off this? I mean, I guess one has to read the regulation, correct? But what if you misunderstood a point? Do companies usually call in an external party like an auditing company or consulting firm specialized in GDPR? Say you read and understood all the necessary things to be GDPR compliant. You do the privacy impact assessment then implement features within your solution/product to achieve this (Eg: purge user data on demand, opt-in full cookies by default, don't have any "sign me up" box checked by default, etc). Who then decides whether this set of features that should have been implemented is "complete" or not? Do auditing firms or whoever says "You are compliant" offer some sort of insurance in case there's a lawsuit and the company has to pay for failing GDPR? Or they just tell the company "The probability of paying in case of a GDPR lawsuit has been minimized"? | The GDPR consists largely of principles instead of concrete rules. It's possible to reasonably believe that you are fully compliant, but then have a court rule against you. Thus, a company might mitigate risks by getting experienced compliance consultants, and by not toeing the line of what is and isn't allowed. But at some point, working to reduce the remaining risk is not worth the effort. This will depend very much on the business. E.g. an adtech business will likely want to tolerate more risk than a bank. As the interpretation of the GDPR evolves, compliance efforts must adapt. For example, the Schrems II judgement that invalidated the EU–US Privacy Shield shifted our understanding on the legality of international transfers. This judgement was not necessarily surprising for anyone who paid attention, so to some degree it was possible to prepare in advance. But that judgement was the kind of shift in jurisprudence where you can't fix your compliance by filling out one extra form, but rather have to rethink all international transfers of personal data – a blow to US SaaS providers and European SMEs that depend on them. Some parts of the GDPR are geared to assist with a compliance process. For example, larger data controllers must create a Records of Processing Activities (ROPA) register. This lists all processing activities and their legal basis, which helps spotting potential compliance gaps. Risky processing activities require an Impact Assessment (DPIA) where the controller has to weigh different factors against each other and determine appropriate safeguards. While the GDPR doesn't necessarily say whether something is allowed or not, it frequently provides factors that must be considered in an analysis. In addition to the GDPR itself, there's a lot of guidance available. Data protection authorities publish guidelines and can also be consulted directly. In fact, that's sometimes explicitly required. In the EDPB, the different authorities coordinate with each other and publish a series of EU-wide guidelines. Sometimes the subject is very specialized, sometimes the guidelines touch on a very general matter such as the concept of “consent”. These guidelines are an effectively–binding interpretation and thus bring welcome clarity to a compliance process. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | 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. | In the question, you write: The GDPR requires consent of the subject for collection or storage of personal data (in this case, IP addresses in a log file). No, it does not. To quote Miss Infogeek: GDPR DOES NOT MAKE CONSENT A MANDATORY REQUIREMENT FOR ALL PROCESSING OF PERSONAL DATA. Consent (Article 6 (1)a) is indeed one of conditions that can be used to comply with the GDPR requirement that processing must be lawful, but it is not the only condition available to the controller to ensure lawful processing – there are alternatives (before the list of conditions it says that "at least one of the following" must be satisfied). All the conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. One of alternatives are Article 6 (1)f. It says 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) As noted in the question, logging IP addresses for the purpose of security is an extremely widespread practice. It is a legitimate interest to comply with standard security practices. It is the default, and most (all?) web-sites do this. I.e. it is legal to do this without consent (if this is not the case, I am pretty sure the outcry had been heard all over the Internet by now). | If you operate from outside Germany but within the EU, it is generally sufficient to satisfy your own country's regulations. This is a foundational principle of the EU single market, though it's not quite realized yet and has exemptions for consumer protection purposes. However, the German TMG law which includes the Impressumspflicht explicitly enshrines this principle. So from the German Impressumspflicht perspective, you're good to go. However, you will not be able to operate anonymously, because of your country's laws. GDPR requires you to clearly state your identity and contact details in your privacy notice. If you engage in internet-based commerce, the EU eCommerce Directive will have caused your EU member state to pass legislation that requires you to disclose: your name the geographic address where you are established contact details incl an email address if applicable, registration numbers from trade registers or similar if applicable, your VAT ID Note that you must have a VAT ID for cross-border B2B sales within the EU. You state that you are not selling anything via your website, and are instead collecting payments via another website. What the consequences of this are would depend on the laws and caselaw in your jurisdiction, but you will have to make these disclosures on at least one of the two websites. About Germany going after bloggers who show ads: income from ads is taxable income, and operating a business requires registration. However, the German Impressumspflicht is rarely enforced by the state. Instead, other market participants (competitors) trawl the internet for potential violations and then send a cease-and-desist letter. They can do this because skirting legal obligations distorts the level playing field, which harms those competitors. There is a thriving cease-and-desist industry built around this, but it only affects businesses that operate within Germany. | As Rick mentioned in comments this would most definitely be considered processing of personally identifiable information (PII) under the UK GDPR. You mention "advertising" and "marketing purposes" so it's pretty clearly not for your own personal household/family use and that means you would have to comply with the GDPR. That means you're going to need what's called a "Lawful Basis" for processing this data. There's six different ones: (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) You haven't provided enough information for to hazard a guess at what your basis would be but the ICO has an on-line tool which would give you a starting point. It's a very good idea to make sure you have all your i's dotted and all your t's crossed before you start processing any PII - and that includes documenting the process. Otherwise, what consequences may I face if I do so? In some ways the consequences of non-compliance are "what have you done?" coupled with "how much have you got?", the maximum penalty is £17.5m or 4% of your annual turnover (whichever is greater) and fines issued under the UK GDPR to date have ranged from mere pocket change to almost enough to buy a tank of petrol. Widen it to the EU and small property owners association got a €500 slap on the wrist and Amazon managed to net themselves a €746m fine. | The GDPR gives controllers a lot of latitude. They must decide on the correct course of action taking into account the possible risks to data subjects. Specifically, no notification of the authority is necessary if “the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.” In your scenario 1, you suggest that there is no breach because there is no evidence that the data was improperly accessed. This analysis is faulty: the controller is aware that the data was not properly secured, and cannot rule out that the data was improperly accessed. I would argue this fits the description of a “breach of security leading to the accidental or unlawful … unauthorised disclosure of … personal data” (compare the definition of a data breach in Art 4(12)). Thus, a data breach has happened. The question whether the supervisory authority has to be notified of that breach is more debatable. The controller must assess the likelihood of risks to the data subjects. Here, they can perhaps argue that the risk of disclosure is low. However, the nature of the breached data would also be relevant. If in doubt, the controller should make the notification. The goal of the GDPR is not to punish unlucky companies that suffer a breach, but to protect personal data. Thus, fixing mistakes and cooperating with the supervisory authorities is likely the best approach for most companies. In your second scenario, the data is sensitive – its disclosure has a high risk for data subjects. However, the risk of someone intercepting this data is debatable. Does the risk of interception balance out the sensitivity of the data? That's the data controller's call, but I don't think so. A notification would seem appropriate here. As a technical remark, simply offering HTTPS is not sufficient to prevent MitM attacks – users must be forced to use encrypted connections. If a controller sees MitM as a risk, they are required by Art 24 to take appropriate technical measures. Here HSTS and HSTS preload would prevent the connections from being downgraded to HTTP. Instead of offering insecure connections, the site would become inaccessible. A complementary strategy is to not serve content over HTTP, but have the HTTP server only issue a permanent redirect to the HTTPS URL. | If you merely provide software for your client to use, you are not processing personal data on behalf of the client. But if you have access to systems that store personal data, then you must consider the GDPR. Or more accurately: your client must consider the GDPR. Under what legal basis can they give you access to the data in these systems? The easiest way to solve this is indeed if you act as the client's processor. Processor status is never the default, but requires a binding contract with the data controller. This contract will require you to only process personal data as explicitly instructed by the client, and may require you to take certain security measures as a precaution. Without such a contract you aren't a data processor, but possibly a data controller of your own (with all the compliance obligations that implies). |
Union fees were deducted but was never told there was a union I ask this question just out of curiosity. Please advise if it's a better fit for workplace or some other site. I was hired to work at a store. I quit after having worked 2 hours. Part of the reason I quit so fast was because there was no paper work aside from the welcome email from HR. I finally received pay but given various union deductions the payment was very small (~$10). I had no idea there was a union or that this was a union job. Is this legal? Is there an upper limit to how much union fees can be taken off? Is it possible to be in a union and not know it (not withstanding union bylaws e.g. in another job management was required to periodically announce how members can contact the union and no retaliation will come for doing so)? | Labor Code §70 states that (1) Where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith. so yes, it is legal to deduct union dues. There is no requirement to notify a prospective employee that they will be required to be a member of a union. The employer is required to inform you of deductions for taxes and union dues, under §254, when they pay you, which is why you know that you were a member of a union. That is what labor law gives you, but a union contract could impose other obligations on the employer. It is a matter of public record that a certain workplace is unionized, so you can find out, they just don't have to volunteer that information. There is no statutory limit on union dues, that is a matter set by the union. | Tim Lymington got it right in the comment. If they don't get a wage, but expect a share of profit and/or loss, they are your partners and would be "members" of the LLC. Then you don't need workers comp or even to pay any salary at all. Of course, they will also be entitled to a share of the business, but from the description it sounds like they should be. | It is not uncommon for an employer to ask a former employee to assist with something as a courtesy, and sometimes the former employee will choose to do so. If it requires more than a small amount of time, this may be done under a short-term consulting contract for pay. But unless there was a contract of employment requiring such post-employment advice, there is no legal obligation for the former employee to provide such assistance. The most the former employer could do is give a poor reference if asked by potential future employers, and most large corporate employers now only give job title, salary range, and dates of employment to avoid claims of incorrect or defamatory statements in such references. | At Will Employment - In General An "at will" employee in the U.S. can be fired at any time for any reason without any prior notice or warning. Outside a union shop or a civil service employment situation, even an illegal reason for firing does not give you the right to be reinstated in your job - instead it gives you a right to sue for money damages. Unemployment Benefits and Employment References If you are fired for good cause (or you quit in a situation that is not a constructive termination), you are not entitled to unemployment benefits. If you are fired without cause particular to your conduct (e.g. you are laid off in the employer's reduction in the size of the employer's labor force), or your are fired for a reason that is not good cause (e.g. you are fire because the boss is annoyed because you are such a goody two shoes that you always show up to work on time), you may be entitled to unemployment benefits based upon your term of service and earnings (short time employees are often not entitled to unemployment benefits no matter what). If you apply for unemployment benefits because you assert that you were fired without good cause, and the employer believes you were fired for good cause, the employer can dispute that finding in a summary administrative hearing. Employers fight awards of unemployment benefits for employees who are fired rather than laid off, because it affects the employer's unemployment insurance rates (and because they care, for non-economic reasons, if the integrity of their stated reasons for firing someone are not believed, or if their reasons for firing someone are not considered to be legitimate grounds for termination by a government agency). Even if you are entitled to unemployment benefits, these benefits are much smaller than your regular pay, and generally last less long than the period for which you were employed. A formula or calculator should appear on the Texas Workforce Commission Website. I assume when you say that "They put a few fake tags on me" that this means that they stated reasons that would be valid "for cause" reasons for termination and you dispute those reasons apply to you, but please clarify if I am mistaken. If that is the case, it is likely that you would have to fight for any unemployment benefits you are otherwise entitled to in an administrative hearing as the company is likely to contest your claim that you were not fired for good cause. This also means that if you seek new employment that they will give you a bad reference to someone who inquires about your employment (although many HR departments are afraid to do that for fear of defamation liability and will only confirm the dates of your employment and your position). Wrongful Termination Lawsuits Separate and apart from unemployment benefits, if you are fired, not just without cause, but for an illegal reasons (e.g. race, sex, and select statutory prohibited reasons), you may bring a wrongful termination lawsuit. Some of those reasons (firings related to discrimination by a private sector employer) require you to file an EEOC complaint and have it investigated by them first, other of those reasons (mostly whistle blowing statutes and breaches of written employment contracts that don't allow for termination of employment without cause) allow you to immediately bring suit for wrongful termination. The legal status of firing someone because you complained about another employee's ethical violation depends upon the exact nature of the ethical violation. For example, a U.S. Supreme Court case decided this month (i.e. February/March 2018) held that whistle blower protections under U.S. securities laws apply to people who report securities fraud to the SEC, but not to people who report securities fraud to a supervisor in the company. "My fellow employee was a lying asshole who acted unprofessionally (in non-technical sense of the word), and I complained about this conduct to my supervisor and the employer didn't care" standing alone, would not normally constitute conduct that is covered by a whistle blowing statute that could allow you to bring a lawsuit for wrongful termination of employment, although it might constitute a constructive termination for bad cause by an employer (if you quit) or termination for bad cause by an employer (if you were fired) for unemployment insurance purposes. The legal theory behind the amount of damages that can be awarded in a wrongful termination lawsuit is a bit obscure. As a rule of thumb, six months wages is a pretty typical settlement amount in a wrongful termination case prior to a determination by a court of employer liability. At trial, there is wide variation in what juries award in wrongful termination lawsuits involving similar facts. Sometimes the award is minimal even when the jury finds that the employer wrongfully fired you, and sometimes the award is very substantial, amounting to many years of lost income in amount. Contractual Payment Obligations Generally speaking, unless a written contract provides otherwise, you have no obligation to return a hiring bonus and the employer has a contractual duty (and probably a statutory one as well) to pay you through the date of termination without deduction for a hiring bonus paid. This includes any amounts, including bonuses, that the employer was obligated to pay you, although proving an entitlement to a bonus can be difficult unless that standard for receiving one is clearly defined and you clearly met those standards as a factual matter. Sometimes, you can even win a breach of contract award for a bonus that was not yet fully earned if the only reason that the bonus was not awarded was the employer's bad faith conduct. You could sue to collect unpaid wages in a Justice Court (the limited jurisdiction court for small claims in Texas) if necessary, if the amount you are claiming is under $10,000. If you have a claim for unpaid wages in a larger amount or also have other damages, you would need to bring suit in the appropriate county court or district court, depending upon the amount claimed. | 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. | If the employment was at will, the most the company could have done was fire her. If the employment has already been ended on good terms, the most the company can do is refuse to rehire her and/or give bad references. As you point out, no contract existed and they'd have a devil of a time proving damages anyway. | Yes. The formation of a labor union -- or virtually any other group -- is permitted by the First Amendment, which protects your right to associate with other people and your right "peaceably to assemble." As a group of volunteers, there would likely be meaningful barriers to its recognition for the purposes of enforcement of collective-bargaining laws. In that case, whatever organization the volunteers are serving would likely not have a duty to negotiate with the union, though it may still choose to do so. | Possibly I am Australian so I am not familiar with Albertan labour law but I have done a little research and the underlying common law principles are similar. I will assume that you are covered by Albertan law and not the Canada Labour Code. The next part of the answer is based on A Guide to Rights and Responsibilities in Alberta Workplaces. First, if you lost it they would need to ask you to pay for it, they could not deduct it from your pay without a garnishee order (p. 10). Second, if the device is safety equipment, and it is certainly arguable that it is, then it is the employee's responsibility to use it and the employer's responsibility to keep it in safe working order; this would include replacing it if it were lost (p. 12). The common law position depends on a) the contract and b) if any negligence were involved. Contract What does your current employment contract say about your use of the employer's equipment generally and this item in particular? If it says something then, unless it is an illegal term, that is what happens. If it is silent, then it turns on the particular circumstances. Also, a contract cannot be changed unilaterally, if they are trying to introduce a new term then you have to agree to it; remembering that there may be consequences to taking a stand against your employer, you should say that you do not agree - this removes the risk that the employer could argue that there was tacit agreement. Negligence In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant: had a duty to the plaintiff, as an employee this is virtually a given; breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), this would depend on the circumstances of the loss or damage. You have to take reasonable care of the equipment - this is not a subjective standard, you need to do everything that a person in your position can do to protect the equipment from loss or damage; the negligent conduct was, in law, the cause of the harm to the plaintiff. This has to do with the "proximity" of the harm, if for example the device needed a battery change and you took it to a technician who damaged the item in changing the battery then your actions are not proximate to the loss; and the plaintiff was, in fact, harmed or damaged. Well, if it is lost or damaged this is pretty unarguable. So, if you take reasonable care of the device and, notwithstanding, it is lost or damaged then you would not be liable for negligence ... probably. Talk to your union rep; this is exactly the sort of stuff that they are there to sort out. |
Why are the other three police officers in the Murder of George Floyd case also charged? https://en.wikipedia.org/wiki/Murder_of_George_Floyd Kueng, Lane, and Thao: State charges: Aiding and abetting second-degree murder Particularly for Thao, he did not touch Floyd at all. So Thao should be protected by Gonzales v. Castle Rock? https://www.insider.com/tou-thao-said-he-didnt-know-george-floyd-was-having-medical-problems-2022-2 The government alleged in an indictment that ex-officers Thao, Lane, and Kueng failed to provide medical aid to Floyd. Thao and Kueng also face charges for failing to intervene in Chauvin's use of excessive force against Floyd. Police officer failing to act is specifically protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)? | Police officer failing to act is specifically protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)? Almost every general rule of law has exceptions. In particular, there are exceptions to the general rule that there is not a legal duty to take action to enforce a law. Law enforcement officers have a duty to guard the physical health and safety of someone in their custody. When they are acting as a team, this duty is owed by all of them. Law enforcement officers are responsible for crimes that they commit. An "aiding and abetting" charge implies that the jury must find that the officers present were intentionally working together as a team to commit a crime, rather than acting as individual. In the same vein, you can be liable for conspiracy or felony murder by serving as a look out for a murderer, even if you don't actually pull the trigger. These officers actively prevented third-parties from intervening or creating a credible threat that they would intervene if a bystander stepped in to help Floyd and as part of the same patrol owe duties with respect to each other's conduct that unrelated third-parties dod not. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | Under U.S. law the prosecution must prove that the defendant committed a particular crime beyond a reasonable doubt. So, it is not sufficient to prove that someone committed one of three crimes without proving which one it was. an alternative that I thought of later: someone is found somewhere where they can legally be, but in a situation where the only way they could have gotten there would involve trespassing through one of several properties owned by different people. Since the crime of trespassing requires the prosecution merely to show that someone was on the property of another without legal authorization to do so, it might be possible to prove this crime beyond a reasonable doubt without showing precisely which property was crossed, although I wouldn't be surprised if there was a split of authority among U.S. states on this question. | Legal Context This kind of argument is often called a "defense of others" defense which is available in every jurisdiction of which I am aware. Almost every state has a specific description of when this is permitted as part of their criminal code, usually in a general principles section at the beginning, or in the sections pertaining to crimes of violence. Some details vary from one state to another, but none of the facts presented in this hypothetical really push the envelope in terms of distinctions between one state's law and another. Most of the differences involve situations when the use of deadly force is allowed. For example, states differ regarding when deadly force allowed to prevent a burglary of your home or business which is in progress, particularly if it is possible to avoid a use of deadly force at all by retreating in a manner that puts you at no one at any significant risk of bodily injury. But, the scenario presented does not appear to involve the use of deadly force (although the definition of "deadly force" can be slippery and lead to some subtle variations in what is permitted from state to state). Another common nuance of variation between states involves the circumstances under which physical force or deadly physical force is authorized to make a citizens arrest, but this situation is also not implicated by your hypothetical. Once Thug is beat up, the scenario ends without any effort to detain Thug until the police arrive. Generally speaking, a defense of others defense that justifies a use of force under criminal law will also not give rise to civil liability in a lawsuit for assault and battery as opposed to a criminal prosecution for it. A Sample Defense Of Others Statute The pertinent section of the Colorado Revised Statutes (2016), strongly influenced by the language of the Model Penal Code (which never adopted in full by any state but highly influential stylistically in how U.S. criminal codes are drafted) is very typical of the majority rule regarding the defense of others and reads as follows (emphasizing the language relevant to the scenario in the question): § 18-1-704. Use of physical force in defense of a person (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Analysis of the Hypothetical Facts Is Paul guilty of assault and battery for attacking Thug, or would self-defense or some other standard defense apply? Paul is probably not guilty of assault and battery for attacking Thug because a defense of others defense justifies his actions. Paul is using physical force to defend a third person (and presumably himself as well once once he is involved in the fray) from what he reasonably believes to be the use of unlawful physical force by Thug, and generally, under those circumstances Paul may use a degree of force which Paul reasonably believes to be necessary for that purpose. Paul is most vulnerable in this scenario on the question of whether he reasonably believed that the degree of force he used was reasonably necessary for the purpose of defending Emily and himself from Thug's unlawful use of physical force, or whether he went further than what was reasonably necessary for a few minutes that left Thug "incapacitated and thoroughly bloodied". For example, suppose that Paul had already caused Thug to try to flee the scene after the first minute at which point Thug was slightly bruised and afraid of Paul, but was not at all incapacitated. But, suppose that despite this fact that Paul, awash with adrenaline from the fight, continued to pummel Thug for a couple more minutes as Thug repeatedly tried to flee the scene only to be dragged back by Paul. Suppose that Paul continued the fight after it was no longer necessary because Paul wanted to punish Thug for his mistreatment of Emily and to discourage other people from trying to attack Emily in the future, even after Paul knew that there was already no real risk that Thug himself would continue to use unlawful physical force against Emily no or in the near future. Under these circumstances, which aren't inconsistent with the hypothetical facts, if this extra couple of minutes caused Thug to be much more badly injured than he otherwise would have been if Thug had been allowed to flee after the first minute, then Paul could still be guilty of assault and battery, even though his actions were legally justified for the first minute of the fight. There is no indication that either Paul or Emily provoked the attack on Emily, or that either Paul or Emily was the initial aggressor, or that this was actually a pre-agreed dueling situation. So each of these circumstances which would be exceptions to the general rule that the defense of others is justified do not apply to this case. There is likewise no indication that Paul used "deadly force" as opposed to mere "physical force" in handling the situation. It is likely that Paul would have committed a crime if he had shot and killed Thug instead of beating him up, if Paul knew perfectly well at the time that he was capable of beating up Thug and making Thug go away for good as a result without resorting to a firearm, unless the attack on Emily was severe enough for Paul to reasonably believe that the attack was putting Emily at a real risk of serious bodily injury. | A police officer can lie, and lying does not render a statement inadmissible. But there is a separate area of law regarding self-incrimination and the right to a lawyer. The basic principle is that a person can always assert their 5th Amendment rights, whether or not they are under arrest. When a person is under arrest and has asserted their right to an attorney, questioning must stop and anything that results from further questions is inadmissible. There is no single factor that distinguishes ordering asking questions from custodial interrogation. For example if you have been dragged by officers to the police station and held in a locked room for hours in the middle of night, one would reasonably believe that you were taken into custody, and interrogation must stop once you request a lawyer. In Oregon v. Mathiason, 429 U.S. 492, police contacted the defendant whom they suspected was involved in a burglary and they invite him to chat at the station. They lie and say they found his fingerprints at the scene (they did not). He then confesses, they read him his rights, and he confesses again. The confession is admissible, because this was not a custodial interrogation. The relevant question is whether "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave". | You don't specify a jurisdiction but taking the US as an example, yes you could be charged with 2nd Degree Murder - you intended to harm them but not specifically to kill them: A second situation that constitutes second-degree murder is where the perpetrator intends only to cause serious bodily harm but knows that death could result from the act. For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and whacks Bill in the head with all his strength. While Adam didn't specifically intend to kill Bill when he hit him, he did intend to strike him with the shovel knowing that such a blow to the head carried with it a distinct possibility of death. Adam killing Bill in this way would be classified as murder in the second degree. In English law you'd be facing charges for Voluntary Manslaughter | Based on the question, this was not perjury; if the officer did not review the footage, the fact that his testimony was in error indicates a mistake, nothing more. To even consider a perjury charge, the prosecuting authorities would need evidence that the officer knew the testimony was wrong when he gave it. You do not indicate the jurisdiction, so nobody can say whether an appeal would lie (since new evidence has come to light), whether the conviction could be quashed for procedural failure (if multiple requests for evidence were really not received) or whether a complaint could be made against the prosecutor, the defence lawyer, or even the judge. But no case has ever been strengthened by brandishing about words like 'perjury' without being able to substantiate them. | 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. |
What makes a lawsuit reasonable? I often hear it said on this site that, in the U.S., you can sue anyone for anything at anytime; it's just a question of whether your lawsuit will be taken seriously and whether you stand a chance of winning. So, suppose I sue somebody for looking at me funny. I assume this lawsuit will be promptly thrown out. But what I don't understand is exactly why it will be thrown out. Is it because there's no law against giving funny looks? Is it because the harm I experienced didn't pass a certain threshold? Is it because a reasonable person wouldn't care that much about getting a funny look? Is it because there is no precedent for such a lawsuit? Is it just up to the whims of the judge that day? What are the principles used to decide whether a lawsuit is to be taken seriously? | There are several. First of all, the suit must state a claim for action under the law. This means there must be some law, or case law, which permits a person to sue in the kind of situation at hand. The claim for "looking at me funny" would probably be thrown out at this stage, unless perhaps it could be framed as a case of harassment. This often has a good deal to do with how the case is framed and what laws it cites as giving the plaintiff the right to sue, and the right to a remedy. Secondly, the plaintiff must usually allege significant harm, actual or in some cases potential. In federal courts, and some state courts this is often part of having standing to sue. A person only has standing when that person can show a real and significant actual harm, or a likely imminent harm, as a result of defendant's alleged actions. For example if a person claims that Congress has passed an unconstitutional law, but that person is not personally affected by the law, that person has no standing to sue. Thirdly the claim must be one that is within the jurisdiction of the court. That means both that it is the kind of claim that the court is authorized to handle, aka subject matter jurisdiction, and that the court has authority over all parties (personal jurisdiction), You can't sue for slander in a landlord/tenant or a traffic court court, the court lacks subject matter jurisdiction. Nor can you sue for theft under a state law in a federal court, it only has jurisdiction over "federal questions" (or in some cases over issues between people in different states, diversity jurisdiction). And if person A in Georgia did something to person B in Georgia, B cannot normally sue in a California court, although if the is some connection to California, the court may find it enough. Thirdly the suit must present a claim for a remedy which the court is authorized by statute or precedent to give. In some kinds of cases, the law may permit an injunction. but not a claim for money damages. In proceedings for action under the California Consumer Privacy Act (for example) most provisions can only be enforced by the California Attorney General, not by a private litigant. This will vary widely depending on the specific law involved. A classic example of a frivolous suit is United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971) in which a prison inmate sued Satan and his assistant devils, claiming that "Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff's downfall" and had therefore "deprived him of his constitutional rights". The judge noted that Satan was not under the control of the prison, and it was not clear if he was a US resident, but dismissed the suit on the technicality that the prisoner has not told the US Marshals where and how to serve the needed papers on Satan. Dismissal of a lawsuit as frivolous, or as "not reasonable" is a judgement call by the court, guided by past cases on the topic, of which there are many. Details will matter. A good lawyer should be able to advise if such a dismissal is likely. | In any court, there will be situations where a judge has discretion to make some decision. The judge might have to decide "did X meet the burden of proof", and due to the situation two reasonable and competent judges could come to different conclusions. You couldn't blame either for the decision, even though they would make opposite decisions. On the other hand, a judge might make gross mistakes. The judge might decide "X met the burden of proof" when this is clearly a mistake. That's what the appellate court is interested in. An appellate court checks whether the judge made mistakes that a judge shouldn't make. So in this situation, the appellate court doesn't decide whether X met the burden of proof. The appellate judge decides "did the trial judge make a decision that a trial judge shouldn't have made". An appellate judge might think to himself or herself: "well, I would have decided differently, but this trial judge’s decision was one that a reasonable judge could have made", and if that is what he or she thinks, the original decision will stay intact. | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | Note: this can vary by jurisdiction. Defamation in General Defamation can be libel, which is written, or slander, which is spoken. In order to prove you are the victim of defamation, you must show that the statement that allegedly defamed you was: published false injurious, and unprivileged Published means that some third party (other than you and the individual who allegedly defamed you) saw or heard the statement that allegedly defamed you. This can be achieved through media as varied as a newspaper, a picket sign, or even in conversation. The truth is not subject to suit for defamation. It doesn’t matter how mean something is, if it is true, you can’t sue. Thus, the statement made must have been objectively false (therefore protecting opinions). You must show how your reputation was hurt by the statement. Being ostracized in your community, losing work, being harassed by reporters, are examples of ways to show the statement was injurious to you. Finally, there are certain situations where the importance of free speech is even more important than usual to make a speaker’s statement be considered as “privileged.” For example, it is so important for a witness in a trial to be frank and open in their testimony that it is recognized they should not feel constrained by worrying about whether they will get sued for defamation. Thus, a witness who falsely testified to something in court or a deposition is not subject to defamation suits. Obviously, prosecution for perjury is possible if they testify to something they know is false. The Public Figure You are talking about the Family Guy and other TV shows which make fun of politicians and other well-known people from Kelsey Grammar to Whoopi Goldberg. Because the value we put on the ability to criticize our government and those we elect to it, as well as all publicly influential people in general, the people Family Guy, etc., make fun of, public figures, have a higher bar to reach when it comes to proving defamation. A public figure is someone who has gained prominence in the community as a result of his or her name or exploits, whether willingly or unwillingly. Easy examples of this can include politicians, CEOs, NFL quarterbacks, or movie stars. However, certainly, depending on jurisdiction and context, certainly regional or local level individuals may at times be considered public figures. To prevail in a case alleging defamation, a public figure has to prove the above-mentioned four elements and, additionally, must show that the person who made the statement was acting with “actual malice.” This rule derives from the Supreme Court case New York Times v. Sullivan where SCOTUS described the reasoning as deriving from a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Thus, a private person claiming defamation has more protection as a victim than a public figure does as a victim. When people put themselves out there for any reason, they are causing themselves to become a matter of public interest and subject to scrutiny. A private person should not have to walk around with the same burden on his mind because he has not likewise put himself out there. That said, the private person may be “pushed” into the public sphere without his consent due to other occurrences that drew the public’s attention to him. The Limited Purpose Public Figure Finally, a person may be a limited purpose public figure where he has purposely and noticeably put himself out there in some public controversy with the purpose of influencing the controversy’s outcome. An example is a church pastor who decries abortion because “he thrust himself to the forefront of a particular controversy in order to influence the resolution of the issue.” Another is a local expert on suicide because that person “distinguished herself in this particular field.” Limited purpose public figures must also show “actual malice” to prevail in a defamation suit. Parody/Satire These forms of communication, despite containing statements that may be intentionally injurious and/or offenses, are protected under the notion of political commentary. Satire and parody are protected, “provided a reasonable reader would not mistake the statements as describing actual facts.” So, someone who is the subject of parody of satire cannot sue “unless the irreverent comments contain a provably false fact.” In addition, they must also prove the “actual malice” element and the four original elements. Various factors go into deciding whether something is parody or satire and it is a reasonableness test where none of those factors are subject to an absolute requirement or subject to a certain level. For context, the Reporters Committee for Freedom of the Press provides a non-exhaustive list of examples of actions reporters can take when publishing parody and satire, noting again that no single item below must be included and the presence of one of them does not provide an absolute defense. Is the content at issue separated or labeled to indicate it is not straight news? Does the irreverent tone exist throughout the piece? Does the publication have a history of producing satire or parody? For example, the difference between The Onion and cnn.com. Are there illogical or over-the-top situations or actions in the piece? Are there fictitious names that are similar to real ones? Such as, “Don Drumpft” and “Plaidimir Vutin” (which I’ve actually seen somewhere once!). If this is based on a specific event, how soon after or long after was the content published? If the event is still in the public memory vs. if it has long been forgotten. Is there a disclaimer indicating it satire or parody? Note that a disclaimer must be reasonably visible and accessible to the average reader. Content seen on shows like the Family Guy are a) usually against public figures and b) usually sufficiently done in a context that conveys the fact that it is satire or parody. Therefore, suits against the show’s creators simply do not (or are very rare and even more rarely successful) do not materialize. | In the United States, I would strongly expect that an accurate depiction of historical fact (even if uncomfortably graphic) would be protected under the First Ammendment. Otherwise, the government could functionally censor the worst parts of history (as being too awful to discuss or depict), which is exactly the kind of thing the First Amendment is designed to prevent. There are three important categories of speech that are not protected: (1) "fighting words" directed at a person intended to provoke a fight, (2) words that infict emotional distress such that it qualifies as a tort, and (3) speech that court finds to qualify as "obscenity". Of these three, your game probably will not qualify for the first, since it generally requires speech directed at a specific person or people. I also suspect (less confidently) that an emotional-distress tort would not succeed since your game is not directed at any particular living people. Even if the game caused emotional distress to someone, your public release of the game probably could not qualify as a tort against that specific player who happens to experience emotional distress. The Miller test is used to determine if a work is obscenity. Wikipeida summarizes its three parts, all of which must be satisfied to constitute obscenity: Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The first two are explicitly sexual in nature. I don't know if there is any similar prohibition against hyper-violence, but even if there were, as long as your game does not run afoul of the "lacks serious artistic value" condition, you will be on the safe side of the line. Note that none of this stops anyone from initiating legal action against you (which may cause headaches for you); it only stops those legal actions from succeededing. | The standard of proof required to survive a motion to dismiss is very low. The factual (not legal) assertions of the plaintiff are assumed to be true, and the case is dismissed if the defense shows that even when the plaintiff is given that benefit, the assumed facts don't establish the case. This standard is somtimes referred to as "sufficiency of the claims". | 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. | When a judge decides a case there will be An order - e.g. "Smith shall pay Jones £100,000" Reasons for the decision - i.e. a description of the evidence, and the judge's findings of fact and legal reasoning. Sometimes a party, even though they have completely won, is nevertheless aggrieved by some things the judge has said in the Reasons (or in the way the judge has handled the trial - e.g. the judge's interventions). For example the judge may have said that the winning party was not a credible witness but they nevertheless won because of the evidence of other witnesses who were found to be credible. The rule in England and Wales is that you can only appeal orders. So if the order is completely in your favour you cannot appeal just because you don't like the reasons. |
Is it legal to put a photo of someone else's art on Facebook? I was in a building that is publicly accessible and I took a photo of paintings they had hanging on the wall. Is it legal for me to post it on social media such as Facebook, or would this be copyright infringement? Does it mater if someone was standing in the foreground of the photo? | The Copyright Act provides the freedom of panorama for certain works displayed in public in Canada but limits it to buildings, sculptures or "work of artistic craftsmanship" and do not apply to paintings and generally other two-dimensional works. 32.2 (1) It is not an infringement of copyright ... (b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building However, taking a photo or even posting it may not be illegal if it is for private non-commercial purposes. Taking a photo of a painting in a public space for private purposes without dissemination is not an infringement in Canada, even if the painting is the main subject. The Act (section 29.22) explicitly allows reproduction of works for private non-commercial purposes as long as the reproduction is based on an legal copy, the reproduction is not given away to others and no DRM measures were circumvented. If a new work of creative nature is created by your photograph (i.e. the photo is not simply a substantial copy of the painting), another non-commercial exception may be applicable. Section 29.21 allows an individual to use an existing work [...], which has been [..] made available to the public, in the creation of a new work [...] in which copyright subsists and for the individual [...] to authorize an intermediary to disseminate it [...]" provided certain conditions are fulfilled (non-commercial purpose, legal copy, source is acknowledged, no substantial adverse impact on artist's ability to gain benefits from their works). This section is explicitly created to allow individuals to post user-generated contents on social media that incorporates parts of protected works (e.g. incidental background music or many memes in general). | Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them. | If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under. However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights. One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is. Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection. If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same. Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law. Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues. It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright. | If I draw something, having been inspired by looking at some other thing, you are not copying that thing. If you carefully copy something even if you are also deliberately changing features of the original, then you are copying. Copyright law gives the copyright holder the exclusive right to make copies. There is a difference between copying music and visual art in this respect, since music can be reduced to a small set of specific symbols, so "being inspired by" a musical work is often found to be infringement. The difficult part is legally distinguishing "making a copy" versus "being inspired by". The courts use a subjective test of "substantial similarity" to decide if there has been copying. the case of Mannion v. Coors. "Pose" is an element that is considered in assessing similarity: the question the court would ask (itself) is whether such a pose could ever have come from elsewhere (such as, your own creative efforts). | 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. | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | 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. |
Why does U.S. government have civil liability for the Parkland shooting? The U.S. federal government has apparently entered a 9-figure financial settlement of civil claims by victims of the 2018 shooting in Parkland, Florida. (The civil lawsuit alleged government liability because the FBI failed to investigate a tip about the shooter preparing the attack.) Doesn't the federal government enjoy sovereign immunity to such claims? Or did the government waive its immunity in this case? This seems particularly odd given that, in addition to sovereign immunity, SCOTUS has found (e.g., Warren v. District of Columbia) that law enforcement officials have no specific "duty to protect" or liability for failures to act. (Related Q&A here: Was the officer assigned to Parkland school legally obligated to intervene?) (Interestingly, Florida state has a law by which it grants a limited waiver of sovereign immunity with a $300k limit on damages.) I also just found that last month the federal government paid an $88MM settlement for an administrative failure that allowed the 2015 Charleston, South Carolina shooter to buy a weapon. | The settlement was a politically motivated act to provide de facto disaster relief and express a moral apology in a cash that there is no plausible way that the U.S. would lose if it litigated the case on the merits. The articulated basis for making the payment would not survive a seriously argued dispositive motion from the United States government, either on behalf of the U.S. government itself, or against the federal law enforcement officials involved under Bivens. A complaint making such a claim would barely survive a motion for a Rule 11 sanction for making a frivolous claim if the government pushed the point, and then, only on the theory that it advanced a good faith argument for change in the law, not on the theory that it was supported by existing law. The Parkland case was considerably weaker than the Charleston shooter of 2015 case even, because Parkland involved a discretionary law enforcement decision, while Charleston arguably involved a non-discretionary administrative matter (although the government probably could have won that case as well). | 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. | It is unlikely that those requirements would be held to be unconstitutional. A fundamental right such as the right to bear arms can only be restricted in specific ways ("strict scrutiny") – compelling government interest (keeping people from getting shot accidentally), being narrowly tailored and the least restrictive. If, for example, the law also required passing an exam on the history of firearms, that would be overly broad. If the registration fee were $2,000, that would be too restrictive. But the law says that The sheriff may charge a new application processing fee in an amount not to exceed the actual and reasonable direct cost of processing the application or $100, whichever is less. Of this amount, $10 must be submitted to the commissioner and deposited into the general fund. The application fee is not just for the actual cost of applying for the permit, it also includes what looks like a $10 revenue source, and that sort of looks like an unnecessary restriction. I expect, though, that the state would argue that this $10 is necessary to defray actual long-haul expenses that could not be recovered given the $100 limit imposed by the law. The law does not actually require a person to pay for a training course, it just requires a person to take a course (or hold employment as a peace officer in the sate within the year). | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. | Currently, there is no recourse The Russian state is sovereign. This means the Russian government has to tell the Russian courts that they allow people to sue Russia for specific, enumerated things. If the Kremlin has not done so, then Russia has total, sovereign immunity from such claims. In the united-states, the FTCA regulates how and when you can sue the USA or federal institutions for torts, while FSIA regulates how or when you can sue other countries in the USA. In russia, the Federal Law No. 297-FZ of November 3, 2015 "On Jurisdictional Immunities of a Foreign State and Property of a Foreign State in the Russian Federation" seems to be a very similar law to FSIA. I could not determine if an equivalent to the FTCA exists. Reparations would be handled by a peace treaty with Ukraine Besides a law that allows claims against Russia, a Ukrainian-Russian peace treaty might contain a passus about reparations. There are three very traditional ways how such handle reparations: In one case, such a treaty could establish that Russia pays the reparations to Ukraine, and then claims against Russia are paid out by Ukraine. In the other case, the treaty provides a framework to sue Russia for compensation. And in the last variant, no compensation for civilians is agreed upon at all. | Clauses (a) and (c) are potentially relevant. You have to look in the Rules & Regulations to see what exceptions are permitted. Although firearms and especially shotgun shells are of a "dangerous, flammable or explosive character", it is reasonable to believe that when stored properly, they do not unreasonably increase the danger of fire or explosion, and would not be considered hazardous or extra hazardous by any responsible insurance company. On the latter point, you could ask any responsible insurance company if they would consider such shells to be hazardous. While in ordinary language simple possession of a firearm is not a threat of violence, the wording of clause (c) is open to a wider interpretation, since acts considered to be a threat of violence include displaying or possessing a firearm, knife, or other weapon that may threaten, alarm or intimidate others. The fact is that many people are alarmed by the simple existence of a weapon, so simply possessing a weapon could be interpreted as a "threat" in this special sense. Since you are not in the position of having signed the lease and now need to deal with the consequences of this clause, the simplest solution is to explain your interest, and ask them if having your gear in your apartment would be a violation of the lease. Be really clear about this and get it in writing in some form, if they say "no problem". Then either pick a different place, pick a different hobby, or find a separate storage facility. | Rules about self-defense in the US vary from state to state, but generally a person can raise a defense that they legally used deadly self-defense if they had a reasonable fear of death or grievous bodily harm, with some exceptions (exactly how these are worded changes from state to state): A person often cannot claim self defense if they are already committing a forcible felony (but it depends on the circumstances) A person cannot claim self defense if they are the aggressor in a fight or took aggressive actions toward another person who then attacked them. So, with that in mind, let's assume that Person A has a valid deadly self-defense claim against Person B. When considering self defense, the question is whether a reasonable person in the defendant's position would have feared death or grievous bodily harm. So, the exact sequence of events matters. Consider the following four scenarios: C watches B attack A and then A shoots B, C pulls out his gun and points it at A before A turns to him and points his gun in response C watches B attack A and then A shoots B, A then points his gun at C and C pulls out his gun in response C doesn't see B attack A and only sees A shoot B, C pulls out his gun and they stand off C doesn't see B attack A and only sees A shoot B, A then points his gun at C and C pulls his in response In some of these situations, A may be considered the aggressor against C even though he had a valid self-defense claim against B. In others, a jury may find that a reasonable person in C's position would not expect A to shoot them just because they shot an attacker, and therefore C is the aggressor by drawing on A. This all assumes a hypothetical where these people exist in a void, things like their relationship, the situation around the three subjects, and any other relevant facts could be introduced and considered in the analysis. In theory, a situation could exist where both sides have a valid self-defense claim against each other, the third example possibly being that situation. | 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. |
Is it legal for a business to refuse service to a former customer in retribution for them leaving negative online reviews of the business? The workers of the business are excellent at what they do and lovely people, while the manager is always a mean jerk to everyone. I don’t want to stop going there just because of him but I’m finally sick of it and want to publicise his attitude problem. If I did this on Google or elsewhere, would it be legal for them to then refuse me service without another reason in retaliation? Further, what other type of recourse does one have in this scenario? | A business owner can normally refuse service for any reason unless anti-discrimination law, or some other specific law, applies. "Critic of the business" is not a protected class. Whether a business would act in such a way I cannot say if it would risk significant negative publicity. But I see no legal reason why they could not. | The statement ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option. could certainly be considered as defamatory. However, in the US and many other countries, truth would be a valid defense, if the person making the statement could prove that the statement is true. I don't see how it could be construed as solicitation. If worn on a shirt into ABC, the management could surely ask the wearer to remove it. If that request is refused, they could ask the wearer to leave. If the wearer has a valid membership, then it would depend on the exact terms of the membership contract, and provisions of local law, whether ABC could insist that the wearer leave, or have the wearer arrested for trespass should the wearer refuse. Any regulations incorporated by reference into the contract would also matter. At least in the US. walking back and forth on a public sidewalk just outside ABC's door, wearing such a shirt or carrying a classic picket sign with such a message would be pretty clearly legal, provided that others are not unduly obstructed, and no valid local ordinance is violated. In the wear-the-shirt-inside case, if the wearer refuses to remove the shirt or leave, the management would probably call law enforcement. LE will not want to decide whether wearer has the legal right to remain in the club wearing the shirt. They will probably ask the wearer to leave. If the wearer protests that s/he has a valid membership and thus a contractual right to stay, who knows what they would do. If they still ask the wearer to leave, the wearer would be wise to comply and perhaps take legal action to enforce his or her membership rights, which will depend on the contract details as mentioned above. A lawyer would probably be very helpful if the wearer wants to take that route. The wearer would be wise to remain polite and appear calm, not yelling or using epithets. | This is not "libel," which is a form of defamation (publishing a false and defamatory statement that injures another). "Bait and switch" is a type of violation of the Massachusetts Consumer Protection Law. That Law makes it illegal for a business to engage in any false or deceptive practices, or to perform any false or deceptive acts, in commerce. Read more about it on the Massachusetts' state government site. If the restaurant's conduct was deceptive and it caused you harm (for instance, you would not have gone into the restaurant and ordered at all if you had known you had to order a drink to get the favorable price on sliders,) there may be a violation. | It is not clear from your question whether you intend to make use of the Yelp API to display Yelp ratings on your own website. You ask: So is my idea fair use of these websites data or is not because of the TOS? The ToS is not for Yelp data, it is for the Yelp API. The ToS will only apply to you if you agree to it. However, if you agree to the ToS for the API, fair use is irrelevant. The ToS is a legally binding contract that trumps fair use. You also brings up Google's display of Yelp stars. This display is not based on the Google using the Yelp API, but on Yelp opting in on a mechansim created by Google called Rich Snippets. Returning to Yelp ToS, it is clear that its purpose is permit re-use of their "ratings, reviews, photos" etc. by to promote your own Yelp-rated business. Also what they clearly do not allow you do do, is to build a competitor to Yelp. Since your planned restaurant rating site would compete with Yelp, you will not be able to use the Yelp API to get the data. What if you didn't use the Yelp API, but simply scraped their site - would fair use apply? What constitutes fair use in borderline cases such as yours is mainly decided by case law. Case law differs from jurisdiction to jurisdiction. My general impression is that it is not fair use if the use is commercial in nature (i.e. you create something intended to directly compete with the site you scrape the data from) and your product or service does not communicate something new and different from the original or expands its utility. As always: If you want specific advice, hire a lawyer. | Yes, but there is a risk If a company persistently violates the law, the regulator can go to court to get an injunction for them and their agents to stop. If they don’t they are now in contempt of court and the fines for that are much steeper. Also, the people in contempt can be jailed until the contempt stops. | Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. | The key difference is the motivation for denying service. Generally, a business can deny service for almost any reason, or for no reason, and doesn't have to explain its reasons for doing so. However, laws may make it illegal to deny service for certain specific reasons. The federal Civil Rights Act of 1964 forbids discrimination on the basis of race, color, religion, sex, or national origin. So a business may not deny service for those specific reasons. In the Colorado case, there was a similar state law that also forbids discrimination on the basis of sexual orientation. If they deny you service because of your political views, or the way you dress, or because they just plain don't like you as a person, that's legal. If they deny you service because of your sex, or race, or on the other bases in the Civil Rights Act, that's illegal. Obviously, since a business doesn't have to say why they're denying service, or could lie about the reason, this could make it hard for a plaintiff to prove that denial was in fact based on (e.g.) race. They might be able to do so by finding out about internal discussions within the business, or by showing a pattern of denial to customers of a particular race. In Masterpiece Cakeshop, the baker made it easy by explicitly stating that he was denying service because of the customers' sexual orientation, or at least because of the same-sex nature of the marriage in question. This would appear to violate the Colorado state law. Had he just said no without giving a reason, it would have been harder for the plaintiffs to make their case. (A state commission held that the baker did violate the law, but the US Supreme Court reversed because, they said, the commission had improperly taken the baker's religion into account.) But there is no such law that forbids discrimination on the basis of political views, so Alex Jones can't make a similar case. |
Is there a way to be legally represented in the UK without being a resident? Is there a way to be legally represented in the UK without being a resident? | Is there a way to be legally represented in the UK without being a resident? Pretty much anyone, anywhere in the world, who can afford to hire a lawyer can be legally represented in the U.K. without being a resident. In order to seek most kinds of affirmative relief (other than disputing the jurisdiction of a particular court over a particular party in a particular case in the first instance), however, the non-resident must acknowledge (at least conditionally subject to a right to appeal a resolution of a jurisdictional issue), the jurisdiction of the court over the non-resident and submit to that court's jurisdiction. In one famous recent example, the King of Dubai, Mohammed bin Rashid al-Maktoum, who is obviously not a British resident, hired a British lawyer to represent him in a custody dispute with his then-wife Princess Haya, concerning the couple's two children. After two years of litigation, a British senior family court judge, Andrew McFarlane, ruled against him and granted sole custody to his wife in this case on March 24, 2022. And if yes, who is a reputable firm which can deal with banking related issues. Law.StackExchange is not an appropriate place to ask for recommendations to specific law firms or lawyers. More generally, however, the financial industry in the U.K., including its banking industry, is highly geographically concentrated in a financial district in London called the City of London (just "the City" to insiders) which has its own mayor and governing body called City of London Corporation. As a result, most legal professionals (barristers and solicitors alike) with specialized expertise in banking law in the U.K. have offices in or near this financial district. | Other than the most exceptional cases, no... As a citizen (of any country), you are entitled to consular support but that does not extend to your country hiring a lawyer for you or representing you in court. It covers such things as facilitating communication with your family, attempting to ensure the trial is fair and repatriation at the end of your sentence - usually with you paying for your own transport. In exceptional cases, it is not outside the realm of possibilities that secretaries, ministers or their respective departments of foreign affairs get involved one may receive a representative. …but Citizenship is irrelevant to have the right to representation. In most liberal democracies, you are entitled to legal representation, in most autocratic dictatorships, you aren't, and there are a large number of steps in between. How this works depends on local law and custom but it usually works the same for citizens and non-citizens. In most jurisdictions you find, hire and pay for your own lawyer. Some jurisdictions may provide a lawyer for you without payment by you. How this works varies. For example, if you are accused of a crime in the united-states you are entitled to a lawyer that you pay for or, if you can't afford one, the state will provide one for you. In australia, this extends to civil and administrative matters as well subject to a means test, however, you are not entitled to free legal representation even if you are destitute - you are entitled to a fair trial which, depending on the circumstances, may mean the state pays for a lawyer. In china the state appoints a lawyer for you and you are not entitled to another - defendants rarely win in China. Each country may or may not make a distinction between citizens and non-citizens: the three above don't. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | There are no free legal copies online. They are accessible online through LexisAdvance, HeinOnline and Westlaw: this provides access, but not a downloadable copy. | Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help. | Dress respectably. Don't forget any documents (either those that support your explanation, or that you might have been instructed to bring). Printed Emails are fine unless you have been instructed otherwise. Arrive at the court on time and prepared to follow instructions and be respectful. Beyond that nobody expects that someone entering a magisterial court for the first time will be familiar with customs or process. If you're sitting in the wrong place, not standing at the right time, or touching something you're not supposed to, then a court officer will tell you; just follow directions and it's no problem. Address officers as "sir" or "ma'am" unless they ask you to call them something else. If you have a question ask any officer. If you are unsure of what is going on – what you are being charged with, what is at stake, what the purpose of the hearing is – then call the court ahead of time and ask. It sounds like this is an administrative issue and the only thing at stake is a few hundred pounds in fines. If that is in fact the case then hiring a solicitor would be silly. | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | 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 :-) |
2022: Is Ukraine at war with Russia? What exactly needs to happen in order for these two countries to be at war? Is it enough that one of the two sides make a declaration of war? | Actual hostilities suffice to conclude that there is a war. Per Art. 2 of the Geneva Convention 1949, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. | Technically you could stake such a claim in accordance with general principles of public international law, but every country has discretion about whether to recognize you as a sovereign state. Established states would likely have no interest in dealing with you until you have a certain amount of influence and resources. You might have to defend your claimed land and property by force at times from pirates, imperialists, states claiming authority by international agreement, etc. There are a number of microstates and micronations with varying degrees of recognition. | International Humanitarian Law applies to all armed conflicts The Geneva Conventions are a part of the overarching body of this law. It applies to all armed conflicts, not just declared wars. An armed invasion by R of U is a conflict to which IHL applies irrespective of if it is a declared war or not. BTW, declared wars outside Africa and South America are virtually unknown since WWII | england-and-wales Alice's defence will be that she had an honest belief, given the circumstances, that force was necessary and the force she used was reasonable in defence of John (and possibly Alice). John's consent is irrelevant unless it had some bearing on that. Why did John oppose the use of force? Did John tell Alice not to shoot because he would rather die than cause a death? Irrelevant. Did John tell Alice not to shoot because he believed Bob was not a real threat due to circumstances X, Y and/or Z that he wanted Alice to heed? Relevant. | Just wondering, in the plight of some recent news coming from Canada, and the Emergencies Act being evoked (protesters; thier right to protest in a certain area were vanquished and they were arrested); is there any justification for the current government to do so? There is legal justification for the current government to do so. As explained in the link above: In the weekend before the invocation of the Emergencies Act, Deputy Prime Minister Chrystia Freeland, who also serves as the finance minister, met with the CEOs of the largest Canadian banks to discuss how they could help resolve the situation. On February 14, 2022, during the Canada convoy protest, the Emergencies Act was invoked for the first time in Canadian history by Prime Minister Justin Trudeau's government, declaring a public order emergency. Under the Emergency Measures Regulations enacted after the declaration of emergency, participation in public assemblies that could result in a breach of peace by disrupting the movements of goods and people, interfering with the operation of critical infrastructure, or by supporting violence, was prohibited. Travel to and within places where these rallies were occurring was restricted, and foreign nationals were barred from coming to Canada to attend them. The regulations also specifically outlawed the bringing of children under the age of 18 to these assembles. Additionally the use, provision, collection, and solicitation of property and funds to support the prohibited assemblies or the people participating in them was banned. The regulations further empowered the federal government to protect critical infrastructure, Parliament Hill and the parliamentary precinct, official government residences and buildings, war monuments, and any other places that may be designated by the minister of public safety. The federal government was also given the authority to compel the towing and removal of vehicles, structures, and other objects used in blockades. Violations of the regulations is punishable by up to 5 years imprisonment and/or a fine up to $5000. Under the Emergency Economic Measures Order, also enacted pursuant to the declaration of emergency, crowdfunding platforms and their payment processors were required to register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), and report large and suspicious transactions. Cryptocurrencies are also included in the expanded financial regulations. Banks were ordered to freeze personal and corporate bank accounts suspected of being used by people violating the regulations, and are protected from civil liability in enforcing the order. Insurance coverage for trucks being used in blockades will be suspended. Furthermore financial institutions had to determine on a continuing basis whether any persons violating the regulations were using their services and were required to promptly report findings to the RCMP or CSIS (Canadian Security Intelligence Service). Background and links to other stories with background can be found in a recent article at the Washington Post which notes that: Prime Minister Justin Trudeau on Wednesday revoked the use of emergency powers that he invoked to quell weeks-long blockades in the Canadian capital that spread to several U.S.-Canada border crossings and inspired copycats abroad. “Today, after careful consideration, we’re ready to confirm that the situation is no longer an emergency,” he said at a news conference in Ottawa. “Therefore, the federal government will be ending the use of the Emergencies Act. We are confident that existing laws and bylaws are now sufficient to keep people safe.” The move was a shift for Trudeau, who on Monday said his government still needed the sweeping powers even after the blockades protesting public health restrictions and his government were cleared over the weekend because it had “real concerns” that new blockades could pop up and that protesters might be regrouping at satellite hubs outside Ottawa. Trudeau last week became the first leader to invoke the 1988 Emergencies Act, and the House of Commons voted Monday to endorse the use of the law. But its unprecedented use also drew criticism from civil liberties groups, some opposition lawmakers and several provincial premiers, who cast it as government overreach. The act was written to be a last resort, to use when there were no other laws on the books that might end an emergency. Several legal analysts said that it wasn’t clear that the blockades met the threshold or that authorities had exhausted existing tools. Alberta Premier Jason Kenney is challenging it in court. The Emergencies Act allowed police to designate no-go zones where people participating in prohibited public assemblies or bringing minors to them could face arrest. One such area was Parliament Hill in Ottawa and the surrounding precinct. The fact that the House of Commons approved the use is pretty much the end of the line since the parliament in Canada has the authority of suspend individual rights in most cases under the Canadian constitution. And also to note, a State in the USA is trying to pass a bill for these oppressed Canadians to give them temporary asylum. This is clumsy and naked political posturing. States have no say in immigration matters including asylum and the people trying to pass that bill know perfectly well that such a bill is meaningless even if passed. Should Canadians be fleeing their country in light of what has happened in the past few days? No. I believe the CCLA stated, "Let's be clear: There is no legal justification for using the Emergencies Act." The CCLA's statement greatly overstates the situation. If there is no legal justification, could Canadians seek asylum in other countries on the evoking of the emergencies act and would other countries take in Canadians seeking asylum from this current situation? No. Asylum requires an individualized threat of persecution which the vast majority of Canadians who didn't participate don't face. Moreover, they would have to show that it violated their human rights without lawful justification which they would be unable to do, and it has to be so severe that it puts your life and ability to live in the long run in your country in danger. Not being permitted to fully protest at a particular place for a week and having your bank accounts frozen for allegedly engaging in illegal activities doesn't meet that threshold. | Napoleon was never a prisoner of war, since he surrendered, as you say, after the conclusion of hostilities. If a label is necessary, he was probably a prisoner of State; but the important point was that in Rochefort he surrendered not, as in 1814, to the Allied Powers but to the British Government specifically: he dictated a letter on 13 July 1815 to George III including the lines "I come, like Themistocles, to throw myself on the hospitality of the British people. I put myself under the protection of their laws". (Since the French government had declared several of Napoleon's followers traitors and written to one of his staff "The interests of the State and the safety of his person make it absolutely necessary [for Napoleon to leave France as soon as possible]" and the Prussian and Russian governments would cheerfully have hanged him [no citation, but the behaviour of the occupying armies leaves little doubt], it is probable that this was less a grand gesture and more a necessity.) It is clear from his correspondence that Napoleon was envisaging some sort of genteel retirement like that of his brother Lucien, who was living in a country house under the supervision of a single police inspector; but this was never realistic, and the captain of the Bellerophon wrote specifically "I have no authority to agree to any such arrangement...I cannot enter into any promise as to the reception he may meet with" [from the British Government]; Napoleon decided to surrender nevertheless. It is interesting that Lord Liverpool (the Prime Minister) decided not merely not to imprison Bonaparte in the Tower as the newspapers were suggesting, but not to allow him to set foot in England: whether this was to avoid legal complications or to prevent a possible rescue attempt will never be known. But is is clear that after 15 July 1815 Napoleon had placed himself entirely in the power of the British Government, to be imprisoned or dealt with as they pleased. [Quotations as in Cordingly's Billy Ruffian, since it is to hand; but the best treatment of those days is Gilbert Martineau's Napoleon Surrenders.] | This is an important question that affects consumer advocacy, blog-based-journalism, political speech and spending, and probably other things. People disagree about what the answer is. This podcast episode features both sides of the argument. Professor Volokh holds the view that the freedom of the press is "freedom to print", "freedom to use the printing press". Freedom of the press is the freedom of everybody to use the printing press. Assessing the grammar of the clause, he argues that this points in the same direction. The text says "freedom of speech or of the press". He points out that speech is not a group of people. It would be odd to treat "speech" as an activity, but to treat "press" as a group of people given the parallel construction. This side of the argument is described more in this article by Prof. Volokh. Professor West argues that there is a defined group of people called "the press" that deserves protection under this clause. This article explains Prof. West's position in detail. The main point is that "An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause." If "press" means simply the right to publish speech, then it becomes redundant because courts have held the right to publish speech is given under that "speech" portion of the clause. Justice Stevens's concurrence in Citizens United also argued for "some kinds of identity-based distinctions" regarding whether a person is a member of the press. Each side can give examples of the term "the press" being used at the time of the First Amendment that is consistent with their favored interpretation. I think to get the best idea of the two sides to this question, you should read Citizens United (including all dissents and concurrences), read the two articles linked above, and listen to the podcast episode. | The general rule is that the ability to have a valid divorce has nothing to do with where the marriage was entered into, or the citizenship of the parties. Usually, any jurisdiction with sufficient contacts with either member of the couple has jurisdiction to enter a divorce. Hence, generally, people get divorced in the place that they live. The problem in this scenario is step 5. I think that it is highly likely that the U.S. Embassy is simply wrong, unless there is some serious irregularity in step 4. An annulment after four years of marriage, as opposed to a divorce, is highly irregular and would not be allowed in the vast majority of jurisdictions. But, maybe there are facts and circumstances that make it otherwise. This fact pattern, while it on one hand sounds like a "for a friend" question based on real facts, also sounds like some important details that may be outcome determinative have been omitted. |
How high is the bar for a full-blown surveillance? Consider a scenario involving a full-blown surveillance: email monitoring, cellphone monitoring, online activity monitoring, credit card monitoring, bank account monitoring, and also, 24x7, door-step, snitching-neighbors. Also consider that the target of this surveillance is a vanilla, boring, life-long law-abiding citizen, with no criminal-record whatsoever. How high is the bar to allow for such surveillance to target such individual? Is it lawful? Is it abuse of power? | The standard is different for some of the kinds of surveillance described than others. 24x7, door-step, snitching-neighbors doesn't require any justification at all, except to convince someone that the time and money is worth it. It is not, in a constitutional sense a "search". Cell phone monitoring (meaning wiretapping) requires a sworn statement demonstrating probable cause to believe that is a crime has been, or is in the process of being, committed. In the alternative, if the surveillance involves a non-U.S. person, and the motive for doing so is espionage, pretty much all that an intelligence agency has to do is say that it is interested. | "Public place" is not a good description of a bar. "Public accommodation" would be a better description. But it isn't a public accommodation 24-7-365(366). It's only a public accommodation during the hours it is open to the public. Presumably the owner is free to close it to the public and rent it to some private group. During the rental period, it's up to the private group to decide who to admit. (The owner would have a veto for anyone who can't be admitted, for example, because the person isn't old enough to enter a bar.) The private group is not bound by the policies that prohibit unfair discrimination by public accommodations. | Breathalyzer tests are distinct from blood tests because the former does not "implicat[e] significant privacy concerns" (see Birchfeld v. ND). A cell phone is like a blood test, because it implicates significant privacy concerns, especially the level of electro-snooping that would be required to determine if someone had recently committed a phone-use offense. As the court held, Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. A breath test might (but also might not) also satisfy the exigent-circumstances exception (waiting some number of hours for a warrant can easily result in the destruction of evidence), but a cell phone case could not give rise to such an exception. It should perhaps be noted that the "implied consent" laws are misnamed, because consent is not the issue. The 4th Amendment ban is on unreasonable searches, not unconsented searches. If you actually consent, it is reasonable for the police to search. I am not aware of any ruling to the effect that "because the defendant consented, the search is valid". In the context of breathalyzer law and case-law, an essential component of what makes the search reasonable is that it is incident to an arrest. With or without consent, or an implied consent law, Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Extending "implied consent" to cause-unrelated searches of cars, homes, or body cavities might not pass strict scrutiny. The state has a legitimate interest in public safety which justifies some minimal intrusion, but adding a provision that "when you drive, you give implied consent to searches of everything" is not narrowly tailored. But since driving is a privilege and not a right, the state has much more leeway to give you an ultimatum: if you don't cooperate with the search, you can lose your license. On the other hand, SCOTUS has not actually approved of this slogan about driving being a privilege. Something noteworthy from Birchfield is that the court also disapproves of blood tests because a less invasive method of achieving the result is available, and they grant that "Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit". There being no less-invasive alternative means of realizing the legitimate state interest in stopping distracted driving, I actually expect that when this comes to pass and the matter ends up at SCOTUS, there will be another important change in search law (but "implied consent" will still be irrelevant). | However, in the last 233 years, only a handful of people have been prosecuted for violating this law. The census bureau has noticed that a more effective way to get everyone counted is to follow up in person if someone neglects to respond to the questionnaire. Once they follow up and the person has responded, there's no longer a basis for prosecuting. What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce? The possibility of prosecution is presumably thought to increase the response rate even if virtually nobody is ever prosecuted. The law also serves as a formal statement by congress that responding to the census is important, even if the executive doesn't prosecute people for failing to do so. Another thing to consider is that an element of the offense specified in 13 USC 221 is refusal or willful neglect. Without evidence of an affirmative refusal to respond, the prosecutor would need evidence of willfulness, which goes to state of mind, and that is notoriously difficult to prove. Any defendant who claims to have intended to respond but for chronic forgetfulness would introduce reasonable doubt unless the prosecutor had something to show that the defendant intentionally refrained from responding. | There are literally hundreds of such laws. Most of them (perhaps all, if we exclude firearms-related crimes in Title 26) are contained in Title 18 of the US Code, part I. The problem is that your definition of "public insurrection" is too broad, since it would include lying to federal agents (a crime), insofar as the reason for 18 USC 1001 is to prevent impeding federal investigations by giving them false information. Assaulting a federal agent impedes government and is a crime. There is pretty much a federal version of any state-level crime of violence. There is the riot act, and a specific law against insurrection and rebellion. Chapter 115 is probably the most relevant: this is where the various "overthrowing the government" laws are. | This would be illegal in Australia (Criminal Code Act 1995 part 10.7: any unauthorised impairment of electronic communication to or from a computer), the US (Computer Fraud and Abuse Act) and any other jurisdiction that I can think of. There is no exception allowing vigilante action in case a person has a reasonable belief that the material on a website is offensive or illegal. In general, the law does not allow immunization against criminal prosecution in case the victim of an attack is himself a criminal. Only the government has the right to punish criminals. | 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 | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? |
Practical aspects of changing your name in a common law jurisdiction Common law jurisdictions, in stark contrast to civil law jurisdictions, are considerably liberal in their procedures for allowing a name change. In some cases, for example in Ireland: no formality set out in law in Ireland for the change of a person’s name or the assumption of another name. You may change the name you commonly use by simply adopting a new name (source) although deed poll exist. US states vary, but in some assuming a new name openly could suffice. Assuming that no intention to deceive is at play, how would a person who changed his name from, say, John Suzie McMillan Manson, to John McMillan, would prove that he's the owner of his car, house, company bank account, and so on? How could government agencies and institutions connect that new name to his past name? | I am a notary public in Vermont and have had to deal with people who had name variations. Readers of Law StackExchange like to citations to reliable sources; I'm not going to do that, just describe my experience. Many states do indeed allow a person to adopt a new name through usage. Government agencies and large commercial agencies don't like that, and they can and do thwart the law by imposing their own administrative procedures. If you don't like their procedures, fine, give a lawyer a $20,000 retainer, have the lawyer sue, and wait three years. And after spending all that money, the court might find that although it isn't a crime for a person to change their name by usage, there is no law requiring the administrative agency to accept it. If you don't have tens of thousands of dollars to waste or years to wait, you have two choices. Get married, and use the marriage license as evidence of your name change. The format of marriage licenses is different in every state, so how well this works depends on the state. The other option is to get a court-ordered name change. | You sue the legal person One of the things that distinguishes legal personhood from other structures is the ability to sue and be sued. You can't sue a business name or a trust for example but you can sue a company. I have in fact been required to make adjudication decisions that I know will be unenforceable in court because the applicant named a trust rather than the trustee. | It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in "household situation" within 10 days. There isn't an exception allowing you to give a false address "in case it costs more to report truthfully". The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more. | In general, providing a false name or birthdate (DoB) is only actionable when there is a legal duty to provide the correct information, or when a provision of a contract to which the person agreed requires it. If the falsity is part of a common-law fraud, then it would be unlawful, and possibly criminal. In the cases listed in the question: Sign up for an online service with a false identity although the ToS requires an accurate identity: This would be a breech of contract. Whether there could be a successful suit for such a breech would depend on why the contract demanded an accurate ID, and what harm the lie did or might do. Use a false name at a restaurant or hotel, but with no intent to defraud or avoid payment. I don't think there is any duty to give an accurate name on a restaurant reservation. In some jurisdictions the law requires an accurate name be used on a hotel register, and valid ID presented. But such violations are rarely pursued, unless they are part of a fraud or some other criminal activity (theft, prostitution, or drug dealing, say). Giving a false name when opening a bank account or other financial account. In the US, and I think many other jurisdictions, the law requires accurate identification of all bank account holders, including a SSN, EIN, or TIN. It also requires a bank to make efforts to verify such IDs, and violation are prosecuted. There are legal ways to get an account under an alternate name such as a penname or DBA, but this must be disclosed to the bank and to the IRS. Other cases that occur to me: Giving a false name at a shop when not obtaining credit or avoiding payment: generally legal. Obtaining a credit card under a false name: Can be done legally if disclosed to the issuer. Giving a false name or DoB to a pharmacy for a prescription: unlawful if attempting to access the medical info of another, or rely on another person's history to get a prescription, but may be lawful if this is just an alias, such as a celebrity might use to avoid publicity. Unlawful if done to obtain a controlled substance, or if insurance fraud is involved. Putting a false name on a job resume: lawful, but if hired an I-9 form will require a valid name and SSN or TIN. Employers usually may not require that a DoB be provided. Giving false info as part of any credit application: usually considered fraud, even if there is no intent to avoid payment, as it can deceive the creditor as to the amount of risk involved; specifically criminal in some states. Giving a false name on a date: perfectly lawful, but may cause a problem if a long term relationship develops. Some states require a valid name on a marriage license. | If you say something twice, eventually they’ll be in conflict Law codes are vast. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere. My first boss taught me that. The fired was engineering rather than law but the principle is the same. | There is no requirement to name the parties to a contract I just bought a cup of coffee. I did not give my name to the other party to that contract and while I know the name of the shop, I do not actually know the legal entity I contracted with. Nevertheless, we have a binding contract and, for example, if that coffee gave me food poisoning, I would have legal recourse under that contract. Similarly, there is no difficulty signing a contract under a pseudonym - it still creates a legally binding relationship. The practical difficulties While there is no legal problem, there is an evidentiary one - if someone enters a contract and later disclaims doing so, how do you prove that they did? Or vice-versa, if someone alleges that it was you that entered the contract, how do you prove that you didn’t. What you need is some way of definitively but anonymously tying the person to the contract. I can think of lots - a fingerprint, DNA, public key cryptography, a trusted third-party intermediary to name just a few. This is essentially a technical problem rather than a legal one. | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. | Ohwilleke's answer (i.e. 'there isn't a simple answer') covers the general principles clearly. But for your specific situation (England and Wales, appeal to the High Court Chancery Division or Court of Appeal), the answer is "Do nothing irrevocable if possible; if necessary, apply for interim directions to the Court". The Chancery Masters are used to this sort of application, and though somebody will presumably be diappointed by the decision, the trustees have no liability. |
Can hospitals run by trusts discriminate based on religion in India Suppose there's a hospital run by any trust. It gives free medicines to patients belonging to a particular religion and other patients have to pay for their medicines. However, India is a secular country with the right to protection against discrimination based on religion. Is this legal? If yes then what are the circumstances under which this is legal with respect to the nature of the trust, religion (minority or majority), type of the service provided, etc | Article 15 of the Indian Constitution states that "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them", thus a government hospital could not discriminate based on religion. There are also specific statutory non-discrimination mandates such as The Equal Remuneration Act 1976, The Maternity Benefit Act 1961, The Rights of Persons with Disabilities Act 2016, primarily addressing matters of employment. The HIV/AIDS (Prevention and Control) Act prohibits discrimination based on HIV/AIDS status in the realm of employment, service accommodations, property rentals, and insurance. But India does not have a comprehensive law that outlaws discrimination on religious grounds that applies to private parties. The protection offered by law is solely protection against the government. | There are two kinds of evidence for discrimination. The primary evidence is direct, that is, statements by an employer, for example "We need to make sure not to hire a ___ for this position". The act of hiring a person that has a certain demographic property is never evidence for discrimination, because discrimination law treats all races and religions (etc) the same, so hiring a European is not intrinsically discriminatory, nor is hiring an African or Asian. Discrimination is also not defined in terms of the sameness or difference of an employee and a supervisor. Another possibility w.r.t. a discrimination claim is demonstrating a discriminatory pattern. However, the law does not demand exact proportional representation of all protected demographic classes. It is possible that certain circumstances would be compelling enough that illegal discrimination could be established, but this would require showing a pattern, and would not be useful in an individual action. There is no law requiring employers to be up-front about hiring decisions. There is also no law requiring posting a job (I assume this is not a government job), and no law requiring consideration of more than on candidate. It might be contrary to company policy. This is not murky from a legal perspective, even if it is scummy from an HR perspective. | (For a definitive answer, consult an employment attorney). According to the federal Equal Opportunity Employment Commission, in general, An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment. This requirement comes from Title VII of the Civil Rights Act of 1964. Answer 14 on this page elaborates: Some private employers choose to express their own religious beliefs or practices in the workplace, and they are entitled to do so. However, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship. Similarly, an employer is required to excuse an employee from compulsory personal or professional development training that conflicts with the employee’s sincerely held religious beliefs or practices, unless doing so would pose an undue hardship. It would be an undue hardship to excuse an employee from training, for example, where the training provides information on how to perform the job, or how to comply with equal employment opportunity obligations, or on other workplace policies, procedures, or legal requirements. So the questions would be: Is the activity in question a "religious service or program"? This might be ambiguous, and you might have to consult an employment attorney for a more informed opinion. Does it "conflict with your sincerely held religious beliefs or practices"? Would it be an "undue hardship" for the employer to excuse you? Note that this law might not apply to employers with fewer than 15 employees. It also doesn't apply if you work for an employer such as a church, or a religiously affiliated hospital or educational institution, or the like. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | 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. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | It means what it says The person who owns the land has a right to a seat in the parish church and, if there are not enough seats then they get one and other people have to stand. This is all pretty archaic but it stems from English law where parishes were geo-political and not just religious. Who got to sit was decided by the church-wardens and parishioners had a right to a seat without payment - visitors could be charged. However, some parishioners had an additional right by virtue of their office or landholding to a seat before other parishioners. The United States is in some ways a legal “time capsule”. Many common law countries have progressively codified the common law which tends to “fossilise” the law since judges are no longer able to say “well, that was a sensible law then but it’s clearly outdated so I’m changing it”. Since the United States did this earlier and harder than most other jurisdictions and has a natural progression back in time from the west to the east you get these lovely little anachronisms. | Very briefly, holding political views or having political party affiliations simply do not give a person inclusion in a protected group (Wikipedia) when it comes to federal law. Protected classes do include • Race – Civil Rights Act of 1964 • Religion – Civil Rights Act of 1964 • National origin – Civil Rights Act of 1964 • Age (40 and over) – Age Discrimination in Employment Act of 1967 • Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964 • The Equal Employment Opportunity Commission interprets 'sex' to include discrimination based on sexual orientation and gender identity • Pregnancy – Pregnancy Discrimination Act • Citizenship – Immigration Reform and Control Act • Familial status – Civil Rights Act of 1968 Title VIII: Housing cannot discriminate for having children, with an exception for senior housing • Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990 • Veteran status – Vietnam Era Veterans' Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act • Genetic information – Genetic Information Nondiscrimination Act (Many state laws also give certain protected groups special protection against harassment and discrimination.) In the US, political beliefs are one's own to choose and participate in, mostly due to the First Amendment to the United States Constitution (Wikipedia): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble... |
Does forbidden reproductive cloning prevent prescription of clomifene and similar treatments? Fertility treatments with clomifene (like Clomid) increases the birth rate of identical twins more than twice. Identical twins are a form of cloning. Does criminilization of reproductive cloning make it criminal to prescribe clomifene or similar drugs that causes increase in cloning? | No. While twins are 'natural clones', pregnancy with identical twins naturally or as a result of infertility treatment is not a form of reproductive cloning. Reproductive cloning involves a deliberate biomedical technique - transplanting the nucleus of the donor somatic cell into the host egg cell or reprogramming adult cells into induced pluripotent stem cells ("iPSCs"). Such a clone has one parent - unlike twins who have two parents. The law I'm aware of pertains to and prohibits the reproductive cloning of human beings. Article 3(2)(d) of the Charter of Fundamental Rights of the European Union prohibits "the reproductive cloning of human beings." At the national level, reproductive cloning is banned in EU member states, Switzerland, and many other countries. Also consider that there are many clinics that openly provide fertility treatment with such drugs, some funded by the public purse (e.g. via the UK's NHS), so either they operate illegally and the authorities turn a blind eye or what they do isn't illegal where they operate. | Statistics deceive courts all the time Most judges and jurors know no statistics. Most doctors and social scientists use statistics without really understanding them. Therefore, innocently or otherwise, perfectly valid statistics are introduced into courts in ways and manners that result in mistakes even before we consider the possibility of deliberate deception. Perhaps the most egregious example was that of the wrongful conviction of Sally Clark for the murder of her two children who died of Sudden Infant Death Syndrome. The conviction led to her spending 3 years in gaol and probably contributed to her premature death of alcohol poisoning in 2007. The case was flawed for two reasons: 1) evidence that clearly pointed to death by natural causes of her second child was withheld from the defence (and, to be fair, from most of the prosecution team) and 2) misuse of statistics. The expert evidence of paediatrician Dr Roy Meadow was flawed in these ways: "He claimed that, for an affluent non-smoking family like the Clarks, the probability of a single cot death was 1 in 8,543, so the probability of two in the same family was around "1 in 73 million" (8543 × 8543). Given that there are around 700,000 live births in Britain each year, Meadow argued that a double cot death would be expected to occur once every hundred years." As any undergraduate statistician (or advanced high-school mathematician) could articulate this is total bollocks. Combining probabilities by multiplying them together is only applicable if the events are independent - there is no evidence that the deaths of 2 young children with the same parents living in the same house at roughly the same time are uncorrelated and plenty of reasons for suspecting that they are highly correlated and probably in non-linear ways. Indeed, subsequent studies have shown that the risk of a second SIDS death in the same family increases by a factor of 5 to 10 - this is a very high correlation on what is still a very rare event. It is ironic and tragic that the argument that led to the charges (that the deaths are correlated by a single murderer) relies on the exact opposite (and equally vacuous) argument that led to the conviction (that SIDS deaths within a family are uncorrelated). Further to the statement, the rate of SIDS in the UK is 1 in 1,300; not 1 in 8,500. Dr Medlow factored in the non-smoking and socio-economic elements of the household that lowered the chances but failed to factor in those that increased the chances: like the fact that both children were boys who have a higher rate of SIDS than girls. Further, it's likely the court committed the Prosecutor's fallacy. Specifically, the court failed to understand the difference between conditional and unconditional probability. Double SIDS deaths are rare. But so are double infanticides. Even if Dr Medlow's figure of 1 in 73 million for double SIDS is accurate, it says nothing about the chances of double homicide (let alone double homicide by whom). We are not interested in the likelihood of 2 deaths by SIDS or homicide in the general population - we are interested in the chance of SIDS OR homicide OR something else (noting the second child likely died of a bacterial infection - so neither SIDS nor murder played a role) given that 2 deaths have occurred. For that, we need to turn to the good work of Reverand Bayes: Further examples can be found here. | Let's back up. It's premature to say that SB 8 "avoids the constitutional restrictions on banning abortions". The constitutionality of SB 8 has not been resolved; the Supreme Court said so explicitly (page 2). In fact there is good reason to think that is unconstitutional under existing interpretation of the Constitution per Roe v. Wade and the like. (Whether the court will actually follow existing interpretation is another question, of course.) But the courts do not determine the constitutionality of laws just because someone asks them; they only do so when it needs to be decided to resolve a particular case. For instance, if a person is charged with a crime, they can challenge the constitutionality of the law under which they are charged, and courts will address that question unless the case is resolved some other way. There are also ways that a person who wants to violate the law can pre-emptively sue the government to prevent them from enforcing the law, if they can show such enforcement is likely to affect them. The issue in SB 8 is that since it wouldn't be the government enforcing the law, it's unclear who an abortion provider can pre-emptively sue. In Whole Woman's Health v. Jackson, they tried to sue the State of Texas, its courts, and a private party who they thought might be likely to sue them. The SCOTUS majority found that none of those defendants were relevant. However, if and when an abortion provider actually does get sued, there'll be a clear case which has proper parties and is ripe, and courts then will have to consider whether SB 8 is constitutional or not. So if your hypothetical gun control statute were treated similarly, the law might avoid pre-emptive challenges, with a chilling effect on gun sales. But sooner or later, someone would probably violate the law (maybe deliberately as a test case), and the courts would consider whether it was constitutional or not. Under prevailing interpretations of the Second Amendment, they'd probably find that it wasn't. A key difference, of course, is that abortions are much more time-sensitive than gun purchases; being temporarily blocked from having an abortion is much more consequential in most cases than being temporarily blocked from buying a gun. The other subtext is that, although SCOTUS said their decision in Whole Woman's Health is not based on the constitutionality of SB 8, it's widely suspected that several of the justices are not all that keen on the constitutional right to abortion found in Roe v. Wade, and might look to overturn Roe when it comes up. As such, they may not be very motivated to look for procedural avenues to block SB 8 in the short term, since they might be inclined to uphold it in the long term. The dissenters in Whole Woman's Health certainly thought those avenues were available. But in the case of your hypothetical gun control bill, if a majority of justices were pretty convinced that the law was unconstitutional, they might try harder to come up with grounds to block it pre-emptively. | If the pill contained a harmful or noxious substance, this is battery, which is a crime in Lousiana ("the intentional administration of a poison or other noxious liquid or substance to another"). There is a specific crime in LA, battery of a teacher, which is dealt with somewhat more severely than non-teacher battery. It is not a crime to observe a crime being committed and not warn the victim, but it is a crime to aid the commission of the crime (for example to help the perp remove the lid, to supply the drug). Under section Title 17, a teacher battered by a student can file a school-system internal complaint which may lead to the student being expelled (this is ultimately covered by district-specific procedure). This is independent of criminal charges. | Governments have a significant interest in controlling pathogens and preventing outbreaks: they are dangerous to dense & unimmunized populations. Can a government legally prevent me from intentionally infecting myself with a virus? Yes, governments have the broad authority to enact laws. The US prohibits and regulates pathogen experimentation (self-infection). There are also rules regarding shipping and export (ITAR). Furthermore, in the US, there are (FL, NY state) laws that prevent patients from being tested unless the order is given by an authorized health care professional. Hopefully, you do live in a state that does not have this regulation (AZ). While I do believe in one's right to do as one sees fit with one's own body, there is the counter-argument: there must be limits when it comes to unnecessarily exposing the community to pathogen risk. I hope that this question is theoretical and that nobody actually believes the immunity supposition without a credible peer-reviewed scientific publication. Unfortunately we live in an age where misinformation is propagated at novel speed and scale. I wish the OP well. That being said, I have concerns regarding the underlying assumptions of the question. While I am comfortable with the OP question, the underlying assumptions give me great pause. UPDATE IMHO: I hope that no reader will seriously consider amateur experimentation in self-infection in the hope of conferring immunity. Giving a pathogen uncontrolled safe-haven to propagate and possibly infect others seems irresponsible. I doubt that the government cares if any individual manages to puts themselves in an early grave, however, it does care if amateurs create an unnecessary pandemic risk. I would think that any government would view pathogen experimentation much like nuclear device experimentation, because of the mass casualty risk. I hope that readers understand the implications of an amateur uncontrolled experiment. | Note that "pedophilia" is a psycological or social term, and not a legal term. What laws prohibit is the creation, distribution, and possession of child pronography Under 18 U.S.C. § 2251- Sexual Exploitation of Children: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. This means that there is no offense if no real child is involved, and this is also true of the various other US laws on child porn. Since the case of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) erotica which appear to depict a minor engaging in sexual activity, but which are not depictions of any actual child are protected speech under the US First Amendment and are therefor not criminal. So called "furry cub porn" might include modified images of actual minors, in which case it would seem to be covered under US laws against child porn. But if the character is totally invented, or is based on an adult rather than a minor, then it would seem to come under the rule of Ashcroft v. Free Speech Coalition. Note, the law in other countries is significantly different. In particular in the UK a realistic drawing may be considered to be a "pesudo-photograph" even if not based on an actual person, and may be punishable in the same way as an actual photo of an actual minor. Note also, the making, distribution, or posse ion of 'child porn' is a very serious criminal offense. I am not a lawyer, and one should not rely on this post to determine what acts are and are not legally safe. If there is any question, consult a lawyer. Note also that under the above statute (18 U.S.C. § 2251), something may be "child pornography" if the person involved is a minor, even if that person is old enough under local law to consent to sexual activity, and even if the person did in fact so consent, and even if there was no intent to distribute the image or video. So a person taking, say, a cell-phone video of him- or herself having sex with a 17-year-old, intended for personal watching only, in a state where the age of consent to sex is 16, can still be found guilty under this law, and such cases have occurred. | It is not correct to say that drugs are, for example, broadly illegal in many western countries Some specific drugs, or specific categories of drugs, are illegal in certain circumstances, by specific statutes. Which ones vary by jurisdiction. So the analogy breaks down. As for the main question, if by "software cracking" is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited "lives", that would most probably be creatign a derivative work of the software. Creating a derivative work, even if it is never distributed, is copyright infringement under US law: 17 USC 106 (2) lists as one of the exclusive rights of the copyright holder the right to prepare derivative works based upon the copyrighted work; This also covers the right to authorize preparation such works. So merely creating a "cracked" version of the software is technically infringement. However, infringement (of this sort) is not a crime, and no border officer or other government official will care about it in the slightest. It is up to the copyright owner to take legal action, normally by filing suit. If the modified software is never distributed nor advertised, it seems unlikely that the owner will ever even learn of it, and less likely that the owner will sue if s/he does learn of it. Damages in such a case, if the owner brought one, would probably be small, indeed not enough to make it worth the owner's time and trouble. If the cracker starts with an instance of the unmodified original software,m and edits it in place, never making a new copy, s/he is still preparing a derivative work, and (unless permission was obtained, or the work constitutes a fair use) it is still, copyright infringement If the modified software were posted online, the owner could send a takedown notice to the hosting site. If it were being sold, then a suit would be more likely. If what the cracker creates is not a modified version of the software, but instructions for modifying it, it is less clear that that would even be infringement. If the instructions are for evading an access control mechanism, that might be unlawful under 17 USC 1201 the anti-circumvention provisions of the DMCA. But again it would be up to the owner to take legal action, the government will not care until and unless the owner takes action. (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. The above answer is specific to the united-states but on this point the laws of other North American and European countries are, i believe, similar, as is the Berne Copyright Convention, at least on the matter of derivative works. | I think there are a couple of different ways to look at this. Deduplication is a technical detail that's irrelevant here While the data may be deduplicated on a technical level, the files remain logically distinct. If users 1 and 2 upload identical files, and then one user edits or deletes their file, this will not affect the other user's data. Users cannot tell whether their files are duplicates of someone else. From the user's perspective, it makes no difference whether or not the storage uses deduplication, except perhaps via the cost of the service. Because there is no user-perceptible difference, it would be difficult to interpret some GDPR significance into this scenario. Whose personal data is it anyway? Personal data is any information that relates to an identifiable data subject. The files here are likely to be their uploader's personal data. Thus, the uploaders would also have a right to have their uploaded files erased. In case of deduplicated storage, this would affect their logical copy. The contents of the uploaded files might also be personal data relating to a third party. Then that third party might have a right to get the file contents erased. But this right must be invoked with the data controller for that processing activity, which might be company A, company B, or the uploaders, depending on context. Which leads us to the next aspect: Company A is not responsible for handling erasures From your description, it sounds like company A is a data processor providing services on behalf of company B. In turn, B might be a processor acting on behalf of the uploaders. In any case, it seems that A would not be the data controller for these processing activities. Data subject rights like erasure must be invoked against the controller, as only the controller can understand whether such a request should be granted. The right to erasure is not absolute, and depends a lot on why that data is being processed. In particular: Personal data need not be erased if it is still necessary For example, a person might very well be the data subject of some of these files, and might then ask for erasure. But if the files are being stored because they are going to be needed as evidence in legal proceedings, the data subject can't use this GDPR right to destroy evidence. The data controller would be allowed to refuse a request in such cases. It could now happen that two different users of this deduplicated storage are storing the same file, but for entirely different purposes. Blanket deletion of all copies of a file could be quite problematic. Note that deletion is also a "processing activity" and needs a legal basis under the GDPR. Unexpected data loss could be a data breach. One user's erasure could be another user's reportable data breach incident. Thus, I would strongly expect such requests to be handled on a logical file level, not on the deduplicated storage level. Caveat: public access and cloned files If the (logical) file is made available to the public who can then clone or copy this file, and if the "original" is taken down due to an erasure request (or copyright takedown notice), it might be appropriate to remove logical clones as well. Again, this might not involve deleting the contents on the deduplicated storage level, but it might affect other users' copies. In a GDPR context, the grounds for this would be the Art 17(2) right to be forgotten: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. But this depends crucially on who those other controllers are. If A is the sole controller, the logical files could probably be deleted directly. If B or the end users are controllers, it could be more appropriate to forward the erasure request to them. |
Do you have to provide the name and email address of your data protection officer? Looking at Steam's privacy policy, they don't provide an email address to reach the DPO nor do they name them: You can contact Valve's data protection officer at the address below. While we review any request sent by mail, please be aware that to combat fraud, harassment and identity theft, the only way to access, rectify or delete your data is through logging in with your Steam User Account at http://help.steampowered.com and selecting the menu items -> My Account -> View Account Data. Valve Corporation Att. Data Protection officer P.O. Box 1688 Bellevue, WA 98009 European representative for data protection questions: Valve GmbH Att. Legal Rödingsmarkt 9 D-20354 Hamburg Germany Is there any requirement for them to provide an email address or name the DPO? | Articles 13 and 14 discuss what information must be provided to the data subjects, for example via a privacy policy. Art 13(1) requires: (a) the identity and the contact details of the controller, and where applicable, of the controller's representative; (b) the contact details of the data protection officer, where applicable; The quote you have shown contains both the identity and contact details (postal address) of the representative, and the contact details (postal address) of the DPO. This seems to comply with the letter of the law. | Your data is not anonymous since from the picture of the face the individual can be identified. It would be anonymous, if the face was blurred and other possible identifiable information was removed. Of course, that would defeat your purpose. Please note that, in any case, Anonymization Techniques are, themselves, a type of personal data processing that requires a legal ground, and achieving real anonymization is not a trivial matter (see Article 29 Working Party's opinion 0829/14/EN WP216 on the subject). 1. The face of a person includes biometric information, which is defined in article 4 (14) among other types of personal information regulated by the GDPR as: "personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data". A facial recognition software's purpose is exactly to perform a specific technical processing based on the facial features of the persons, to achieve a unique identification of a person based on these biometric features. Article 9 of the GDPR includes biometric data among the types of prohibited processing, unless one of the exceptions in § 2 applies. There are 10 types of exceptions among which: consent of the person, employment context, personal data made public by the person, scientific or historical research,... (each exception having its own conditions). You should check that you comply with one of these exceptions stated in article 9 § 2, if your application is about using facial images for unique identification of a person based on these biometric features. 2. In turn, if your processing is not about unique identification of a person based on these biometric features, but only about emotions recognition (which you briefly mentioned at the beginning of your post), it could be considered as not falling under the requirements of Article 9. That would still be a processing of personal information, but it would fall under the normal article 6 requirements. | Because the company that runs the contest is not in the banking or medical industry, or in another business or organization (NGO or governmental) that has to protect personal information by law, your login, email and password can be stored on pieces of paper scattered around their office and it's not illegal. And there are no laws regarding sending your information in plain text in an email. Yes, those are bad security and privacy policies, but they are not illegal. (This may vary by jurisdiction). The TOS (Terms of Serivice) you agreed to are at Eye Win Awards Privacy Policy. Part of it reads: By providing us your Information or by making use of the facilities provided by the Website, You hereby consent to the collection, storage, processing and transfer of any or all of Your Personal Information and Non-Personal Information by us as specified under this Privacy Policy. You further agree that such collection, use, storage and transfer of Your Information shall not cause any loss or wrongful gain to you or any other person. and We cannot guarantee the security of our database, nor can we guarantee that information you supply will not be intercepted while being transmitted to us over the Internet. And, of course, any information you include in a posting to the discussion areas is available to anyone with Internet access. You agree to the TOS and Privacy Policy simply by registering and using the site. This is known as a click wrap (Wikipedia) contract. You can choose to stop using the service, or by the company can choose to void the contract and close your account. You can complain, but it is entirely up to the company to address your complaint or even reply to you. The Grievance Redressal contact in India is at the bottom of the link above. There are probably consumer advocacy groups in India; Google will show you those. | Whether or not you are protected by GDPR depends on the location of both yourself and the party processing your data. Citizenship and residence statuses are completely irrelevant (Recital 14(1)): The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence If the party processing your data is established in the EU, then you are protected no matter who you are or where you are (Art. 3(1)): This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not. If the party processing your data is not established in the EU, then you are only protected if you are in the EU (Art. 3(2)): This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union | 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. | https://www.schäffel.ch/allgemein_de.html: "Die Fonts dürfen für private und professionelle Zwecke unbeschränkt verwendet werden. Sie kommen vollständig und mit allen Einbettungsrechten. Es wird gebeten, jegliche Modifikation der Datensätze, den Vertrieb unter anderen Namen, die Verteilung auf anderen Websites als dieser oder die Eingliederung in Font-Pakete zu unterlassen." That is, The fonts may be used without restriction for private and professional purposes. They come complete and with all embed rights. Please refrain from any modification of the data sets, distribution under other names, distribution on websites other than this one or incorporation into font packages. | Please note that Google Analytics do not anonymize the data you collect on its behalf unless you configure it to do IP-anonymization. If you use Google Analytics and do not use this feature, you need to have a DPA (Data Processing Addendum) in place with Google in order to comply with the GDPR. This is a real hassle, so unless you absolutely need fine-grained demographic data, it is strongly recommended that you use IP-anonymization. According to our data protection supervisory authority, this is sufficient to comply with the GDPR vis-a-vis Google Analytics. Does data that is anonymized need to be collect in the event of a GDPR Subject Access Request? No. But as the controller, you need to make sure that is is anonymized. | It seems clear that this is personal information under the GDPR. If you are subject to the GDPR, you need to have a "lawful basis" to store or process such information. (You are subject to the GDPR if you are locates in the EU, or if your users are. My understanding is that it is location at the time the app is accessed that matters, not a user's citizenship. I am not totally sure about that, however. Unless your app is limited to non-EU access, it it probably safest to comply with the GDPR) The degree of precision of your location data will not matter -- a specific city is quite enough to make it personal data if it can be tied to a specific person. There are various lawful bases that may be relied on for processing and storage, but explicit consent is probably the one with the widest applicability. To use consent as the lawful basis, you must present an OPT-IN decision to the user, and record the results. If the user does nothing, the result must record lack of consent. You may not use a pre-checked consent box or another mechanism that has the effect of an opt-out choice. You should be clear about what information will be stored, and how it will or might be used. You will also need to consider how your app will function for those who do not consent, and how to handle requests to withdraw consent. So if an app obtains user consent to store location data in a manner that complies with the GDPR, it may store user location data. The consent should make the possible uses of the data clear. If the data is to be shared, the consent should make the possible extent of sharing clear. Some previous questions and answers here on law.se dealing with GDPR consent that seem possibly relevant: User consent required under GDPR What provisions should I make regarding GDPR consent when users do not sign themselves up? GDPR - Withdrawn user consent Opt Out Consent under GDPR |
Will police help me if I my motorcycle is stolen but has an active tracker that is transmitting information in Canada? So, I got a new motorcycle, and it is natural for me to wonder about its security. Since I would be moving back to US in about 1 year, I am planning on not getting insurance. That being said, I am thinking to install an anti theft GPS device which has a battery that lasts about two days. God forbid but lets assume that someone takes my motorcycle, and I find it out within a few hours that it is missing. If the tracker is working, would police be so helpful generally as to dispatch a team to recover the motorcycle if I inform them? | Probably Police like to solve crimes and going straight to a location where they know a stolen vehicle is seems like an easy win. However, there is no legal obligation for them to do so. | 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. | I would inform the authorities about that loss as soon as possible (consider that your lost license could be found by a criminal who then conveniently "loses" it during a bank robbery), and ask them how to get a replacement license as soon as possible. See here: http://www.dmv.org/ok-oklahoma/replace-cdl.php That website actually recommends having a copy of your CDL with you at all times, or your company should have a copy on their files they can fax to you, so it would seem legal to drive with a copy. There is a difference between "driving license" in the sense "the permission given to you by the state to drive a car on public roads" and "driving license" in the sense "a piece of paper or plastic giving evidence that you have permission to drive". In most countries, driving without license is a serious offence, while driving without the piece of plastic is a minor offence. | In the UK it is an offence to cause a computer to gain unauthorised access to any program or data held in any computer (s1 Computer Misuse Act 1990). It seems likely that other European jurisdictions have similar laws. Certainly Germany does: Penal Code 202a data espionage (German text - English translation). (I mention Germany because the linked thread does.) It might constitute theft in the jurisdiction if the finder did not take reasonable steps to find the owner - which may include informing the police of the find. Depending on the jurisdiction it might count as 'treasure' or abandoned property such that the finder is obliged to inform the authorities (the jurisdiction has the presumption of ownership of abandoned or lost property - e.g. Scotland), which then decide what to do with it. Legally speaking it seems to me that, to declare it legal, we have to get over such hurdles. [edit] There seems to be some dispute in the comments that cryptocurrency is subject to any regulation, counts as property, is something of value or is something that is owned and can be stolen, such that the person in the questioner's scenario could be held to account under the law for his behaviour. Aren't they merely numbers? No - plainly they do have value because people trade them with currency and goods and services. The UK's tax authority, HMRC, "does not consider cryptoassets to be currency or money" but sees them as having economic value because "they can be 'turned to account' - for example, exchanging them for goods, services, fiat currency (that is money declared by a government to be legal tender) or other tokens". They are "a new type of intangible asset". Individuals are liable "to pay UK tax if they are a UK resident and carry out a transaction with their tokens which is subject to UK tax". They are liable for "Income Tax and National Insurance contributions on cryptoassets which they receive from their employer as a form of non-cash payment [or from] mining, transaction confirmation or airdrops." (HMRC cryptoassets for individuals) Are they property? Something that can be owned, something that can be dishonestly appropriate (i.e. stolen)? That's the interesting dispute. Recently, the High Court of England and Wales ruled in a bitcoin ransomware-related case that "for the purpose of granting an interim injunction in the form of an interim proprietary injunction ... crypto currencies are a form of property capable of being the subject of a proprietary injunction". In that judgment there is some discussion of the authorities for considering or deciding they are property. ([2019] EWHC 3556 (Comm)) read from para 50 if not the whole judgment. In at least two other cryptocurrency-related cases the High Court treated the cryptocurrency as property. Vorotyntseva v Money-4 Limited, trading as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown 2019. There was also a suggestion in the comments that the police would not understand and would not be interested. But there are several jurisdictions where people have been investigated, arrested, prosecuted and convicted of crimes relating to cryptocurrencies. A simple internet search for bitcoin theft, fraud or money laundering will result in some reports. In any case their interest or lack of it is irrelevant to what the law may say. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | No It's your device, you can do what you like with it (subject to the law - you can't hit people with it. Unless they want to be hit: whatever turns you on, turns you on). However, if you do operate it outside their instructions then they would not be legally liable if it failed and injured you or someone else or set fire to the cat or whatever. The "prohibition" would limit their legal liability. | I think you would have difficulty distorting the situation - Pokemon Go is not magic that defies existing laws, and this would be no different to a mall issuing a trespass notice (which is effectively how they would kick you out) for any other reason. I would question the ability of a store to "Arrest" you - that is a job for the police - After they trespass you (ie by giving you notice to leave), if you come back again then they can call the police to arrest you - but its not as clear-cut as someone seeing you playing a game and arresting you. I don't think Pokemon players are a "protected class" of people, so finding a valid cause of action might be tricky. About the best you could do would be to talk with your wallet (ie shop elsewhere with your friends), but for my money that would make me more likely to go to that mall ! | Police officers are authorized to use force regardless of what they are wearing, to effect an arrest. One issue will be whether the defendants should know that they were under arrest, but there is no requirement to utter particular phrases when dealing with a combative lawbreaker. There will be an internal investigation at some level to determine whether the officers violated any department policy, and no doubt the video and testimony of those in the are would be relevant. There probably is some policy to the effect that you have to distinguish yourself from a street vigilante (you have to state your authority), though I can't find any specific online publicly-available department rules. There is no law that requires an officer to say that he is one, or to show his badge, before starting an arrest. |
International Cybercrime Based in China. Who's Jurisdiction is it? Quick question... I got my crypto wallet hacked. I live in Canada. Offender lives in China. After the theft, he deposited the money into Huobi, whose HQ is also in China. I did some preliminary emails to Chinese law enforcement after getting nowhere with Canadian authorities. I got a reply from a Cybercrime group in China saying that this would fall under the jurisdiction of Canada, but I really don't believe that. Does anybody know the answer? Excerpts from Chinese Criminal Code would be preferred to back up statement. | China and Canada each have jurisdiction If the RCMP want to, they can investigate the case, lay charges and seek extradition of the perpetrator from China. It will be refused. Therefore, they have wisely decided not to investigate. If the Chinese authorities want to, they can investigate and lay charges in China against the perpetrator. However, that would potentially be embarrassing for China. Therefore, they have wisely decided not to investigate. So, either country could prosecute but neither is going to. | Since you don't say which country you're in, it's likely that you're interested in United States law. You are probably in the clear here, though you're getting close enough to the edge of breaking the law that I wouldn't be confident about not being prosecuted and/or convicted. The relevant laws in this case appear to be 18 USC 471, 18 USC 472, and perhaps 18 USC 514. All three of them begin "Whoever, with the intent to defraud...". It's questionable whether creating counterfeit money as a burglar decoy counts as defrauding the burglar. | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) 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; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. | You wrote: As far as I believe, it is permitted under GDPR to record and store non-anonymized web server access logs, as these can be useful for security reasons. True, Recital 49 GDPR: The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. You asked: My question is whether this anonymization process counts as processing personally identifiable data under GDPR? IP addresses are personal data in some cases, so yes, you're processing personal data. Then, these anonymized logs will be fed into an analytics tool to provide stats on unique visitors, page hits, etc. These are purposes considered compatible with initial purposes according to Article 5.1.(b): Personal data shall be (...) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for (...) statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); As a matter of fact, you might be required to anonymize the data for those purposes, see Article 89.1: Processing for (...) statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner. If I were to anonymize the logs and continue to use them exclusively for security reasons, would that change anything? No, you would be processing data in a manner compatible with initial purposes (ensuring network and information security). Or does it not matter what I do with them once they are anonymized? Yes, it does. If you're not using them for "archiving purposes in the public interest, scientific or historical research purposes or statistical purposes" then you're using them for purposes incompatible with initial purposes. You would need to find new legal basis for processing. does this extra anonymization process on top then take it over the line meaning that consent and a privacy notice would be required? It depends on what you want to do with anonymized data. In your case, for security purposes or security and statistical purposes, you don't need the consent and there is no requirement for the privacy notice (but sure, it would be nice to publish one). For other purposes it might be different. | 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. | Maybe not. The ICO says that The right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. It might be valid to interpret the DPA / UKGDPR in a way that the relevant personal data undergoing processing in their system is the existence of the letters, but that you are not entitled to a copy of the letters. This is in line with the purpose of the right to access, that you can check what data they are processing about you and whether it is correct. If that argument holds and the data subject insists on receiving a copy of the letters, it might be legitimate to charge them a fee for these copies. But in practice: The data controller might not make this argument and just hand over the copies. It is worth a try. A right to access founded in data protection might not be the only way to receive a copy of these materials. If the letters are relevant for legal proceedings, they could perhaps be requested during the disclosure process. | Do the exchanges need to check with each government to make sure the information is valid? Or is submitting documents enough? They need to understand the (usually very complicated) laws governing financial services and data protection in every jurisdiction where they operate. The specific requirements will vary from one jurisdiction to the next. The usual way of acquiring this understanding is to hire a lawyer (or several). | It might possibly be illegal. For criminal law, usually you need to obey the laws of three countries: The country you are a national of (by personality principle) The country from where you make the sale (by territoriality principle) The country that hosts the attacked interest (by territoriality principle) Then it depends on the jurisdiction (and other factors) whether the sale is legal or not. I'll use the example of my country, Czech Republic. There is a crime called "Unauthorized access to a computer system or data storage device". For example, you commit this crime by exploiting a vulnerability in a web application and copying the web owner's data on your computer. It is also codified that whoever wilfully facilitates the committing of a crime by providing the criminal with resources (such as the exploit) is considered to have also committed the crime. For this to apply, you must have known or expected that the exploit will be used to commit a crime. The courts would decide this. |
Do sanskrit-mottos from religious texts violate secularism in India? In India many Government Institutions, agencies, Judicial Bodies etc use mottos from religious texts primarily Hindu texts like Vedas, Puranas, Upanishads etc. Does this violate concept of secularism followed in India ? Some mottos - Supreme Court - यतो धर्मस्ततो जयः (Yato Dharmas Tato Jayaḥ) [from Mahabharata ] (translation: ""Where there is Dharma, there will be Victory" Dharma is a concept of central importance in Indian philosophy and religion that has multiple meanings in Hinduism, Buddhism, Sikhism and Jainism. More idiomatically, but less exactly, "the righteous will be victorious") National motto - सत्यमेव जयते (Satyameva Jayate) [from Mudaka Upanishad ] (translation: "Truth alone triumphs") Research and Analysis Wing - धर्मो रक्षति रक्षितः (Dharmō rakṣati rakṣitaḥ) [from Manusmriti ] (translation: "those who protect the Dharma are protected by the Dharma." More idiomatically but less exactly, "those who stand up for what is right will be protected by the righteous") | Art. 25 of the Indian Constitution says (in part) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. But, Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The preamble does also declare that India is a sovereign socialist secular democratic republic, but this is not a clearly-enforceable article. There is no legal requirement that government action be entirely devoid of consideration for religion. What the law says is that the government must respect the rights of individuals to practice their own religion, but that does not preclude favoring a particular religion, e.g. using Hindu texts in official contexts. So far, the courts have not rules that government action must be entirely devoid of religious reference (for example the various Hindu family laws vs. Muslim family laws are not unconstitutional). | A school district has been sued for something like that. In Church of God, Etc. v. Amarillo Indep. Sch., 511 F. Supp. 613, plaintiffs successfully sued the school district "to enjoin the enforcement of the Amarillo School District's absence policy which limits the number of excused absences for religious holidays to two days each school year", where "A fundamental tenet of the Church of God is that members must abstain from secular activity on seven annual holy days". The school district imposed an absence polity where "School work missed may be made up whether an absence is excused or unexcused", and "Excused absences shall be granted to students for a maximum of 2 days for religious holidays in each school year". The court concluded that "This policy poses an unquestionable burden on the Plaintiffs' religious belief", and "This burden is not ameliorated by the make-up work provision. The provision does not require a teacher to evaluate the work made up. It in fact directs the teacher to enter a zero for that work". In this case "Summary judgment is granted and judgment rendered enjoining the enforcement of the Amarillo Independent School District's excused absence policy insofar as it limits the number of excused absences for religious holidays". This is not a matter of religious discrimination, this is a First Amendment issue. The policy is in violation of the Free Exercise clause. Eliminating spring break per se is not a problem: doing so and providing no excused absences is the problem. In the above case, there was clear a religious principle of the church to the effect that one must be off the clock on the holiday. As far as I know, there is no requirement to abstain from work or school on Shrove Tuesday, Ash Wednesday or Good Friday. Nevertheless, in recognition of New Jersey state law which allows any student to take off a religious holiday – including Shrove Tuesday and Ash Wednesday, and dozens more – the Board of Education has prepared a list of such holidays, which includes Wiccan, Hindu, Baha'i, Jewish, Zoroastrian, Church of Scientology (and so on) religious holidays. | No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion. | In the german language, in jurisprudence, we have lots of latin terms / expressions, because latin expressions seem to be more exact. Is this also the case in the english speaking world? You are correct that there are many Latin expressions in the English speaking legal world. You are not fully correct regarding the reasons that this is the case, and in some instances this means that you can't trust a Latin legal term to mean the same thing in common law jurisprudence as it does in civil law jurisprudence. In England, Latin made its way into legal use because the clergy and literate Norman French elites spoke Latin for affairs of consequence and state and used it for that purpose in much the same manner that elites in India today use the English language. But, they were using Latin to document their own rulings and decisions in the feudal records which were largely based on tradition, common sense and local custom and practice. (This was also true in Scandinavia until the Scandinavians adopted legal codes based upon continental models in the 18th and 19th centuries or so.) In Germany (and most of continental Europe) the situation was different. In the Roman Empire, the judicial role was delegated mostly to people we would call arbitrators these days, who issued written decisions in Latin after cases were litigated before them by people we would call lawyers today, and these were collected, edited, arranged by subject and published in books that are the equivalent of the legal digests or case reporters today. When the Roman Empire collapsed, these fell into disuse, but monks continued to copy sets of them of future generations through the dark ages. Then, sometimes around the late Middle Ages/early Rennaisance it became fashionable for lords and officials making judicial determinations to reference these digests in their decision making on something of a grass roots basis until it became accepted practice after a few centuries for there to be formally trained jurists who were familiar with the digests and it was expected that these trained professionals relying on these historic Roman legal sources were the only legitimate way to make legal decisions. This process is called the "reception" of Roman law in early modern Europe and was the foundation of the law in most continental European countries that ultimately became civil law countries until it was so jumbled and arcane that Napoleon streamlined it by having an expert prepare his civil code with the idea that it could be used to get fair and accurate legal resources without lawyers or legally trained jurists. Germany and Spain then copied this efforts in their respective national styles. Germany strove to be more detailed and more exactly accurate in codifying the Roman law substrate using "legal science" intended for use by legal professionals, and has a longer more detailed civil code with more major categories and more rigorously consistent used of defined terms throughout their codes as a result. Spain was, if anything, a bit more loose in drafting than the French, but made substantive adjustments to reflect local ideas on the correct rule of law. These codes, in turn, were used as models by almost everyone else in Europe. To make a long story short then, Germany and other continental European countries use Latin legal terms not just because Latin was a common language of the clergy and literate elite, but because they were borrowing Roman legal terminology directly from Roman legal sources that had been preserved by monks in through the Middle Ages and then restored to active use in the early modern period, unlike the English, who were mostly coining Latin legal terms for non-Roman legal concepts or borrowing Roman legal terminology in an uninformed and frequently not technically accurate way compared to the way they were used by the trained legal scholars familiar with Roman legal sources on the continent. | What discrimination? As explained in Conflict between a religious belief that accounts for the existence of transgender people vs. one that doesn't the Constitutional protection of the Free Exercise Clause applies to the exercise of a deeply held belief (religious or not). So, let's accept that a person believes that certain sexual practices or gender identity is morally repugnant for whatever reason and that belief triggers the Constitutional protections. That means, that the person cannot be forced to engage in those sexual practices or adopt a different gender identity. It does not mean that they have a licence to discriminate against people who do in a work or public environment - they can, of course, choose to avoid such people in their private life. Alternatively, if the person believes that they are required by their faith to discriminate on the basis of those characteristics then such a belief does not get Constitutional protection as it is now affecting the rights of others. In the same way that someone who believed in human sacrifice would not get Constitutional protection. | Under the present constitution . . . Are there any consequences of the fact that the Constitution of Massachusetts and the Constitution of the United States use two different names for that state? No. Lots of the language in the United States Constitution is no longer in place or in common usage or is invalid due to subsequent amendments, and that language is still effective as originally intended. The U.S. Constitution has never been "amended and restated" and can't be understood properly without annotations to its raw text. Might a federal statute be needed for some states (e.g. Vermont, because of what is noted above) but not for others, because of differences in the federal statutes that admitted the state, or because of the lack of any need for admission by Congress in the case of the original thirteen states? Not really. Every state's name is embedded in myriad federal laws and regulations in addition to the statute that admitted the state to the United States, e.g. laws assigning names to post offices, laws allocating judgeships, laws purchasing property, laws appropriating funds, laws assigning states to various districts for purposes of executive branch departments and the judiciary, tax laws (e.g. the Obamacare tax credit), etc. Would a state statute suffice? Would a state constitutional amendment suffice? Would a federal statute suffice without a state statute or a state referendum? Would a federal constitutional amendment be needed? A federal constitutional amendment would not be needed. The Constitution vests Congress with the authority to admit states and to change their boundaries with the permission of the affected states. This would be within the power over states that could be inferred from those powers. A state and the federal government could each pass a statute to call itself something different for various purposes. For example, the official name of the state of Rhode Island is "State of Rhode Island and Providence Plantations" but various state and federal statutes authorize the use of the short form of the "State of Rhode Island" for most purposes. As a practical matter a state constitutional amendment would probably be desirable on general principles to officially change the name of a state, whether or not it was strictly required, in part, because a state constitution usually sets forth an official name of a state in its body text. It would be possible for a state to change its constitution and statutes and change its name in a move that the federal government did not accept, and if that happened, the federal government and its officials would probably continue to use the old name and the state government and its officials would probably use the new name. I think it is as a practical matter, unlikely that a standoff like this would persist, but I think that this is the most likely outcome. A federal government move to change a state's name without its consent proactively, however, would probably be struck down as violating federalism concerns. Of course, all of this is speculative, because there are really no precedents for disputes over the changing of a state's name. Context would influence the outcome of any such case. | Your beliefs about your past and your mission would probably be considered to be personal religious beliefs. As Israel does not have a state religion this does not have any legal significance (except it may make a difference as to which religious court is considered to have jurisdiction over your family disputes). Your religious beliefs do not override the law, because otherwise anyone could make anything legal for themselves just by declaring a belief that it was moral. Hence you will be subject to all the same laws as everyone else. If you break the law and claim your beliefs as justification then you may be judged unfit to stand trial by reason of insanity and committed to a mental hospital. | No. I can't give a more detailed answer without reference to a specific statute. But just about every state anti-bullying statute in the U.S. restricts the definition to...well, bullying. There is a good summary of state bullying and cyberbullying statutes here. The laws are varied, but they invariable contain words like "harassment", "abuse", "threatening," "fear," and "hostile environment." Would it be possible to "cyberbully" someone on Stack Exchange under some of these statutes? Sure. You could do it in comments; in answers; even in questions. "Question: Is Bill in my algebra class a dork, or a tool?" Comment: "This is a terrible question, and I'm going to burn your house down. Downvoting." You could probably fit something like that under some of the broader statutes--although they still for the most part haven't been tested for First Amendment issues. But I don't know of any statute broad enough to include downvoting a question or answer, on a site people post on knowing that the whole purpose of posting is to allow their posts to be upvoted and downvoted. If there was such a statute--and again, I don't know of any--it would almost certainly be unconstitutional. There is no law against hurting people's feelings, at least in the United States, and a law that allows people to seek legal redress for someone saying "I disagree with you" is pretty much the poster child for a First Amendment violation. |
Trans-Atlantic Data Privacy Framework - defined national security objectives According to this release from the White House they state: the United States is to put in place new safeguards to ensure that signals surveillance activities are necessary and proportionate in the pursuit of defined national security objectives What does that mean? Isn't that a cart blanche to track anything and anyone on the whim of what anyone sees as a “threat”? You criticize something? OK, potential threat. You ask a question: OK, potential threat. You post this question: OK, sketchy person. etc. I'm not trying to be hyperbolic but history has shown quite often that “national security objectives” has a rather wide interpretation; not the least when it comes to non-US citizens. Anyone know what safeguards and legal standing EU citizens has in this deal? Is there any article / reports or the like that judge what the deal entails, i.e. from a critical viewpoint? | The statement says that The new Framework marks an unprecedented commitment on the U.S. side to implement reforms that will strengthen the privacy and civil liberties protections applicable to U.S. signals intelligence activities. That at least claims to be a restriction on surveillance, not an increase in authorization for surveillance. The statement also says that the US will: establish a two-level independent redress mechanism with binding authority to direct remedial measures, and enhance rigorous and layered oversight of signals intelligence activities to ensure compliance with limitations on surveillance activities. That seem to be rather different from allowing surveillance on a "whim". Until the details of this new "framework" are published one cannot judge how effective these measures are likely to be, they might be mere lip service. But let us look at the reason behind them. Since the Schrems II decision, EU entities have, in many cases, been restricted from sharing data with US entities, or storing data on US-located servers, because of a concern that current US law did not sufficiently protect the privacy of EU residents. These restrictions have been a problem for many US businesses. It seems that this new framework is aimed at giving enough privacy protection to lower these restrictions. It will be up to the EC and the European Courts to judge if the framework achieves that goal. If they decide that it does not, they can decline to lower, or reimpose, the data transfer restrictions, which would make the framework pointless for the US. It is in the US's interest to keep the EU authorities satisfied on this point. In the article "United States and European Commission Announce Trans-Atlantic Data Privacy Framework: Setting the Scene for Schrems III?" from the National Law Review it is states that: The success or failure of the new agreement will depend on the extent to which it overcomes the flaws identified by the ECJ in Schrems II. The ECJ ruled against the EU Commission’s adequacy decision in favour of Privacy Shield, finding that data subjects were inadequately protected against electronic surveillance or “signals intelligence” activities carried out under US Federal authority, and that data subjects impacted by such activities had no viable route to redress. ... It is important to remember that Schrems II did not strike down Privacy Shield, which has continued to operate since July 2020. Rather, the European Court of Justice ruling struck down the EU Commission’s adequacy decision in favour of Privacy Shield. Consequently, a key objective of the new Trans-Atlantic Data Privacy Framework is not to replace Privacy Shield, but to revive and enhance it with new mechanisms to address the flaws identified in Schrems II. Participating companies and organizations that take advantage of the Framework to legally protect data flows will continue to be required to adhere to the Privacy Shield Principles, including the requirement to self-certify their adherence to the Principles through the U.S. Department of Commerce. The language of the White House fact sheet suggests some areas likely to attract close scrutiny once the full details are available: What degree of impact on individual data subjects will be considered acceptable, and in what circumstances? The US government is not promising to refrain from the use of signals intelligence and electronic surveillance. It is promising only that intelligence activity will be limited to “legitimate national security interests” and that the impact on individuals will not be “disproportionate”. How far the composition of the proposed Data Protection Review Court will ensure that it is truly independent of the Federal government? According to this NY Times story: The deal includes a way for Europeans to object if they feel that their privacy has been violated, including through an “independent Data Protection Review Court,” the White House said in a fact sheet released after the news conference. The deal still needs to be made final, the United States and the European Commission said in a joint statement, adding that the White House would put its commitments in an executive order. Businesses that send European Union data to American servers have pushed hard for the governments to reach a new deal. Since the last pact was struck down more than 18 months ago, regulators in European countries have said companies cannot use certain web services, like Google Analytics and Mailchimp, because doing so could violate the privacy rights of Europeans. Meta, the parent company of Facebook, said this year that it might shut down its services in Europe if the governments didn’t resolve their differences. Google’s top lawyer had urged “quick action to restore a practical framework that both protects privacy and promotes prosperity.” The Friday announcement is the latest development in a lengthy debate about how far governments and tech companies should go to protect users’ privacy. Europe’s top court twice struck down pacts governing data flows between the United States and the European Union over concerns that the data would be exposed to American surveillance programs. All of this is based on the joint announcement by the US and the EC, with detailed documents apparently yet to come. | Your code is considered free speech (Bernstein v. United States) and you have allowed the use of the code via the MIT license. Since the application of your code is very generic and is not specifically targeting anyone. You probably are not criminally liable. This is simply writing a "Proof of Concept" for security testing purposes. That same way Metasploit, Nessus, and Nmap have actual exploit code but are considered tools of the trade. Now if you go around using your spyware on non consenting victims. You might get a visit from some people with guns and badges that have 3 letters on them. | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. | There are professionals who are doing penetration testing in an attempt to find security vulnerabilities with the target company. They will have a clear, written contract with the target company to permit the attack. Professional conduct means making sure that the permission is genuine before starting the attack. Their aim is to map weak points in the security, not to extract personal data. There will be non-disclosure agreements to make sure. Reports go to the target of the attack, not to any third party. As you describe it, it looks as if scammers are setting you up as the fall guy for their schemes. They and the money will be gone, you go to prison. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | The GDPR has a fairly broad concept of what it means for a data subject to be identifiable. The details are given in Recital 26: To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The good news is that this mandates a risk-based approach to identifiability. You don't have to prevent re-identification with absolute certainty, but you must make sure that re-identification is not “reasonably likely”. The bad news is that “identify” does not just mean “figuring out the real-world identity of the data subject”, but also “being able to single out the data subject”. Hashes of personal data are still personal data. The hashed password still allows you to single out data subject, since the hash now serves as an identifier that links multiple records. Equivalently, a random ID would serve as an identifier. Depending on the information in the linked records, this could reasonably likely also allow linking to a real-world identity. I'll also point out that the GDPR explicitly notes that “online identifiers … such as internet protocol addresses, cookie identifiers or other identifiers” enable profiling and identification, and are thus a kind of personal data. Note that it seems you have a user database that includes a password hash. This database includes rich links between the password hash and other, more directly identifying, data. Alternatively, consider that the software that collects tracking information along with this tracking identifier would also receive other information about the data subject that could allow re-identification, such as the data subject's current IP address. It would be reasonably likely that such additional information could be used to identify or single out the data subject. For this analysis, it is irrelevant whether you have any intention of singling out users – it only matters whether, under an objective analysis, the relevant means to do so exist. Related: EDPB thinks hashed phone numbers are personal data. There has been recent debate by regulatory bodies on the question whether hashed phone numbers are personal data. This debate was published by the EDPB binding decision regarding the Irish DPC's fine against WhatsApp, which uses hashed telephone numbers to intersect user's address books. The question in the context of the fine was whether this represents processing of personal data of users who are not WhatsApp users themselves. Originally, the Irish DPC argued that such hashes were not personal data. However, the German, French, Portuguese, and Dutch supervisory authorities pointed out that the specific hashing approach used by WhatsApp does not provide anonymization, for example because there still is contextual information (such as the user's social graph) that would allow indirect identification (and because their hashing was pretty weak and reversible with reasonable effort). Such hashing would only be pseudonymization, not anonymization. The Hungarian supervisory authority makes the argument that WhatsApp could always re-create the hash from the original data, thus permitting re-identification of the hash. This is in line with my above argument that the hash allows singling out. Again, the hash should be considered pseudonymous, not anonymous. The EDPB upheld all these objections against the Irish interpretation as “relevant and reasoned”, and largely agreed with their merits. Some parts of the resulting analysis are specific to issues around phone numbers, in particular that there are comparatively few phone numbers. However, a recurring point is that the hashed data cannot be viewed in isolation. It must be viewed in the context of how it is created and used, and in the context of other data that the data controller has. Conclusion It is possible that in some cases the hash could serve as an anonymous token. But this would require careful analysis about how the hash is created and used, and about what other data you have available and could potentially link or correlate with this token. Unless you are extremely sure that there are no means that could be reasonably likely used to perform re-identification or singling out, you should consider such tokens to be pseudonymous data. Pseudonymization is a great security measure, but such data is still personal data. I suggest reading the WP29 opinion 05/2014 on Anonymization Techniques (WP216) (PDF link). It predates the GDPR and is slightly outdated in both legal and technical matters, but still contains highly relevant guidance on the matter of proper anonymization in the European data protection context. Aside from identifiability issues, I am concerned about using the password (or derived hashes) for anything other than authentication. Even in hashed form, this is fairly sensitive data. In most cases where you would use a password hash, you can likely use a random number instead. | 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. | I think haveibeenpwned would be legal in the EU because it carries out a task in the public interest (Art. 6(1)(e)), and it shares no more data then necessary, for example you can search for a password, but it would not show you the emailaddress which belongs to that password. It would also be legal for you to hold a copy of a leaked database, but only if you have a legitimate interest (Art. 6(1)(f)) to have it. Being a security company does not change that, but finding a legitimate interest might be easier. If you have a legitimate interest to hold a copy of a leaked database, it does not mean you can use it in any way you like. For example testing if the password still works, is very likely illegal everywhere in the EU. But I'm not familiar with the UK laws. |
What types of rights can be waived, and what types of rights cannot? How can I find out what kinds of rights can be waived, and in what manner? For example: Can I waive any of my Constitutional rights? What kinds require a contract, and what kinds are waived through not exercising them at the proper time? Can I waive any of my statutory rights? What kinds require a contract, and what kinds are waived through not exercising them at the proper time? Any other rights I'm missing? Note: I mean without having to go ask a lawyer every single time, obviously. I'm not asking anyone to make me a table of all possible rights and waiving mechanisms! I just want some rules of thumb, and/or pointers to existing lists if they happen to exist. | Unwaivable rights are often rights created by statute. A right is "Unwaivable" if a contract not to exercise it is void, or voidable. That does not mean that one must exercise all one's rights. Failing to exercise a right is often not the same as waiving it. Unwaivable rights are are common in consumer protection laws, to prevent sellers, who have much more negotiation power, from forcing consumers to contract away the rights granted by statute, thus making the statutes meaningless. They are also common in landlord/tenant laws, and credit reporting laws, for similar reasons. Many constitutional rights are waivable, but some are not. For example, in the US, one cannot waive one's rights under the 13th Amendment. A contract of voluntary slavery, or a peonage contract, is legally void in the US. The only way to know which rights are waivable is to do research, or have someone do it, into the particular right. Such rights are often created by law when one party typically has a strong negotiating advantage, but that is not always the case. | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. | It depends How good is your (legal) English? For example, do you know the legal difference between "will", "shall" and "must"? Or, the difference between "employee", "subcontractor" and "worker"? Or the difference between "bankruptcy", "insolvency" and an "act of bankruptcy"? Contingency What are you going to put in your dispute resolution clause? Do you prefer mediation, arbitration or litigation? Will it be a one size fits all or will it be escalating? What happens if one of you dies? Or emigrates? Or divorces? Or is convicted of a crime? A financial crime? A violent crime? A sexual crime? Or what if such is just alleged but not proven? What happens if the company ceases to exist? Or is sued? Or is acquired by someone else? Or by one of you? Who is responsible for insuring the subject matter of the contract (if anyone)? To what value? If the person who should doesn't can the other person effect the insurance and claim the premium as a debt due and payable? Not all of these will be relevant to your contract. Familiarity How familiar are you with this sort of contract? Is this something you do all the time or is this a one off? For example, I am happy to enter a construction contract without legal advice because that's my business and has been for many years - I know my risks and how to manage them, inside and outside the contract. However, when I set up shareholder's agreements, wills and business continuation insurance with my partners, we went to a lawyer. What is your relationship with the other person i.e. how much do you know and trust them? Stakes If the contract is not very important (which is something that varies with the participants, for some people a million dollar contract is not important for others a $5 one is), so that if, by screwing up, you are OK if you lose everything you've staked then write it yourself. Alternatively, if the contract is vitally important to you and your heirs and assignees unto the 6th generation, I'd get a lawyer to write it - its pretty cheap insurance. How long the contract lasts will be a factor in this - a contract that exposes you to risk for 3 months is different than one that does so for 25 years. Basically, its a risk reward calculation. TL;DR Contracts only matter when relationships break down. If you reach for the contract then you can expect that the other party will be playing for keeps and that contract is your only defense against the worst they can do. If you are happy with your skills in mitigating against a cashed-up opponent who wants to see you go down no matter the cost then draft it yourself. | Since you are 17 years old, any contract that you sign is according to US law voidable by you or your guardian until some time after you are 18. So if he tries to sue you, you can just void the contract and he has no leg to stand on. The money he paid you is just bad luck for him. He won’t have any copyright or license to use your code in that case. BTW. You have a verbal contract which is quite valid. With no other evidence, any court would assume that the contract was that you delivered what you delivered, that he has a license to use the code, and he paid the money that he paid. If you void the contract, he has nothing. | I like easy questions: you can’t. You can limit but not eliminate liability with people you have a contract with. You can’t limit liability with third parties. You need to consult a lawyer and buy insurance. | The University is probably entitled to put a term like this in its contract. In general, one can waive in advance, liability for negligence, but not gross negligence, willful and wanton misconduct, reckless conduct, or intentional conduct, from the person seeking the waiver. The New Jersey Supreme Court upheld the validity of these clauses in the case of Gina Stelluti v. Casapenn Enterprises LLC (August 5, 2010), which involved a negligence waiver in a contract with a private gym. Also, since this is conditions on an afternoon of fun activities, rather than something mandatory or necessary, this waiver does not appear to be conditioned on giving up a substantial thing to which you are otherwise entitled. If the waiver were conditions upon something which you had an unconditional right to (e.g. a public high school education), it might not be valid because it would not be supported by valid consideration. In contrast, here, you get the right to participate in something fun, which you did not have an unconditional right to have, in exchange for the liability waiver. | Excluding "ridiculously unacceptable conditions", it is legal to have "non-uniform" contract terms (where a company treats different classes of individuals differently), provided that the basis for distinction is not statutorily prohibited (race, religion, age, sex... depending on jurisdiction). There is a extremely slim chance that apparently legal income-discrimination can be a proxy for another form of illegal discrimination. However, "ridiculously unacceptable conditions" are unlikely to be found to be enforceable, regardless of any demographic properties associated with the condition. E.g. a clause requiring the surrender of a first-born female child would be unenforceable as "unconscionable". The specific circumstances surrounding such a finding by the court can't easily be summarized, since it relies heavily on prior case law, statutes, and legislative declarations. The underlying premise behind using the doctrine of unconsionability in such a case is that the clause in question is not something that a reasonable person would agree to, but they have no power to disagree. In the US, the case Williams v. Walker-Thomas Furniture is the leading case on this view. The clause in question was about a payment plan for furniture and the condition that no furniture could be paid off until all of it was. The consequence of the clause was that all of the furniture could be repossessed if any payment was missed, regardless of how much had already been paid. Various factors went into the court's ruling (that the condition was unenforceable), such as "absence of meaningful choice", "terms which are unreasonably favorable to the other party", :gross inequality of bargaining power". In the circumstance that you allude to, it is not obvious that the courts would follow Williams in making their ruling – it would depend on the extent to which one could reasonable conclude that the customer understood and freely accepted the term. There are upper limits on what a court can enforce, so a contract requiring a party to commit suicide would be utterly unenforceable (in most countries), and a contract requiring a party to break the law would be likewise. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. |
Schweiker v. Chilicky Following the Supreme Court case Schweiker v Chilicky, can’t congress theoretically violate the Constitution as long as Congress provides a remedy? What I mean is that: If I were a congressman, and a law that I wanted to pass violated, let’s say, the First Amendment, can’t I create a provision within the law that creates a commission to review all alleged violations of the 1st amendment under the law, but make the commission extremely biased, as to allow for 1st amendment violations? | No. Congress could establish some sort of review board to address First Amendment violations, but it could not do so in such a biased way as to ensure there are no consequences for those violations, for at least two reasons: First, due process would require that any commission Congress established provide not only an opportunity to be heard by the commission, but also an impartial tribunal. The tribunal would not need to be perfectly unbiased, but setting up an "extremely biased" panel would be insufficient. Second, even if Congress established a commission that satisfied due process, Schweiker v. Chilicky, 487 U.S. 412 (1988) would only prevent the courts from awarding monetary damages against the federal government; the courts would still be free to grant equitable and extraordinary relief to address First Amendment violations. So under Schweiker, if Congress established a commission to pre-screen all Facebook activity, you probably could not get money damages based on sales you might have expected to make if the commission had approved your Facebook ads faster, but you could get an injunction (or perhaps a writ of mandamus or prohibition) to stop the commission from screening your ads in the first place. The court's handling of First Amendment violations can often be different because free-speech rights are such a fundamental requirement of our form of government, but the analysis would be roughly the same for violations of Second Amendment or Third Amendment or Eighth Amendment rights. | You may be mistaken about the purpose of the Miller test. If some content is obscene according to the Miller test, then it does not receive First Amendment protection, and could be prohibited from distribution by the government. However, it says nothing about the contractual obligations that two parties can agree to. To the extent that the obligations themselves are objectionable this analysis would fall under the doctrines of unconscionability and public policy. | Suggestive Precedent Only one person has ever had this section of the 14th amendment used against them since Reconstruction ended: to block Victor Berger from taking his seat in the 1919-1920 House of Representatives; he had previously won a single term in the House in 1910. This disqualification was done in the House of Representatives itself, with a near unanimous vote holding that he was not eligible for the seat on multiple occasions. Based on events leading to his conviction under the Espionage Act, he was held in violation of the 14th amendment clause in question, and was denied his seat. Berger (and others) appealed this conviction to SCOTUS, who overturned it in 1921, holding the judge had an impermissible appearance of bias against the defendants. Berger then went on to win three consecutive House elections from 1922-1926. The curious bit here is that no one seemed to have any problem with his taking the seat at this point, and no vote was ever held to remove the disability the 1919 Congress had asserted (as per the 14th amendment), nor any to deny him the seat yet again. This creates a problematic precedent for anyone looking to deny a seat already won. First is that the enforcement of the 14th amendment provision was done by Congress itself, creating the question of whether that is the only Constitutional way to remove an elected congressperson under this clause. Second is that Congress created an implicit connection between a valid criminal conviction and a 14th amendment disqualification, by simply ignoring his prior disqualification after his conviction's overturning. This is a bit tenuous, but nevertheless a potential obstacle, as the Congressional records for the House proceedings on Berger, a rather fascinating read, are explicit in declaring that they are operating independently of the actual criminal case and judgements. No court has had opportunity to decide these for certain, but they provide a convenient defense for the accused. As such it is handy if you have alternative and additional paths to pursue your case under, so as to differentiate it. In Marjorie Taylor Greene's case, for example, there are explicit state laws for challenging if a candidate meets all valid legal and constitutional requirements. No such process was used, or perhaps available (I haven't tried to check this), in Berger's case. This creates a substantial legal difference, at least in principle, as it concerns disqualifying a candidate from future seats rather than denying a set to an already-sitting (or at least, already-elected, which SCOTUS has held is much the same thing) congressperson, and is utilizing a non-Congressional legal channel. MTG herself is challenging this law's constitutionality, I presume under the argument that in fact only Congress can effect and judge a candidate's compliance with the 14th amendment. The counter defense, presumably, would be that the case is not attempting to interfere with her currently held seat, which may conceivably be solely under Congress's control, but with potential future seats. Time constraints Finally, as a practical matter, the few court cases we've had on denying someone a seat in Congress have all taken about the entire duration of a given Congress (2 years) to resolve. This means the case could become moot before a decision is ever finalized, and even if not the practical result would be a very small loss in the total time the accused Congressperson remains a valid and voting member. So it makes more sense to target all future candidacies instead of the presently held seat, as that will never be formally mooted short of Congressional action pursuant to the 14th amendment. | There are lots of times when it's illegal to lie. Among them: impersonating a federal agent (18 USC 912) lying to a federal agent (18 USC 1001); health care fraud (18 USC 1035 and 1347); mail fraud (18 USC 1341); wire fraud (18 USC 1343); perjury (18 USC 1623); False Claims Act (31 USC 3729-33); and libel and slander (common law). But you're right that these laws are all at least theoretically in conflict with the First Amendment rule that "Congress shall make no law ... abridging the freedom of speech." So why are some of them upheld against a First Amendment challenge while others are struck down? The Supreme Court explained its rationale a few years ago in U.S. v. Alvarez, 567 U.S. 709 (2012). That case dealt with a federal statute making it illegal to falsely claim that you had won any medal that Congress had authorized to be awarded to the armed forces. The federal government said that false speech had no value and therefore was not protected, pointing to cases upholding laws like the ones listed above where the Court had used similar descriptions. But the Court rejected that argument, noting that the cases where it has upheld laws limiting false speech dealt with "defamation, fraud, or some other legally cognizable harm associated with a false statement": In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. So that sort of gives you an organizing principle. It's not really a philosophical distinction, and meeting it doesn't mean that the lie is illegal, just that it may be outlawed. tl;dr: The First Amendment usually does not protect false statements when they are: made knowingly; and made with some corrupt purpose. | Taking the US as an example, the Constitution states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Congress or a state government hasn't prohibited you from comparing platforms. Another private entity has. And, that's fine. You're free to launch the app as a separate website, or print out the flyers and hand them to people on the bus, or publish your own monthly magazine comparing various platforms, so you still have freedom of speech and of the press. As an example, if you write a letter about how great the government of North Korea is to the letters department at Stamp Collectors Magazine, and they don't publish it, have they violated your human rights? The app store restriction may be quite dumb. After all, the built-in web browser allows the reading of the exact same news. But there's no law against being dumb. | This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975: Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that. the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional The same court in Kole v. Village of Norridge determined that the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges). The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights". | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | The law works in the opposite direction of what you seem to be imagining. State courts generally have jurisdiction to hear lawsuits based on federal law, even without "authorization" from Congress. It is therefore perfectly normal to see lawsuits under Section 1983 , the Privacy Protection Act, or the Magnuson-Moss Consumer Protection Act being litigated in state court. Instead, when Congress authorizes a private right of action, it includes explicit language when it does not want cases heard in state court. This is the case with copyright, patent, and bankruptcy litigation, for example. |
Legal definitions differentiating 'corporation' and 'private estate' in relation to Duchy of Cornwall The Duchy of Cornwall is classified as a 'private estate' and therefore is exempt from corporation and capital gains tax. Investopedia defines a corporation as 'a legal entity that is separate and distinct from its owners and has many of the same rights and responsibilities as individuals.' The Duchy's 2014 financial statements here say (page 28) 'The Duchy is not subject to Corporation Tax as it is not a separate legal entity for tax purposes.' However, the Organisation 'Republic' claims here that 'The Duchy is wrong to claim it is not a legal person or to suggest it does not exist separately from the Duke of Cornwall.' A full list of reasons they believe this is on the link above but some include: The Duchy’s 1997 financial statements state that “The Duchy of Cornwall is a body created by charter in 1337" transactions between the Duchy and the Duke (ie. Duke paying rent to Duchy, Duchy purchasing timber from the Duke) An employee described himself to the Information Rights Tribunal as “in effect, the Chief Executive Officer” The Health and Safety Executive (HSE) issued an improvement notice against the Duchy of Cornwall under Section 21 of the Health and Safety at Work etc. If the Duchy was not a legal person in its own right the HSE would have had no power to issue the notice against it The Environmental Agency has granted more than fifteen environmental permits to the Duchy of Cornwall, which could only have been granted to a legal person What is correct here - the Duchy's claim or Republic's claim? | As a matter of law, the Duchy is correct, because a superior court of record agreed, and dismissed the arguments made on the other side. The cited claims from Republic come from a case in the First-Tier Tribunal (EA/2010/0182) about whether the Duchy was a "public authority" for the purpose of the Environmental Information Regulations 2004. The FTT said that it was, since either the Duchy or the Duke were carrying out certain functions of public administration (as the harbour authority for St Mary's Harbour on the Isles of Scilly), and whichever one it was, the Duke was in charge of the Duchy; and meanwhile, the Duchy appeared to have some elements of legal personality, as cited in the question above. This decision was appealed to the Upper Tribunal, The A-G for the Prince of Wales v the IC and Mr Michael Bruton [2016] UKUT 0154 (AAC), which disagreed as to the Duchy being a body with its own separate identity - see paragraphs 71-102 - and reversed the ruling below. The basic issue is that the Duchy of Cornwall was brought into being by a royal charter of 1337. It predates modern common-law or statutory developments about bodies corporate, income tax, corporation tax, and so on. It also precedes the not-exactly-modern developments of the limited scope of royal authority and the prerogative, norms of statutory construction, the Crown as separate from the royal person, and other apparatus of constitutional monarchy. It is true that it sits uncomfortably in the modern world, as a sui generis feudal creation that is not something we would create today. However, as a matter of law, the UT said that what counts is what the Duchy is, not what it ought to be. Figuring out the law means looking at the actual law as opposed to ancillary indications, such as what Duchy officers have said from time to time, or administrative actions of the Health and Safety Executive. Parliament has had the opportunity to consider the position of the Duchy several times and has so far declined to change it. The charter of 1337, which was deemed to be an Act of Parliament by a court case in 1606 (!), grants land and privileges to the Duke of Cornwall, whoever that might be from time to time, and with a reverter to the Crown when there is no Duke. The UT found that this "creates something that has similarities to a trust, but without trustees" (there was a nascent body of law relating to trusts in 1337, but it was nowhere near its modern flourishing). Unlike with the creation of the Duchy of Lancaster, this charter does not incorporate the Duchy as an entity in its own right - the "Duchy" is just a word used to describe the possessions of the Duke or King held under the charter. If it is a separate entity then that is not because of the charter. The UT examined various of the claims made in the FTT but rejected them, saying that "such examples cannot create such an entity or body and each investigation of the submissions based on them that took place before me showed such statements or implications to be wrong (e.g. that the Duchy owns Highgrove was shown to be wrong by the production of the Land Certificate)." It also rejected the idea that the people who administer the Duchy could be regarded as some form of partnership or unincorporated association, finding that they had not come together in that fashion. It said that therefore, the only remaining route to the Duchy being a corporation would be if the other primary legislation dealing with its management had created it as such by "necessary implication". Those Acts, of 1844, 1863 and 1982, deal with accounting and management for the Duchy of Cornwall. From their context and content, the UT said that they seem to envisage the property in question as belonging to the Duke (not the Duchy) as "the legal owner of the assets etc. comprising the Duchy estate", and that "the relevant officers and employees work for the Duke, or the Duke’s guardian when he is a minor, or the Sovereign when there is no Duke, and not for an entity or corporation called the Duchy." Therefore: [T]he Duchy of Cornwall or the Duchy is no more than a name that has been used correctly to describe the possessions of the Duke of Cornwall (the Duchy estate), or to the Duke (or his title), or collectively and conveniently to describe the officers and persons who from time to time act for and on behalf of the Duke as the owner of the Duchy estate. Save to the extent that it is a reference to the Duke as a natural person the Duchy of Cornwall has no legal personality and is not a person, body or entity that has its own functions and powers or a separate identity of its own. Although this was not before the UT, it would seem to follow for tax purposes that if the Duchy is not a body corporate, then it is not liable for corporation tax under the Corporation Tax Act 2010 - see section 1121, which defines "company" for that and the companion Corporation Tax Act 2009. It also does not fall within section 443, "Companies controlled by or on behalf of Crown", firstly because if it's not a company, then that section fails immediately, and secondly because "Crown" here refers to the Crown in the sense of governmental public functions, not the Queen (or her family members) personally. | The ECHR protocols are not meant (and not generally understood) to prohibit taxation or fines by the state in accordance with the rule of law. See e.g. this explanation by the Council of Europe. As to the specific question, this explanation enumerates shares and leases as property, and the text makes it clear that bank accounts or cash would also be covered: [...] in the general interest or to secure the payment of taxes or penalties; [...] | You don’t need a company to run a business As an individual (sole-trader) you can operate a business, hire employees and contractors and do everything else a business does. The purpose of a company is to separate and protect your personal assets from your business assets. As a sole-trader you are personally responsible for all the liabilities of the business - if it goes bust, you go bust. If the business is operated by a company, then, providing you and the company follow the law, your personal assets are not at risk if the company becomes insolvent. | A person can be a shareholder or director of a UK company without being in the UK. Being a shareholder or director of a UK company does not give a person a right to be in the UK. The 3C leave extension is unrelated to this. A person with 3C leave may remain in the UK on that basis regardless of whether the person is a shareholder or director of a company. Attending "board-level meetings" is an activity that is allowed under the visitor rules, even if the director is paid (see V4.7), so one may conclude that doing so does not constitute "work." It should therefore be permitted for someone under 3C leave even if the person is not authorized to work. Doing work for the company other than attending meetings would not be permitted until the person gains authorization to work. | Yes. It is fairly common for there to be one owner at law, but another person who has a beneficial interest - such as a long-term cohabiting partner. This may arise because the parties set it up that way, or perhaps more often when courts find that there is a "constructive trust" or a "resulting trust". See for example the concurring opinion of Lord Hope of Craighead in Stack v Dowden [2007] UKHL 17, Parties are, of course, free to enter into whatever bargain they wish and, so long as it is clearly expressed and can be proved, the court will give effect to it. But for the rest the state of the legal title will determine the right starting point. The onus is then on the party who contends that the beneficial interests are divided between them otherwise than as the title shows to demonstrate this on the facts. The resulting court process may find that the beneficial interest exists, or not, and what fraction of the property it represents. It's common to find situations where one party put up most or all of the whole purchase price of a house, which was then registered in both names, and they then disagree about whether it should be split 50-50 or otherwise - that's an example of the beneficial ownership differing in proportion from the (equal) legal ownership. (See Jones v Kernott [2011] UKSC 53 at paragraph 51 for an explanation of this particular pattern.) The same sort of case arises when a cohabiting partner does not own the house, but still contributes to the mortgage and other bills - then, depending on the facts at hand, there may be a "constructive trust", and the partner is entitled to a share of the sale price of the house even though they are not its legal owner. A "resulting trust" might arise when someone contributed money for the purchase of the property, even though they didn't end up as a registered owner, but the parties acted in other respects as if they were joint owners. | It does not need to be expressly defined in statute in order to be legally effective. Courts have no trouble interpreting ordinary words used in their conventional way. And there is no other definition that could work instead, considering the full body of law that (1) intends to apply to the whole of the United Kingdom, (2) often distinguishes between "Great Britain" and "Northern Ireland", (3) often distinguishes between "England", "Wales", "Scotland" and "Northern Ireland", (4) treats "Great Britain" as synonymous with England, Wales and Scotland, and (5) often uses "Great Britain" without further ceremony, as if it's a term that doesn't need to be explained. It is helpful that legislation (at least in the modern era) is consistent about the view that "Great Britain" refers precisely to England, Wales and Scotland all together. By virtue of the Interpretation Act 1978, "United Kingdom" means Great Britain and Northern Ireland. from which we may deduce immediately that Great Britain means the United Kingdom except for Northern Ireland. There is no sibling '"Great Britain" means...' clause, but construing it any other way than the normal meaning would not work. From the combined definitions of "England", "Wales", "British Islands", etc. - which by reference, also deal with such historically doubtful areas as Berwick and Monmouthshire - there is no other way to interpret the term "Great Britain" without distorting the required meaning of "United Kingdom". Including too much or too little in "Great Britain" would give the wrong result, in particular for statutory extent clauses that refer to the whole United Kingdom and ought not to accidentally leave out Cornwall or include Hanover. We do not need to go as far as the Acts of Union, which is lucky since that would entangle us in concerns about whether "England" includes "Wales", or other historical anomalies that are not relevant in current law. I would treat the Acts of Union as giving added force to the conventional meaning, rather than being the source of that meaning, since there are uses of the term which seem to be more about Great Britain considered as a place than the political entity. For example, the Food Safety Act 1990 s.18(3) talks about "any food which has not previously been used for human consumption in Great Britain", which seems to talk more about the food culture of the place, even predating the Acts of Union, than about the Kingdom of Great Britain or its successors. The term "Great Britain" is frequently used in statutes in the customary way. For example, The Political Parties, Elections and Referendums Act 2000 s.28 creates a "Great Britain register" and a "Northern Ireland register" of political parties, and s.38(1)(3)(b) provides for the "Great Britain register" to cover precisely England, Scotland and Wales. The Northern Ireland Act 1998 s.87 is about provisions of UK social security law that operate differently in Great Britain and Northern Ireland. The Electricity Act 1989 (as amended) provides for the issue of "GB certificates" as opposed to "NI certificates", and also defines "the relevant part of Great Britain" as meaning either "England and Wales" or "Scotland" (s.32M(1)). The Agriculture Act 2020 s.35 provides for a "red meat levy" to be paid between "one country in Great Britain" and "another such country", and goes on in 35(8) to list the levy bodies for England, Scotland and Wales. So all of this points to the same common meaning as in everyday life. In court, for example, Lord Hoffman in Serco v Lawson [2006] UKHL 3 had to consider the Employment Rights Act 1996 s.196, since repealed, which governed "work wholly or mainly outside Great Britain". (And by the way, in 196(1)(b) is a listing of "England and Wales" and "Scotland" as the two possible bodies of law relating to Great Britain.) In his judgement, he says: It is true that section 244(1) says that the Act "extends" to England and Wales and Scotland ("Great Britain"). But that means only that it forms part of the law of Great Britain and does not form part of the law of any other territory (like Northern Ireland or the Channel Islands) for which Parliament could have legislated. That is, he does not find it difficult to gloss the extent provision in 244(1), which doesn't include the exact words "Great Britain", as actually referring to Great Britain. Other legislation refers to "Great Britain" as a locale, like the Wild Animals in Circuses Act 2019 which talks about "an animal of a kind which is not commonly domesticated in Great Britain". This is a straightforward reference to the kind of activities typically going on in that location, treating it as the island(s) and not the political entity. The expression does not include the territorial sea, by default; some statutes include it, like the Gas Act 1986 s.5(9) which says: For the purposes of this section a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964. There are several other instances of particular statutes defining "Great Britain" to include adjacent waters, but they do not define the core concept of Great Britain otherwise. They do not need to. | This would be a co-operative society, or a 'co-op': A Co-operative Society is a membership organisation run for the mutual benefit of its members – serving their interests primarily by trading with them or otherwise providing them with goods, services and facilities – with any surplus usually being ploughed back into the organisation, although profits can be distributed to members. A Co-operative Society may or may not be a social enterprise, depending on its activities and how it distributes its profits. From A GUIDE TO LEGAL FORMS FOR BUSINESS, UK Department for Business, Innovation and Skills What you describe would be known as a Housing Co-operative which are common in many countries. The NCDA are the US associated for Co-operatives. | Why do you think they have the same shareholders? There’s no reason to believe that they are related corporations just because they share an address. I am shareholder and director of 4 corporations. 3 have the same shareholders in the same proportion. The other has different shareholders. All of them have their registered office at my accountant’s premises. It’s a small suburban practice so there are probably only a few hundred companies at that address. A large city practice would have thousands or tens of thousands. The property management company probably provides the same service. |
Why are books contraband in a US boot camp? An acquaintance of mine has signed up for the US army and is now in his first six months, I guess what's called basic training. He was not allowed to bring books and asked us to send him reading material. A military website states for basic training: Dice, playing cards, dominoes, magazines, newspapers and books will be confiscated. (For completeness: There is an exemption for one religious book.) I understand that there may be little time or remaining energy in boot camp to read but is there an official rationale which was brought forward when the regulation was instated? | When it comes to preventing disciplinary issues, the military much prefers simple solutions that work. This will at times result in rules which ban things that aren't really a problem, along with the things that really are, but to tailor the regulation to ban only what needs to be banned can result in rules that take two lawyers and a judge to puzzle out. Your drill sergeant hasn't got time for that. And there are magazines that the military will see as needing to be banned. Porn (even though the on-base store sells it) was prohibited when I went through boot camp. I don't know if it was from a moralistic stance, or the simple fact that someone will steal someone else's copy of Playboy, which will probably result in a fight. Shortly before I enlisted in the military, the recruiter held a meeting at which a former drill sergeant told us about what to expect in boot camp. He touched on the things that we were told to leave at home. I asked whether a paperback novel was allowed or not, and he said that there isn't enough spare time in six months of boot camp to finish a book. It may seem, from the outside, that disallowing a novel is an unreasonable abridgement of your rights, but the actual effect on you is minimal. Boot camp only runs from two to three months, and the last time I checked nobody ever died from a lack of entertainment. There are hills more worthy of dying on than this. Gaming materials are probably be contraband because they might be used for gambling. That can lead to an outright brawl, and while a good fighting spirit is quite welcome, fisticuffs in the barracks are not. | 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. | To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes. For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111. If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128. If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power'). | When you refer to customs, that necessarily denotes travel to a foreign county, such that each county will have their own laws, rules, and regulations that govern these issues. It is more than likely that if you refuse to answer the questions of customs officials in ANY country, you will be denied admittance. The same is true if you refuse or balk at being searched (personally or your possessions), and keep in mind that this is without reasonable suspicion or probable cause. The best thing to do is to answer the questions honestly and accurately, but also as narrowly as possible to completely answer. Trying to argue with them will only send up red flags and you will be there longer. Remember it is a privilege, not a right, to enter a sovereign nation of which you are not a citizen. For example, in the U.S., customs reserves the right to detain for questioning, search you, your car, your children, your bags, packages, purse/wallet, or any other travel item with full legal authority to do sol they can even examine your electronics (content and hardware). You place your stuff on the exam station and open it. (After the exam is completed, you will be asked to repack and close the baggage.) If you are unhappy with the way you are being treated, you do have the right to ask to speak to a CBP supervisor, but I cannot see anything good coming of it, unless they were super rude without provocation or broke something of value. The authority to delay and speak with travelers derives from the United States Code (section citations below) enables CBP to prevent the entry of persons who are inadmissible under the Immigration and Nationality Act, and to prevent the smuggling of merchandise, including narcotics and other contraband items, into the United States. Speaking with travelers and examining merchandise coming into or leaving the United States is just one of the mechanisms used to identify illegal or prohibited items, and to determine whether or not someone is trying to enter the U.S. for unlawful or fraudulent purposes. Unless exempt by diplomatic status, all travelers entering the United States, including U.S. citizens, are subjected to routine Customs examinations. At times, people make the mistake of thinking their civil rights are being violated by being asked questions about their trip, personal background and history, etc. That is not the case. Supreme Court decisions have upheld the doctrine that CBP's search authority is unique and does not violate the fourth amendment's protection against unreasonable searches and seizures. U.S. Customs website has a detailed Q&A section. Most modern countries do as well. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | You have misread the DMLP page. In Pennsylvania, it is illegal to record a conversation if you are a party and if the other party does not consent. The fact that federal law doesn't ban something doesn't mean that states can't ban it. There is generally a presumption that when both the feds and the states can legitimately regulate something, the feds weren't trying to preempt all state laws on the topic. While people often say "federal law takes precedence over state law," the normal rule is that both laws apply; the federal law only blocks the state law if the feds wanted to block said state laws. So far as I can tell, the federal law has never been held to preempt two-party consent laws; the point of the federal law was to restrict recording, not extend it. It's like how federal law doesn't prohibit taking hostages inside the US to coerce a private company into doing what you want (anti-terrorism laws might, I guess, but the federal hostage-taking law doesn't); while the federal law excludes most hostage-taking in the US, that doesn't mean that it's legal to take hostages. Congress sometimes wants to establish nationwide standards for something, but the presumption is that they didn't. | In the US, it is illegal to sell screwdrivers to Gaza without a license, see 31 CFR 595.409. There are numerous rules pertaining to the Palestinian Authority staring here. Dept. of State has a partial list of countries and their associated restrictions, if you want "like Gaza", and note that they warn you that this is not a complete list. If you are specifically interested in weapons-related restrictions, the US Munitions List is here. There is no generic "anti-drone" system, so you would have to look at the specifics of a system to see if it is on the restricted list, or not. | 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. |
Will Smith physically assaulted Chris Rock at an awards ceremony. No charges pressed by Rock. Can someone else? I understand that, live on television, the actor Will Smith physically assaulted the comedian Chris Rock in response to a joke about Smith's wife. https://www.bbc.com/news/entertainment-arts-60897004 Rock is not pressing charges. In US law, would it theoretically be possible for someone else (or some body/corporation) to press charges on behalf of the public? | Yes The Prosecutor for the local jurisdiction could formally file charges. No complaint by Rock is legally required, and given the video evidence available, Rock's testimony might not be as essential as a victim's testimony often is. But if Rock were to testify that the fight was staged, and no real assault occurred, the case would probably fall apart. That would not be good for the prosecutor's reputation, and might well be a reason not to proceed without a clear statement from Rock. See also: "Pressing charges" - is it needed to bring a charge? | The court will presume that. You say there is no doubt that he was the attacker but the matter isn't subject to opinion. It has to be proved in court, because if there should be a tiny bit of uncertainty, or some uncertainty, or a lot of it, then the opinion "he did it" becomes "trial by media" or other euphemism. Not just that, but Hadi Matar can plead "not guilty" to the offense as charged. The law might allow that he could be guilty of a different offense, but not what the charge is. A theoretical scenario: Hadi Matar ran onto the stage to shout at Rushdie, but someone in the audience threw a knife. Maybe it is "obvious" to you that it didn't happen here, but a criminal trial isn't about what is obvious, but the truth. Take another case where X commits a crime but frames Y for it, so it seems obvious to all that Y must have done it. The trial will follow a procedure, not the sway of opinion. The outcome of the trial might depend on Y showing that is was impossible to have committed the crime, but not know who X is. So the court will presume that Hadi Matar is innocent, unless proved beyond reasonable doubt to be guilty as charged. | We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered. | Sure Obama can sue Trump for defamation. Libel is a civil offense and committing libel is not a part of Trump's role as president. Regarding official acts, the President is immune. But not for personal acts. See Is the US President immune from civil lawsuits? But a libel action would be difficult to win; they're both public figures, which makes the defamation threshold higher: Public officials and figures have a harder time proving defamation. The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the above elements of defamation and they must also prove that the defendant acted with "actual malice." Defamation Law Made Simple | Nolo.com The "actual malice" part is interesting: In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court .... acknowledged that in public discussions -- especially about public figures like politicians -- mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice." "Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth -- for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it. (same link above) Could malice be proved? Was Trump reckless with the truth? Could be. But would Obama sue? What's the cost/benefit analysis to him and his legacy, politically and personally? Trump was taking a political or personal risk - or he's being stupid - with such accusations, since he may feel invulnerable. He has sued and been sued and settled many times: see Legal affairs of Donald Trump I think both would not want to be in court; because once in court, they (and their lawyers) both have subpoena power and both would have to answer nearly any question put to them about their public (and possibly private; but not official) lives. Trump has interestingly enough talked about "opening up the libel laws" so he can more easily sue people. But if he did that, it cuts both ways: he would be easier to take to court. See Can Libel Laws Be Changed Under Trump? In my opinion, Obama is much better off ignoring Trump and letting the FBI, DOJ, Congress and the Intel Community do their jobs - have the facts fall where they may - and and not become a right-wing talk radio subject for the rest of his life, as well as risk being deposed himself in court. Edit 3/21/17: From a timely piece in The New Yorker: http://www.newyorker.com/news/news-desk/how-the-first-amendment-applies-to-trumps-presidency While it is unlikely that former President Barack Obama would sue Trump for libel, he very likely has a strong case. The First Amendment scholar Geoffrey Stone wrote in the Chicago Sun-Times http://chicago.suntimes.com/opinion/opinion-trump-could-lose-lawsuit-for-libeling-obama/ that “there seems no doubt that Trump’s statement was false, defamatory, and at the very least made with reckless disregard for the truth.” That is the test for damaging the reputation of a public figure or official: Trump either made his assertions with knowledge of their falsity or with disregard of a high degree of probability that they were false. Obama, Stone is confident, could prove that Trump made his false charge, as the Supreme Court defined the standard, with “actual malice.” | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | As I understand it: Battery is the act of intentionally touching or applying force to another person such that the person suffers harm or offense. More or less. Q1: What is the correct verbiage to communicate to an enforcement office that you want to press assault charges against a suspect that has physically struck a victim? Assume you witnessed the battery. Normally called making a complaint or report. Q2: What obligation do officers have once a victim has indicated they have been assaulted and the victim seeks to press charges? They are required to record the complaint and use their discretion to decide if and how they will investigate. Q3: Under what, if any, circumstances are officers required to arrest a battery suspect? In general, they aren’t. Police have wide discretion in which complaints to investigate and how to do so. In some jurisdictions there are some crimes which must be investigated by law - child abuse and domestic violence are the typical ones. Otherwise it is a matter of administrative policy, capability and resources as well as individual discretion. Similar discretion exists around prosecution. Does an arrest require that the victim suffer visible physical injury? No | No. The true accuser is the state and the state always has standing to enforce its laws. This is an injury in fact. The judge would laugh at you and probably then double the fine for your insolence. This defense would be considered frivolous. | Defamation of public figures is governed by the "actual malice" standard: the person making the statement must either have known that it was false at the time they said it, or must have been acting with reckless disregard for the truth (meaning they had serious doubts that the statement was true at the time they said it). The First Amendment bars a public figure from winning a libel suit unless they demonstrate that the defendant fell in one of those categories, because any lesser requirement would discourage people from speaking on topics of public concern for fear that they might say something wrong and be sued for it. The standard was first applied for public officials in New York Times v. Sullivan, and later cases have extended it to public figures in general. If someone genuinely thinks Obama was born in Kenya, it is not libel for them to say that. Even though you could argue that any reasonable person should know that's wrong, it's not enough -- the defendant had to have known it was wrong or seriously doubted it. Even if your sole basis for claiming he was a gay prostitute is that you heard a rumor from a friend, if you actually believed them, you can say he was. You aren't required to check Clinton's book to verify a quote before repeating it; if you read it on a website and had no reason to think they were lying, you can say that the quote was in there. It is extremely difficult for a public figure in the United States to win a defamation lawsuit. This is the system working as designed; a public figure who wants to correct lies being told about them can put out the correct information (which is easier for them than for most people), which is preferable to government action (and libel judgments are government action, because they involve a government officer ordering you to pay someone else money and/or do and/or not do something). |
How illegal would it be to use fictional locations, companies, etc. from a video game in a different video game? Let's say I wanted to create a knock-off GTA-esqe game. If I wanted to use locations like Los Santos, San Andreas, Blaine County, Paleto Bay, etc. would there be any IP concerns? If I wanted to use fictional company names (such as Merryweather Security or Liveinvader), would there be any IP concerns? If I wanted to use vehicle makes/models/etc. from the GTA universe, would there be any IP concerns? Would these concerns change if it was a criminal story-based game (like GTA is) or if it was a story based game (maybe from a Law Enforcement perspective) or if it was solely open world? | It's hard to give a definitive answer, since the specific details matter. You should read this question and answer, What is a derivate work? for more information. If you're really considering investing the time and energy to create such a product, you might consider getting advice from an actual attorney, and not from strangers on the Internet. | Under United States law, it is not illegal to simply make an account on a forum where criminal activity takes place. The closest thing I can think of would be misprision of felony (AKA failure to report a crime), which requires active concealment (see United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977)). Simply observing evidence of criminal activity and not reporting it would not qualify. However, if that forum also contains material that is illegal to posses (such as child sexual abuse material), downloading that (even by simply viewing it using your browser) could be a crime. I would note that I am specifically not advising you whether or not doing any of the other things, like making and publishing tutorial videos on how to access such sites, is likely to get you into trouble with the law. If you want that sort of legal advice, you should contact a lawyer, as the advice is going to be very specific to the exact details. | It's almost certainly violating the company's rules, and yes, you can get into trouble for that (in the sense of an internal disciplinary matter). Whether it's a criminal hacking will depend on a) what you did; b) where you are ... but I wouldn't rule that possibility out. | A company does not cease to exist simply because it goes bankrupt. The company may wind down its operations, but it may just go through a process of restructuring its debts. If the company is merely restructuring, the bankruptcy would not probably not have much effect on its ownership of intellectual property such as copyright and trademark rights. So it would retain those interests in the video game, and the company making the sequel would need to obtain licenses from the original company. If the original company is going through bankruptcy in anticipation of shutting down completely, you can expect it to sell off all its assets, which would include its copyright and trademark interests in the game. In that case, the company making the sequel could either attempt to purchase those rights itself, or it would need to obtain a license from whoever does buy those rights. | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. | Yes you can. The pieces of information you are going to include are facts. Facts are not copyrightable. The names will be trademarks but you will not be pretending to have any connection with them, so just using them for reference is fine. | Names of people, institutions, and events are not protected by copyright. Things that have occurred at events like math tournaments are facts, and may be recounted, in your own words, with no fear of infringing any copyright. Facts are never protected by copyright, although a particular description of facts could be, and so could a particular selection and arrangement of facts. Specific math techniques and their names are not protected either, and may be described without infringing copyright. The items you mention in the question are: video game / movie references and names No copyright issue here. common integration bee problems No copyright issue here. names of a university / math competition organizers No copyright issue here. integration techniques and formulas No copyright issue here, unless you copy an extensive description of a technique without rewriting it in your mown words.. using someone's Overleaf Latex package to format the book This depends on the license for the package, but there is not likely to be an issue. In short I think you are worrying over issues that are in fact non-issues. | The "Beholder" was originally invented as part of AD&D (2nd edition IIRC) and copyrighted by TSR (Gary Gygax and associates, essentially). WotC bought TSR and all its assets, including copyrights. There were at least two other RPGs that tried to use Beholders and other original creatures from the Monster Manual of D&D and dropped them after a cease and desist order from the copyright holders. I believe one was from TSR, and one from WotC after they purchased TSR. To the best of my knowledge there was no actual copyright suit, so the validity of the copyright was never tested in court, but it is probably valid. Merely calling a creature a "Beholder" is not enough to violate the copyright, there would need to be actual copying of the description, or a sufficiently detailed similarity to make the use an infringement. That is always a matter of judgement, ultimately for a court in a copyright suit (or an appeals court). So, while all the possibilities mentioned in the answer by @Dale M are valid, it is additional possible that the version used by HOMM3 is not sufficiently close to the one copyrighted as part of AD&D for a copyright claim to prevail, or the WotC fears that it would not prevail, and so does not spend the money to try. |
How are dog breeds legally defined? In the UK there are 4 breeds of dog that it is illegal to own (Pit Bull Terrier, Japanese Tosa, Dogo Argentino, Fila Brasileiro). The government says "A police or council dog expert will judge what type of dog you have" and "Going to court - It’s your responsibility to prove your dog is not a banned type" but no information is given about the form that this determination will take. There is currently an example of this happening, where the breed was determined to be American Bully XL (a legal breed which is a derivative of and is physically similar to the illegal Pit Bull Terrier). In this day and age the most obvious solution for defining a breed is some form of genetic testing, probably with some machine learning thrown in. In this case I would expect the rules to be well known, and hopefully published in a peer reviewed journal, and I am not aware this is the case. Another way would a be predefined list of physical traits that could be used to define a breed, but again this could be published and made available to people who were concerned and no such list is on the government page above. How are illegal breeds of dog legally defined or determined? | Normally, initial identification is conducted by a police Dog Legislation Officer: ...or an officer trained in dog-related legislation with a good knowledge of the identification of the prohibited types of dogs. Who will normally: provide an expedited streamlined forensic report on the dog type and will almost certainly be the prosecution expert witness. Where the police are not the prosecution’s expert witness, they will identify an expert witness from a suitable organisation... One such organisation is the British Veterinary Association, but other expert witnesses with the requisite knowledge and understanding are available. Where the defence challenge the identification / type of dog: the court may direct the experts to serve a statement on what they agree and what they do not agree Although DNA testing is possible, in my experience the identification is based around the dog's appearance and physical characteristics. For example, Annex 2 of this Guide(pdf) gives a starting point for identifying Pit Bull Terrier (PBT) types. | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). | In Fiji, The Dogs Act 1971 section 9 states: The owner of every dog shall be liable in damages for any unprovoked injury done by his dog and it shall not be necessary for the party seeking damages to show a previous mischievous propensity in such dog or the owner's knowledge of such mischievous propensity or that the injury was attributed to neglect on the part of the owner of the dog. | 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. | No, you are not breaking any laws. There is a law about fouling but that's about defecation. Dog Fouling (Scotland) Act 2003 | The exact answer will depend on the details (scale of the operation, where it is happening, what purpose the crickets are being sold for etc.), but in general: Yes, breeding and selling crickets is allowed in general. Here's an article (German) on someone who plans to breed insects for food (the article only says he is breeding "Heuschrecken", which could be several different species from the order Orthoptera, but it's probably close enough): Insekten auf dem Teller - Thorsten Breitschuh baut eine Heuschreckenzucht auf ("Insects on the plate - Thorsten Breitschuh is starting an orthoptera breeding program") The article does mention some legal problems, but they mostly revolve around getting the insects certified as safe food, and complying with environment regulations during the breeding. Also, you can buy crickets and similar insects in many pet stores as animal food for reptiles, so breeding and selling them as animal food is definitely not prohibited. | I only address the core legal question. The first question regards where the review appeared: on the facility's own web page, or on some third party web page? In the latter case, there is the possibility that soliciting a modified review in exchange for something of value violates the terms of usage for that web site. There are also US federal regulations pertaining to advertising, as well as state regulations. The federal regulations are here. The main question is whether what you say constitutes an endorsement, as specified here. They define an endorsement as: any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The regulation in fact gives some helpful examples (reading them helps to clarify what an "endorsement" is), the last of which involves a dog: Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog's fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides. Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides. The distinction at issue is whether the suggestion of receiving something of value might influence a person's statements. You can pay for a positive review, as a reward for saying nice things, as long as the reviewer had no reason to think that they would get get something in return for a review. Taking your review to be an endorsement, as required here, Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. The regulation does not require you to reveal every thing that came into your mind in writing the review, but it is pretty clear that suppressing the concern about vaccination paperwork and the star count constitutes a dishonest statement of opinion of the endorser. Material connections must also be revealed: When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser In the 7th example under material disclosure, they describe a blogger who received something of value in connection with a review: the blogger should clearly and conspicuously disclose that he received the gaming system free of charge I should point out that these regulations are written by the FTC, and the implied interpretation (such as that the blogger should disclose... with no clearly stated penalty for failure to disclose) is an FTC interpretation. 15 USC 52 prohibits false advertisements for services affecting commerce. This is the jurisdictional aspect of their complaint against Cure Encapsulations, where defendants paid for reviews on a third-party website (this case involves a relationship between defendant and a fourth-party company that apparently hunts for and pays reviewers). This is apparently the first instance in which the FTC has gone against a business for paying for reviews on a third party web site, so it's not a foregone conclusion that they will prevail in court. Still, Chevron deference means that they will probably win at least on the jurisdictional question. The main difference is that in the Cure Encapsulation case, the violation was even more egregious in that the individuals were not even customers, and in this instance the would-(not)-be review was not the honest opinion of the endorser. | There is no law in the US that says you must tell the truth on the internet. Some places where one must tell the truth are: When speaking to police, the FBI, and most government agencies When filing your taxes with the IRS In certain business contracts When testifying before Congress But on the internet, you can claim to be the first man on the moon with impunity. If someone is gullible enough to believe you and send you money, that is their fault and responsibility. As far as eating a Pangolin, why should she "admit" it, when it was documented on Instagram? There is no duty to officially apologize for it. You can try to report her to the US Fish and Wildlife Service, which enforces the Endangered Species Act, but as it occurred outside the USA, they will be powerless. Her claims are dubious, and possibly incorrect. Her treatment of an endangered animal is reprehensible. However, you posted this to a law site, asking about "reporting it" (to some sort of authority), and tagged it "criminal law". Her behavior is troubling, but I don't see anything that is remotely illegal or criminal. |
Which country's laws take precedence in a war? Let's say the speed limit in country A is 110 km/h, and in country B it is 100 km/h. One day the two go to war, and country A conquers half of country B, but the war is still ongoing. For a person who lives in the conquered half of country B, which speed limit applies? The obvious answer is that the moment A conquers the place, A's law applies; and if B reconquers the place, B's law applies. However, this sounds pretty artificial - how would one know if one has been conquered if one lives in the countryside where no battles were fought? - so I'm wondering how this has worked in history. Clearly after the war is ended, the peace treaty should settle the question, but I'm wondering about the case where the war is ongoing. | The original country laws by default, but that can change. Once a country(let's say Elbonia) takes unconstested control of a town/region(let's say Silvania), it becomes an occupying power and has the obligation of ensuring the safety and well-being of its population. It usally also has the practical need of ensuring that the zone does not plunge into chaos, as it is usually detrimental to using that zone resources to support the war effort and may force the occupying force to deploy troops needed elsewhere. To that effect, an Elbonian occupation authority is established and usually a proclamation issued and distributed informing the inhabitant of the new authority and its decisions1. While by default the original laws will be in effect2, the occupying force has the ability to issue new laws and to enforce them in order to conduct its activities.3 The paramount example would that of treason: a Silvanian citizen caught acting against the Elbonian occupation forces can be tried and punished by the Elbonian authorities, even if Silvanian laws allowed or even asked for Silvanian citizens to attack Elbonian forces. At a practical level, if Elbonia follows the rules of war then the occupation of the zone is temporal (as wars of conquest are forbiden) and it is usually easier to let civilians handle themselves as long as it does not affect the war. In any case, a situation of war is often traumatic enough that even without occupation its effects will be felt; in your example Silvania's government could just decree a 90 kph speed limit in order to save fuel, establish fuel rationing, or even require government authorization to use highways in order to free them for military transports, setup checkpoints every few kms... And of course, remember that for some people inter arma enim silent leges. 1There are some explicit prohibitions against laws forcing the inhabitants to directly support the occupying power, like forcing the civilians to enrol in its army or to build military equipment. 2Art 64 of the Fourth Geneva Convention: The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. 3Art 65 of the Fourth Geneva Convention: The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language. The effect of these penal provisions shall not be retroactive. This answer the "how would one know if one has been conquered?" part of your question. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | The third Geneva convention says in its second article (emphasis added): the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. The violence in Ukraine qualifies for at least two reasons: it is an armed conflict between two high contracting parties, and it is a case of partial occupation of the territory of a high contracting party. "Members of the armed forces" of Russia who have "fallen into the power of [Ukraine]" are therefore protected by the provisions of the convention as prisoners of war as defined in the convention's fourth article. It follows from this that the parenthetical commentary in the question's third bullet point is incorrect: refusing to call this "military action" a "war" does not in fact "unilaterally waive the protection of law of war for Russian forces." As to the allegation in the second point, even a prisoner of war who is suspected of committing a war crime is entitled to the convention's protections. Any punishment for the war crime is to be imposed by due process of law. The fact that war crimes may have been committed by other elements of Russia's armed forces is even less of a justification to deny the convention's protections to prisoners who are not individually suspected of war crimes. | Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so. | Without regards to the actual case and the particular countries involved, I am wondering how it is even possible that a court in one country orders the whole another country to do something, let alone when the two countries do not even formally have diplomatic relations. The main statute that is relevant in the U.S. is the Foreign Sovereign Immunities Act (FISA) of 1976. In general foreign states are immune from liability in U.S. courts (and most courts of the developed world) subject to certain exceptions, the most common of which are as follows: Foreign state waives its immunity explicitly or implicitly Commercial activities by foreign state in or directly affecting the United States Property taken in violation of international law is at issue Rights in U.S. property acquired by succession or gift or rights in immovable property situated in the United States are at issue Money damages are sought against a foreign state for personal injury, death or damage to or loss of property caused by its tortious act or omission, occurring in the United States Enforcement of an arbitration agreement made by the foreign state with or for a private party Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or their support, if the foreign state is a designated sponsor of terrorism Admiralty lawsuit to enforce a maritime lien against a vessel or cargo of the foreign state, based on commercial activity The exception above in bold was probably the one applied in the North Korean case. The only countries to which that exception applies are North Korea, Syria, Sudan and Iran. (There are also separate similar rules related to countries with whom the U.S. is in a declared war.) There is sporadic ongoing constitutional separation of powers litigation in the U.S. over whether a FISA authorized lawsuit can proceed over the objections of the President as expressed by the U.S. State Department. The argument that FISA is unconstitutional in this context is that diplomacy and foreign policy is exclusively an executive branch power to the exclusion of Congress and the judiciary, but for the most part, this extreme position has been rejected in recent years. A conservative U.S. Supreme Court, however, could revisit this question (conservative judges tend to favor more absolute executive branch authority in foreign affairs). Once a party wins, however, the winner needs to identify foreign assets subject to the jurisdiction of the court from which to collect the judgment, such as gold deposits or U.S. governmental or corporate bonds or ships docked in U.S. ports, owned by the country. In strong contrast to the case above, the UK media recently overtly demonstrated disobedience of a New Zealand court name suppression order: a man arrested in NZ for allegedly committing an appalling crime was granted temporary name suppression, and that was ignored by the UK media. I am wondering if there is anything that would stop a New Zealand court to hold the UK to account just like the US court just did North Korea. In the New Zealand case, the remedy would be to bring suit against the particular newspapers or reporters involved, rather than the state. But, the U.K. might not enforce those judgments if those defendants lost, so enforcement might be limited to New Zealand based assets and persons, and then, only if the New Zealand court found that it had jurisdiction over the defendants under New Zealand law. So, this isn't really analogous. So, in general, are there any internationally recognised laws/treaties/protocols etc. that define if/when a court in one country can assert jurisdiction over the whole another country and hold it to account? Or is that completely up to the court and whatever extremes it dares to come up with? See above in the U.S. case. Most countries have similar statutes or case law to FISA which codified the case law applying customary international law at the time that it was adopted. One example that comes into my mind is the European Court of Human Rights: if a country signed the European Convention on Human Rights, it can be held to account by the court. But what conventions, if any, can be applied to the two cases above? The European Court of Human Rights case is one of consent to the jurisdiction of an international body by treaty. Countries like the UK and NZ have statutes or treaties governing when a foreign judgment (e.g. a judgment from a New Zealand court) will be recognized domestically. There are also usually laws governing when people present in one state will be extradited to another, usually in the form of a bilateral treaty between the affected states. | There is no possibility of legally holding a country "to account" for an action. An individual could be legally tried for a crime (murder), and a country could via a political process be made to suffer the consequences if a leader performs some act (it need not be illegal). Germany, Iran and Russia have historically suffered certain consequences of actions held to be "officially sanctioned", and individuals such as Adolf Eichmann have been specifically punished; Fahad Shabib Albalawi and 4 others were sentanced to death for involvement in Khashoggi's murder. Punitive recourse against a country is always via political / military action. Khashoggi, specifically, was apparently a lawful permanent resident of the US, which is probably sufficient connection to the US for a suit based in the Alien Tort Statute. There have been various suits filed against individuals under this act, some of which succeeded, for example Filártiga v. Peña-Irala, 630 F.2d 876. An individual could be sued under the Alien Tort Statute, but a foreign government enjoys sovereign immunity (the US government has limited its liability on that grounds, but Saudi Arabia has not). His fiance might then sue some individual, but Saudi Arabia itself could not be "held to account". | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | 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. |
If a 12 year old child uses his mother's car without her consent A 12 year old child uses his parent's car without her consent. He loses control over the steering wheel and hits his twin brother, which causes his brother's death. In this case, who is held responsible? Can the son be sued? | Depending on the country (not mentioned), the mother may be at fault for not keeping the car out of the hands of her son, but on the other hand, it seems quite impossible to 100% prevent a determined 12 year old from getting hold of your car keys. That would likely be up to a judge to decide whether and how much she is at fault. And also depending on the country, the 12 year old will be held more or less responsible for his actions, due to his age. Depends on the laws, and may depend on the judge deciding whether a normal 12 year old, or whether this particular 12 year old, should know that him driving a car is illegal and highly dangerous and possibility of someone dying was foreseeable. | Theft in Oregon (and elsewhere, substantially the same) is defined statutorily: A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: (1) Takes, appropriates, obtains or withholds such property from an owner thereof... The car is James' property and it is not John's, even though James is dead. There is a legal process by which at some point in the future the car could become John's, but criminal acts are defined in terms of what is the case at the time of the act, not what might happen in the future. James' intent as expressed in the will notwithstanding, it is not guaranteed that John will become the car owner. So until John is actually the owner of the car, John is taking the property of another, and this is theft. | Under the doctrine of "respondeat superior", can an employer in Michigan be legally liable if an (intoxicated) non-salary employee hits and kills a person on their way to work? Probably not. For most purposes, under principles originally established for minimum wage laws under the Portal to Portal Act, you are not at work and acting within the scope of your employment when you leave home to go to work (i.e. when you are commuting) or when you leave work to go home at the end of the day. Would the employer's legal responsibility change if the vehicle was owned by the company? Not on a respondeat superior theory. The employee still isn't acting within the scope of employment. But, Michigan does impose statutory liability upon vehicle owners which is vicarious liability even though it isn't respondeat superior liability, under a theory similar to (but broader than in some respects since it applies to non-family too, and narrower than in other respects since it is limited to vehicle owners) the common law family car doctrine. Specifically, Michigan Vehicle Code § 401(1) states (the balance of the section pertains to leased vehicles): This section shall not be construed to limit the right of a person to bring a civil action for damages for injuries to either person or property resulting from a violation of this act by the owner or operator of a motor vehicle or his or her agent or servant. The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family. So, unless the employee had a company car without the express or implied consent or knowledge of the employer, the company is responsible for harm caused by negligence. There might be an argument that criminal activity (driving while intoxicated) which was intentional or reckless, is beyond what the employer gave express or implied consent to do and was not done with employer knowledge (I haven't reviewed the case law to examine that theory), in the same way that the employer would probably not have liability if the employee, while sober, intentionally murdered his ex-wife by driving over her with the company car. But, at first blush, it looks like the employer would be on the hook if it was a company car, since drunk driving is a traffic statute that was violated for which the negligence per se liability referred to in the statute would apply. The fact pattern of the question is notable because it catches a case where there is statutory liability in Michigan, despite the fact that neither the family car doctrine, not respondeat superior, nor a negligent entrustment theory would impose liability on employer at common law. (There are negligent entrustment cases at common law in Colorado and elsewhere where negligent entrustment liability is imposed when an employer allows a drunk employee to leave work in a company car that the employer could have forbidden the employee to use because the employee was drunk.) | 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.) | 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. | Your kid is not in trouble; he's a minor. You're in trouble. A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of intent. See intent - Wex Legal Information Institute and Civil Law vs. Criminal Law: The Differences | Rasmussen College. Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid? The possible poor design of a data system that didn't sanitize inputs is no defense. Saying the door was unlocked so I assume the homeowners didn't care if I trashed their house will get you laughed into jail or on the hook for a stiff civil judgement. | This is a very common situation, and -- assuming this is happening in the United States -- it is pretty clear that Attorney is behaving exactly as he should under the Rules of Professional Conduct. Mother is the "technical" client and the "real" client. Son is not a client in any sense; he is merely a person paying the bills. If Mother wants to involve Son, she can do that on her own, but Attorney is prohibited from disclosing his privileged communications with Mother and from substituting Son's preferences/judgments for those of his client. If Son does not like what the lawyer is doing, he can encourage Mother to direct Attorney to change course, or Son can inform Attorney that he will stop paying for Attorney's services. | 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. |
Can consumers use trusts to protect themselves from losing their deposit — if, after consumers pay deposit, a company goes bankrupt? Many companies (call them D for Defendant) require monetary deposits from consumers (C for Claimants), before D undertakes time and effort to order the product. C is an unsecured creditor, and a layman ignorant on trusts law. But after C pays their deposit, if D goes bankrupt, then C can't recoup their money — because D has little to no assets. Or C ranks so far behind D's secured creditors that C won't be restituted. Or the deposit money is too teensy to warrant paying fees to file a claim, even in Small Claims Court! How could C have protected and preserved C's deposit money? Could C have instructed D to hold the deposit money on trust, so that C has a proprietary interest or equitable title to the deposit money (Which term is correct here?)? This feels simple. All C needs to do is to write the following in the contract Company, as trustee, holds customer's deposit money on fixed revocable trust, for the benefit of the customer. But if every one of D's creditors loaned money to D on trust, then all of D's previous creditors — all beneficiaries of their separate loan monies to D — have priority over C. C ranks behind all of D's previous creditors. Then even if D holds C's deposit on trust, C's proprietary interest or equitable title to C's deposit money would be useless...??? Please don't just answer that D shouldn't buy from companies that require down payments — this is impractical. This fact pattern has happened 3 times in my family. In my grandpa's case (call him G), D was a medical equipment company. For my aunt A, D = a mattress company. For my mom M, D = a furniture company. | united-states Business Practices There are contracts where consumer deposits are required to be held in trust, requirements that mostly, but not entirely, arise under state law in the U.S. For example, many states require that landlords hold security deposits for residential rental properties in separate trust accounts, and almost all U.S. jurisdictions require that attorneys hold prepayment for legal services in trust for the consumer until the fees are earned. As another example, in Colorado, if a property owner make a payment to a general contractor for work on real property such as building or renovating a building, the general contractor is required to hold those funds in trust and not make payments to itself from those funds, until all subcontractors and material suppliers on the job have been paid in full and have no lien claims. In the same vein, many construction contracts, especially for governments acting as consumers, require contractors to be "bonded and insured" meaning that a third-party bond company is responsible for paying claims against the bonded company even if the bonded company is insolvent. It also isn't unusual in complex commercial transactions between sophisticated big businesses, for the parties to negotiate that certain funds related to a transaction be held in a bankruptcy remote trust, or that the work be done by a "bankruptcy remote entity." But this is rarely the case when large numbers of consumers enter into small transactions with a big business. As @DaleM rightly notes, a business in a position to impose a contract of adhesion on consumers on a take it or leave it basis, can get away with it, and one simply might want to be wary about doing business with financially insecure businesses, if possible, even though financially secure businesses may charge more. A common theme is that consumers (maybe business to business or government to business) insist on trust-like or bond-like or insurance-like or collateral-like protections for deposits in transactions where the loss suffered if the security deposit was lost would be a major economic blow to the consumer in light of the consumer's overall financial situation. In contrast, these protections are foregone when the amount of a security deposit is small enough to be merely a survivable nuisance that may happen some small percentage of the time that the consumer engages in such transactions. This reflects an economic and policy judgment that the trouble of treating small consumer deposits as if they were trust funds isn't worth the transaction cost trouble of doing so. Priorities Under U.S. Bankruptcy Law In part to address the imbalance of power in this situation, claims to recover consumer deposits for unperformed goods or services owed by the debtor do have a priority under U.S. bankruptcy laws relative to general unsecured creditors of up to $1,800 per consumer. Specifically, these are seventh priority claims in bankruptcy pursuant to 11 U.S.C. ¶ 507(a)(7). They are behind claims secured by collateral to the extent of the value of the collateral (priority zero, so to speak), priority one alimony and child support claims, priority two costs of administering the estate, and priority three to six claims which include several kinds of claims that amount to up to about $20,000 of unpaid wages and benefits per employee and about $4,000 of unpaid amounts owed to farmers per farm for their crops. But security deposit claims are ahead of a variety of tax claims, FDIC claims, DUI personal injury claims, and general unsecured creditor claims. They are also ahead of the claims of stockholders. As a practical matter, when you are doing business with a business entity rather than a sole proprietor, there are no child support or alimony claims, and most businesses that have lots of transactions with retail consumers don't buy crops directly from farmers, so consumer deposit claims actually have a very high priority in bankruptcy and are usually repaid in full except in the very most catastrophic business collapses under U.S. law. So, while it isn't quite as good as holding those funds in trust, the bankruptcy priority comes close from the perspective of providing a practical benefit to every day small consumers doing business with large firms that go bankrupt. Canada Compared Superficially, at least, it appears that Canada does not have a similar priority for consumer security deposit claims in bankruptcy, although it could be that this arises in some back door manner invisible to practitioners unfamiliar with it under court interpretations of Section 70 of the Canadian Bankruptcy and Insolvency Act (BIA) which governs creditor priorities in bankruptcy in Canada. For example, the consumers may have an implied in law security interest in those funds of which I am not aware. It may also be that there are specific kinds of transaction in which deposits do have to be held in trust, just as there are in the U.S., even if that isn't true as a general rule. Finally, if one pays by credit card, it is often possible to reverse a charge like this one, pushing the risk of bankruptcy loss from the consumer buying with a credit card to the bank issuing the credit card, particularly if action is taken promptly. | In the US, when a person has unpaid debts and dies, those debts are to be paid from any assets of the estate (as in, any assets). The executor has the responsibility to use those assets to pay the debts. Presumably the executor did that, and there are no co-signed accounts or anything like that, so your mother isn't responsible for these debts in some obscure way. The Fair Debt Collection Practices Act has a provision that you can tell a collection agency to stop communicating with you, and they must then stop communicating with you except to say they are stopping attempts to collect, to indicate possible remedies (i.e. lawsuits), or notify of an actual remedy (they have actually filed suit). Since they are no longer allowed to discuss anything with you once you give them the go-away notice, one should probably hire an attorney to exercise the nuclear option. You can also request proof that you owe the money: they are suppose to notify you of the right to dispute the debt with 5 days of first contact, which gives you 30 days to dispute the debt. Persuading a debt collector that they are pursuing the wrong person is probably easier than persuading a jury in a lawsuit. | According to the US Courts website, not all debts need to be paid in full in Chapter 13 proceedings: The plan need not pay unsecured claims in full as long it provides that the debtor will pay all projected "disposable income" over an "applicable commitment period," and as long as unsecured creditors receive at least as much under the plan as they would receive if the debtor's assets were liquidated under chapter 7. 11 U.S.C. § 1325. If they can't pay even this reduced amount, then they probably don't belong in Chapter 13. If the court declines to confirm the plan, the debtor may file a modified plan. 11 U.S.C. § 1323. The debtor may also convert the case to a liquidation case under chapter 7. | 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. | are they allowed to immediately try to recover the debt or must they go to court first? They can try to recover the debt, either directly or through a debt collection agency. They do not have to go to court first; courts are for the resolution of a dispute and right now there isn't one. If the consumer disputes the debt (which they should do in writing) then the debt is held in abeyance until the dispute is resolved. While in this state debt collection must stop and the debt must be noted as disputed on any credit agency checks. Dispute resolution may be through negotiation, litigation, mediation, arbitration or a statutory mechanism (e.g. involving a government agency or ombudsman if applicable). If the supplier chooses litigation then they must go to the court and summons the consumer; stating the basis of their claim. The consumer is then entitled to mount a defence. | While I am a U.S. attorney, the U.K. and U.S. are essentially the same on these issue in practice: "reasonable wear and tear" is a classic issue of fact to be decided by the judge (unlike the U.S. there are never juries in U.K. landlord-tenant disputes) based upon the evidence presented to him and his or her good judgment if the case goes to court. There won't be a lot of case law that is specific enough to provide guidance in your particular case (if any) because cases like these aren't worth appealing and creating case law on and because the law intentionally vests judges with great discretion on these issues and only intervenes in appellate decisions when a judge is deeply out of line. The legal definition of "reasonable wear and tear" is basically vacuous and don't provide much meaningful guidance. I know you are joking, but no, do not set it on fire. You will find yourself incarcerated for arson, with a felony criminal record and a restitution judgment in the amount of the damages and a fine and court costs as well, and your credit record will be screwed and no one will rent to you ever again if they find out by doing a cursory background check. Your mum probably won't even invite you to Christmas dinner this year. If they charge your security deposit and you don't think you owe it, you would have to sue them for a return of the part of your security deposit you don't owe, knowing that you face a risk of paying their legal fees if you lose, but will get your fees if you hire a lawyer and win (caveat: there are more nuances to fee shifting in the U.K. courts than I spell out here which are rather technical). If they say you owe more than your security deposit and you don't pay, they can sue you for the balance, knowing that they face a risk of paying your legal fees if they lose, but will get their fees if they win. In practice, it doesn't really make economic sense for either party to hire an attorney because the amount of the fees is so high relative to the amount of money at stake. The security deposit is 2-4 hours of legal time, and the amount claimed is maybe 7-14 hours of legal time, neither of which is sufficient to address the respective issues economically in a fully litigated hearing. Short of going to court, you can provide them documentation and your video to show that you are right and to discourage them from docking your security deposit (in full, anyway) or suing you, ideally A.S.A.P. before they are too committed to taking legal action. You could also propose a compromise and see if you can get them to agree to it with neither party facing the risk of going to court. | You are deeply confused, probably by the blogs of a conspiracy theorist (perhaps discussing the Sovereign Citizen Movement mentioned in the comments), whom it would be helpful for you to reference. In fact, people with and without lawyers claim common law rights in the ordinary courts of the UK every day, in the lion's share of civil lawsuits. For example: There is a common law right to sue for damages when someone breaches a contract by not paying a bill that they owe. A defendant, meanwhile, has a common law right to defend against such a suit on grounds, for example, that the debt has been paid or that the debt is not owed because there was no agreement to pay in the first place. The substantive right of an owner of real property to evict a tenant who breaches a lease arises at common law, even though statutes spell out the process for enforcing that right. Furthermore, the way that ownership of real property is established (i.e. through a chain of title involving purchases by deeds) likewise arises at common law. The defendant meanwhile has a common law defense to a claim for rent for the remainder of the period in a lease after an eviction for failure of the landlord to mitigate damages if the landlord does not make a reasonable effort to find a new tenant. The right to sue someone who negligently caused an accident that injured you is a common law right. | The part of the statute (which is part of an article of the Uniform Commercial Code model language applicable to the sale of goods) that you are discussing reads as follows: 1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though (a) the transferor was deceived as to the identity of the purchaser, or (b) the delivery was in exchange for a check which is later dishonored, or (c) it was agreed that the transaction was to be a "cash sale", or (d) the delivery was procured through fraud punishable as larcenous under the criminal law. I have put the critical language of (1)(c) for the purpose of understanding what they are talking about when they are talking about "cash sales" in bold. You are asking: Please explain it to me and tell me what a "cash sale" has to do with voidable title. Doesn't cash sale just mean you are paying cash for something? That sounds perfectly innocent to me. Items (1)(a), (1)(b), (1)(c) and (1)(d) involve circumstances which are examples of transactions in which a buyer of goods obtains voidable title from the seller. This means that the sale can be undone if the seller acts promptly enough, but the sale can't be undone if the buyer in turn sells the goods to a good faith purchaser for value (i.e. someone who pays a meaningful price for the goods without knowledge that the seller only has voidable title). If the goods have been sold to a good faith purchaser for value, however, then the seller who could otherwise undo the sale entirely can now only sue the buyer for damages (usually the agreed purchase price, or fair market value if no purchase price had been agreed upon yet). When it says in (1)(c) that "it was agreed that the transaction was to be a "cash sale"," what the statute is describing is a transaction where the original deal was that you will deliver goods to me with the understanding that I will pay you for the goods in full with currency or other "good funds" (like a wire transfer), roughly contemporaneously. But, what actually happens is that you deliver the goods to me and instead of promptly paying you the cash you are owed for the goods, I don't actually pay you anything. This could happen because I was trying to cheat you and get something for nothing, in which case I would have also committed fraud which also falls under (1)(d). More innocently, suppose that I run a small grocery store and you run a dairy that delivers milk for resale to my grocery store every morning at 5 a.m. before banks open, in time for the morning rush of innocent customers milk to put in their coffee on their way to work, before the banks open, and then I go to the bank when it opens every day at 9 a.m. and take out some cash and hand it over to your money collector, when your money collector stops buy my grocery store around lunch time. But, today, I was stunned to discover that all of the money in my bank account had been frozen due to a garnishment on a money judgment against me that I hadn't been aware of because the process server who was supposed to give me notice of the lawsuit against me instead threw the court papers in the sewer and lied on the return of service saying that he'd delivered the court papers to me, so that unbeknownst to me, a default judgment was entered against me. The sale would be voidable in both cases, the one where I was trying to cheat you while telling you that it would be a "cash sale" and the one where I innocently found out that I didn't have the money to pay you that I had no reasons to think that I wouldn't have available to me. And, in each situation, if my grocery store sold half the milk that was delivered to me in the morning rush, those sales would be valid and irreversible, even though I completely stiffed the dairy owner and there was a total failure of consideration in what was supposed to have been a cash sale transaction. But, the dairy owner would have a right, when he found out that he wasn't getting paid at noon and the sale turned out to have been a voidable one, to take back all the milk that hadn't been sold to my customers yet in the hope that he could sell it to someone else who was actually willing and able to pay for it instead. In general, under circumstances when a sale is voidable, if I haven't resold the goods to a good faith purchaser for value, then you can legally force me to return the goods and have the sale invalidated. But, if I have sold the goods to somebody else for a more than nominal price, and the person who bought the goods from me doesn't know that I cheated you by not paying for the goods, then you can't undo my sale of the goods that I didn't pay for to the good faith purchaser for value. Situation (1)(c) is very similar to situation (1)(b), in which you give me the goods and I give you are personal check for the purchase price, but the check is then dishonored by the bank (something that could been my intentional plan to cheat you, but which could also have been my failure to keep track of the balance in my bank account as I wrote checks). Both of these situations involve broken promises which may or may not have been made with no intent to honor those promises in the first place. Situations (1)(a) and (1)(d), in contrast, involve out and out fraud and deceit, but not "fraud in the factum". In other words, what (1)(a), (1)(b), (1)(c) and (1)(d) all have in common is that the goods were voluntarily delivered by you to me, even though your voluntary delivery was obtained by improper means such a deceit regarding who is buying the goods. ("Fraud in the factum", which is also void, involves situations when, for example, I ask you for you to sign what I tell you is a birthday card, when what I have actually done is have you sign a letter authorizing your delivery man to deliver lots of goods to me, and then I use that letter to have goods delivered to me.) In case (1)(a) this would often be a sale on credit or open account to someone you believe to have good credit but who is in fact someone else with bad credit. For example, you make a sale to George Shrub, thinking you will be delivering goods to George Shrub, Sr. who has good credit, but instead you are tricked into delivering the goods to George Shrub, Jr. who has multiple bankruptcies and never pays his bills on time. In case (1)(d) there are myriad possible examples. For example, I may have given you counterfeit money to get you to deliver the goods to me. Or, I may have purchased your cow in a barter exchange for beans that I told you were magic beans, but that were really just ordinary beans. But, in both (1)(a) and (1)d), as well as in (1)(b) and (1)(c), you are voluntarily delivering the good to me and then not getting what you thought you had bargained for in the deal, sometimes with evil motives and sometimes for innocent reasons, so voidable title arises. In contrast, suppose that I snuck into my stockyard one night and stole the goods from you. In that situation, you would have a right to get your goods back not only from me, but even from a good faith purchaser for value to whom I sold the stolen goods, because out and out theft that does not even involve consent procured through fraud or a broken promise, doesn't give me any title to the property, not even voidable title. Similarly, suppose that I pointed a gun at you in your shop and insisted that you deliver the goods to me or else I will kill you. Again, in that situation, you aren't giving me even voidable title to the goods, and you can sue a good faith purchaser for value from me to get the goods that I never had any colorable claim to have ever owned back. The language in the first sentence of (1) goes along with the language about voidable sales of goods in the rest of (1), because the first sentence of (1) covers situations when I may not have 100% ownership of goods that I sell to some else. For example, suppose that I have a pedigreed male dog that I have purchased the pet rights in from a breeder, while the breeder has retained the stud rights in the dog. (Yes, these transactions really happen. I've litigated them.) Under the first sentence of (1), I can sell the pet rights I have in the dog to you, but I can't sell the stud rights that I don't own to you because I don't own them. And, unless I am a pet store owner to whom the dog has been "entrusted" (and I'm not a pet shop owner), I probably can't destroy the stud rights through a sale of the dog to you when I am purporting to be selling you both the pet rights and the stud rights, even if you are a good faith purchaser for value, because I am not a merchant to whom the "entrusting" doctrine applies. So, if I sold the dog, the owner of the stud rights could still enforce those rights against the person to whom I sold the dog. Parts (2) and (3) deal with an exception to the general rule in the first sentence of (1) called "entrusting" which is quite similar to voidable title. Entrusting involves you leaving your goods with a merchant who is in the business of selling those kinds of goods. So, if I leave my nice clothes with a consignment shop or a pawn shop and the consignment shop or pawn shop sells my clothes to someone and give the buyer good title, and I can't undo that sale even if you didn't actually have my permission to sell the nice clothes that I had entrusted to the consignment store or pawn shop (e.g. perhaps they were only allowed to sell my wedding dress for a minimum price of $100, but instead sold it to someone for $30 which they didn't have permission to do, then the buyer of my wedding dress for $30 would still have good title to the wedding dress and the sale couldn't be undone). But, on the other hand, if I leave my nice clothes with an automobile parts shop or a grocery store or a stationary store, and they don't actually have my permission to sell the nice clothes that I left in their care, and then they sold my nice clothes to one of their customers, that sale made without my permission would be void and could be undone, even if their customer paid more than a nominal price for my nice clothes and had no knowledge that the merchant didn't have my permission to sell my nice clothes. This is because we don't believe that someone who buys, for example, my wedding dress from an automobile parts shop or grocery store or stationary store, can legitimately say that they really believed in good faith that the seller really had your permission to sell my wedding dress, because that is not an ordinary merchant-customer transaction for them. |
Does a landlord legally have to charge me pet rent, if they charge for other pets? Recently I inquired to my landlord about getting some Guinea Pigs. He wanted to charge me $25/month for the guinea pigs, when further pressed about why I needed to pay a charge (Guinea Pigs generally stay in there cage and wouldn't cause much damage) I was told they were legally required to charge for any pets, because they charge for dogs and that if they didn't it would be considered discrimination. This makes absolutely no sense to me. I don't see how would possibly be considered discrimination. I do understand that regardless he can charge whatever he wants for pets. I'm just wondering if this is really a valid reason. As for what the lease says about pets, under tenant obligations: Not to keep in or about any pets unless specifically authorized as a special condition into this Rental Agreement. So I would need to sign an updated lease in order for this to happen, which makes sense. I did do a bit of googling and could not find anything related to pets or discrimination beyond this: In Wisconsin, Wis. Stat. § 106.50(2r)(bm) includes specific rules about animals assisting persons with vision, hearing or mobility disabilities. It is illegal for an owner or property manager to refuse to rent to a tenant, evict the tenant, require extra compensation or harass a tenant because he or she keeps an animal that is specially trained to lead or assist a tenant with impaired vision, hearing or mobility... Which does not apply to me. | I do not believe that there is any such law, although it is conceivable that the landlord is confused about what laws, generally called "non-discrimination laws" actually require. It may be wise policy for the landlord to treat everyone who owns a pet in the complex to pay pet rent, and it may be not worth the expense to the landlord to pay an attorney to revise his lease for your benefit to afford you the privilege of paying him less rent that he would have charged you otherwise. But the law does not actually require the landlord to do so. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. | At common law, a tenant is entitled to "quiet enjoyment" of the property. This means that the owner can only interact with the tenant as spelled out in the lease or in an emergency situation. First, calmly and quietly write down a list of your grievances. Then check your lease to see what the landlord is entitled to do. Cross off any grievances that are permitted by the lease. Take this and the lease to your solicitor and pay him to write a letter to your agent advising them of your grievances and asking that they stop. Without knowing where you are, we do not know what additional rights and dispute resolution procedures are available in your jurisdiction. Very few jurisdictions still rely entirely on common law as real estate is one of the most highly government regulated areas of life wherever you are. Your solicitor will know and, for less that a week's rent will give you solid advice. | The applicable law is here. Any animal that crosses its owner's property line in the slightest must be restrained. Chicago law also requires fences to be physical fences, not electronic ones. So you can report the situation to the police. This may or may not result in a fine for the owner: that's at the discretion of the city. From a legal perspective, reporting violations to the police and to animal control is almost all you can do. There is, unfortunately, no guarantee that the police will investigate; but if that is not satisfactory, there are political solutions involving your alderman. Theoretically, you could sue the owner, but that would be expensive and probably less effective compared to reporting the violation. | It is usual for a lease to specify for what purposes and on what notice the landlord is entitled to access. Often there is a provision allowing the landlord access on no notice in an "emergency" which is often not specifically defined. Access for purposes of repair, and for purposes of inspection may be on 24 hours notice, or 48 hours, or some other period, or on "reasonable notice" with no specific period specified. Access for a reasonable purpose (such as inspection) on reasonable notice that does not actually inconvenience the tenant, and that is not demanded with unreasonable frequency will probably not constitute such a breach as to justify ending the tenancy, and may well not justify sizable damages in the absence of other breaches. Much will depend on the wording of the lease or rental agreement, and on the practice of the local courts. One might well ask oneself "what actual harm will an inspection with insufficient notice do me" because a court might ask a similar question if an action is brought. If the inspection does cause a problem, then that should be addressed. | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | According to This official FAQ page: Q25. When can service animals be excluded? A. The ADA does not require covered entities to modify policies, practices, or procedures if it would “fundamentally alter” the nature of the goods, services, programs, or activities provided to the public. Nor does it overrule legitimate safety requirements. If admitting service animals would fundamentally alter the nature of a service or program, service animals may be prohibited. In addition, if a particular service animal is out of control and the handler does not take effective action to control it, or if it is not housebroken, that animal may be excluded. Q26. When might a service dog's presence fundamentally alter the nature of a service or program provided to the public? A. In most settings, the presence of a service animal will not result in a fundamental alteration. However, there are some exceptions. For example, at a boarding school, service animals could be restricted from a specific area of a dormitory reserved specifically for students with allergies to dog dander. At a zoo, service animals can be restricted from areas where the animals on display are the natural prey or natural predators of dogs, where the presence of a dog would be disruptive, causing the displayed animals to behave aggressively or become agitated. They cannot be restricted from other areas of the zoo. This seems to indicate that the zoo exception exists because it would “fundamentally alter” the nature of the zoo. I don't think that it would “fundamentally alter” the nature of a store with a mascot cat for the cat to be temporarily restricted to the upstairs living quarters or other area away from the customer areas where a service dog must be permitted to accompany a disabled customer. In the FAQ document Service Animals under the ADA from the Great Lakes ADA center, on page 7, it is said that: In General Covered entities must modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability in any area open to the general public, unless the entity can demonstrate (1) that making such modifications would fundamentally alter the nature of the entity’s goods, services, facilities, privileges, advantages, or accommodations, (2) the safe operation of the entity would be jeopardized, or (3) such modifications would result in an undue financial or administrative burden. 28 C.F.R. §§ 35.130(b)(7), 35.136, 35.150 (a)(3), 35.164, 36.301(b), 36.302 (c)(1), and 36.303(a). DOJ commentary suggests that Congress intended the ADA to allow service animals the “broadest feasible access” to public accommodations and public entities and to avoid unnecessarily separating service animals from from their owners. 28 C.F.R. pt. 36, App. C. Covered entities that have blanket policies or practices that exclude service animals may be subjected to court orders or settlement agreements requiring modification of the relevant policy or practice. On pages 8-9 of the same document it is said that: It is the entity’s burden to allege and prove the existence of a fundamental alteration. The outcome of such defense will depend on the distinct facts of each case. The document cites Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir.2004), in which (according to the document) an attempt to exclude a service dog which had previously barked during musical concerts was not allowed, and a "fundamental alteration" defense was denied at both the distinct and circuit court levels. The Great Lakes document also cited Johnson v. Gambrinus Company/Spoetzel Brewery, 116 F.3d 1052 (5th Cir. 1997), in which a brewery attempted to exclude a service dog for a tour open to the public, Citing FDA regulations in support of a "no animals" policy, and argued that to admit animals would constitute a "fundamental change". The Fifth Circuit ruled that the brewery must modify its policy, and awarded damages under a parallel state law. This seems to confirm that the "zoo exception" is limited to a situation where the animals on display are a "fundamental" part of the operation of the facility, as is surely the case with a zoo, but would not be the case in a store as described in the question. I have not found any case law directly on point. If the issue has been in court, it probably has not been taken to the appeals court level where opinions are published. | Is this charge legal in Georgia? No. It seems unlawful. First, it appears that the landlord was negligent and failed to mitigate damages. Since in general utilities are billed monthly, it is unreasonable for the landlord to have waited this long for a $2 charge that occurred on the first day of your tenancy. Second, legislation typically sets a deadline for a landlord to send a former tenant an itemized bill to cover for damages other than normal tear and wear. According to O.C.G.A. § 44-7-34(a), that deadline in Georgia is 30 days. Whereas the $2 charge is right (at least from a moral standpoint, as you mention), the $50 surcharge is devoid of merit. |
Do patent holders have an obligation to make their patents available? To what extent? The company ASML Holding N.V. is, quote Wikipedia: "the sole supplier of extreme ultraviolet lithography (EUV) photolithography machines in the world" This means that ASML has a monopolistic position in the global semiconductor / computer chips supply chain. If Intel wants to step up manufacturing of computer chips, in response to the global chips shortage, it must buy equipment from ASML. There is no other way. However, ASML's EUV manufacturing capacity is already at a maximum. If Intel were to request ASML to allow Intel to manufacture more of those EUV machines at Intel's manufacturing facilities, assuming no technical barriers, does ASML have an obligation to agree? In general, if a patent holder holds the patent to a world-impacting monopolistic technology, does the patent holder have an obligation to ensure that such technology and the products of such technology is always able to meet market demand? Furthermore, is there any limit on the profit margins that a patent holder is allowed to make? Assuming that Pfizer is the only company that has the patent to the manufacturing of a COVID-19 vaccine of reasonable effectiveness. Pfizer's accounts department, after running the numbers through their computers, come to the conclusion that in order to maximize profits, they should limit the supply of the vaccines and sell the vaccines at a cost of 1 million US dollars per dose. What would be the consequences of such a move? Assuming everything is done by the book. No mass riots, no assassinations, no extra-legal sanctions. | In the US, a patent holder has no obligation at all to use their patent. They can charge as much for their patented product as they want, and if there are no alternatives then they're in a pretty good market position. If Intel wants to make more microchips and ASML won't sell them the tools they need, Intel just has to offer more money. It's a monopoly, but that's the whole reason patents exist: giving inventors a monopoly on their inventions in exchange for publishing how they work. There is such a thing as using a patent anticompetitively, but it takes a lot more than charging a high price. Your Pfizer example runs up against one of the limits of patents, though. Patents are a government-supported monopoly, and they're only useful as long as the government keeps supporting them. A government has the sovereign power to say "we're not going to enforce this patent." If the company has facilities in that country, the government even has the power to say "you must manufacture more of this product." This is rare. Most countries are subject to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which says they will provide a patent system that's also available to foreigners. But TRIPS allows countries to authorize the unlicensed use of patents to supply their domestic market under appropriate circumstances. The patent owner still has to be paid a fair amount, but the patent isn't ironclad. Countries can also issue compulsory patent licenses to produce drugs for export to other countries, again under appropriate circumstances. You could also have an ad hoc agreement between WTO members to make new TRIPS rules for something. This last option was actually discussed to waive COVID-19 vaccine protection worldwide, although it didn't end up happening. If Pfizer was charging $1,000,000 per dose, it probably would have happened. As was said in the comments, the Pfizer example was extreme. If Intel can't expand chip production because of ASML's patent, that's basically a commercial problem and should be solved by paying ASML more money. If people can't get COVID vaccines because Pfizer charges too much, that's a humanitarian problem and can be solved through government intervention. | 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. | Marks are to denominate the origin of goods. Nintendo built Gameboys for decades. Some GameBoys have aftermarket parts like the NAKI Action Light, a peripheral never made by Nintendo but was nothing but a light and a 1.5 magnification lens. It was advertised as "Fitting a Game Boy TM" and didn't use Nintendo marks. That is nominative use and allowed. Then, Nintendo actually had stocks of spare parts that ended on the open market by now. those are genuine Nintendo parts, made for Nintendo, with the marks on it. Those are proper marks. Some people bought up tons of old Game Boys and took them apart for spares. Those are still genuine parts, even if used, and the mark is proper. Nintendo didn't make all the parts for Gameboy themselves. They had contracted OEMs (original equipment manufacturers) that created parts for construction of the toys. These were in part branded and marked in the OEM factory still, the OEMs had a license to make and mark parts. Parts produced till the lapse of the license would be most likely proper as for most intents and purposes Nintendo did endorse the manufacturing in this fashion. However after the licensee lapsed or if it doesn't contain a "put the markings on it" clause, marking would not be allowed (anymore). Finally, there are spare parts that were just made to Nintendo specs, that are not originating with Nintendo, and are marked with Nintendo marks. Such copy parts infringe on the Trademark of Nintendo. There is legal space in the aftermarket spare part market: Parts that are to specs but not marked with the marks denominating the origin. Those can be advertised akin to the NAKI Action Light "fitting a Game Boy TM" without infringing on marks. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | First, "I've seen some people say it is legal to do so but I want a second opinion." This is not a legal opinion. This is only in response to the question "Can you use (TM) on a product that is not Trademarked"? Second, you did not specify a jurisdiction. Since you mentioned Apple, I will assume USA. tl/dr: Yes, you can used the TM mark and no, it is not fraudulent. In the USA, there are three "trademark" symbols, (R), (TM), and (SM). (R) - (Registered) The federal registration symbol. This may be used only once the mark is actually registered in the USPTO. It my not be used while the application is pending. (TM) - (Trademark) / (SM) - (Service Mark) - According to the United States Patent and Trademark Office: If you claim rights to use a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim of a "common-law" mark. No registration is necessary to use a "TM" or "SM" symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration. | The only issue relevant to your age is the (ir)revocability of the license. GPLv3 purports to be an irrevocable license. To be really irrevocable, the license would need to grant certain rights in exchange for something of value, that is, you need a license that passes muster as a contract. Copyright licenses are typically treated as contracts, but it is not clearly established in law that licenses are contracts or are not contracts. Out of the goodness of your heart, you can grant permission to use your property, but you can also withdraw that permission. If you have a contract granting perpetual permission to use your property in exchange for something of value, then you can't later withdraw that permission. In the case of Jacobsen v. Kratzer, the sides advances opposing theories that the license was a "bare license" vs. was a contract. (The matter was ultimately settled out of court). This article puts together the legal factors surrounding the notion of license as contract, see p. 21 ff, and esp. §IV for arguments that licenses should be contracts, to be fully enforceable. A contract for non-essentials formed with a minor is not enforceable, until you are 18. You could therefore revoke the license, until you are 18. Anyone who uses the software does so at their peril. However, if the license is not a contract, no existing legal doctrine (in the US) whereby the permission is irrevocable. In other words, yes you can, at their peril. The whole license-as-contract issue is very complicated, and I'm only focusing on the revocability issue. There is a separate question whether one can sue a user for both copyright infringement and breach of contract. The case of Artifex v. Hancom, see also this analysis, found that (in the particular case), plaintiff can pursue the matter as both infringement and contract breach. |
Can the Federal Government dismiss any state Legislative Assembly in the USA? Does the constitution of USA allow the President to dismiss Governors' of States who rebel against the Union? Does the constitution of USA allow the President to dissolve the Assemblies of States which declare secession? What are the legal means available to the President of the USA to deal with States that declare secession, either through resolutions in Legislative Assemblies or by declarations by Governors? Can the US Congress do something about this? Can the US Senate do something about this? How can the USA legally avoid secession of states like Texas and California (if they choose to do so)? | There is no constitutional provision specifically allowing the President to dismiss a state Governor for any reason. There is no constitutional provision specifically allowing the President to dissolve a state legislature. The US Federal Constitution requires the President to "take care that the laws be executed". Several relevant laws are contained in 10 U.S. Code Chapter 13 - INSURRECTION. Section 251 (renumbered from 240a) provides that: Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. Section 252 provides that: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. Section 253 provides that: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. Section 254 provides that: Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time. Sections 251-254 of 10 USC in their current form all date from 1956, but are directly derived from the Insurrection Act of 1807. Under these laws the President has the right and duty to "take such measures as he considers necessary" to suppress any rebellion, which would include any proclaimed secession, including "using the militia or the armed forces" or any other available and effective methods. According to the Wikipedia article (linked above, citations omitted) the Insurrection Act: has been invoked throughout American history. In the 19th century, it was invoked during conflicts with Native Americans. In the late 19th and early 20th centuries, it was invoked during labor conflicts. Later in the 20th century, it was used to enforce federally mandated desegregation, with Presidents Dwight D. Eisenhower and John F. Kennedy invoking the Act in opposition to the affected states' political leaders to enforce court-ordered desegregation. More recently, governors have requested and received support following looting in the aftermath of Hurricane Hugo in 1989 and during the 1992 Los Angeles riots. In addition 18 USC Chapter 115 deals with related issues, making rebellion, insurrection, or conspiracy to rebel crimes. Section 2383 provides that: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. Section 2384 provides that: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. Under these various laws the President has power to use whatever means are required, including military force, to suppress and end any rebellion or insurrection, and arrest the perpetrators thereof. Anyone convicted by a court of insurrection is thereafter barred from elected office, federal ore state. The precedent of President Lincoln's actions at the start of the US Civil War is clear. However, the prospect of any current declaration of secession seems remote. Presumably a state could leave the US with consent of Congress, although this has never occurred and there is no specific Constitutional provision allowing it. Congress could pass further laws dealing with any actual or threatened secession, but the laws already existing seem sufficient, they give the President wide power to act in such cases. It was established by the US Supreme Court in Texas v. White, 74 U.S. (7 Wall.) 700 (1869) that secession is not legal, even if enacted by a state legislature, and specifically that the purported secession of Texas in 1861 did not legally remove it from the Union. No later court case or law has contradicted this, to the best of my knowledge. | 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. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | 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. | Generally not. Federal court uses a principle known as the enrolled bill rule -- in deference to the coequal status of the three branches of government, the "enrolled bill" (the thing printed on fancy paper that actually went to the President for signature) is irrebuttable evidence that the law was properly passed. The courts cannot deal with inquiries into whether legislative process was followed; it's the legislature's job to decide what the right process is. They can't even look into whether the same text passed both houses -- as a matter of law, the enrolled bill is conclusive evidence that it did. Senate rules are enforceable in the Senate. But the Senate is the body in charge of enforcing them, not the courts. | 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. | It says if some portion of the electorate is deprived of the right to vote then the state looses an equal proportion of its representation in Congress (and therefore electoral college votes). There is an exception "rebellion, or other crime". So if a state disenfranchises X% of the population for rebellion or crime they do not lose X% of their representatives/electors. | Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so. |
Medical marijuana patient protection from drug test: actual effectiveness of the law? I'm under the impression that in Pennsylvania, medical marijuana users are protected from employer discrimination: No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana. Section 2103(b)(1), Pennsylvania Medical Marijuana Act, 2016. How does this work in practice? Particularly, does it protect "green card" holders from a positive drug test during the hiring process? Is it correct that withdrawing a job offer based on a test positive for THC products would be illegal by this legislation? If so, to what extent do employers feel bound by this act (currently, in Pennsylvania); i.e. whether in knowing or unknowing defiance of this act, would a company be likely to feel comfortable withdrawing a job offer after a positive test? Thank you. | It works by prohibiting discrimination based on use of medical marijuana, thus it limits employer actions w.r.t. hiring, firing, and on the job treatment. It is not an absolute prohibition. §2103(b)(3) states that Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law. Since employers may be subject to federal drug-free workplace rules, detectable usage of medical marijuana is a fireable offense on such jobs, until the federal regulations are eliminated. The law is also clear that this does not create a right to be under the influence while on the job, and §510 lists definite prohibitions against actions while under the influence. As for the question of whether the law prohibits discrimination based on simple possession of a card but does not prohibit discrimination on the basis of actual use (leaving aside the preceding disclaimers), this has been decided in Palmiter v. Commonwealth Health Systems, Inc. – it's not just card-possession that is protected. Indeed, the hospital in this lawsuit did not contest the claim that the law protects employees who use medical marijuana, the dispute was over whether a cause of private action was created (can a fired employee sue? "Yes", says the court). See also Hudnell v. Thomas Jefferson Univ. Hosps. | Yes and no. While there are no general laws that ban the display of offensive symbols, they are prohibited in certain circumstances. Significantly, this is in the workplace. It is illegal to discriminate on the following bases in the workplace: Race Sex Pregnancy Religion National origin Disability (physical or mental, including HIV status) Age (for workers over 40) Military service or affiliation Bankruptcy or bad debts Genetic information Citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees) For instance, in Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998), the majority found: a plaintiff claiming employment discrimination based upon race could assert a claim for a racially hostile work environment, in addition to the classic claim of so-called "disparate treatment." Since you haven't been specific about the nature of the offensive symbol, some examples might be: displaying a swastika displaying sexually offensive material displaying racially offensive material These are likely only to apply if the employer ought to have known, or did in fact know, that an employee (or in some cases, the customers) of a business would be offended, or it would amount to discrimination. Of course, a single display of only the symbol is not likely, on its own, to create a hostile work environment - it would need to be considered with the rest of the facts - but it can certainly be a contributing factor. It's a bit difficult to list all the situations where similar laws might apply, but this is one of the most prominent (and, to be honest, one of the ones that I'm personally interested in). | It depends. There is a law, 29 USC Ch. 22, which generally prohibits employers from requiring polygraph tests before or during employment. However, there are exceptions. It only limits private employers, not governments; certain private employers are allowed to require such tests. The exemptions are set out here. They broadly fall into "government security concerns" (defense subcontractors etc.), security firms, and drug companies. The penalties to be visited on violators are spelled out here. | It ultimately depends on what Congress said when the relevant law was passed pertaining to that form of discrimination, how the enforcing agency has written the regulations, orders that have been issued, and how the courts have interpreted the law and regulations. EEOC Notice 915.002 states that Under the Americans with Disabilities Act of 1990 (the "ADA"), an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. Such questions must be "job-related and consistent with business necessity". There is a statutory underpinning to this declaration, 42 USC 12112(d) that The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries and Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. except that A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. EEOC also says that In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information. Such inquiries are illegal in the sense that the EEOC "prohibits" it, and in the case of disability there is a direct statutory mandate to prohibit it. There is a legal principle, "Chevron deference", that says that the courts should defer to an agency's interpretation as long as Congress hasn't directly addressed the question and the interpretation is not unreasonable. Title 29(A)(35)(B) states the standards for detecting age discrimination for entities receiving federal funds, and while age discrimination is illegal, asking a person's age is not prohibited by specific regulation. The EEOC provides this manual regarding general race and color discrimination, and the section on "Evaluating employment decisions", where they say determining whether race played a role in the decisionmaking requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative. So asking a person's race is not per se a violation of the law, but it is an act interpreted by the EEOC to be evidence of race discrimination. On the other hand, asking about disability is totally illegal so there's no "totality of evidence" to the process. The footnotes in the manual point to relevant case law: there is no case law that says "asking a questions about a protected category is per se proof of discrimination", but it can be used as part of a pattern of evidence. | 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. | The employer might be liable for a discrimination claim, under the doctrine of disparate impact. See Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc and references cited therein. The idea is that an employer can be liable absent proof of intentional discrimination when a practice disproportionately affects protected classes of individuals, and the practice is not justified by reasonable business considerations. So it would depend on why this particular state of affairs in employment came about. There is a test known as the 80% rule which attempts to quantify the notion of "under-representation" as evidence of discrimination. This test (not widely respected by the courts these days) might constitute evidence of discrimination, if a protected class is demonstrably under-represented. The current standard seems to be by comparison to random selection. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, the court found that a grooming policy had a disparate impact on members of a religion (Sikhism), and was thus contrary to Title VII of the Civil Rights Act of 1964, although a requirement to shave does not obviously discriminate on the basis of religion. This points to an important element of a successful disparate impact claim, that there has to be a policy with a causal effect. In the above scenario, there is no proposed policy that has this effect. Note that the burden of proof is on the person suing for relief – they must have a theory of something the company does that causes this hiring pattern, a practice that is discriminatory. The identified policy (whatever it might be) could be justified by a business necessity defense (Griggs v. Duke Power Co., 401 U.S. 424), by showing that the practice has a demonstrable relationship to the requirements of the job. That, b.t.w., would not excuse a racially or religiously discriminatory hiring policy for a factory manufacturing menorahs or kinaras. If a company recruiting locally in Boise ID had a 75% black work force, it would be reasonable to suspect that something was up. But legally, without showing that this results from a unjustified policy of the company, mere statistically anomalous distribution is does not sustain a claim of discrimination. | See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job. Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure: A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons. If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances. | Welcome to LSE. Here are some answers to your question: No! It's not even close, but something like it is. The OSHA standard you cite is for mercury in the air in the workplace. You ask about "injections," which do not involve mercury in the air, so: this standard does not apply to injections. You ask about "injecting your employees with thiomersal." With only a few exceptions (for those helping diabetics, etc, and emergencies), all states require that licensed health care professionals administer injections, and then, only under a prescription. (For example, thiomersal is mostly used in vaccines. All states require licensed health professionals to administer vaccines.) So: Unless you are a licensed health professional with a prescription, you cannot inject your employees with thiomersal. However, OSHA has interpreted its rules and regulations to allow employees to require vaccines in some circumstances, such as a pandemic. To the extent these vaccines contain thiomersal, employers can require employees to get injected with thiomersal by a licensed health professional. |
Can you take action against a miserable pass-rate of an exam? At my university (germany) recently this happend. The first exam had a failure-rate of 58% (265 paticipants), after the bound to pass was lowered. The second exam had a failure-rate of 93% (111 paticipants). Obviously the exam was in both cases to hard, and in my opinion this is unfair against everyone who took the exam. I want to ask, if you can take an action against such results. I have never witnessed so far an exam where the pass-rate was below 50%, and 93% not passing is just absurd. Can something be done? | No, the result of an exam is not actionable. The court could only make a decision whether legal proceedings were met. However, the grader’s decision whether a particular answer (and thus the overall exam’s result) was correct or incorrect is not legal in nature. There is no German law saying “1 + 1 = 2”. Therefore, the court could not make a ruling on that, nor is it really their task to do so. Similarly, it is not the court’s (or the legal system’s) responsibility to ensure a certain share of students pass the exam. […] 93% not passing is just absurd. Welcome to Germany. Such exams did and do exist. I refer you to the local student’s body (specifically the Fachschaft). They will advocate for (future) students, especially if there are “design flaws” with the class to be found. Unfortunately, if it’s the “examiner’s fault”, there are no other options than finding an amicable solution. Sometimes, students change universities just to pass a certain module. | Before getting into the technical answer to this question it is worth noting that when matters of a constitutional nature are involved then in practice it is not just a matter of a technical "legal" answer. Students and academics like to pose hypothetical questions such as "What would happen if the Queen refused assent to a Bill?" or "If Parliament is supreme, could it abolish the courts?" etc. The practical reality is that a liberal democracy, such as ours, ultimately relies on those in positions of power to respect the democratic conventions and preserve the constitution. When there is a legal angle to some constitutional issue the courts will play their part but, whatever legal analysis their judgments may contain, they will always have in mind the importance of maintaining our democratic system. It is also worth noting that where an Act contains an "ouster" clause (saying that a certificate of X shall not be questioned in any court of law) the courts always find a way to interpret that so that it does not apply in any case where the courts think they should adjudicate! Those preliminaries out of the way, I think the technical legal answer to your question is that first of all the Speaker decides and provides a certificate under s.2(2). You will see that s.2(1) deals with "any other bill" (your third bullet point) and s.2(2) requires a certificate from the Speaker that "the provisions of this section have been duly complied with" (i.e. that it is indeed in the "any other bill" category). Of course there is a further question of whether, if the Speaker gets it wrong, the courts could intervene and exactly how that might happen (the so-called "John Bercow question" of what if a Speaker goes rogue), but the initial technical answer to you question is "the Speaker of the House of Commons". | While German law indeed requires providing correct contact information it does not require the recipient to answer queries. It is there so that you can submit legal notifications. In your case I wouldn't be so sure that the information is not correct. However, even if the contact information is incorrect, there is not much you can do about it. This is reserved to the following groups by § 8 Abs. 3 UWG: every competitor; associations with legal personality which exist for the promotion of commercial or of independent professional interests, so far as a considerable number of entrepreneurs belong thereto, and which distribute goods or services of the same or similar type on the same market, provided such associations are actually in a position, particularly in terms of their personnel, material and financial resources, to pursue the tasks, under their memoranda of association, of promoting commercial or independent professional interests, and so far as the contravention affects the interests of their members; qualified entities that prove that they are entered on the list of qualified entities pursuant to section 4 of the Injunctions Act or on the list of the Commission of the European Communities pursuant to Article 4 of Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumer interests (OJ Number L 166 page 51); Chambers of Industry and Commerce or Craft Chambers. Unless you are a competitor you are out of luck. The hoster or other providers can't do anything and don't need to, as they are not required to check legality of their user's websites. It doesn't really matter where you are by the way for these laws. | Hacking into a computer owned by someone else and accessing the data stored on it without permission is a misdemeanor according to StGB 202a (de|en). But only if it's successful. So a failed attempt isn't a misdemeanor yet. When you notice that someone might have committed a criminal offence (regardless of whether you are a victim or just a witness), then the usual procedure is to report it to the police. If they consider the crime serious enough to investigate, then they will request the identity from the ISP. But the copyright lawsuits which are filed in bulk by law firms working with media companies are not crime reports. They are civil lawsuits. A civil lawsuit is when someone had a tangible damage because of something someone else did, and now they want money in compensation. When there is no damage, then there is nothing to sue for. So when you want a judge to file an injunction to force an ISP to give them the identity of one of their users, then you would first have to explain to them how much financial damage you had because of that person and that this is enough damage to make it worth everyone's time. That might be quite challenging for nothing but a failed SSH login attempt. But it might be possible if a single person made so many login attempts that it incurred you non-negligible bandwidth cost or even caused a denial-of-service. | You are not reading a law book here and you should not interpret a driving test so literally. It's quite clear that the question implies you should follow all of their instructions regarding how to proceed through traffic. Sometimes those instructions do involve "breaking laws" such as driving on the wrong side of the road or proceeding through a traffic signal that was not turned off. The B option clearly does not mean they have the power to disobey all laws in existence, only those concerning traffic as evidenced by the examples given. You are not Sheldon Cooper and you should know how to interpret a vague question correctly. You are also not a gopher, and you can correctly deduce that crashing into another car or driving off the cliff into the water is not in your best interests, and that calling the police to report someone abusing their position is probably a good idea. If you're concerned by the wording, try contacting the California DMV to have them clarify the wording. | 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 | From Private Investigators UK: Polygraph testing is 100 per cent, totally, completely legal in the United Kingdom. However, there are a few conditions. The person undergoing the polygraph exam must be cooperative and willing to take the polygraph. No one can be forced to take one. The person administering the polygraph test must be qualified to do so and must hold a relevant degree and license. These results however, are inadmissible in a court of law. This is because there is a fair chance of the results of a polygraph being inaccurate. Since physiological responses are measured, it is possible that the stress of the situation may cause the examinee to register many false positives. As the results are inadmissible in a court, I think there would be reasonable grounds to claim unfair dismissal if she were sacked because of the test's results. | It's highly unlikely that A would even recognise this as similar. It's really bog standard. A coloured patterned background (in a different colour and with a different pattern). Two buttons. A picture and a testimonial. All things that have been done thousands of times. In the end, it is _copy_right. What exactly is B supposed to have copied? |
Why are legal fees not unconstitutional where equal protection clauses exist? I live in Canada, where the equal protection clause looks like this: Equality Rights Equality before and under law and equal protection and benefit of law 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. But, there are fees to a lawsuit, including things like delivering a Statement of Claim. While, yes there are programs in place to help you with those fees, it won't help you if you above a certain income (over $34,320 a year in province), or even in certain type of lawsuits (for example, you will not receive any legal aid trying to sue someone for defamation) regardless of income. Because of that, when someone injures them or have been negligent towards them, and they could potentially sue for damages, it might be harder for those people to actually go through with the procedures, and even more so for categories like defamation. Also, it is my impression that someone might bring a civil case against people that barely have an average income. In those cases, they seem more likely to, for example, accept to remove the source for a defamation claim, despite everything in the written or recorded statement being true, when compared to wealthier people. And if the situation was reversed, there is a decent chance that they might not even sue. I'm not sure how true it is, but it seems common amongst the people around me that having more money tends to give you a better chance in court, because your lawyer tends to have more experience, a better team around them from being in a bigger law firm, etc. With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make. But, clearly I haven't seen many people in Canada, or any country that I am aware of with an equal protection clause, that legal fees are unconstitutional, and thus should be removed, which leads me to believe that they are probably constitutional. So, why aren't legal fees being a barrier of entry unconstitutional? How does it not go against the equal protection clause? | How does it not go against the equal protection clause? People had argued poverty is an analogous ground but it is not recognized. You may find the arguments outlined in William Head Institution v. Canada (Commissioner of Corrections) useful to respond to your question, but you certainly do not have to agree with those arguments. The main arguments there include The Charter is not a document designed to protect economic rights and freedoms, in so far that "the worth and dignity of the human person" is not threatened. Poor people form a disparate and heterogenous group without a central personal characteristic. The Charter protects "discrete and insular minorities". Poverty is not immutable and changing it does not come with unacceptable personal cost; in fact, most people would be happy to become not poor. It is also necessary to understand section 15 or the constitution is not designed to create a "perfect" society. They must be read in conjunction of social and political "progress" or understandings of the society and interpreted so that it is "practical" and "pragmatic" under such understandings. Directing government policies in minute details are not the role of the constitution or the judiciary. Taking to the extreme, the equal protection requirement could require the government to assess all its policies at an individual level to ensure literally everyone does not benefit more than any other person under any law. But most people do not believe that should be done and it will paralyze essentially all governing activities. As another answer has showed, court fees can be unconstitutional for other reasons. But in general, court fees serve an important purpose to fund the judicial system and encourage non-judicial resolutions of disputes so reasonably compensated judges can have a reasonable caseload; in some sense, the courts are self-serving (but also serve the interests of the society in general so everyone is not suing everyone for every small things). With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make. The above is by no means a justification of barriers of access in the justice system. But it is mostly a political problem that the judiciary should (and does) steer clear of other than for exceptional situations. | when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter & learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters. | You are deeply confused, probably by the blogs of a conspiracy theorist (perhaps discussing the Sovereign Citizen Movement mentioned in the comments), whom it would be helpful for you to reference. In fact, people with and without lawyers claim common law rights in the ordinary courts of the UK every day, in the lion's share of civil lawsuits. For example: There is a common law right to sue for damages when someone breaches a contract by not paying a bill that they owe. A defendant, meanwhile, has a common law right to defend against such a suit on grounds, for example, that the debt has been paid or that the debt is not owed because there was no agreement to pay in the first place. The substantive right of an owner of real property to evict a tenant who breaches a lease arises at common law, even though statutes spell out the process for enforcing that right. Furthermore, the way that ownership of real property is established (i.e. through a chain of title involving purchases by deeds) likewise arises at common law. The defendant meanwhile has a common law defense to a claim for rent for the remainder of the period in a lease after an eviction for failure of the landlord to mitigate damages if the landlord does not make a reasonable effort to find a new tenant. The right to sue someone who negligently caused an accident that injured you is a common law right. | No this is not a violation of discrimination law as there is no official language (de jure) in the United States at the Federal Level even though English, as the most common language is considered the National Language (de facto). Language is not a Federally recognized basis of discrimination for private business (your local state may require it though). Compared to Canada, where all services must be in English or French to comply with their Official Languages being English and French. It could be argued that, given America's very liberal Freedom of Speech laws, that requiring catering to a specific language by law could be challenged as a violation of your First Amendment Rights (after all, if you have freedom of speech, then you should have freedom of speech that others do not understand). Since there is nothing stopping an English Speaking American from learning the language you wish to do business in, nor is it confined to any race or religion (I, as a predominotly European descent, am perfectly capable of learning Arabic... or Japanese... or Navajo...). Where the confusion comes from is that in the United States, courts will often provide a linguistic interpreter for those who are not native English Speakers (even if they are conversational, given how technical legal terms can be, it may people who speak English as a Second Language will avail themselves of this service for the sake of making sure the nuance is properly translated). | Maybe s158 of the Equality Act 2010 allows proportionate action to redress disadvantage, different needs or disproportionately low participation by people with a protected characteristic. For example, woman make up 16.5% of the UK’s engineers. Given they make up more than 50% of the population one could reasonably come to the conclusion that this is disproportionately low. If this was an engineering scholarship, this would fall within the exemption. In contrast, woman are 52% of UK lawyers - not a disproportionate number for either gender and not engaging the exemption. However, female judges are only 39%, arguably disproportionate, so if the course is a post-graduate one preparing people to enter the judiciary, that’s probably ok. Women are 75.5% of teachers, so a scholarship for male students in that profession is ok too. | The question has a false premise: the law does not require defendants to pay for counsel. The right to counsel can be waived. However, the fact that court-appointed counsel are provided only to indigent defendants does seem at odds with the text of the Sixth Amendment. I will explain why the right is limited by reviewing the cases and historical background. Original meaning of the Sixth Amendment Part of the answer is that the Sixth Amendment was (probably) not originally intended to create a right to court-appointed counsel at all. Rather, it reversed the historical rule that people accused of felonies were denied representation even if they could afford it. See Powell v. Alabama, 287 U.S. 45 (1932), at pp 60–69: Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest ... Historically and in practice, in our own country, at least, [the right to a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right. See also Scott v. Illinois, 440 U.S. 367 (1979), at p 370: There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense. Basis of the modern rule As noted in the question, Gideon v. Wainwright, 372 U.S. 335 (1963) is the leading case on this area of law today, but the modern rule was more precisely and recently stated in Scott, at pp 373–374: We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. Note that the rule is not derived directly from the Sixth Amendment (at least insofar as it applies to the States). The Bill of Rights did not apply to the States before the Civil War: Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). After the Reconstruction Amendments, through the process of incorporation, the Supreme Court began to accept that the Fourteenth Amendment's Due Process Clause could entrench substantive rights against the States. The modern rule recognises that any person who is unable to afford a lawyer and who is sentenced to imprisonment without legal representation has been deprived of their liberty without due process of law. It does not establish an absolute right to legal representation. In Scott, after noting that the modern rule went beyond what was guaranteed by the text of the Sixth Amendment (understood in its historical context), the Court held that it did not extend to an indigent defendant who was fined for a petty theft. At p 373, the Court offered the following practical justification for limiting the rule: [W]e believe that the central premise of Argersinger – that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment – is eminently sound, and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. An unconstitutional taking? The Fifth Amendment provides that private property shall not be taken for public use without just compensation. The concept of "taking for public use" is another one that's hard to pin down at the margins, but there's a good summary of the cases available in the section on When Property is Taken in the Constitution Annotated: The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to "direct appropriation, and not to consequential injuries resulting from the exercise of lawful power." Accordingly, a variety of consequential injuries were held not to constitute takings ... Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action ... But the Court also decided long ago that land can be "taken" in the constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently or recurrently. A later formulation was that "[p]roperty is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time." I am not aware of any case in which it was argued that the need to pay for one's own legal representation amounted to a taking for public use. It is certainly a far cry from the compulsory acquisition of land. But perhaps in a case where the defendant is acquitted, or proven innocent, a takings argument could be run by analogy with the cases dealing with innocent people who suffered loss as a result of police execution of search warrants. See Everyone Benefits, Everyone Pays: Does the Fifth Amendment Mandate Compensation When Property is Damaged During the Course of Police Activities? 9 William & Mary Bill of Rights Journal 277 (2000) for more about these cases. | It is not the court's function to educate you in the law and civil procedure. If you don't know then the onus is on you to learn at whatever cost that comes at in time and money. You have a right to justice - you don't have a right to zero cost justice. Just like having a right to bear arms doesn't entitle you to a free gun. | Fee Shifting In Various Jurisdictions Spain (at least as of 1984) has rules on fee shifting (or the lack thereof) very similar to the American rule. The other countries of the E.U. (as of 1984) had rules similar to those of Britain's loser pays rule, although there was significant variation in detail from country to country that made this less of an omnibus statement than it might seem. See Werner Pfenningstorf, "The European Experience With Fee Shifting", 47(1) Law and Contemporary Problems 37 (1984). Most countries with civil law systems (i.e. those systems based upon the civil code tradition of Continental Europe rather than the common law tradition of England or something else entirely) outside of Europe in Africa and Asia are derived from the French Civil Code (most of West, Northwest and Central Africa, for example), or the German Civil Code (Korea and Japan, for example), and probably have followed in the footsteps on their parent legal traditions on this issue. This is also true of most formerly Communist Eastern European countries. Most countries in Spanish speaking Latin America, however, have legal systems derived from the Spanish legal tradition (and national constitutions modeled on that of the U.S.), so other countries besides the U.S. and Spain without automatic fee shifting to a prevailing party are probably located in Latin America. Some of these Latin American countries, however. probably adopted fee shifting rules of their own, and many of these countries declared independence from Spain before Spain adopted its civil code, so the extent to which those countries follow the Spanish model may not be as complete as in countries that gained independence later on. It is also worth noting that, however, in most civil law countries, the fees that an attorney can charge are usually significantly more highly regulated than in the United States, so the possibility of extremely high litigation fees is lower. Furthermore, civil litigation, in general, involves lower attorney fees on average in civil law countries (and in Islamic law and Chinese style Communist countries) than in the United States, in litigated cases, because the process is less attorney resource intensive due to civil procedure differences. So far as I know, fee shifting is also not used in Islamic law countries, where the basic assumption is that the parties are often pro se (i.e. without lawyers) and the institution of a professional legal class post-dates the establishment of the relevant legal rules. I do not know what the situation is in the People's Republic of China or similar legal systems. The American Rule It also bears noting that there are many exceptions to the "American rule" in U.S. law. While the American rule does not shift attorney fees, fees for out of pocket litigation expenses such as filing fees, copying charges, and expert witness fees are shifted as a matter of course to the prevailing party. Most professionally drafted written agreements have fee shifting provisions. Many specific statutes (e.g. civil rights actions and many labor law and consumer rights enforcement cases) also have fee shifting provisions (sometimes one sided, sometimes two sides). Fees can also be awarded in certain kinds of breach of fiduciary duty litigation contexts and in cases involving a dispute over a "common fund". In divorce cases, litigation costs of both sides are often (really usually) allocated by the court in proportion to ability to pay, as "winning" and "losing" are ill defined. The biggest areas where fees shifting would be unusual in the U.S. would be in common law tort lawsuits, such as negligence cases (e.g. automobile accidents and slip and fall cases), strict liability products liability cases, defamation cases, intentional harm cases, and fraud actions. The American rule also applies in cases of oral contracts or contracts drafted by inexpert non-lawyers. Even in those cases various kinds of litigation misconduct can result in fee shifting. In U.S. tort cases, defendants usually have their attorney fees paid for by their insurance company, and plaintiffs often have an attorney paid on a contingent fee basis. Furthermore, awards by juries for non-economic damages and/or punitive damages often makes it possible for a prevailing plaintiff to receive full or nearly full economic loss compensation in such lawsuits, with the non-economic and/or punitive damages awards effectively providing resources to pay the attorney for the plaintiff on top of economic loss compensation for the plaintiff. |
Is it legal to steal a car to save your life when your life is in danger? Person A is bein chased by person B who is carrying a knife. Person A has good reason to believe that if person B catches him, his life will be in danger. As person A runs away, he sees a convertible car with the keys in it. The top is up. He does not know who owns the car. Can he get into the car, start the engine and legally drive away to safety? I am in the United States. | If it is necessary, yes Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm they sought to avoid outweighs the danger of the prohibited conduct they are charged with; (b) they had no reasonable alternative; (c) they ceased to engage in the prohibited conduct as soon as the danger passed; and (d) they themselves did not create the danger they sought to avoid. The necessity defence is recognised in most common law and civil law jurisdictions and in international law. In common law jurisdictions, the “harm” must be some sort of clear and imminent peril to life and safety, such as the situation you describe (although B needs to prove all the elements). In civil law jurisdictions, the peril can be more distant such as the successful defence in 2020 in Switzerland of protesters using it where the threat was climate change. | The legality of the stop may be somewhat up in the air, but it would seem that the vehicle is not in the Texassure database, so it is reasonable to think that the person driving is not insured, and therefore is breaking the law. And that is all that is required: that the suspicion is reasonable. Until someone makes a sufficiently persuasive legal stink about this, it is probably a legal stop. This article gives some legal discussion. One applicable case is US v. Broca-Martinez, a Texas case where a person was pulled over for being "unconfirmed" w.r.t. the insurance database: the court held that this was a reasonable suspicion. Thereafter, a charitable interpretation is that you misunderstood the request in providing your sister's information when he asked for your license and insurance: but you are expected to understand that when they request your license and proofs of insurance, they mean you the driver, and not the car owner. That they is even more suspicious, although I understand your confusion. At your hearing you cane explain why you didn't comply with the first officer's request, and the judge may they chalk this up to a simple misunderstanding rather than intentional deception. The problem is that you are expected to know – whether or not you've ever been pulled over before – that you have to provide license, registration, and proof of insurance. You will have a hard time making it believable that you didn't understand what the officer told you and what the law requires. | A person's property cannot be seized in the US except by due process of law. There is no law that declares the property of a convicted person to be forfeit to the state. A person who is convicted might be subject to a fine, in which case a court could order seizure of property to pay the fine. Your property might also be seized as a result of a civil forfeiture proceeding (where the government sues your property for being the fruit of an illegal enterprise), but that only applies to property believed to be connected to a crime (e.g. purchased with the proceeds of a crime). Civil forfeiture doesn't even require that you be arrested. Barring that circumstance, the person retains their rights to their property. It is then up to them to make suitable arrangements for the protection or disposition of their property. | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? | From a comment on the question: They did damage the trailer door and headlight is smashed This seems like the best thing to focus on, especially if you can show that it was not damaged before they towed it. The unusual method of towing (with video evidence) may be a factor in whether they are considered negligent. If the damage to the door looks like they caused it directly by breaking in, that would also help your case. You also asked in your comment if you should go to the police or to a lawyer first. Might as well go to the lawyer and see what they tell you to do. I'm not sure what the police would do if there is no clear crime that has been committed. (The lawyer should have better advice about whether/why to go to the police.) | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | 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. | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. |
Is there a license like AGPL for datasets and machine learning models? The GNU Affero General Public License is a modified version of the ordinary GNU GPL version 3. It has one added requirement: if you run a modified program on a server and let other users communicate with it there, your server must also allow them to download the source code corresponding to the modified version running there. A lot of machine learning relies on fine-tuning existing models. Is there a license comparable to AGPL designed for datasets and machine learning models? That is, is there a license that if I publish a dataset under it, anyone who trains models with that license must also release their models under such license? ... And requires that any extensions or refinements to the dataset used in training their models must also be published under said license? ... And requires that any models fine-tuned from models that were trained on even one data element from my dataset be published under this license? I suppose if alot of data were under this sort of license, it might provide a caveat to require complex models like gpt-3 to be publically released if OpenAI had accidently trained on a corpus under this license instead of only offering them as a paid black-box service. | The problem is that open source licenses incl AGPL have legal force because copyright prevents copying + modifying software by default (software is treated as a “literary work” and therefore enjoys copyright protection). But copyright on datasets and ML models is very different – if it is even recognized at all. Thus, similar copyleft techniques would only work in particular jurisdictions. For example, the EU recognizes “database rights”. A copyleft license that accounts for this is CC-BY-SA-4.0, meaning that in an EU context, databases based on the original database would have to use the same license. However, database rights are not recognized in the US (facts are not copyrightable, and the “sweat of the brow” doctrine is not recognized). Thus, the CC-BY-SA-4.0 license would not have any copyleft effect with respect to databases in an US context. Independently of copyright in the database as a whole, the data in the database might be copyrighted material, for example if the database contains text or images, complicating matters further. Machine learning models derived from a data set are much more difficult. Clearly, ML models that have been trained are not a creative work and are therefore not eligible for independent copyright protection. At most, it can be argued that the model is an automatically transformed version of the input data, so that copyright in the input data implies copyright in the model.1 Perhaps hyperparameter choices could reflect some creative input. This is very much an active topic of debate. Given this uncertainty, it would be impossible to create a public license that works reliably. 1. An interesting discussion topic is the potential effect on Microsoft's Copilot ML model which was also trained on GPL-licensed source code. Instead of deriving force from copyright law, it would be possible to impose conditions via a contract, i.e. EULA-like terms that only provide access to the material after the terms have been accepted. But again, this is difficult. Contract law differs wildly between jurisdictions. For example, a contract is defined by the “meeting of minds” in some jurisdictions; by offer, acceptance, and consideration in others. But how does such a contract ensure appropriate consideration? How can acceptance be ensured if the material is publicly available? For these reasons, I think that unless broad international agreement emerges about IP protections for machine learning models, such a copyleft system for ML models is impossible. It is worth noting that the lack of such protections is probably quite good for innovation and research, since researchers are free to improve each other's work without legal concerns. The idea of copyleft is a hack to subvert the “everything is forbidden by default” system of copyright, but “everything is allowed by default” might be better.2 2. To continue the Microsoft Copilot example: some copyleft advocates like Bradley M Kuhn are sceptical about Copilot's GPL compliance, but remind us that copyleft maximalism means copyright maximalism, and that this is not the goal of open source. https://sfconservancy.org/blog/2022/feb/03/github-copilot-copyleft-gpl/ | 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. | For the GPL "family" of open source licenses, the answer is no. The GPL FAQ answers a closely related question: I'd like to license my code under the GPL, but I'd also like to make it clear that it can't be used for military and/or commercial uses. Can I do this? (#NoMilitary) No, because those two goals contradict each other. The GNU GPL is designed specifically to prevent the addition of further restrictions. GPLv3 allows a very limited set of them, in section 7, but any other added restriction can be removed by the user. More generally, a license that limits who can use a program, or for what, is not a free software license. I'd also recommend looking into "Why programs must not limit the freedom to run them" (the page linked by the FAQ). Stallman there argues (among other lines) that copyright is about limiting, well, copies rather than running the program. Similar to limiting the production of copies of a book as opposed to restricting what you are allowed to do with the information contained in the book. (I may add: or restricting who is allowed to read it.) Also, "Imagine selling pens with conditions about what you can write with them." (So this is basically the FSF's position) The OSI definition of what requirements a software license must meet in order to be considered open source by them has relevant clauses: Free Redistribution (though this says that anyone can distribute the software, it does not directly talk about restricting to whom the software may be given) No Discrimination Against Persons or Groups No Discrimination Against Fields of Endeavor The OSI has a newsletter post "Open Source responds to the Russia-Ukraine war: First thoughts from the Executive Director", which links to a further discussion on the topic. This is more about politics and ethics than legal questions. However, I think it's relevant in 2 ways: For the situation at hand: They point out that while the open source definitions do not allow the license to have such restrictions, there is nothing that forces you (or a repository provider) to serve "customers" from all regions worldwide. I.e., geoblocking downloads is not prohibited by the FOSS licenses. It does show that there is a discussion on licenses that are somewhat more restrictive than the current open source definitions. As David Siegel points out, there's nothing to keep you from putting such restrictions into a proprietary license. And if there are sufficiently many people who want to do that, we may see "more restricted open source" licenses in the future. (IANAL, but I'd expect there may be limits to what can be restricted in a boilerplate license wrt. anti-discrimination laws.) Independently of what the license allows, people are anyways bound by general law, e.g. sanctions. | Wikipedia is the Licensor who are granting you the license, thus in the text you quoted: You must attribute the work in the manner specified by the author or licensor the manner specified by Wikipedia in the link you gave is the way you must attribute the work. When a person contributes content to a Wikimedia project, they agree to license it under the CC-BY-SA-3.0 license, but they also agree to be attributed "in any of the following fashions... i. [through] hyperlink (where possible) or URL to the article to which you contributed (since each article has a history page that lists all authors and editors)" (see Wikimedia Foundation, "Policy:Terms of Use — 7. Licensing of Content"). See section 1(f) of the License used for the definition of the Licensor | 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. | The Apache 2.0 license purports to be irrevocable, but it also presupposes that the supposed licensor has the right to grant permission to copy. In this case, that is untrue, so there never was a proper license and nothing to revoke (the copyright owner grants permission in the form of "a license" which is a legal abstraction, that normally is specified in the license document). An end-user snared by this illegal license might attempt to sue the author because of the legal screw-up but paragraph 9 says that the supposed licensor cannot be held liable. In this case, though, "licensor" is defined not as the person who hands you the license document, but as the copyright owner. So it's the employer who would be not liable under the terms of the document (but since the employer had nothing to do with the license, it's as though the license never existed). The end-user is a secondary infringer (the employee is the primary infringer, in illegally distributing the material). Under US law, that doesn't matter, the user is still liable. Under UK law, secondary infringement includes the element that you have to have reason to know that the copy is infringing, which in the scenario that you describe is not the case. | But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection. However, if a person gained access to a digital library or collection subject to a TOS agreement which includes "no commercial use" terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. |
Is this a legal way to make money or buy an entire company? A hypothetical very wealthy investor (which could be a large public traded company) feels that the XYZ stock is undervalued. The investor buys about 4% of the company. He then offers to buy the whole company for a 25% premium. He would be happy to buy the company at that price. The management of XYZ would like a higher price but the investor is not offering a higher price so the XYZ company attempts to find another buyer for the company at a higher price. If they succeed, the investor is happy because he made a nice short term profit. If they fail, he gets the company at a price he wants. Is there any legal issues using this approach? | This is very likely to be legal. The devil is in the details (there are lots of forms that are expensive to have lawyers prepare that you have to file with the Securities and Exchange Commission to carry out this plan and the transaction may need to pass anti-trust review and media ownership consolidation requirements to pass muster, for example). But this is pretty much the standard arrangement in a hostile takeover of a publicly held company (except that usually the offer is limited to a majority of the shares outstanding, or whatever percentage is necessary to secure control, rather than all of the outstanding shares of the company, and usually the control premium is a little larger than 26%). In practical reality, the Board will often have put in place a variety of legal measures, sometimes called "poison pills" to allow it to discourage tender offers (which is what these are called) when faced with bidders that management doesn't like, which can be waived for bidders that management does like, and this frequently results in litigation under an expansive and involved body of state corporate like in the Delaware Chancery Court in most cases. But those steps are more often speed bumps than deal killers in these kinds of transactions. The way this plays out in a privately held company, where there is frequently a shareholder's agreement restricting transfers, would be quite different. But the question appears to contemplate a publicly held company scenario/. Also, in practice, even an extremely wealthy investor couldn't afford to make a purchase like that without financial institution support (often in the form of corporate bonds in what is called a "leverage buy out"), or a "committee" of wealthy investors working together. But again, the source of financing doesn't seem to be the main point of this question. | Yes The directors of a company have a fiduciary duty to act within the law for the benefit of their shareholders - not to their customers, not to the government, not to the environment and not to the public. A lawsuit against the company will incur financial loss irrespective of if it is won or lost. It is difficult to see how it is in the shareholder's interest for the company to be enabling the funding of a lawsuit against it. | No If the price advertised is not honoured by the business and you are asked to pay a higher price, you do not have an automatic right to buy the item at the special offer or sale price. As long as the shop or business tells you before you pay that the higher price applies, you have the option to either buy it at the higher price or decide not to. However, the shop or business may be in breach of consumer law in relation to misleading advertising. The prosecution (or not) of the misleading advertising is the government’s task, not yours. This is a common formulation across Common Law jurisdictions as it a codification of the historic common law position. An advertised price is not an offer capable of acceptance, it is an invitation to treat. That is, it is an invitation for you to make them an offer and the price that is likely to be accepted. It is overlaid with later developments in consumer protection surrounding false advertising and misleading and deceptive conduct. | I think you're working off some false premises here. Whatever FMV is in the context of a meeting with Warren Buffet purchased by investors, it's probably different in the context of the U.S. Ambassador to the United Nations. Buffett has little to gain from a meeting with people whose job he's been doing more successfully for half a century. He has more to gain from meeting with high-ranking government officials; this is why political donors frequently drop thousands of dollars to attend a dinner where such officials are speaking, even when there's only an off chance of so much as a handshake. Assuming that a campaign-finance calculation of fair market value is roughly equivalent to that in the tax context, FMV for a lunch with Warren Buffett probably isn't $650,000. Because the Buffet lunch was purchased at a charitable auction, tax law would generally recognize that the price paid was not necessarily an accurate reflection of FMV. Instead, it would acknowledge that some portion of the price -- the amount in excess of FMV -- was actually a charitable gift. That of course still leaves the question of what FMV actually is for a lunch with Warren Buffet. | If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended. However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors. Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina According to the site of the Hutchens Law office: ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity. ... [I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs. ... However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law. In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer. All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes. | They are still in business because they went to the agencies that regulate them and sought exemptions and waivers from the requirements that they not have criminal convictions. Certain highly regulated industries, like the banking and securities (stocks, bonds, etc.) industries require the companies, their executives, and individual people be licensed. Usually, individuals and companies with a history of "bad behavior", are denied licensure. Each industries regulations and laws define what that bad behavior is, but a felony conviction for a financial related crime certainly meets that definition. However, being denied a license or booted from the industry is not automatic. The agencies that enforce these regulations, have the ability to continue to license someone who has a felony conviction. I know I am speaking in general terms, but let us look at the securities industry for a specific example. Under the Investment Company Act of 1940, companies that manage investments/mutual funds, like J.P. Morgan & Chase, Co. must be licensed by the Securities and Exchange Commission. To paraphrase, Section 9(a) of the 1940 Act, it says that individuals cannot control or manage an investment company if they had a felony conviction on the past 10 years. It goes on to state that those same requirements apply to companies meaning they are denied a license. But, section 9(c) allows “people” (which includes companies) that are prohibited from being licensed to get an exemption from these rules through the SEC's administrative process. Here, JP Morgan and the other companies mentioned in the press release are big players in the securities industry. All of them manage mutual funds and buy/sell securities for clients. Therefore, they each applied and received this exemption at the same time or right before they pleaded guilty so it wouldn’t disrupt their business. Here are the administrative orders from the SEC’s website dealing with this exact issue. J.P. Morgan Chase & Co., et al. - Notice of Application and Temporary Order Release No. IC 31613; File No. 812-14466 The permanent order: SEC Release No. IC - 31674 If you’re interested in the law that applies, these orders are a good place to start. Also, here is a less detailed article on this issue in the NY Times. | No, but ... The CEO is an officer of the company (as are the directors and any others with the ability to substantially exercise control over the company) and as such, owes fiduciary duties to the company - not to the shareholders or any subset of them. For example, if it is in the best interests of the company to enter a trading halt but not in the best interests of the current shareholders then the duty on an officer is to do what’s best for the company. As another example, for a crime many limited by guarantee rather than by shares it’s rarely in the owner’s interest to have that guarantee called but it might be in the company’s interest. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. |
Mandate vs Law Distinction I have general concerns about government overreach and encroachments upon liberties. On several occasions during the last two years I've heard people mention that a mandate is not a law. I'd like to understand the distinction. I'd also like to know to what extent mandates are enforceable, eg in a court case scenario. I'm especially interested in the UK, but would also like to understand other countries. | In general, a "mandate" is not a legal term. It can refer to any situation is whch people are "required" to do something, such as wear masks or become vaccinated. A mandate can come from a private business, that imposes rules on customers; it can come from a business that imposes rules on employees, it can come from executive action not directly authorized by any law, it can come from a regulation authorized by some law, or be directly imposed by law. Mandates imposed by law or regulation are likely to be enforceable in court, depending on their exact terms. Mandates imposed by executive action may perhaps be enforced in court. Mandates imposed by private businesses can often be enforced by the business ejecting a customer, refusing to deal with an entity that does not comply, or by disciplining or discharging an employee. In each case the exact terms of the mandate will matter, and may define how it may be enforced. | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | The United States enforces laws on its citizens. This is not true and never has been in the United States or pretty much any other country. Countries exercise authority over anyone in their territory, and over their citizens even if outside their territory. Sometimes countries agree to waive their authority over a tiny number of diplomats voluntarily while retaining the right to expel them from their country, but that is the rare exception and not the rule. So, which country comes closest to actually preserving people’s right to opt out of the state and have a natural right to at least some land? There really aren't any, and the claim that this is a "natural right" is, at a minimum controversial and not widely held. Many countries have areas that they control which are subject to different regulations than most of the country. For example, until recently, Hong Kong was subject to different laws by different authorities than the rest of China, and there continue to be some laws generally applicable in the rest of China which are not applicable in Hong Kong. Until recently, the Panama Canal Zone was a similar example of control of territory within one country being temporarily ceded to another sovereign authority. Guantanamo Bay, Cuba is a third example. Similarly, and with some of the same conceptual framework behind it, the laws that apply in places such as the Channel Islands or the Cayman Islands or Scotland, which are subordinate in legal and political theory to the same King as England is, are permitted by the King and treaties and organic statutes established with the King's symbolic approval, to have laws that are different from those that apply in England. Ultimately, this is simply a form of federalism, although when the extent that the central government's otherwise generally applicable laws can be disregarded quite completely is high, it feels like something more than mere federalism, and is often called a dependency or colonial relationship. Similarly, many countries have "free ports" or "duty free zones" in which their usual taxes don't apply. For example, the U.S. taxation regime that applies in Puerto Rico is different from the U.S. taxation regime that applies within U.S. states. But, even in these cases, there is not an individual right to opt out of laws, there is permission granted by a higher level government for a subordinate level government to adopt laws different from the generally applicable laws of the higher level government. Sometimes the alternative government is democratic, sometimes it is not. Hong Kong, for example, was not self-governing in a meaningful sense until not long before China regained control of the territory at the end of a 99 year concession to the United Kingdom. Some jurisdictions give people subject to their jurisdiction more ability to reach their own legal arrangements contrary to the default rules of law than others. For example, Delaware affords people who create limited liability companies there more authority to deviate from Delaware's default rules of law for limited liability companies than any other U.S. jurisdiction. But this is a far cry from granting people subject to Delaware's jurisdiction generally, freedom to displace mandatory rules of Delaware law in other legal domains such as criminal law. Similarly, sometimes the government will tolerate deviation from binding national laws even when they technical still apply. This has been the story of marijuana legalization in the U.S. and of prostitution legalization in Perth, Australia. But, again, this is an isolated act of tacit toleration in a single subject area, and not a general disavowal of legislative authority. | No For the same reason that requiring a licence to drive might, in some circumstances, result in harm to a person who cannot drive because they don’t have a licence. The city (or any government) has legislative immunity for the laws they put in place even if those laws have negative consequences to some people. All laws have negative consequences to some people, for example, laws against theft are extremely prejudicial to thieves. Similarly, the executive is immune for exercising their discretion in the enforcement of the law. This is the basis of the police not having a general duty to protect. However, police have a specific duty to protect when they have taken an individual into their care and control. | 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. | The general rule is, anything is allowed unless it is forbidden (and not that you can only do things that are expressly permitted). The logical structure of law may be a bit more challenging than procedural programming logic, since it may require a global knowledge and evaluation of the entire code (typically but not absolutely, the scope of the search for "unless otherwise" conditions is restricted to "in this chapter"). In other words, the law is a set of propositions which must all be true, and unlike actual execution of instructions in a sequence, law is to be interpreted simultaneously but hierarchically (that is: the order in which clauses are written is not significant). The appearance that the law is self-contradictory is largely illusory, though the resolution of the conflict may require a careful reading of the law and knowledge of jurisdictional hierarchy (federal law is superior to state law, which entails a particular resolution of the apparent conflict). Sometimes there are real conflicts, which usually result from using words in conflicting ways (note the practice of re-defining words "in this chapter/section/title"). The reason why law is not a science is that law is normative, not descriptive: it dictates what is allowed (a determination made through the political process), and does not attempt to discover what independently is. The reason why the legal process cannot be implemented in software is that software does not yet correctly interpret natural language, and law is written in natural language following interpretations based on judgments of what choices a reasonable would make. Perhaps if you propose a piece of law that you think is contradictory, it would be possible to show how the contradiction is illusory. | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | Gaining UK citizenship at birth would not count, the law stipulates "after having attained the age of 18 years", so it is explicitly ruled out. (Also, gaining UK citizenship at birth involves no formal declaration.) The scout promise would not count. It doesn't involve swearing allegiance to the Queen, only promising to "do your duty to the Queen"; and an American could argue they have no duty to the Queen. (Also, you might well not have repeated it after 18.) On the face of it, the Oath of Allegiance for the OTC would count - it looks pretty much exactly what the law-makers had in mind. On the other hand, the oath is almost exactly the same as that taken by Members of Parliament, and Boris Johnson took it first in 2001 - but didn't renounce his American citizenship until 2017. (Perhaps it wasn't until 2017 that he finally drew the American authorities attention to the fact he had taken the oath.) |
How to unhire a lawyer (US) As suggested by previous commenters here and on money.se, I hired a lawyer to help with issues with my late brother's estate, so that I could sell property we co-owned (joint with right of survivorship) try to get all or part of the money that he borrowed from me. His widow does not intend to open the estate or give me a copy of the will and would not tell me the name of the executor (only that it isn't me and isn't her.) I hired an attorney recommended by the bar association of the county where my late brother resided. He did get me the name of the executor but did not get me a copy of the will despite saying he would do so. I asked twice. What he has done instead is request to handle my father's (larger and more complex) estate, with me as executor. My brother was its executor, but he never opened it. I said I wanted to deal with my brother's estate first, but the lawyer has persisted. Now his secretary is leaving phone messages asking me to fill out the executor forms and charging me $75 (1/4 hour) for every unanswered phone call. I would like to unhire this lawyer, and would like advice on how to do so. | In general, one can dismiss a lawyer at any point by simply informing the lawyer that no further services are wanted or will be paid for. If the lawyr and client have a contract, then any provisions on the contract about termination would need to be followed, unless the lawyer was in materiel breech. It is probably best to make the notice of cancellation in writing, but this is not mandatory unless a contract calls for it. The lawyer can still bill for cervices performed before the cancellation. If the lawyer has already ordered and contracted for services (or goods) to be used in representing the client, and those orders cannot be cancelled, the lawyer may be able to bill for them. Whether discharging the lawyer is wise is a very different question. There might (or might not) be good reason for dealing with the father's estate before that of the brother. But the client can choose what legal services s/he wants, even if the choice is unwise. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! | What should I do? Don't get intimidated, don't sign/accept/submit to his "agreement" now that you are securing employment elsewhere, and make sure that henceforth all your communications with the CEO & his startup be --or continue to be-- in writing. The CEO's attempt to be reimbursed is pure non-sense because hitherto there is no mutually agreed clause between you two to that effect. Generally speaking, compensation is for the professional's work, not for his employment spanning "n" pay periods. Having there been no employment/founders agreement of any type, he will be unable to prove that this was agreed any differently in your case. Furthermore, the CEO's threat to seek reimbursement of your earned compensation unless you submit to his "mutual" agreement not only amounts to extortion, but it also reflects his cluelessness about contract law. For instance, that contracts which are signed under hardship or duress are voidable. By contrast, submitting to his conditions will needlessly impose on you the burden of proving duress once you decide the situation is unsustainable. This is in addition to the legal weight with which your acceptance and subsequent conduct would support the CEO's allegation(s) that you two have "at all times" been in a cognizable contractual relation. Being realistic, it is highly doubtful that a startup which pays you weeks late is able --or even willing-- to spend money on a lawyer for nonsense like this. | Can he/lawyer try to use the payment to me as leverage, for example, offer to give me that payment only if I agree to sign a non-compete or other document? The employer ultimately ought to comply with the written agreements between you two. The employer is not allowed to belatedly impose conditions that alter (to your detriment) the contract(s), let alone when you are no longer his employee. The clause "You will be paid on X and Y when/if they close" does not reflect whatsoever that payment is contingent on your acceptance of a non-compete agreement. Your description does not reflect any legal merits that would justify your employer to further withhold the compensation to which you are entitled pursuant to the deal/sale that got closed. The employer and his lawyer are just being vexatious. | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. | Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help. | Finding S seems to be hard and I have not much hope, if her siblings cannot provide any information. I think the "inhabitants registry" (Einwohnermeldeamt) is not allowed to give you her first address in Spain ("Zuzugsanschrift im Ausland") (§§ 44 and 45 Bundesmeldegesetz (BMG)). The best option I see is a court auction (Zwangsversteigerung), more precise a "Teilungsversteigerung". If one of S's siblings want money for the land, he can ask for a court auction at the local court (Amtsgericht). The court will get S's first address in Spain (§ 34 BMG) and if it cannot deliver its letter to S, there will be a "public delivery" (öffentliche Zustellung) through a posting in court. It would take a while, but in the end the land could be yours. Be prepared that the cost for the court auction will be much higher than the 1000€. If you plan to take this way, ask a lawyer for detailed advice. Also you need one of S's siblings to participate in the process. If the trees are really a danger for your house, the heirs could also have an obligation to remove them. Maybe this could help you too. |
Is fulfilling the duties of a "second" in seppuku a crime in modern Japan? Seppuku is a Japanese suicide ritual by disembowelment that was often used by Samurai to attenuate shame or avoid being captured. The ritual traditionally involves a "second" who would perform a kaishaku - a cut in which the warrior is decapitated. There are many examples of this ritual even in modern Japan. In modern Japan if such a ritual involves the traditional "second" performing the kaishaku, is this treated as a murder where the "second" could be charged, or is death treated as a suicide? | A high profile example of modern seppuku was Yukio Mishima in 1970. His second failed to behead him and committed seppuku too, with both being beheaded by Hiroyasu Koga. A contemporary newspaper article (Sarasota Journal - Jan 6, 1971, "Suicidal Author in 'Hero' Status") noted that, in addition to being charged with crimes as a revolutionary, Koga was charged with "murder by request" (a.k.a. assisting suicide), along with two others present as accomplices. The crime against Koga is that of "murder by request" or "assisting suicide." And, according to precedent, those guilty of "murder by request" receive lighter sentences than those convicted of first-degree murder. Will Koga thus receive a lenient sentence because he merely assisted in another's suicide? Actually, all three survivors will be tried on the charge of "murder by request" on the assumption that all were accomplices to the series of criminal acts on the day of Mishima's death, which include assault, wounding several SDF officials, forcing officials to act, and unlawful incarceration. It seems the sentence was indeed light. Koga was sentenced to four years penal servitude, but was released a few months early for good behavior. As far as I can tell, there have not been any challenges to the law since. | It is constitutional to imprison a person for committing a crime, though I suspect that a life sentence for brawling would be held to be cruel and unusual punishment. It's rather hard to tell what punishments will be held to be cruel and unusual, but 2.5 years for involuntary manslaughter is not unusual. The crime of involuntary manslaughter in Massachusetts does not require any physical aiding. It is unlawful killing unintentionally caused by wanton and reckless conduct... Wanton and reckless conduct is intentional conduct that created a high degree of likelihood that substantial harm will result to another person.... It is conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences of such conduct Whether conduct is wanton and reckless depends either on what the defendant knew or how a reasonable person would have acted knowing what the defendant knew The First Amendment does not give one carte blanche to say anything you want. There are a number of crimes and torts which involve saying something: threatening and extortion, bribing, fraud, incitement to riot, disturbing the peace, defamation, perjury and lying to a government official, and so on. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | 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. | The official clause in question is here: Pecandu Narkotika yang telah cukup umur sebagaimana dimaksud dalam Pasal 55 ayat (2) yang sedang menjalani rehabilitasi medis 2 (dua) kali masa perawatan dokter di rumah sakit dan/atau lembaga rehabilitasi medis yang ditunjuk oleh pemerintah tidak dituntut pidana which unofficially says Narcotics addicts who are old enough as referred to in Article 55 paragraph (2) who are undergoing medical rehabilitation with at least two treatments by doctors in hospitals and / or medical rehabilitation institutions designated by the government shall not be not criminally prosecuted where the italicized part involves some interpolation – a professional legal translator could have a better English rendition. The point is that you have to actually be getting treatment, and it has to be at a facility that is approved (ditunjuk) by the government. Such addicts are not criminally "dituntut", which could cover being charged, indicted, prosecuted or sued, a minor ambiguity resolved by the fact that the prosecutor is the "penuntut umum" (same root word). Under the law, it is not sufficient to just register (report yourself), you have to actually be receiving treatment. The part about "was not sentenced" is just a mistake. | Yes Usually, whoever got their hands on the defendant first would have first crack at it. The second jurisdiction would commonly not prosecute provided that justice was done in the first but they can - double jeopardy is not in play as a bar as they are different legal systems but courts usually apply the spirit that a person shouldn’t be punished twice for the same act. | Many countries of Continental law recognize “desecration”, “deningration” or defamation of the deceased or similar civil or criminal wrongs, the special form of defamation of the deceased and it is ordinary that those who had been relatives to the subject are entitled to press charges. (e.g. Germany (See: §189 “denigration of a deceased person”), Slovakia (See: MAC TV v. Slovakia before the European Court of Justice leaving ambiguity about the extent of legality of defamation-of-the-dead laws under Community law), Greece (See: Penal Code, Article 365, “disparaging the memory of the deceased” etc.) Additionally, the prosecutors may press charges by the operation of law or as a duty of their office if certain conditions are met. One example in detail is the Penal Code of Hungary: Defamation § 226 (1) Whoever states, reports or uses an expression directly referring to a fact capable of defaming the honour of another person, shall be punished for a misdemeanour by imprisonment for up to one year. (2) The penalty shall be imprisonment for up to two years if the defamatory statement a) with malicious motive or purpose, (b) in public, or (c) by causing substantial damage to the merits is committed. Making a false sound or visual recording likely to defame § 226/A (1) Whoever, with the intent to defame the honour of another or others, makes a false, falsified or untrue sound or image recording, if no other offence is committed, shall be punished for a misdemeanour by imprisonment for up to one year. Disclosure to the public of a false sound or image recording likely to defame § 226/B (1) Whoever, with the intention of defaming the honour of another or others, makes available a false, falsified or untrue sound or image recording, shall be punished by a misdemeanour with imprisonment of up to two years. (2) The penalty for a felony shall be imprisonment for up to three years if the offence is (a) in public, or (b) by causing substantial damage to the interests of is committed. Dishonoring § 227 (1) A person who, against another person other than those specified in § 226 a) in connection with the performance of the victim's duties in the exercise of his or her employment, public office or activity in the public interest, or b) in public uses an expression capable of defaming the honour or commits any other such act, shall be punishable for a misdemeanour by imprisonment for up to one year. (2) A person who commits defamation by an act of deed shall be punishable under subsection (1). Desecration (“Kegyeletsértés”) § 228 Whoever desecrates a dead person or his memory in the manner specified in §§ 226 or 227 shall be punished for a misdemeanor with the punishment specified therein. In the case of Hungary, one, including especially a surviving relative, may also step up as a substitutive civil prosecutor and file a motion with the court for criminal charges to be filed in case the public prosecutor fails or refuses to press charges. This is true despite freedom-of-speech rights. In the U.S., some states allow for libel and/or slander claims to go forward and be brought against one who engage in such or similar conduct (e.g. Rhode Island, Texas etc.) Many Asian countries also recognize both the civil and criminal forms of such acts (e.g. the Philippines, Thailand etc.) | Since we don't have a system of robot justice, it's impossible to say whether a prosecutor would file charges in this bizarre circumstance, since filing charges is discretionary. However, this situation does fit the description of murder. It is intentional, it causes death (maybe, vide infra), it is not legally justified (as self-defense, or as an act legally sanctioned by a state executioner), the victim is a person. It is not sanctioned by any "death with dignity" statute. The one issue that might be effectively argued by the defense assuming the irrefutability of the factual claims of your scenario is that perhaps the relevant crime is assault with a deadly weapon, since it probably could not be proven beyond a reasonable doubt that the victim died from the shooting, and not from being incinerated by lava. It depends on where the person is shot, and with what. |
Can Russian TV personalities who knowingly lie about Ukrainians to promote violence be held accountable for the war crimes? Can popular media personalities who promote violence be held accountable if their propaganda was acted upon? Could they be held accountable if they promoted violence on the behest of their government? To clarify the question, here are two examples with different outcomes: Leni Riefenstahl was instrumental in Nazi propaganda, including propaganda directed against Jews prior and during the Holocaust. Although she was arrested, in the end her role was classified as "fellow traveler" and she lived free into the 21st century. Hassan Ngeze of RTLM called for extermination of Tutsis in Rwanda. His broadcasts caused numerous Tutsis being murdered. He was subseqently convicted as a war criminal. Since 2014 Russian state-controlled TV broadcasters were spreading vicious rumors against Ukrainians, successfully convincing Russian population that Ukrainians were evil. There's no doubt that they spread the lies knowingly; there is even a direct testimony about that now. Thus the question: could Russian TV personalities who promote violence against Ukrainians be held criminally responsible for the war crimes? | Can popular media personalities who promote violence be held accountable if their propaganda was acted upon? Could they be held accountable if they promoted violence on the behest of their government? Probably not. Merely inciting violence or supporting a war, particularly once the war has begun, is usually not a war crime, even in cases where it is illegal activity on other grounds. Also, in Russia, it is fair to conclude that popular media personalities are not at liberty to speak freely and truthfully about this subject. They face duress and retaliation for failing to "toe the party line" in a regime with a well established pattern and practice of punishing journalists, sometimes with death or prolonged imprisonment, for failing to enthusiastically support government positions on key issue like a war currently being prosecuted by the Russian government. In this respect, a Russian popular media personality is not in a similar position to Rwandan inciters of the Tutsi genocide. In Rwanda, the personalities promoting the violence were basically the masterminds of the mass violence, rather than merely people complying with government imposed mandates upon them that were primarily initiated and organized by government officials whom the Russian personalities have to obey. | Is it true that a suit of defamation could require “very little effort”? No. Definitely not. The Wikipedia article (and understandably the comment on which it is premised) leaves out many details about substantive and procedural law which are essential in US jurisdictions. For instance, the [Wikipedia] item of "1. accusing someone of a crime" is insufficient for the falsehoods to be considered defamation per se. The crime of which one is falsely accused needs to be considered an infamous crime or involve moral turpitude. Under [US] defamation law, a crime is deemed serious or infamous when it is classified as felony or its punishment could exceed one year of prison. The case law cited in Lakin v. Rund, 896 N.W.2d 76 (2016) reflects how this criterion is uniform among US jurisdictions. Another difficult issue in defamation lawsuits is the need to prove the defendant's mental state known as actual malice. Even where there is clear proof of a defamer's actual malice, a plaintiff can be denied justice because of judge's arbitrary choice to side with the defendant (just like with non-defamation lawsuits). For case law from various jurisdictions regarding defamation law and actual malice, you might want to see the citations in my briefs in the SCOTUS here and here. Most of the records in regard to the latter case are available here. Defamation lawsuits are not exempt of having to comply with the procedural laws involved in judicial proceedings either, nor is the discovery, drafting, or legal research any simpler for being a lawsuit about defamation. In the context of the comments that prompted your question here, the "repeated violations" that SE imputed to former moderator Monica would hardly be grounds for a viable lawsuit against SE for defamation per se or otherwise. Here are some reasons: Rejecting a policy of gender pronouns such as the one SE seeks to impose is not considered an infamous crime. There is no legislation to that effect, at least yet. An actual refusal to adhere to that policy hardly involves moral turpitude. Far from involving corruption (i.e., moral turpitude), the controversy about gender pronouns touches on some of a person's deepest beliefs. Thus, the "offense" of opposing such a policy cannot be said to constitute an act of moral turpitude. The previous two items rule out a viable claim of defamation per se. Thus, Monica would have to prove that SE's falsehoods about her (whatever they are) caused her concrete losses (a typical example is lost income) by prompting others to dissociate from her. I am unaware of whether Monica's situation would fit in this scenario. You are right in that a claim of mental distress is not viable either. Note from here or here that in a claim of Intentional Infliction of Emotional Distress (IIED) (1) the conduct must be intentional and reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe Any claims of harassment that might be available to Monica would not be against SE, but against the specific individuals who engaged in harassing her directly. Depending on the methods and severity of the harassment, Monica might be able to obtain injunctive relief --typically in the form of restraining orders-- against those specific individuals. It is noteworthy that not all criticism or heckling at or about Monica would be cognizable as harassment. | There is no exhaustive list of material banned specifically in WhatsApp profile pictures, but there is an exhaustive list of crimes that § 140 StGB applies to: Whoever rewards or approves of publicly, in a meeting or by disseminating material (section 11 (3)) in a manner which is suitable for causing a disturbance of the public peace one of the unlawful acts referred to in section 138 (1) nos. 2 to 4 and no. 5 last alternative and in section 126 (1) or an unlawful act under section 176 (3), sections 176a and 176b, under section 177 (4) to (8) or section 178 after it has been committed or culpably attempted incurs a penalty of imprisonment for a term not exceeding three years or a fine. In turn, sections 138 and 126 enumerate various crimes, whereas the other mentioned sections relate to (child) sexual abuse. Section 138 (1) no. 5 lists: murder under specific aggravating circumstances (section 211) or murder (section 212) or genocide (section 6 of the Code of Crimes against International Law) or a crime against humanity (section 7 of the Code of Crimes against International Law) or a war crime (section 8, 9, 10, 11 or 12 of the Code of Crimes against International Law) or a crime of aggression (section 13 of the Code of Crimes against International Law) The last alternative is indeed a “crime of aggression” which is defined in particular as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. In Germany, there is a clear consensus that Russia is waging a war of aggression against Ukraine. The “Z” symbol is used in a Russian context in support of this invasion. It is therefore understandable that a prosecutor has the reasonable suspicion that publicly posting a Russian flag with the Z symbol is public approval of this crime of aggression. Spiegel Online reported of 140 similar cases across Germany. Thus, the photo could be real. Of course, the accused should not accept this invitation to talk to the police and instead get themselves a criminal defense attorney. A defense strategy would likely argue that the profile picture was not “suitable for causing a disturbance of the public peace” so that the conditions of § 140 StGB were not fulfilled. More realistically, the defendant would not contest a fine. | There is no systemic process by which convictions of crime in Germany (at all, let alone for misdemeanors) are reported to authorities in Canada. This said, a Canadian charged with a crime in Germany has a right to consular assistance (i.e. to call upon the Canadian embassy for help). And, if the Canadian actually does obtain assistance from the Canadian government in defense of criminal charges and is convicted anyway, obviously, a Canadian government official will know about it. I don't know if Canadian diplomats who provide consular assistance who learn of criminal convictions of Canadians abroad report those convictions to criminal record database record keepers in Canada, although I suspect that they do not. | They committed the crime of providing material support for terrorism Specifically, 18 U.S. Code 2339A and 2339B. "Material support" is defined so broadly that it captures maintaining the household of an Islamic State fighter. Most countries have similar laws and they are all equally problematical as to their legitimacy. Basically, such people are a giant pain in the ass to their governments and so, their governments are generally content to let them rot in Syrian refugee camps so they don't have to deal with them. | 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. | Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time. | The "felony murder" doctrine, which applies in most of the U.S. (including California), holds criminals engaged in "dangerous felonies" responsible for any deaths that occur during the commission of such crimes. In the given example, the hostage taker and anyone who is an accessory to that aggravated assault would, if convicted, also be guilty of murder for deaths that occurred in connection with the incident, regardless of their intent. |
The parties in an appealed criminal case I have a question with regards to the parties of a criminal case on appeal. In a civil case for example, Adam v Seaside Holdings Ltd, the parties are: Appellant: Adam Respondent: Seaside Holdings Ltd But what about criminal cases? For example, R v Adam Appellant: Adam Respondent: Regina (Crown Prosecution Service) Am I right to state that Regina (Crown Prosecution Service) is the respondent for the appealed case of R v Adam? | "Regina" or "R" or "The Crown" or "The Queen" is the respondent. These are different ways of expressing the same concept. However, it is not typical to name "Crown Prosecution Service" in the citation, or the formal heading of the case. This differs from Scottish practice where appeals look like "Adam v HM Advocate". Other public prosecutions can be brought by bodies other than CPS, such as the Health and Safety Executive, so R does not invariably mean the CPS. For England and Wales, the philosophy is that criminal prosecutions are brought by the Crown as the fount of justice, and maintained as such on appeal, and it so happens that the interests of the public are represented by agencies such as the CPS. They are not representing their own interests and are not parties to the case. We do see "Adam v Crown Prosecution Service" in judicial review cases, which are civil rather than criminal. For example, SXH v Crown Prosecution Service [2017] UKSC 30 was about challenging the CPS's decision on whether to prosecute somebody. An "appeal by way of case stated" may also arise in this way, where there is a point of law to be decided in the Administrative Court of Queen's Bench, such as Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin). The DPP is the head of the CPS. The distinction is that a judicial review is about whether the public body's decisions were lawful - they are the ones being scrutinized - whereas in a criminal case, the prosecution is mounted on behalf of the public in general, with the CPS merely happening to be the agency usually responsible. Equally, the CPS can be a party to employment disputes and things like that. "R (Crown Prosecution Service)" looks a little unusual because "R (Somebody) v Anotherbody" usually means a judicial review on behalf of the Somebody, against Anotherbody, with the R being a vestige of the historical basis for this kind of review. It would be odd for the CPS to be in that position. If you look through recent Court of Appeal judgements you will see some variations in presentation, but a common pattern of saying something like this: In the Court of Appeal (Criminal Division) On appeal from Oxford Crown Court Mr Justice Glossop Before: Lord Justice Tibbs Mrs Justice Bloggs Mr Justice Dubbs Between: Regina (Respondent) and Adam (Appellant) B Smith (instructed by Appeals-R-Us Solicitors) for the Appellant C Jones QC (instructed by Crown Prosecution Service) for the Respondent | Police continue to investigate Following an acquittal, there are two possible positions for the police: they are certain the acquitted person performed the act but they were not guilty (for all sorts of reasons). The investigation is closed because although the police know who did it, there was no criminality due to the not guilty verdict. The evidence in the court shows that the accused did not commit the act. Ergo, someone else did. The police will keep looking for that someone else. Note that the proposed scenario is highly dangerous for you. First, the exculpatory evidence may be inadmissible, particularly if it is an alibi (see Can I surprise the prosecution with an alibi defense at trial?). To rely on an an alibi defence, it must be raised with the prosecution before the trial. You would have to have said that you were where the phone footage was shot before the trial starts and the police may have therefore discounted you as a suspect from the get go. Second, you are now committing a crime, usually called an attempt to pervert the course of justice and this action may also make you an accomplice to the murder after the fact. You beat the rap on the murder and then spend a lot of time in prison for those two. | 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. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | The appellate court gets the trial transcript which includes all the testimony (and exhibits or descriptions/photos of them) and the trial court's rulings. Also, each side presents an appeal brief, which will generally include a statement of facts, pointing out ones it thinks favorable to its views. In civil cases a jury may be asked/instructed to give yes/no answers to a series of questions, but this is not normal in criminal cases. An appellate court can (and sometimes does) rule that there was not sufficient evidence to permit any reasonable jury to convict; to that extent it can rule on questions of fact. But, as the comment by ohwilleke mentions, an appellate court does not hear new evidence. It can overturn the conviction and send the case back for a new trial, and in such a new trial additional evidence may be introduce at the trial court level. | england-and-wales Admission of the confession is at the discretion of the court PACE s78 gives the court the discretion to decide on the admissibility of confessions obtained if it appears to the court that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." There is deliberately no case law guidance on this. Superior courts in the UK have been scrupulous in saying that each case turns on its merits. The “circumstances in which the evidence was obtained” are certainly suss and would not be permitted by a police officer who is required to warn the suspect and advise them of their right to silence. However, that is not sufficient to exclude the evidence. The court also needs to consider whether it would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the confession is the only evidence then admitting it would clearly be unfair. However, if the Crown has mountains of other evidence, then the confession may only have a small probative value. There is no “fruit of the poisonous tree” doctrine in the UK Far more likely is that the Crown would not even seek to introduce the confession. It would just slow the trial and give the defence grounds for an appeal. Instead, they would use the confession to inform their investigation and get other evidence to convict. Legal privilege In England and Wales, legal advice privilege only applies where there is a lawyer present. If Badal is a lawyer, then the privilege attaches; if he isn’t then it doesn’t, irrespective of what he led Naina to believe. The same would be true even if Badal believed he was a lawyer but, for some reason, was not licenced in E&W. Litigation privilege is a broader concept and covers all advice, including from non-lawyers, where litigation (including criminal prosecution) has commenced or is reasonably likely. Based on the description, Naina has been committed to stand trial so everything she said is covered by privilege and is inadmissible. Why bother doing this? Most criminals are not sophisticated and will often implicate themselves if you give them enough space without the police or others violating any rules. Anecdotally, I have a relative who was a psychologist for a remand prison - prisoners charged but not yet tried. At the start of every meeting with a prisoner they would say “I work for the state, nothing you say is confidential and it can be used against you” - they still had prisoners confess to crimes they weren’t charged with, name accomplices, and tell where the loot was hidden. | Evidence of pre-trial correspondence can be adduced if it is relevant to a fact in issue, and not excluded by another rule of evidence. Commonly, pre-trial correspondence is not relevant to a fact in issue, because it consists of legal argument and rhetoric. In other words, the letter is a solicitor's inadmissible opinion. And when pre-trial correspondence does set out the facts, it is often in inadmissible hearsay form. Pre-trial correspondence is also likely to attract without prejudice privilege (if sent to the other side in an attempt to negotiate a settlement) or legal professional privilege (if private between a party and their lawyer). For all of these reasons, pre-trial correspondence is not usually considered by a judge or jury at trial. However, in some circumstances pre-trial correspondence is admissible, typically as an admission, prior consistent statement or prior inconsistent statement. Depending on the facts which make the correspondence relevant and admissible, it may also be appropriate to cross-examine the client, a director or other agent of the client who instructed the solicitor, or the solicitor, about it. In some cases, a client may be cross-examined about a prior statement of their solicitor on the basis that the solicitor would not have made the statement without the client's authority, and would have relied on the client's instructions. If the court accepts that a prior inconsistent statement was made with the client's approval, this may damage their credibility. If the client asserts legal professional privilege, or testifies that their lawyer acted without instructions, difficult questions arise. Some of these questions were explored by the High Court of Australia in Hofer v The Queen [2021] HCA 36. Lawyers and judges will try to conduct cases in a way which avoids these procedural challenges, if at all possible. In rare cases, a lawyer may be called to give evidence about whether a previous representation was actually made or authorised. This is, for example, the purpose of having a solicitor or other reputable professional witness formal documents. Barristers should take special care not to place themselves at risk of becoming a witness, but in exceptional cases where the client waives legal professional privilege, they can also be required to give evidence about the client's previous instructions. Perhaps unsurprisingly, this comes up more often in criminal law. The decision in Hofer was an appeal from the New South Wales Court of Criminal Appeal, which had received evidence from a barrister about the reasons for making decisions during the appellant's criminal trial. Conversely, the Court of Appeal of England and Wales dismissed an application for leave to cross-examine a solicitor, by applying the rules of evidence concerning prior consistent statements, in Hall v The Queen [2015] EWCA Crim 581. | They can still be sued - they just can’t be found liable For example, as an adjudicator, I have immunity for acts and omissions done in good faith as an adjudicator. A suit could be brought alleging lack of good faith and/or acting as other than an adjudicator. If these were proved (and barring corruption it’s a very high bar) the adjudicator would be liable. However, adjudicators are often joined with the claimant (usually the Respondent is the plaintiff) and the ANA (Authorised Nominating Authority - the organisation that appointed the adjudicator, who also have immunity) not so they can be held liable but so that they can be subpoenaed and forced to give evidence - if they aren’t parties to the suit they can refuse to do this. My standard response when this happens is to write to the court saying “I submit to the decision of the court save as to costs” meaning I am not going to contest anything unless you try to make me pay costs - which I don’t have immunity from. |
If a minor requested a doctor prescribe her birth control, can she demand the doctor not disclose her request to her parents? Let's say a 16 year old girl manages to speak to her doctor in private during a regular appointment and requests birth control. She is afraid her parents would respond poorly to knowing she is considering sexual intercourse, and so requests the doctor make up some other excuse for prescribing the medicine, such as to regulate or manage her periods. I assume the doctor has the right to decline to make up an excuse for the prescription, and in absence of doctor being willing to justify it a minor may not request the prescription since their parents may guess on the reason for it. Aside from that though I'm more wondering can the doctor inform her parents of her request, and that she is considering sexual activity? Legally does she have a legal right to demand her request be kept private from her legal guardians? Assume the minor is living with her parents and hasn't been emancipated. | united-statestexas In the US, it depends on the consent-to-treat laws of the state. In Washington, under RCW 9.02.100, everybody has a right to reproductive privacy (be it contraceptives or abortions). Under the federal HIPAA privacy rule, the minor requesting contraceptives would therefore be "the individual", which means that disclosure to others requires consent from the patient. Given the supremacy clause, that's all she wrote for Washington. The majority of states similarly allow 16 year olds to request contraceptives. Texas Family Code §32.003 spells out the conditions where a minor can consent to their own medical treatment, which does not include the situation you describe, therefore parental consent would be required (which clearly implies parental notification). Furthermore, that law also says (d) A licensed physician, dentist, or psychologist may, with or without the consent of a child who is a patient, advise the parents, managing conservator, or guardian of the child of the treatment given to or needed by the child. Therefore in Texas there is no prohibition against informing the parent(s). (Note that in the Texas Family Code, "child" is a synonym for "minor", so this also applies to teenagers, not just small children.) Carey v. Population Services Int'l, 431 U.S. 678 is an important ruling regarding the rights of minors to make their own decisions regarding contraception, but it does not go so far as to declare that minors have a constitutional right to give consent to the requisite medical examination. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | Is it true that men are forced to pay child support for children they didn't consent to having? Yes. This is true in every U.S. jurisdiction, in the U.K., and in every jurisdiction of which I am aware in the E.U., and it is the rule in many other jurisdictions. The duty to pay child support in these jurisdictions flows from the relationship between the father and the child, and is not a contractual concept based upon consent. The primary exceptions to this general rule are cases where a parental relationship is legally terminated (e.g., in connection with the adoption of a child born out of wedlock), and cases in which someone becomes a sperm donor in a statutorily authorized arrangement that generally does not involve sexual intercourse. Historically, roughly speaking in the early 19th century, and earlier in English common law, and most other European and European-colonist jurisdictions, a man only had a duty to support the children of his wife or the children of his deceased former wife if he was a widower. Even further back, in the Roman empire from which the foundations of Roman civil law were derived, a father had a right in his sole and absolute discretion to commit infanticide, killing his infant children, a right which was a major political issue in the Roman empire from sometime in the 100s CE until it collapsed. Some jurisdictions, such as Japan, only established a legal duty to pay child support to a custodial parent in any circumstances in the late 20th century, although those jurisdictions still recognized the legal duty of a father to support a child in his custody. It is also worth noting that women in every country of which I am aware have a duty to support the children to which they give birth, whether or not they consented to impregnation (e.g. even if they were raped), or to giving birth (e.g. even if they wanted an abortion but were denied access to abortion by law or otherwise). This support obligation persists in almost every case, even if the woman's child is in the custody of another parent or guardian, and a woman is much more likely to face criminal prosecution for failure to support her child than an uninvolved father (although criminal prosecutions of men for non-support do happen). So, the claim that this constitutes sex discrimination is ill-founded. | The concept of "controlled substances" has a special meaning, and stems from the Comprehensive Drug Abuse Prevention and Control Act of 1970, resulting in Chapter 13 of Title 21. Ordinary presecription drugs are the result of an older act, the Federal Food, Drug, and Cosmetic Act, which is also implemented in Title 21. The basic distinction is the difference between "potential for abuse" vs other stuff, and potential for abuse was the historically first desideratum in restricting pharmaceuticals in the old days. There are 5 "schedules" (lists) regarding controlled substances, ranging from the absolutely forbidden Schedule 1 (weed, 1-pentyl-3-[1-(4-methoxynaphthoyl)]indole which probably has a shorter street name) down to Schedule V small doses of opium. Pharmaceuticals fall into three categories: over-the-counter, prescription, and controlled. Things like ibuprofen over 200 mg is not a "controlled substance" though does require a prescription, as do anti-cholesterol drugs (since they are thought to pose "some risk"). There are also completely unregulated substances, such as green tea, olive oil, vitamin c, which so far are not subject to federal regulation (since they have not been deemed to pose a risk). OTC substances can be bought without special hoops, though they cannot be marketed without passing through hoops. Prescription and controlled require a prescription from a DEA-authorized physician. Ephedrine and pseudephedrine are a recent zombie class of pharmaceutical which do not require prescription, but are subject to purchase quotas. Controlled substances are subject to much higher levels of scrutiny, to ascertain that the prescription is legitimate and the recipient is the intended recipient; there are also stricter laws about possible justifications for prescribing regular prescription drugs vs. those on one of the 5 schedules. (And the rules are different for the 5 schedules). It is generally unknown whether doctors can prescribe non-prescription pharmaceuticals, in order to shift the cost to insurance. There is no specific statute prohibiting that, but doctors are also subject to contractual restrictions between themselves and the insurance networks they deal with, so they may have agreed to not engage in such conduct. As far as I can tell, it is not actually illegal for a doctor to write a prescription for OTC Tylenol. | 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). | Some interesting reasoning about standing aside (which antivaxxers etc. will love though, because it stipulates that the FDA refusing to collect all side effects statistics [even starting 16 years later] gives standing to sue on the original approval), the Texas' judge estimation of success on the merits is essentially relying on the finding that "Pregnancy is not an illness" (p. 40) and essentially repeated on p. 44 as "Chemical Abortion Drugs do not provide a Meaningful Therapeutic Benefit", so that in the Judge's estimation drugs for terminating pregnancy can be held to a [much] higher safety standard than the FDA decided by itself. This ultimately phrased as (p. 57): The Court does not second-guess FDA's decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions. It's followed by another finding that there was likely political interference by the Clinton administration with the FDA's decision. This a rather partial summary since the order involves several FDA decisions, the details of which which I'm glossing over here (like the fact that the decision to not collect all side effects stats for mifepristone is rather more recent, being taken in 2016--but nonetheless the judge found that consequently the original 2000 decision was reopened as well, and can the object of the suit too.) | 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. | In the UK, male circumcision is legal, and only requires 2 things: That consent is obtained, if the subject is too young to give informed consent, the parent can give it. The caveat here is that you have to be able to give parental consent. Simply being the biological father is not enough, an unmarried father is not automatically given "parental responsibility" and must be obtained through courts. That the procedure is performed by a "competent person". This is not necessarily a doctor There also needs to be a consent with both parents. One case in the UK involved a Muslim father wanting to circumcise his son. The mother disagreed and the court upheld the refusal of permission to perform the procedure until the child was of age to decide for themselves. For many, this is a matter of faith, such as with Muslim and Jewish communities. In Jewish communities, the circumcision (a ceremony called a "Bris" or b'rit milah) and the circumcision is either performed by the father or his representative, but is almost always performed by somebody trained in the procedure, dictated by the "mohel" and are usually physicians... Either way, written consent is not required, there are no documents to sign, forms to mail in to the government, etc. The only things that need to happen is that parent(s) who have parental responsibility must agree and consent, and that the procedure be performed by a "competent person". |
Using a Bivens Remedy/Claim I think I understand the fundamentals of Bivens v. Six Unknown Fed. Narcotics Agents. My understanding is that Bivens created a cause of action for the 4th Amendment. Without the cause of action, you wouldn't be able to sue federal officials for violating the 4th Amendment. Now, my question is this: Before Bivens was ruled, how would you sue a government official in court for a constitutional violation, as there was no cause of action? According to my knowledge, the Supreme Court has only afforded a cause of action similar to that of Bivens to some amendments. Now, if I wanted to sue a government official for violating the 1st amendment (which, to my understanding, does not have an implied cause of action similar to that of Bivens), how would that work? I'm generally very confused about how this all works and interacts with each other. Bivens: https://supreme.justia.com/cases/federal/us/403/388/#tab-opinion-1949369 | The case is Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Liability under Bivens applies to federal agents who violate a direct constitutional right in a similar way that state officials, or others acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" may be sued under 42 USC § 1983 for any action that causes "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws". Section 1983 does not apply to persons acting under federal laws, and thus Bivens becomes a counterpart. It is true that Bivens applies directly to the Fourth Amendment. But it quotes favorably Bell v. Hood, 327 U. S. 678 (1946), specifically the passages: where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief [at page 684] and it is . . . well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. [also at page 684] Neither of these passages singles out the fourth amendment. Nor does the logic of Bivens depend on anything specific to the Fourth amendment, as opposed to the Fifth, the Sixth, or the First. I don't know if a case has been brought under Bivens alleging violation of these or other federal constitutional provisions granting specific rights to individuals. The logic of Bivens would require a firm and clear grant of rights, but, for example the Due Process Clause of the fifth is such a grant. If the courts were to hold that a particular claim could not be brought under Bivens because the Supreme Court has not authorized such an extension of Bivens, then Bivens itself describes an alternate procedure. The opinion points out that: [at Pages 390-391] petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme, the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them, and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision, respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law. This procedure the Court rejected in Bivens as unneeded, but it did not say that such a procedure could not be followed. I would think that the logic of Bivensshould extend to the invasion, by federal officials (other than judicial officers), of any right explicitly and specifically granted to individuals under the constitution. But one can never tell how the courts will react when asked to extend a previous decision. The Bivens did not createa cause of action, or at least it did not purport to do so. It simply held that the longstanding rights grantef under the Fourth Amendment could result in money damages even n the absence of a specific statute providing for such damages. The Bivens Court wrote: [at Page 403 U. S. 402] The contention that the federal courts are powerless to accord a litigant damage for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute. J. I. Case Co. v. Borak, 377 U. S. 426 (1964); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210, 323 U. S. 213 (1944). Cf. Wyandotte Transportation Co. v. United States, 389 U. S. 191, 389 U. S. 201-204 (1967) The OP wrote in a comment: What's the point of Bivens if causes of action still exist for amendments like the 1st Amendment, that are not part of Bivens? What's the difference between suing somebody under the 4th amendment through Bivens, and suing somebody under the 1st amendment? This is merely a matter of terminology. If the US Supreme Court now recognizes a right to sue for money damages directly under the First Amendment, that will be called "an extension of Bivens". If it rules that such a suit would need a new law from Congress to authorize it (as Sec 1983 authorizes suits against state officials), that would be cal;led "refusing to extend Bivens. All suits for damages directly under a constitutional provision where there is no specific federal law authorizing money damages are now called Bivens suits, because that is the case that specifically held that such damages were permitted without such a law. | In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine." | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states. Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power. Congress legally could have prohibited interstate commerce in slaves. Congress could have repealed the Fugitive Slave Act. Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition. A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there). Congress could have passed laws requiring negro votes to be counted in federal elections. Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them. But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | The closest the Supreme Court has gotten to criminal liability for official acts seems to be Nixon v. Fitzgerald, 457 U.S. 731 (1982). There it addressed civil liability and held that the U.S. President "is entitled to absolute immunity from damages liability predicated on his official acts." It's unclear how the Justices would decide criminal liability for official acts. (Though some might argue that non-precedential logic in Fitzgerald suggests the Court could extend immunity to the criminal context as well.) As to homicide, murder and manslaughter are federal crimes. See 18 U.S.C. §§ 1111–1112. The latter involves the commission "of a lawful act which might produce death" "without due caution and circumspection." | We look first to the Hutaree prosecution of 2012, US v. Stone where defendants were charged with seditious conspiracy: Specifically, the Government charges Defendants with conspiring to “oppose by force the authority” of the United States Government. Essential to that charge, Defendants must have agreed to oppose some positive assertion of authority by the United States Government; mere violations of the law do not suffice. Baldwin v. Franks, 120 U.S. 678, 693 (1887). In Baldwin, SCOTUS found (emphasis added) that All, therefore, depends on that part of the section which provides a punishment for ‘opposing’ by force the authority of the United States . . . . This evidently implies force against the government as a government. To constitute an offense under the first clause, the authority of the government must be opposed; that is to say, force must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority. | You're looking for the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This prohibits the police from harassing you and stopping you without cause. It is not self-enforcing, though, so you can sue for a violation under 42 USC 1983: 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. This is the normal means of enforcing your rights under the Fourth Amendment, as well as the First, Second, and so on. |
In a copyright statement, should the year or copyright holder go first? I have seen both of the following formats used: Copyright © Some Company 2021-2022 Copyright © 2021-2022 Some Company Which one of these is correct? Which should go first? If both are valid, are there situations in which one is preferred? | In the US, the relevant law is 17 USC 401 which provides in relevant part: (a) General Provisions.—Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. [emphasis added] (b) Form of Notice.—If a notice appears on the copies, it shall consist of the following three elements: (b)(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and (b)(2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and (b)(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. (c) Position of Notice.—The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. (d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(2). Note that this section lists the three elements in the order 1) symbol or word, 2) year, 3) owner's name. However, it does not explicitly require this order. As the notice is no longer required at all, and as the sole purpose is "to give reasonable notice of the claim of copyright" and to defeat a defense of "innocent infringement", the order is probably not significant. But I would follow the text of the law and list the elements in teh same order that 17 USC 401 (b) does, that is, word or symbol fist, year second, name third. For example Copyright © 2022 Jane Jones But other forms probably have identical legal significance. Note that "Copyright ©" is a redundancy and perhaps I should not have used it in the example here. But it is what I in fact use, and many commercial publishers do the same. I do it because I think the word will be clearest to many English-speaking people, but the symbol will be clearest internationally, Note also that a notice is no longer legally required. Under US law, until 1 January 1978 (the effective date of the 1976 Copyright Act) any publication without a notice caused the work to enter the public domain at once. After that, until 1 March 1989, any publication without a notice caused the work to enter the public domain in five years, unless the work was registered within that time. Once a work enters the public domain, there is no copyright in that work at all. Ever since 1 March 1989, omission of a notice never causes a work to enter the public domain under US law, and currently, to the best of my understanding, a notice is not legally required in any country in the world, although it has some legal value under US law. | The code is copyrighted. You are not given any permission to use or copy any part of it, nor to create a derivative work based on it. There is no way for you to "make the copyright null". The code was copyrighted in 2005, and the copyright will not expire until 70 years after the death of the author, under US law. The period would vary in some other countries, but in no country that I know of will it expire in the next few years. That the author is dead, or the publisher out of business, does not change this legally. Someone, probably the author's heir, or perhaps whoever bought the remains of the publisher's business, will own the copyright. However, the ideas and programming techniques shown and discussed in the book are not protected, and you may use them freely to write programs, commercial or non-commercial. You need not even acknowledge the book as a source of ideas, although to do so would be nice. Of course, since the author is dead and the publisher not active, if you were to infringe the copyright by copying code from thsi book, there is a reasonable chance that no one would notice, but if someone did notice, the current owner of the copyright could sue you for infringement, and could perhaps win sizable damages. It would be safer to write your own original code using only the general ideas from the book. In future, do not ever assume that you can just take someone else's code (or other creative work, such as a book) and reuse it without permission, unless it is in the public domain, for example because it was published before 1923. | 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 | In principle, there is an original copyright and a copyright of the revised version, but this makes no difference in the duration of a copyright of a natural person which is 70 years from the death of the author. It also has no effect on the duration of the copyright of a corporate work where the legal author is not a natural person, which is 95 years from first publication or 120 years from creation, whichever is shorter. The main reason to update the notice is that giving a copyright notice is one factor necessary to obtain special remedies such as statutory damages and attorneys fees, rather than merely compensatory economic damages. If you don't update the copyright notice for a new version, then these special remedies won't be available when it is the new material that is copied in violation of the copyright law. Updating the copyright notice used to be a much bigger deal when the duration of a copyright was 26 years from publication, and renewable only once for an additional 26 years, as it was pre-1978. Under that regime, a claim of copyright was necessary for a copyright to be present and it was only available for published work, unlike current law under which a copyright with minimal protections arises automatically by operation of law upon the creation of the work. | There is a subtle difference between NSF policy and enforceable obligation. The primary stick that goes with the carrot is being excluded from future funding. Current policy does not generally force material in the public domain, but it is a possibility in "exceptional circumstances". There no doubt is a paper record somewhere in D.C. indicating whether such a codicil was added to any of these grants. NSF generally does not have contracts with individuals, they have contracts with institutions who have relations (typically employer-employee) with individuals, so even if there were a policy requiring works to be put in the public domain, NSF would have to go after the institution, who would have to go after the author. Since that would conflict with longstanding NSF policy on copyright, it is unlikely that they would want to pursue such an approach. The statement that McGraw-Hill Book Company announces that the material, which is copyrighted, will be available for use by authors and publishers on a royalty-free basis on or after April 30, 1970 is not itself a license, it is a suggestion that a license will com into existence. A present-tense declaration "this work is dedicated to the public domain effective April 30, 1970" can be interpreted as a license effective of a date certain. Similarly, "will be available to all publishers for use in English after December 31, 1970, and in translations after December 31, 1975" does not say that it is in the public domain effective of some date. One might say that the copyright statement is simply not well written and the author really intended the books to be in the public domain as of those dates. But without compelling evidence that the book was actually released into the public domain, a court is very unlikely to abrogate a person's property rights. | Copyright protects literary and artistic expression, not facts. So, in a database, the structure of the tables, the construction of the queries and the presentation of the user interface are all subject to copyright. The data stored in each record is not subject to copyright if it is a fact but is subject if it is a literary or artistic work. For example, in the IMDb database, the name of a film, the year it was made, the director’s name, the actors’ names etc. are not copyright, however, the star ratings, the reviews, the table structure, the queries and the user interface all are. For your fossil example, the fossil, where it was found, who found it, when etc. are all non-copyrightable facts. Any photographs of it, drawings of it or scientific writing about it are all copyright because they all involve creative transformation of the fossil. That creativity is key. For the book, if the scanning is automated and the text is generated by OCR then there is no new copyright. If a human makes editing or compositional choices, there is. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. |
Does the federal government of USA have any powers over functioning of ICANN Since the very inception of the internet, as we know it today, USA had a pivotal role to play including in the management of DNS (Domain Name System). However internet evolved to be more free. However, ICANN (Internet Corporation for Assigned Names and Numbers) — the body governing DNS — is of US origin. Does the federal government of USA still have any powers over functioning of ICANN? | The U.S. government previously contracted with ICANN for services, and that contract gave the Department of Commerce oversight authority over ICANN. But both that contract and the department's oversight responsibilities ended in 2016, making ICANN a fully private entity. At this point, the federal government's relationship with ICANN is more like its relationship with any other private company or individual; it can write laws and regulations governing its behavior, but it may not exert direct control over its actions. | I can see two points you might be confused about in your question. 1. Works can be in the public domain without having a CC license The Wikipedia statement and the government statement are not inconsistent with each other; just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright. In fact, CC licenses are moot for material in the public domain: When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright. So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution. This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator. 2. Trademark protections are separate from copyright protections Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright; this is entirely possible. Roughly speaking, trademark protections keep other people from trading on your good name & reputation; copyright protections keep other people from directly profiting from your creative endeavors. If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that. Depending on how you use the logos, you might run afoul of these protections. See this Q&A for futher details under US law. (Australian law may differ a bit but I would expect that the general principles are the same.) | No Even if there were any evidence that any member of the US government were involved (there isn’t), that is a matter for the US justice system. The US is not a member of the International Criminal Court so no Supra-National body has jurisdiction. | So, as I understand the decision, it's a little more subtle than that. By default, states have sovereign immunity and can't be sued without their consent. Congress can remove ("abrogate") this immunity by law in some circumstances. They tried to do so for copyright infringement cases with the Copyright Remedy Clarification Act of 1990. However, in the present case of Allen v. Cooper, the Supreme Court held that this part of the CRCA is unconstitutional. The idea is that under the Fourteenth Amendment, Congress can abrogate state immunity when it's necessary to ensure people's right to due process, but only in a "congruent and proportional" way. Now if a state unintentionally or negligently infringes someone's copyright, that does not violate the person's right to due process, but an intentional infringement might. At the time the CRCA was passed, when Congress went looking for instances where states infringed on copyrights, they found several cases of unintentional or negligent infringement, and just a couple where they may have infringed intentionally. SCOTUS argued that to respond to this by completely abrogating state immunity in all copyright cases was disproportionate, and therefore unconstitutional. But the Court suggests in the opinion that Congress could pass a different law to abrogate immunity in copyright cases, if it were narrower. For instance, a law that only stripped immunity in cases of intentional infringement would likely be constitutional, especially if there were evidence that intentional infringement was happening enough to be a significant problem. So I think the answer is that as of right now, a state could deliberately infringe someone's copyright (e.g. by pirating software) and be immune from suit. However, Congress has the power to "fix" this, and most likely will, especially if there seems to be egregious abuse. (By the way, the decision contains an impressive quantity of pirate jokes. I guess since it's not only about copyright infringement (aka "piracy"), but actually alleges infringement of a video about a sunken pirate ship, the justices just couldn't resist.) Your "eminent domain" idea is separate from this. Seizing copies of the software wouldn't give the state the right to use them, as the software itself would still be copyrighted. The state would have to seize the copyright, and I don't know whether that is possible - it's not necessarily property in that sense. But if they did so, then they wouldn't be infringing the copyright at all (since the state itself would now own the copyright) and this case would be irrelevant. On the other hand, when a state uses eminent domain to seize property, they must as you say pay fair market value for it, and that means the market value before they seized it. So the value of the copyright in such a case wouldn't be "nothing" - it would be more like the amount a competitor would have had to pay the software maker to buy all the rights to that product. Likewise, if the state seizes your lovely house and bulldozes it to build a toxic waste dump, they owe you what someone would have paid for the house, not the value of a dump that nobody wants. | ...the public is susceptible to misinformation by bad actors in the financial system and therefore are protected by the SEC... The SEC governs fixed laws about financial transfers, disclosures, etc., and investigates illegal acts regarding those laws where there are quantitative facts, i.e. who moved how much money to where, who engaged in information for insider trading, and other situations based on hard evidence. Bad actors are deterred by the fact that can be prosecuted for their crimes by the SEC and other authorities. Shouldn't... political campaigns be audited for truthfulness? There is no government authority that audits or regulates political ads and/or claims; such authority or laws would clearly violate the First Amendment to the United States Constitution - Wikipedia as to the government regulating or attempting to control or manipulate free speech. In a non-partisan fashion, government authorities can and do routinely supply publicly available documents that can be used by the public, fact checkers and the press. False political claims are investigated by the press and various non-profits, also under the same 1st Amendment protections so that the press can operate free of government intrusion. See https://www.google.com/search?q=political+fact+checking for different political NGOs and media outlets which do fact checking. Such resources themselves can be fact challenged and partisan themselves, of course; news outlets can be under the editorial control of a political agenda, and a "fact checking" website or NGO can be funded by partisans. ...why shouldn't the same be done in the political system? Within a political system such as the US, people are responsible for their own thoughts and actions; and they are responsible for assessments of what may or may not be factual, and for what they believe (which, of course, can be removed from a factual basis). The idea that a government should be involved in auditing or otherwise having control over political speech is a political question, not a legal question. | 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. | Who owns my website? YOUR website is owned by YOU. If you want it to be owned by your company, you need to transfer the ownership. The domain name registrant and the entity to pay Wix need to be the company, not you. Same applies to any intellectual property that is used for the website functioning and profit generation. | Nowhere Collectively The US doesn't know the number of laws on all the federal, state, and city books. Often the lowest level of laws and ordinances are only in a city database, and sometimes not on the internet. As a result, there is already an impossibility to get all the laws in the US in one database - and there are even countries that have not taken any steps to make their laws accessible on the internet at all. For example North Korean Law. This is compounded by different entities proclaiming their laws and regulations in only their own language and on different proclamation platforms. Where available at all, the countries have country-wide laws and ordinances on their own dedicated websites. But again, federalism for the win: there will be different proclamation platforms for lower levels of legislation. For example germany has its justice department host https://www.gesetze-im-internet.de/ which hosts all federal german laws. Schleswig Holstein hosts their state-level laws in corporation with the service Juris on https://www.gesetze-rechtsprechung.sh.juris.de/jportal/portal/page/bsshoprod.psml and the town of Kiel has all of its ordinances and special orders on https://www.kiel.de/de/politik_verwaltung/ortsrecht_bekanntmachungen/index.php Why a conglomerate is a bad idea Now, making a conglomerate of all the laws is actually a bad idea for several reasons: Updates. The different entities that are in making regulations with the force of law only update their official proclamation site. Often, such changes are not announced too loudly for the lowest levels, and with the number of cities in a single federal state, it's near impossible to keep the database up to date on a complete level. This is why different databases usually only scrape the federal levels. Scraping will break quickly. Each of the websites I pointed to in Germany has a different system setup, making scraping these websites for the relevant information basically useless. Compounding that, City ordinance pages are redesigned at a somewhat elevated pace, resulting in the scraping of these pages to break quickly, even if you manage to set it up. Citability. In a court of law, only the official text is relevant. If an update is missed, then the whole text is useless - you'll have to look up the actual, currently in-force version of the law or ordinance, so the conglomerate is not helping. You want a ginormous database. In some countries, judgments also make law as precedent. So you want every judgment in your database. Which quickly runs into a different problem: The US alone generates millions per day. |
Challenges of being an atheist in India India is a country with secular polity with right to religious freedom but a highly religious society. This might be affecting laws and policies of the governments. The stratification in and the structure of Indian society (broadly) definitely poses social challenges against atheists. Are there any significant challenges and disadvantages of being an atheist in India in legal aspects? | The most important aspects in India which are governed by specific religious laws are: Marriage Inheritance Marriage It is easier and faster to get married using the religious laws (Hindu Marriage Act or Shariat Act), as compared to the secular marriage law (Special Marriage Act, 1954). That is why many young couples convert to a single religion to get married quickly. Inheritance If one's ancestors identified with a specific religion, and one identifies with another religion, then that could affect one's inheritance. The inheritance of a person, especially a woman, could also be affected by them marrying outside their religion or state. So, if one decides to become the first generation atheist in a family (against the wishes of the family or the larger religious community), their inheritance and their rights (especially if they are engaged in agriculture) could be severely affected. This becomes all the more difficult, if the business of their family is not incorporated as a company under the Companies Act. If you are professional or a first generation business owner, then you shouldn't have legal challenges but primary and secondary social challenges. Primary social challenges could be people not ready to deal with you or engage with you if you declare publicly that you are an atheist. Secondary social challenges, would be to be able to find a lawyer (in your town and whose services are affordable) who can address these challenges. And in case you go to court, the judge may not have a lot of experience or education about how to deal with atheist cases. Also, most lawyers will advise you to identify yourself as a member of a religion to avoid unnecessary legal hassle. | Contact the local affiliate of the ACLU: Affiliates | American Civil Liberties Union. They have a long history of protecting schools and public institutions from religious influences. They will be able to determine the legality of the displays in the school and if the subject of the presentation by the speaker is legally problematic, and will know the correct approach to the school board and school district and their legal representatives. See Religion and Public Schools | American Civil Liberties Union: Dating back to the Bible Riots of the mid-1800s, the role of religion in public schools has been one of the most hotly disputed—and most frequently misunderstood—religious freedom issues in America. Even though the U.S. Supreme Court has long made clear that the Constitution prohibits public school-sponsored prayer or religious indoctrination, violations remain rampant in many parts of the country. The ACLU can protect your identity. Or, use a throwaway email from Yahoo or similar service, or use *67 to block caller ID when phoning. If for some reason the ACLU finds little they can legally do, and if your local newspaper(s) or TV station(s) are not politically conservative, contact them and see if they want to cover the situation. | Germany would not extradite to Saudi Arabia. India and Kuwait might, because they and a few other countries have extradition treaties with KSA. To put this squarely in the realm of illegal (it's not clear that accidentally encountering Shiite material online is a crime in KSA), assume that the person deliberately watched porn then fled to India. Generally speaking, this is a severe enough offense to allow extradition under the India-KSA treaty. However, India gets to review the request for exceptions. Under article 3, the central question is whether this is a political crime. There are enumerated acts that are not deemed to be political. Watching porn is not a listed exception. Accordingly, India could determine that this is a political crime, and refuse to extradite. If the crime is advocating atheism, however, then under Article 3 (1)(j), this is presumably not an excludable offense, because atheism is officially terrorism in KSA per Royal Decree 44 (I can't find an official copy). On the third hand, India may still reserve the right to apply their definition of terrorism. Even if there were an extradition treaty between Germany and KSA, German law Act on International Cooperation in Criminal Matters of 23 December 1982 §3(1) would currently preclude extradition because Extradition shall not be granted unless the offence is an unlawful act under German law or unless mutatis mutandis the offence would also constitute an offence under German law. There might be acts that are offenses in both countries, but not e.g. "watching porn" or "advocating atheism". The boundaries of blasphemy under German law are not clear to me. Section 166 of the Strafgesetzbuch imposes a maximum of 3 years in prison for blasphemy, so it could be an extraditable offense. Sect. 6 of the "Cooperation" law also sets forth exclusions for reasons of political and religious persecution. Also, KSA would have to assure Germany that the death penalty would not be imposed. | I think you misunderstand some of the relationships between laws, decisions, and justifications, and you're conflating two separate areas of jurisprudence. The linked real-world example you provide is happening in the employment context, but also in a government context (since it is a public school). But all the examples in your list have nothing to do with employment law and would be purely statutory/regulatory prohibitions. I will attempt to answer broadly enough to cover both domains. Laws and regulations can be challenged as discriminatory The things you have listed under "decency law" would be criminal or regulatory matters. A preliminary question would be whether the laws as written even capture the behaviours you've described. To the extent that they result in discrimination, the laws could be challenged as breaches of s. 15 (right to the equal protection and equal benefit of the law without discrimination) of the Canadian Charter of Rights and Freedoms. There may be other Charter arguments too, if the laws affect expression or life, liberty, or the security of the person. (Public decency / nudity laws are more frequently challenged on grounds of free expression.) Decisions of school boards are subject to the Charter The Charter almost certainly applies to decisions of public school boards and schools. See Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, paras. 39-41. These decisions could be challenged by judicial review (i.e. court review of an administrative decision-maker's decisions) and would be analyzed for reasonableness, including whether the decision strikes a proportionate balance between the Charter right and the statutory objectives (Doré v. Barreau du Québec, 2012 SCC 12). Even if there is an infringement, the government gets a chance to justify it If you're looking for some sort of a "line" it is found in the justification or reasonableness analysis. Where a law or regulation is challenged, and if a breach of s. 15 is established, then the onus is on the government to justify the breach as a reasonable limit as allowed by s. 1 of the Charter. This will depend on the importance of the government objective, whether there is a rational connection between the objective and the law, whether the law is minimally impairing, and whether the impact on the claimant is proportional to the salutary effects of the law. When a court reviews an administrative decision for reasonableness, it is "engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited" (Doré, para. 6). In each of your examples, the judgments would be highly fact-based and it is fruitless to speculate about what the evidence might show. Relevance of association with minors You ask whether it would matter "if the person in question was primarily associating with minors." This likely would not matter if a law was challenged, because such challenges are about the validity of the law, not the factors that might render its applicability to a particular person to be more or less justified. But if the law itself had the purpose of protecting children, or if the law itself was targetted solely at those associating with minors or those in positions of authority over minors, this would be a factor weighing in favour of justification of the infringing law (Irwin Toy, R. v. Sharpe). Whether the person in question was primarily associating with minors would matter in the context of an administrative decision, because these decisions are case-specific. Some anti-discrimination statutes provide more protections Ontario's Human Rights Code potentially contains even further protections. Section 5 says that every person has a right to equal treatment with respect to employment without discrimination because of sex, gender identity, gender expression, and other enumerated factors. Section 24 provides for exceptions to that right in educational settings (and some others) where what would otherwise be discrimination is actually a bona fide qualification of the employment and if it cannot be accommodated without undue hardship on the employer. These judgments are also highly fact-based and it would be fruitless to speculate about what the evidence might show. | The 1949 constitution is here. The wording has not changes in any material fashion that impinges on religion, and there is no specific mention of hijab or other items of apparel. However, it is not trivial to mention the provision in Art. 25(2)(b), which is still valid, that "The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion". There is a legal principle to the effect that if you say one thing and don't say another, you can infer that it was not intended to include the other. Given an opportunity to also explicitly constitutionally include the hijab as a "profession of the Muslim religion", and the fact that it was not so included, the courts would concludes that there is a stark difference between the kirpan and the hijab. There have been various tweaks to the wording of provisions related to religion since the original version, but none that would affect how the courts would interpret this case. The Karnataka ruling discusses the concept of "religion" versus "culture" (proffering the decidedly Hindu-centric view that "religion" is "dharma"), and they posit w.r.t. the hijab that "At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion". In other words, the words of the constitution don't tell you what status the hijab has. | Legally speaking, very many nations grant asylum, and religious persecution is one of the most basic grounds for granting asylum, following the 1951 Refugee Convention. This newspaper article compares asylum statistics in Ireland versus other parts of Europe. The Irish immigration authorities spell out the details for an asylum application. Note that you must already be in Ireland, to apply for asylum in Ireland (you should apply when you enter the country). One could also apply to Norway (almost an English-speaking country), but again you have to be in Norway to do so. There is a generic solution to the "what if I'm not in country" problem via the UNHCR, which can propose resettlement into various countries. I need to add that getting a visitor's visa from certain countries can be extremely difficult. To take an example, Norway (which is fairly open to refugees) is pretty up-front on the chances of getting a visa, based on country. To take a random example, they are not very optimistic about visitor's visas from Iran, and they say "we consider how probable it is that you will return to your home country or the country you live in when the visit is over. We consider the situation in your country and your own situation", "If we believe that it is unlikely that you will return, your application will normally be rejected" and "If you plan to visit Norway as a tourist, you will normally not be granted a visa". This is the fundamental problem that refugees face, the problem of getting there. One country that allows visa-free admission from Iran is Turkey. This guide (which is in Farsi so I can't comment on) provides practical information on the UNHCR asylum process "the political asylum process for Iranians in Turkey": that may indicate that apostasy is a different matter. Other evidence suggests that this option is worse than staying put. Only for the sake of discussion, Svalbard is a theoretical possibility. Svalbard (next to the North Pole) is part of Norway, but Norway treats it as being somewhat outside of Norway. It is outside the Schengen visa area, and it is a visa-free zone, meaning that nobody requires a visa to visit or live there. This is due to the Svalbard Treaty whereby Norwegians and treaty nationals have equal rights to the islands, and while most nations are not treaty signatories, it has been policy to extend those rights to everybody. The Governor does have the power to expel anyone who is a burden on local society (e.g. unemployable). Normally one would have to get a Schengen area visa to get there, which would be an obstacle, but it is apparently possible to get a same-day visa-free transit at Oslo Airport, if travelling non-stop to Svalbard (I cannot find a definitive policy statement on this matter, but I also am not sure where exactly to look). There are some air routes from outside Schengen where the first Schengen stop is Oslo. The Governor's office gives appropriate warnings about local problems (ridiculous prices, housing shortage, work shortage, more polar bears than people, really cold). | The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution. You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.) So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand. From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution: First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia: But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.) You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell. | 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. |
Could attorney 2.0 be a new way to get legal representation? I'm thinking about getting a patent and was wondering about an alternative to spending $400 per hour on one attorney. What if someone spent $200 and got 2 attorneys/law firms that work together remotely with secure collaborative office software similar to Google Docs? That way an average person like me would have a team of lawyers each with a different point of view. Maybe even a paralegal or someone with less experience would be willing to be a part of the team for free for experience. Would something like this ever be possible, or is it unnecessary for an average person to have a team of lawyers? I have no desire to patent a possible invention from this idea... Maybe if someone got a patent, they could make a donation to charity with royalties. | I think this idea has prior art. It is called "a law firm". There are many ways in which such organizations can be structured, but what you end up with is a team of people with different levels of experience, and different specialities, who are able to take on a variety of legal work. Some of that will be routine, and some of it will explode into years of complex litigation. Internal collaboration is normal, including with the aid of technology. Larger firms will have many locations and lots of people. As a client, the fees you pay are a reflection of the market. If you would like to pay $200/hour for two people rather than $400/hour for one, then a prerequisite is that those people are willing to do it. Maybe they are and maybe they aren't. It's just like paying for any other kind of service. In some practice areas, it's possible to offer low fees for "bulk" or "routine" work - sometimes because that's amenable to automation, such as with air passenger delay claims. Patent law may not fall into this category because it is genuinely very difficult to write a patent well. You have to know the law and the technology, and the starting point presented by the client may be far from expressing the actual patentable ideas, if any. That means we have a more high-touch process with specialized expertise. The long durations involved also make it unsuitable for a "no win, no fee" structure (that is essentially a business risk management issue, where some cases pay for the rest). As a business idea, you would have to think about how to manage all that. Maybe you can make it work. | It would probably be very easy for a third-year associate to find someone willing to pay him $250 to spend an hour fighting a traffic ticket. But if you're talking about a full-time job practicing law with a base salary equal to $250/hour, I'll go out on a limb and say the chances are literally zero. That rate works out to about $520,000 annually, and there is probably not a firm in the world paying that much to third-year associates. Even among the highest-paying firms, the average is closer to $200K, which puts you at $96/hour. The highest associate pay I've hard of is about $330K, and that's for associates at the top of an eight-year pay schedule. And of course, if you're at a top-paying law firm, you're working closer to 60 hours a week than 40. And if you're at the top of their payscale, you're probably closer to 80 hours than 60. So even at $330K, you're still only at about $105/hour. Luckily, these firms often offer very handsome bonuses, but even if you were somehow pulling down $330K for only 40 hours a week, you'd need a $190,000 bonus to get yourself to $250/hour. For lawyers, at least, this does not happen. Anywhere. If it did, it would not happen to a third-year associate. If it did, it would not happen to a third-year associate from a second-tier law school. (It is not at all uncommon for a third-year associate to charge $250/hour, but that associate is not getting paid all or even most of that money.) | You "can" do it any way you want, it's just that there are certain risks associated with option 1 vs 2 vs 3 or 4. Generally speaking, the lowest risk is associated with hiring a lawyer to discuss your requirements and write the necessary documents. It's possible that the most risky approach is writing your own documents, depending on how much legal knowledge you have and also what laws you are concerned with. You might try saying "I'm not liable for anything", but that doesn't make you not liable. Not all liability is waivable and there can be special requirements for waiving liability ("prominent notice", which means what? in this jurisdiction). You can write rules, but they aren't necessarily enforceable. A type of situation that you don't want to get yourself into is where you boot a user for what you consider to be an offense, but in booting the user it turns out that you have breached your contract with him (you figure this out when he successfully sues you). A lawyer will (or should) know that a certain kind of clause is illegal, and a legal-language generating program may simply have systematized the legal knowledge of actual lawyers, so the program won't offer you an illegal clause (if it's a good program). So anything short of hiring a lawyer who is competent in the relevant areas increases your risk, and the conclusion that "I can't afford a lawyer" has to be weighed against "I can't afford a $10,000 judgment against me". | This answer to a related question sums up the relevant concepts regarding work for hire. Since, according to your description of your relationship to A, you are not an employee (Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730), and you do not a written agreement, under US law, this would not be a work for hire: thus you hold copyright to something. I presume Company A gave you the source code and you are rewriting it to fit some technical requirement, so you have been given permission by the copyright holder to create a derivative work. You do not gain copyright to the original code: you only hold copyright to what you wrote. You would therefore need the permission of the copyright holder (of the original program) to sell copies of the modified program (currently A, company B in the future once the transfer is complete). There isn't a special "signing-over" ceremony for permission to copy, but the situation you describe is very messy. Even without a written agreement, you do understand that they intend to make multiple copies of the resulting program which includes your contribution, and you have received something of value in exchange for your contribution. So, one would argue, you have at least given permission to copy your stuff, even without a piece of signed paper -- in hiring you, you have given them an implied license to use what they paid you to create. The unclarity would be in whether you transferred your property rights, or simply licensed them to use it. Hence the recommendation to get an IP attorney. | The issues you describe have existed with signatures from the beginning of their use. There exists a tradeoff between ease of use and reliability, both of forgery and of people falsely claiming forgery. Originally, the closest thing to a signature was the use of seals and signet rings. While relatively hard to forge, it only showed that the possessor of the object agreed. Signatures, especially in cursive font, were developed later. They were in some ways easier to forge(you didn't need to get access to a physical device), but more difficult in others(the seal symbols tended to be used on everything and various improvements in technology had been made), and harder to falsely claim forgery(because most people can't alter their handwriting well). You were affixing your name to the document, indicating that you agreed. Often, the signatures were required to backed up with the signatures of other people as witnesses. They didn't have to agree to the document, they just had to agree to testify that you signed of your own free will. Because witnesses, especially trustworthy and independent witnesses, are hard to come by, some places have dropped that requirement, such as checks and signing a aper receipt when using a credit card. But for some important documents, certain jurisdictions still require witnesses, including large transactions (a document relating to a car insurance payout I recently had required a witness to confirm my signature) and marriages. However, with electronic media, the point of a signature is more to indicate deliberate acceptance of terms, with verification of an individual being left to other processes (e.g. IP address, MAC address, linkage to a specific email account, etc.), so forgery is less of an issue. I have also seen "signatures" amount to checkboxes and "I agree" buttons. Generally, the higher the stakes and "more legal" the agreement, the more likely to these have been the "typed signatures" that you describe, but this seems to be decreasing in frequency, suggesting that its purpose was to stop gap a hole in legal acceptance by judges/courts/laws with regards to electronic communications. Addendum: It should also note that the replacement of seals by signatures is not universal; for instance in Japan, seals are still used over signatures in the majority of cases. | 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%. | You can jointly hire a lawyer Yes, they can jointly hire a lawyer, coming at the lawyer essentially as one single entity: a partnership. The lawyer will research both sides of the question, and give the partnership a fair report. The fee you pay may not deliver to one definitive answer, but it'll discuss all the likely angles. However, if one of them needs a lawyer in an action against the other, that jointly hired lawyer will be "conflicted out". So Bob should identify the best lawyer in town in that particular area of practice, and retain that lawyer privately without telling Rob. Then, identify the second best lawyer in town, and recommend to Rob to use that lawyer for the "joint" lawyer. Now, when we come down to Bob vs Rob, Bob has the best lawyer, and Rob's is third best. Facts and circumstances will decide the matter The biggest problem with floating a hypothetical question is that the actual facts and circumstances in your genuine flesh-and-blood case are likely to be different. Understand that litigants are especially stupid about this. There's a huge bias to believe matter X is relevant/on-point to their own case, when a neutral judge may not see it that way at all. Likewise, there's a huge bias toward presenting your hypothetical in flattering terms, on the hopes of getting a more favorable ruling. Then, when the real case comes up, the facts and circumstances differ too much, and the judge says "these facts don't fit your declaratory judgment". And now it's a new ballgame. Your best bet, in areas of doubt, is to obtain legal advice and pay heed to it. | Bulgaria is one of many countries in which intellectual property can be protected with a single international patent filing, in lieu of a Bulgarian specific filing. In generally, you should assume that any patented idea likely to have international application, such as Internet based software, which is patented in the U.S. is also the subject of international patent protection, unless you specifically know that this is not the case. Virtually all patent lawyers know how to make this filing and most would recommend doing so in this case. So, yes, it is something you should worry about, and the better practice, by far, would be to obtain permission from the patent owner if the app is likely to have any meaningful commercial value. Now, if you were sued, there is a good chance that it would be in Bulgarian courts under Bulgarian patent law, which may be somewhat less harsh in some respects like damages awards than U.S. patent law. But, the basis for patent liability for an infringement in Bulgaria would be very similar. |
Is it illegal to operate a business at a loss to gain market share? In the U.S., is it illegal ("anti-trust") to deliberately operate a business at a loss by providing services priced to steal customers from competition? Assume there is a projection of future earnings that would recover the losses incurred in the process by increasing the prices once most competition has been driven out. | According to the FTC which is the main U.S. federal government agency charged with administering federal anti-trust laws: Can prices ever be "too low?" The short answer is yes, but not very often. Generally, low prices benefit consumers. Consumers are harmed only if below-cost pricing allows a dominant competitor to knock its rivals out of the market and then raise prices to above-market levels for a substantial time. A firm's independent decision to reduce prices to a level below its own costs does not necessarily injure competition, and, in fact, may simply reflect particularly vigorous competition. Instances of a large firm using low prices to drive smaller competitors out of the market in hopes of raising prices after they leave are rare. This strategy can only be successful if the short-run losses from pricing below cost will be made up for by much higher prices over a longer period of time after competitors leave the market. Although the FTC examines claims of predatory pricing carefully, courts, including the Supreme Court, have been skeptical of such claims. Q: The gas station down the street offers a discount program that gives members cents off every gallon purchased. I can't match those prices because they are below my costs. If I try to compete at those prices, I will go out of business. Isn't this illegal? A: Pricing below a competitor's costs occurs in many competitive markets and generally does not violate the antitrust laws. Sometimes the low-pricing firm is simply more efficient. Pricing below your own costs is also not a violation of the law unless it is part of a strategy to eliminate competitors, and when that strategy has a dangerous probability of creating a monopoly for the discounting firm so that it can raise prices far into the future and recoup its losses. In markets with a large number of sellers, such as gasoline retailing, it is unlikely that one company could price below cost long enough to drive out a significant number of rivals and attain a dominant position. Most (if not all) states also have parallel state anti-trust laws which sometimes prohibit conduct that is not prohibited by federal anti-trust laws, although the overlap between the two is substantial. | Making a profit does not make the act illegal: it is illegal without there being any profit. The act of copying without permission is what makes the act illegal. Profit might maybe enter into the matter if you are talking about the "fair use" defense, since certain kinds of works can be partially copied for certain purposes. You could quote a few lines from a novel in a review, for instance. The judgment of whether a given act of copying without permission is allowed under fair use is complex and involves a balancing act. Profit becomes relevant in that a non-profit use favors fair use and a for-profit use disfavors it. Wholesale copying of works of art as you describe is illegal (is infringement). However... "illegal" is a pretty broad concept. If you infringe on my intellectual property, you almost certainly will not suffer any consequences unless I sue you. Taking "illegal" to mean "in violation of the law", infringing copyright is illegal because it violates the law, but I have to make a federal case out of your infringement – I have to sue you. As it happens, it can also be a crime to infringe copyright, and in that case, the government and not the copyright holder pursues the matter. If a person knowingly infringes copyright, he might be prosecuted, thus the Megaupload case which in the US is realized in the indictment US v. Dotcom. Moreover, profit motive is a required element for criminal infringement. (Also note that you don't have to actually make a profit for the profit element to be present). You cannot sue a person unless they have harmed you, so if you know that Smith copied Jones' work you can't sue Smith for harming Jones. (This is what they call "standing"). You might sue Smith, but not for infringement itself. If they sold you an illegal infringing copy, then you could sue. Or, their infringement could diminish the value of your legal copy. This website gives a multi-nation overview of criminal copyright infringement laws. | Under US law, referring to the rather broad range of anti-trust legislation, regulation and case law, the most important issue is whether there is a conspiracy. A public discussion of some policy question is clearly not a conspiracy (even if only certain individuals are allowed to speak at the forum). So it is actually not illegal for executives to discuss their product. It would be illegal to engage in a a conspiracy to fix, raise, maintain or stabilize prices. To quote from the instructions from an antitrust case in the 9th Circuit, the case of Best Buy v. Toshiba, HannStar: Under the federal Sherman Act, it is illegal for competitors, regardless of their size or amount of sales, to agree on the prices to be charged for their competing products. An agreement between competing firms can violate this rule even if there is not an agreement on the exact price to be charged. For example, it is illegal for competing companies to agree on maximum or minimum prices, a range within which prices will fall, a formula to set prices, or a component of prices, such as a shipping charge or an interest rate. It is also illegal for competitors to agree on a plan or scheme that will tend to stabilize prices. Interestingly, there was no instruction as to what constitutes a conspiracy: but, ordinarily, it means that means to agree in secret to do an illegal thing. | I am unfamiliar with specifically US laws on this but under common law (which US law is derived from) there is the crime of "Theft by Finding", however, because you turned it over to the authorities who, after the required time period were unable to find the rightful owner, the money becomes yours. However, you still have to pay your taxes on it: http://www.foxbusiness.com/personal-finance/2014/07/03/found-money-is-awesomebut-must-pay-uncle-sam/ As far as I can see, income is income whether it comes as cash, diamonds or long lost antiques. As far as the money laundering aspect, that is something the authorities would need to prove - as opposed to you just being lucky. | 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. | The only reason you couldn't take all the profits is if your business were a C-Corp. I don't know of any reason a single-owner LLC would elect to be taxed as a C-Corp. Multi-owner LLCs and LLPs are, for federal tax purposes, either an S-Corp or a C-Corp. When possible they can and should generally elect to be taxed as an S-Corp. IRS Pub 2553 lists the criteria for S-Corp election. (Employees have nothing to do with the question.) For tax purposes partnerships, sole proprietorships, and S-Corps are "pass-through" entities that are not expected to pay a corporate tax. In effect, whether you like it or not, you do pay yourself all of the profits each fiscal year, and they are taxed accordingly. | A charge of Theft by Finding is unlikely to succeed, as by posting details of found property on the website Heathrow Airport have made a good faith attempt to find the owner. There might be some comedy value in suggesting Blackmail, but not much more than that. (You knew that one was tenuous.) There appear to be some grounds for arguing the "control" aspect of Criminal Conversion, and if you were to do that they may release your lost baggage to you in person or to your appointed agent. The problem is what would happen next. Heathrow Airport would have grounds for arguing that they had made a good faith attempt to return your baggage, that you had used their system to determine they had your baggage, but that you had chosen to avoid a nominal charge (less than £20, according to the website) to use that system. This would give them grounds to seek to recover the actual cost of storing, locating the owner, and handing the baggage over to them (likely to be more than £20), plus legal fees for recovery of cost (likely to be a lot more than £20). Their argument would be that they had incurred costs in attempting to return your baggage to you, and that it was your responsibility that you had refused an amount that is likely to be considered a reasonable fee for this activity. Short answer : It looks like there's nothing preventing you from pointing out a potential conflict, and it's a nice question for academic debate. But I wouldn't do it. Edit : If you've used the link to missingx.com from the heathrow.com website, you could also have been deemed to have accepted the charge ("if you want to reclaim your item") at point 4. | 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. |
Usability of AI-based Evidence I'm a computer forensics graduate student doing research in blockchain currency (e.g. Bitcoin) forensics. I'm wondering if there are any rulings or decisions regarding the usability and admissibility of AI-generated evidence. For example, if I have an algorithm which identifies suspicious wallets likely associated with ransomware activity and another which helps identify the locations of Bitcoin wallets, how much can I do with this? Can I only use this in the context of furthering an ongoing investigation? Would I be able to obtain a search warrant with this information alone or how much further justification would I need. While I'm particularly interested in ransomware attack attribution, some of this applies to blockchain currency forensics as a whole. As a toy example, suppose I'm working with a team in Los Angeles tracking illegal weapon shipments into the United States and blockchain analysis points us to a distributor likely working out of Wyoming. Could we use this I know there are rulings regarding digital software such as EnCase; since this is approved by the IEEE and the digital forensic community as a whole its use is generally admissible in court. It gets a bit more dicey when the basis for your work is not well-known. For example, while the PageRank and DeepWalk algorithms for graph analysis are pretty well-known, the use of them together to identify suspicious Bitcoin wallets is novel and would likely require some justification. Are there any relevant rulings, decisions, etc. that you could point me towards? | In principle, the evidence could be admitted. Federal Rule of Evidence 702 allows an expert to testify if (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. A precedent for admitting AI evidence comes from Bertuccelli v. Universal City Studios. The court determined that Dr. Griffor has experience with algorithmic reasoning for artificial intelligence-enabled driving systems, including facial recognition technology and is considered an expert in the field of facial target recognition. The Court finds Dr. Griffor's methodology reliable given that he conducted an artificial intelligence assisted facial recognition analysis of the King Cake Baby and Happy Death Day mask to determine whether the use of mathematics and target facial recognition algorithms comparing the two works would find that human perception would view the works as substantially similar. Accordingly, the Court finds Dr. Griffor is qualified to testify as an expert in this case. Note that some person has to testify: an machine printout can't just be entered as proof of guilt or innocence. It does not automatically follow that a particular AI method is admissible, but it is at least potentially admissible. Then if some evidence is admissible in court, it may also form the basis for searches and seizures requiring reasonable suspicion or probable cause. See also this article on admissibility of machine learning evidence. | Note that what is being bought or sold here is actually information about the exploit. Attempting to criminally penalize the transmission of information in the US often runs into First Amendment issues. If a person has good reason to know that information is going to be used to commit a crime, or is likely to be so used, and there is no plausible legitimate use for the information, that person might be charged with complicity or conspiracy for distributing the information. But where there are legitimate uses, that is much less likely. Here the information could be used to defend against the exploit, or to identify and remove software subject to the exploit, or for research into such exploits generally. There may be other legit uses as well. Some years ago the Federal government attempted to prosecute a person for exporting a book describing how to create an encryption program. The courts eventually ruled that this was protected speech. I suspect a similar ruling would be made in the sort of case described in the question, but the details would matter. | Whether they are admissible as evidence is up to the trier of law The “trier of law” (judge) decides what evidence is admissible according to the rules of evidence. Documents of most kinds are not admissible on their own (exceptions include “business” documents like invoices and receipts). To be admissible, someone (presumably you) has to testify as to what they are, how they were created and maintained and why they are relevant before the judge will decide if they will be accepted as evidence. Whether they prove anything is up to the trier of fact Evidence is not proof The “trier of fact” (jury in a jury trial, judge in a bench trial) decides what weight to give to any and all evidence presented. They may accept the testimony about the documents or they may reject it. If presented with conflicting testimony they have to decide which they prefer. Judges have to give reasons for their decisions which can be appealed. Juries don’t. Files that are readily changeable are likely to be given less weight than files which have a verifiable audit trail. For example, if you kept your .docx files in a GitHub repository they will be stronger evidence than those kept on a local hard drive. | The general rule is, anything is allowed unless it is forbidden (and not that you can only do things that are expressly permitted). The logical structure of law may be a bit more challenging than procedural programming logic, since it may require a global knowledge and evaluation of the entire code (typically but not absolutely, the scope of the search for "unless otherwise" conditions is restricted to "in this chapter"). In other words, the law is a set of propositions which must all be true, and unlike actual execution of instructions in a sequence, law is to be interpreted simultaneously but hierarchically (that is: the order in which clauses are written is not significant). The appearance that the law is self-contradictory is largely illusory, though the resolution of the conflict may require a careful reading of the law and knowledge of jurisdictional hierarchy (federal law is superior to state law, which entails a particular resolution of the apparent conflict). Sometimes there are real conflicts, which usually result from using words in conflicting ways (note the practice of re-defining words "in this chapter/section/title"). The reason why law is not a science is that law is normative, not descriptive: it dictates what is allowed (a determination made through the political process), and does not attempt to discover what independently is. The reason why the legal process cannot be implemented in software is that software does not yet correctly interpret natural language, and law is written in natural language following interpretations based on judgments of what choices a reasonable would make. Perhaps if you propose a piece of law that you think is contradictory, it would be possible to show how the contradiction is illusory. | Although the USA don't like it, there's a department called INTERPOL which is composed by about 150 countries. When a crime is committed and you need to involve another country to solve it, the sovereignty of each County prevents a police officer from one country acting upon another country. That's when the INTERPOL comes in. They usually requests the police from that country to act up. A judge from that country will grant their local police access to the data to be delivered to the country that requested it. Can the police get a search warrant for data 'in the cloud'? Yes. If the servers are located within the boundaries of your own country, it's a normal procedure. But like the above answer states, it's easier to subpoena the records than to execute a search warrant. In a subpoena, the company itself is bound to provide everything the police asks. Can the police get a search warrant for such third party systems? Yes. If there's enough probable cause, the investigation can lead to allow the police to try and discover files that are held by servers that store the cloud data. But if the servers are located outside the country and the company does not have any office opened in the country, a search warrant won't have validity in another jurisdiction and the police can't act without breaking the sovereignty principle. That's where the INTERPOL services are handy. The department is built in the principle of polices from different countries helping each other. The downside is that it's too bureaucratic and it takes a lot of time. For instance if he has a virtual machine hosted by Amazon, would they serve the warrant on Amazon, or on the suspect? Like mentioned by @Viktor, if the company has an office within the bounds of your country, it's easier to subpoena the records because that way the company will filter and provide only the data linked to the suspect being investigated. That is, the subpoena will have both the name of the company (Amazon) and the name of the Suspect, so the company can provide only the necessary files. Update If the police lack sufficient evidence for a search warrant, but an interpol country was, for some reason, willing to work with the police to collect and provide that information would they be able to use it even if they wouldn't have been able to subpoena a US country? Hypothetically speaking, I see your follow-up as a company that do have a local office and the Federal Police was turned down by a judge on a warrant/subpoena. In that case, there's no reason for another's country police to act on their own country. The suspect is a foreign suspect, the crime is a foreign crime and the police has no reason to work on it. But for the sake of argument, let's say that the local police was turned down by a judge for lack of evidence or something and the suspect has been investigated by a foreign country or whatever. If the information that the local police desires to obtain is available through the INTERPOL, it's most likely to be accepted since it's a data stored by an international police department. In your scenario, the foreign police was granted a legal right to search and collected the data for legal purpose. Maybe they can't use it in their own country, but since they followed a safe chain of custody and provided the information to the INTERPOL, that information has legal validity and it is not fruit of the poisonous tree if the chain of custody was maintained. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | [I'm not so well-versed on US and Russian law, thus I will limit my answer to EU law.] Your specific use of a user identifier, as I understood from your question, can be classified as personal data, so in your case, the GDPR seems to apply. This means that you need to have a) legitimate purposes to process that personal data (e.g. crash reporting) and b) a legal justification for each purpose of processing: it could be based on consent or another legitimate purpose (inc. your own legitimate interests). Consent might not be the best option for you, but it's up to you to decide. In any case, you need to assess the risks to the data subjects (your users) before you decide. How likely is it that you will get breached, and what potential harm will that cause to your users? These are some guidelines; my recommendation is that you read the law and the guidelines by the Article 29 Working Group and European Data Protection Board, or hire some good experts on this. There is no easy answer, or one size fits all solution. The GDPR isn't so hard to understand or implement, but it does require some change in mindset. With the new law, processing personal data carries a higher risk of penalties, so you should do it only when it's absolutely necessary, and with respect to the rights of your users. | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) 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; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. |
How to get a motorcycle to a skills test I have a motorcycle skills test at a North Carolina DMV to hopefully pass the skills portion of the requirements. I currently have a valid car drivers license. The motorcycle in question has a legal title and insurance required in NC. Let's say given that I don't have a vehicle that can transport the motorcycle I don't have a friend with a motorcycle license who can transport it for me I'm wondering how exactly I'm expected to get the motorcycle to the DMV for my skills test. I am a competent rider and would feel comfortable transporting myself to and from the DMV (mostly backroads). Driving a motorcycle without a license is illegal. However without transportation resources, I'm wondering what's expected. Even if I take an MSF class (which I certainly will in addition to the DMV test)..I still have to actually get my bike to-and-from the course. So, my option (other than somehow obtaining a vehicle to transport it) is to ride without a license to the DMV. While the DMV might not care/notice how I've gotten the motorcycle there, obviously getting pulled over would be bad and I'd likely fully be liable for any accidents. This would be doubly awkward in the event I fail the skills test, and clearly get on my motorcycle and drive home. In this case, what is the "correct" way to handle this situation, and how detrimental would getting pulled over / ticketed be to obtaining a motorcycle license in the future? | You can ride the bike there using your Learner's permit, for which you don't have to pass a skills test - just the vision, road sign and knowledge tests. Learner's permits are valid for 12 months and you aren't permitted to carry passengers. | Colorado law says: CRS 42-3-113 (6): The registration card issued for a vehicle required to be registered under this article shall, at all times while the vehicle is being operated upon a highway, be in the possession of the driver or carried in the vehicle and subject to inspection by any peace officer. Read literally, this requires the original card. It would probably be at an officer's discretion whether to accept a copy. By contrast, California has (emphasis mine): Vehicle Code 4454(a): Every owner, upon receipt of a registration card, shall maintain the same or a facsimile copy thereof with the vehicle for which issued. | This would probably not be a drunk driving offense. Under the UK "drunk in charge of a motor vehicle" law: How is “in charge” defined? There is no definition of “in charge” and the courts have been keen to avoid an all-embracing test. In determining if a person is in charge the court will consider: Whether he was in the vehicle, if so where, or how far he was from it; What he was doing at the time; Whether he was in possession of the key for the ignition; Whether there was any evidence of an intention to take some form of control of the vehicle; Whether any person was in or near the vehicle and if so the particulars of that person. You could also be prosecuted if you are found in the passenger seat or the back seats. You do not have to be sitting in the driver’s seat to be considered “in charge”. However those that own or lawfully are in possession of the vehicle or have recently driven it are deemed to remain in charge unless it can be shown: that they had put the vehicle into someone else’s charge or can establish that they had ceased to be in control AND there was no realistic prospect of resuming control whilst unfit. Are there defences available? The law states that someone cannot be convicted of an “in charge” offence if they can prove there was no intention and / or likelihood of the vehicle being driven whilst the driver was over the prescribed limit. Unlike many other offences, with the offence of being drunk in charge, the accused must prove that they did not have any intention to drive the vehicle. The prosecution is not required to prove that the accused was likely to drive whilst unfit or over the limit. A defence is available if it can be shown that there was no likelihood of driving whilst over the prescribed limit and doing this should be established by expert scientific evidence or compelling circumstantial evidence. These defences are known as “statutory defences”. Section 5 of the Road Traffic Act 1988 states: “The defendant must prove that it was more likely than not that he had no intention of driving whilst the level of alcohol in his breath, blood or urine remained above the prescribed limit in which case, he is not considered to be in charge”. Our question is, if you "leave the keys on the front seat, the engine off and get in the back to sleep it off, would they have comitted an offense?" Since the person in the question had an intent to "sleep it off" rather than to operate the car while under the influence, he (or she) has not committed an offense. The burden of proof would be on him (or her) to establish that intent, but sleeping in the backseat with the engine off and the keys out of the ignition in the front seat, would be pretty compelling circumstantial evidence of a lack of an intent to operate the car while under the influence. There might also very well be a local ordinance prohibiting sleeping in a car in a particular place, but it wouldn't be a traffic violation. | The relevant offence is at s.47(1) of the Road Traffic Act 1988: A person who uses on a road at any time, or causes or permits to be so used, a motor vehicle to which this section applies, and as respects which no test certificate has been issued within the appropriate period before that time, is guilty of an offence. Benin commits an offence as he uses the car on the road, and as not having a valid and current MOT (usually) invalidates motor insurance, the car would in all likelihood be seized under s.165A of the Act. Aisha may commit an offence if it can be shown that she causes or permits Benin to use the car. This would hinge on what steps she would reasonably be expected to keep the car off the road and/or prevent Benin from using it such as taking it back (via a pre-arranged MOT appointment to not fall foul of s 47) taking the keys from him or selling it - which she can do as the registered keeper (the credit company is the actual owner). | 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. | So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense. | 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. | 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. |
Is it legal to forge a Permission to Attack during a physical penetration test engagement? When doing penetration testing (hired as a security consultant to examine and test a company's security by simulating an attacker), it's necessary to have a document called "Permission to Attack" (PtA) which outlines the scope of your actions and gives you explicit authorization to perform them. The same is true with physical pentesting where the pentester emulates physical attackers (even to the point of picking locks and forging access credentials, assuming it authorized in the scope). One must have the document with them in case they are "caught" by the organization's security. On the Information Security site, the answer to a question about this suggests that it could be better to first forge the document and, if it is accepted by security, you continue on your way and document security's failure to stop you (since a real criminal could have forged the document as well). If, on the other hand, they don't accept the forged document, then you provide the real document. The following is from the accepted answer (emphasis in original): If you don't have your Permission to Attack with you, it's like driving without a driver's license. That said, if you are caught during an engagement, I recommend the following: Present a forged Permission to Attack. This way, you can see if criminals could possibly trick a security guard to letting them do their thing with a fake Permission to Attack. Present the real Permission to Attack. If a guard has not bought your fake slip, then it's time to hand in the real slip. If the guard believes you, it's time to pick up and leave the perimeter. A real attacker would have been stopped at this point. If the guard did not believe you, ask them kindly to talk to their supervisor. If they insist on not believing you and calling the police, so be it. You're not a criminal, so don't worry about it. Are there any circumstances under which this would be illegal? | california It's legal, because the pentester doesn't have the intent to defraud. California Penal Code Section 470 governs forging documents, signatures, handwriting, etc. All of its provisions making actions illegal begin with "Every person who, with the intent to defraud..." Because the company itself is aware of and has authorized their actions, the pentester isn't attempting to defraud the company whose premises they are attempting to enter. They are providing forged documents to the guard (who isn't aware of the test), but a real attacker doing that would be attempting to defraud the company, not the guard. Of course, as with any otherwise-illegal action taken during a penetration test, this assumes that the agreement with the company granted the pentester permission to take that action (i.e., that it was in scope for the test). | 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. | Illegal weapons Weapons are defined and are made illegal by statute. In many states, it is illegal to possess brass knuckles. For example, California penal code 12020(a)(1) makes it illegal to possess "any metal knuckles", "writing pen knife", "any leaded cane", among other things. I don't know of any state where it is illegal to pick up a stick, or keys, etc. So, yes, there is a legal distinction between your four scenarios. The mechanic is committing a crime by merely possessing the brass knuckles. The others are not committing a crime by the mere possession of the things you mention (unless there are states where they've been made illegal). Effect on a self-defense analysis Courts would have the jury go through the same self-defense analysis in each of these cases, regardless of the legality of the weapon used. We've described that analysis here. A pure self-defense analysis does not factor in the legality of the weapon that is used. But, if the weapon has been made illegal because of its disproportionate ability to injure, etc. that might weigh against the reasonableness of the force that was used when choosing to use that weapon in self-defense. Possession of an illegal weapon might also weigh against the credibility of the owner of that illegal weapon. | Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an "execution of contract" under the T&C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention "consent". Under GDPR, this is a distinct justification besides "execution of contract". You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc. | The issues here are fraud and false documents (forgery). While the mere possession of false documents is not necessarily a crime, the use of false documents in order to obtain a financial advantage is fraud, which is a crime defined by statute in all states. States may also have specific provisions relating to the possession of falsified documents, but generally it is not criminal unless the possessor is aware it is a false document, and that it will be used to secure some advantage. Fraud For example the Crimes Act 1900 (NSW) s192E states: (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Forgery Additionally, s253 of the same Act states: A person who makes a false document with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of the offence of forgery. Maximum penalty: Imprisonment for 10 years. ... and s255 (also see s254, which contains very similar provisions for the actual use of false documents): A person who has in his or her possession a false document, knowing that it is false, with the intention that the person or another will use it: (a) to induce some person to accept it as genuine, and (b) because of its being accepted as genuine: (i) to obtain any property belonging to another, or (ii) to obtain any financial advantage or cause any financial disadvantage, or (iii) to influence the exercise of a public duty, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. ... and s307C: (1) A person is guilty of an offence if: (a) the person produces a document to another person, and (b) the person does so knowing that the document is false or misleading, and (c) the document is produced in compliance or purported compliance with a law of the State. Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both. (2) Subsection (1) does not apply if the document is not false or misleading in a material particular. (3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate: (a) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and (b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. (4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person. | They must comply with your restrictions, via the principle that consent can be withdrawn. One relevant Supreme Court case is Walter v. US 447 US 649, which declares that When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization Likewise in Florida v. Jimeno, 500 U.S. 248, A suspect may, of course, delimit as he chooses the scope of the search to which he consents. In US v. Williams, No. 16-3547, 2018 U.S. App. LEXIS 21304 (3d Cir.), the court elaborated that a consensual search satisfies the mandates of the Constitution only if conducted within the boundaries of the consent given. This recognition establishes that it is the subject of a consensual search who decides the terms of the search. and furthermore, That a party may terminate a search by withdrawing his consent is a corollary of the recognition that the subject of a consensual search determines the parameters of that search. Bear in mind that you have to be crystal clear on any limits on the scope of a search. If this is more of a business call (the electrical inspector) and not a search, they don't have any special powers to enter your house. If the inspector enters your basement study without permission, that is trespassing, but you can't sue him because of that unless there was actual damage done. You can complain to his superior. | It might or it might not be fraud. The outcome will depend on how the facts and evidence are interpreted at trial. A more general version of this question is: If two parties discuss and orally agree to X; then sign a contract that states they agree to Y, what are the parties bound to? X? Y? Or something else? In your version, X is a fraudulent statement. And Y is an obfuscated writing. One party will argue fraud. The other will argue not fraud on the basis that all the facts were disclosed in writing. The party alleging fraud will carry the burden of proof. The standard of proof will be preponderance of evidence (more than 50%). Generally speaking, written evidence outweighs oral evidence if not accompanied by substantiating facts. Substantiating facts could be: emails or other written correspondence, a prior history or pattern of making false claims to others regarding this investment, the respective behavior of the parties after the agreement was made or anything else that corroborates the oral testimony presented at trial. | Since your consent is not required in Texas, revocation is irrelevant. Restrictions of use of recordings flow from the legal nature of the recording itself, so there is no provision saying, for example, that only one party needs to consent for just recording, but all parties must consent to make any use of the recording. Since these laws were devised to regulate the practice of wearing a wire and collecting evidence of crimes, requiring consent from all parties would be counterproductive to the purposes of the law. You could try drafting a contract where you pay people to not record you (anybody who doesn't sign, you shouldn't talk to them), but enforcement could be tricky, so I would not try a DIY contract: get a lawyer. You would have to show that you were harmed by them making an unconsented recording. It should be in the form of a contract where you give something of value in exchange for something of value, which is a thing typically enforced by the courts. Also bear in mind that even in an all-party state, if you know that you are being recorded, you cannot just say "I do not consent", you have to stop talking. Continuing to talk when notified that there is or may be a recording constitutes implied consent, which is why on the phone companies often announce via recording that the conversation may be monitored, and they do not ask "Do you consent". By not hanging up, you consented. |
Can a patent lawyer hold a patent or is that a conflict of interest? Is there a law that prevents a patent lawyer from using his position to modify failed patents he hears about and create a successful patents for himself? I can see that being a conflict of interest. | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | Issues of strategy rest with counsel, not the client. Thus, in the situation you posit, the lawyer is not required to follow the client's desires. One might observe, however, that a competent lawyer will avoid the conflict entirely by addressing the issue before accepting the client. If the client is firm in wanting to direct the lawyer's negotiation or litigation strategy, and the lawyer is unwilling to do so, the lawyer should decline to take on the case. When I practiced, prospective clients who wanted to run things were very politely declined and shown the door. I don't see anything unethical about accepting such conditions from a prospective client, but the attorney isn't required to do so, and can decline the employment. | Admission of copying proves one of the elements that the plaintiffs would normally need to prove in an infringement suit, making a law suit less risky from their perspective. This may very well invite lawsuits that would otherwise not be filed. But, this is pure speculation. Your legal rights are the same, independent of how much you choose to reveal in advance of a lawsuit. If your copying doesn't amount to a substantial taking, then it isn't infringement, whether you admit to copying or not. | The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). | A patent grants the holder exclusive rights to make, use and sell the patented item. As such, you can look at the patented object, you can document it, you can study it, you can draw up plans for it. A patent cannot be granted unless the applicant discloses what exactly is being patented. So you can get all the details of a patent from the USPTO (US Patent and Trademark Office). You cannot, however, make one without infringement unless you have permission, usually a license, from the patent holder. Now I am not in any way recommending this but as a practical matter, if you, as an individual, were to make such a piece of furniture incorporating a patented feature for your use, how would they know? There are no "patent police" going from door-to-door looking for infringers. On the other hand if you were to begin selling copies of this piece at your small shop, that might come to the patent holder's attention and they might take action against you. | Yes. The lawyer can use this information. The privilege is a privilege against involuntary disclosure to third-parties. There is a parallel duty of confidentiality not to disclose information revealed to the lawyer to third parties. But, the lawyer is not revealing the information to third-parties in a collection capacity. And, there are exceptions to both the privilege and to the duty of confidentiality that apply in the case of disputes between lawyers and clients. | 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. | To answer the specific questions you asked: Can I use the publication to perform ECC without being under patent protection? Can an academic publication be under patent protection? The answers are: No, that academic paper does not provide any protection from patent litigation. Yes, an academic paper can publish the details of an invention, and that in no way voids the patent. The issue is the timing of the publication; the patent was filed in 1998; the academic paper was published in 2002. Once a patent is filed, the inventors (or anyone else, for that matter) can publish the patent, and that in no way invalidates the patent. To provide any protection against a patent, the prior art needs to be "prior", that is, earlier than the filing date of the patent. Now, this particular issue is made a bit tricky because there does appear to be prior citations of this invention. The whole reason this invention is called the "Montgomery ladder" (not Montgomery multiplication - that's something else) was because it was first published by Peter Montgomery in 1987. One would think that would invalidate the patent. However, I'm not an attorney; I cannot advise you to proceed under that assumption. Instead, I would suggest you follow the advice of Joao; there are plenty of elliptic curve routines out there; use one of them. |
Memberships can be canceled without reason and without refund? There's a club that sells paid memberships. In the application, it says upfront that the club can cancel memberships at any time, without reason and without giving a refund. Is this really an enforceable contract? Is it possible it could be unconscionable that one side has essentially 100% power and the other side has no recourse? | Two essential elements of a contract are that each part gives something of value (such as money, or whatever the club has to offer), and each part has an obligation (the member must give money and do certain things, the club must allow the member to use the facility). Without these elements there is no contract, meaning that the "member" has no obligation to pay (and the courts will then order the return of the membership payment). If indeed the club can revoke membership at any time and for no cause, there is no contract and no legal justification for the club to keep your money. The status of social clubs is not entirely clear, and it's not clear whether "membership" is a contractual matter, however an organization like Elks is a corporation, and state laws regulate expulsion of members of a corporation. They will typically require termination that is fair and reasonable and is carried out in good faith, as discussed in this article. In the cited cases where a person was expelled, it was for violation of the rules. It is unlikely that corporate laws of any state allow unilateral expulsion of a member for no cause. | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations. | Let’s say I go to a cash machine, ask for £100, and the machine gives me £10,000. I use my banking app and see that £100 left my account, not £10,000. At this point I haven’t done anything illegal. If I asked for another £100 and got £10,000 again, that might be illegal. But the extra £9,900 are not mine. They are the bank’s money. If I try to keep it, that is simply theft. | There's a critical error in your argument but no transfer of goods or services will be present. Actually: No, there is a transfer of service made by booking: resources are put aside by the service provider to be available for the booking person once they arrive. That is a service. These resources are not available to be sold otherwise: a room is booked and thus blocked from being rented to someone else, or a seat on the plane is booked and not offered to others, and so on. As long as the booking person arrives, no damage happens. However, if they no-show, there is damage: the resources go to waste unused: the room stays empty, or the plane flies with one less person. And the cancellation/no-show fees that are contractually obligated to make the damaged party whole (to compensate for the wasted resources) are also not paid. Knowingly using a fake credit card number or empty debit card that can't pay the fees and planning not to show up would be clearly fraud. One such paragraph that might be used to hunt down could be 18 USC §1341 - aka "mail fraud" - or much more likely, 18 USC $1343 - wire fraud. The latter is because any fraud on the internet is wire fraud. Whoever, having devised or intending to devise any scheme or artifice to defraud [including a scheme or artifice to deprive another of the intangible right of honest services], or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. | I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid & Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious. | No While you can be bound to terms you had the opportunity to read and didn’t, you cannot be bound to terms that you did not have the opportunity to read. That doesn’t mean that you don’t have a contract but it will be on different conditions to those in the undisclosed terms. For a contract to be valid, the parties must agree on the essential terms, for a phone contract, what service the phone company is giving and how much the consumer pays. Incidental terms can be left undefined and they will, if needed, be filled in by a court with reasonable terms. However, this only happens to the extent necessary to give effect to the primary purpose of the contract. For example, late fees or termination fees are not strictly necessary (common law principles of damages for breach of contract work just fine) so, if the undisclosed terms include them, they will be unenforceable. Notwithstanding, it’s quite likely that refusing to disclose in the advance violates state or Federal consumer protection laws against misleading or deceptive conduct. | Don't do it. It is of course breach of contract when you signed a contract with no intention to fulfil it. However, you are talking about Germany. German employers take a very dim view of this. While a UK employer would say "good riddance" and do nothing, many German employers would see that as a personal insult. It's something that you just don't do in Germany. There's a good chance that they will do what they can to make you miserable if you do this. For example, inform authorities that you just cancelled your contract which may get a visa cancelled. Or tell the company that you want to start with, which will also take a very dim view of this. Or sue you for damages, not because they want to get the money, but to make you miserable. On the other hand, if they send you a contract, and you sign it, you have a contract. |
Is "Official guidance" actually supported by UK statute law? In the UK, I want to know whether a government publication marked "Official Guidance" has any weight in statute law; and if so, which law(s)? Specifically, I am referring to the following document: https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-guidance-for-maintaining-services-within-health-and-care-settings-infection-prevention-and-control-recommendations ... although this is a wider question about other guidance. Basically, if somebody were to break this "guidance", then would there be any legal basis for prosecution? | I cannot recall an example where a breach of such guidance in-and-of-itself is an offence: it's when the underlying legislation is contravened that one is committed. Note that the cited article say this: this guidance is of a general nature. Employers should consider the specific conditions of each individual place of work and comply with all applicable legislation and regulations, including the Health and Safety at Work etc. Act 1974. This guidance does not supersede existing legislation or regulations across the UK More broadly, and away from the NHS, the relationship between guidance and statute was examined in The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd & Ors [2020] EWHC 2448 (Comm) where adherence to social distancing measures impacted on safe working practices on building sites, causing delays and an increase in costs. The court determined that: It follows that government advice or recommendations, whether before or after either set of Regulations came into effect, cannot have imposed or ordered a denial of access or a hindrance in access, however strongly worded the advice or recommendations were, since they did not have the force of law. | It goes without saying that muggle law supersedes any of the "weird people" law. In Harry Potter's world, the Queen and the Prime Minister of the U.K. have expressly and knowingly delegated legislative authority over the Wizarding world in secret legislation to self-governance by its own authorities, and also maintain a mandatory rule of silence about that world's existence. So, there would be no remedy in the ordinary courts of the U.K. Any remedy would have to come from Wizarding world authorities. | You are indeed thinking of the Vienna Convention on Diplomatic Relations of 1961. This codified a portion of existing customary international law on diplomatic immunity. It is the result of several years of legal negotiations at establishing a common set of rules that would be generally acceptable. The basic concept of immunity for ambassadors is very ancient, and there is still a body of customary international law that was not codified. For example, the 1961 Convention only deals with permanent missions, not temporary ones like for multinational summits. The history and practice are also helpful for interpreting the Convention itself, such as when considering the scope of diplomatic duties which are protected, as opposed to extracurricular activities which might not be. In the UK, the Convention is implemented by the Diplomatic Privileges Act 1964. This mostly repeats the relevant parts of the Convention text, in Schedule 1, and also includes sections integrating those provisions with domestic law. As far as the courts, section 4 says that If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. This means that what happens procedurally in a UK court is that someone wanting to claim immunity must come with a letter from the Foreign Secretary attesting that they are a real diplomat and not just making it up. The court then considers, from that fact, what legal consequences follow, depending on the type of diplomat involved (e.g. heads of mission have broader protection), the nature of the case (criminal case where the diplomat is accused? civil case where they are the respondent?), etc. That is a matter of interpreting the Convention, plus maybe customary international law - it doesn't mean the diplomat gets to wave their certificate and end the proceedings. The purpose of section 4 is to avoid the court entering its own fact-finding process about whether someone is a real diplomat. That is felt to run the risk of the court causing diplomatic offence by accident - consider Israel and Palestine and China and Taiwan for potential pitfalls. The doctrine of "one voice" obliges the courts to follow the executive's lead. Prior to the Act of 1964, diplomatic immunity was covered by several other enactments, but with the same basic model for implementing immunities in court. There were different regimes for Commonwealth countries and others, which is not the case any more. The first such Act was passed in 1708 after an embarrassing situation with the then ambassador from Russia, who was imprisoned for his debts, angering the Tsar. In general, domestic courts in the UK can take account of customary international law if it is relevant. They can also look at treaty texts, even ones the UK has not signed, to help interpret international law. (In the same way, they can look at academic articles, travaux préparatoires, etc., which have no formal status as law.) If the UK signed the 1961 Convention but did not pass the 1964 Act, then courts might be able to treat the Convention as "background" - but would still be bound by the 1708-1955 Acts on the topic, as far as the actual procedure and rules to follow. A diplomat would not be able to avail themselves of their specific 1961 rights, unless perhaps there was some gap or ambiguity in the domestic law where they could squeeze in an argument that the Convention supplied the proper interpretation of whichever point of customary international law was involved. | TL:DR Not really possible, no This is from the website of Allen Allen Allen & Allen, a Virginia-based legal firm. (NOTE I will not be including links within the quotes, you may view their website for more information.) In order to prevail in a personal injury lawsuit arising from the Coronavirus, the plaintiff will need to establish: (1) that the wrongdoer had a legal duty to the plaintiff (i.e., that the wrongdoer had a responsibility not to expose the plaintiff to the Coronavirus); (2) that the wrongdoer breached their legal duty; (3) that the wrongdoer’s actions caused the plaintiff to get sick; and (4) that the plaintiff suffered damages (i.e., illness, medical expenses, lost wages or death). First, there is Legal Duty, which they show as: In Virginia, every person has a duty to exercise due care to avoid injuring others. The scope of the duty varies with the circumstances of each case, but as a general rule, everyone owes a duty to every person within reach of their conduct. This duty “arises from that basic and necessary regulation of civilization which forbids any person because of his own convenience, to recklessly, heedlessly or carelessly injure another.“ Before imposing liability against a defendant, the court will examine whether the defendant knew, or should have known, that his conduct placed others at risk of harm. Virginia courts have imposed liability against a farmer who allowed his cow to wander into traffic (which caused a crash) and a manufacturer whose employees wore their work clothes home (which exposed their family members to asbestos fibers and caused them to develop asbestos-related diseases). Similarly, any person who knows that they have the Coronavirus and exposes others to it could, in theory, be held liable. Next, we have causation, which would be the major sticking point. Under Virginia law, plaintiffs are required to prove that the defendant caused their injury. In Coronavirus cases, if the plaintiff cannot prove by a preponderance of the evidence (that it is more likely than not) that the defendant was the source of the disease, the plaintiff will not prevail at trial. Virginia courts allow plaintiffs to pursue claims against defendants who caused them to become sick or develop disease. Unlike the cases described above, where the source of the exposure was known and easily determined, proving causation in Coronavirus cases is challenging because an individual who is exposed to the virus might not develop symptoms for up to two weeks, and the Coronavirus can survive on surfaces for several days. Therefore, a plaintiff who did not practice social distancing or limit his or her exposure to others could find it difficult to establish that the defendant was the source of the virus. I have left out two example cases that they show within the above paragraphs, for brevity. Both are related to passing AIDS from an HIV-positive person to a healthy person. Finally, they talk about did the person know they have COVID-19 (positive screening for the virus) and did they take reasonable precautions: In litigation arising from the COVID-19, courts will consider whether the defendant knew or should have known that they had the virus, and whether they knew or should have known that they would (or could) spread it to others. Certainly, anyone who intentionally and deliberately spreads the virus to others could be held liable and might face criminal penalties, as well. In some cases, individuals who have been officially diagnosed with the virus could potentially be held liable if they do not take reasonable steps to prevent spreading it to others. However, it is unlikely that a court would impose liability against any person who was not officially diagnosed with COVID-19. It is also unlikely that a court would impose liability against individuals who take reasonable steps to prevent spreading the virus to others. So, in my example from my question, if I don't know that my neighbor was diagnosed, or more importantly, if they don't know, then the case would go nowhere. If they received notification of a positive result of a test AND they went out shopping and did not wear a mask, then PERHAPS this requirement would be met. However, the real sticking point here is number 2, causation. I would have to prove that I caught the virus from that person and not from any other people I may have come into contact with. So, while I am not a lawyer, I can understand that it would be next to impossible to prevail with this lawsuit, unless I were able to show that I came into close proximity with only one person, and that that person has the virus, and knew they had the virus, and purposefully did not use precautions to protect others. That seems an awful lot to overcome. | The statutory requirement for sentencing guidelines are at section 120 Coroners and Justice Act 2009, which includes: (2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender. Therefore, not every offence etc requires - or has - its own specific sentencing guideline. (Presumably as there are far too many offences to easily cover, so limited resources might need to be focused on the more common ones.) Note that at the foot of the Sentencing Council's explantory materials is this link: Where there is no guideline for an offence, refer to the General guideline. Which states it is for: sentencing offences for which there is no offence specific sentencing guideline... So this General guideline is the one to be applied when dealing with a s.53 RIPA offence. (I've not reproduced it here to save space) | It depends on the particular law in the particular jurisdiction in which you are charged. Most statute laws enumerate the defences that are available. In common law countries there is a general defence that (except in strict liability offences) the perpetrator must well ... perpetrate the criminal act; what you describe does not appear to meet that requirement. Other jurisdictions would not be so forgiving. | In summary, At the time of writing, Michael Gove has overall ministerial responsibility for making planning regulations, with a good part of the role delegated to Rachel Maclean as Minister of State for Housing. The detail of regulatory verbiage is the work of civil service lawyers, based on policy formed within the department as a result of the general political process. There are various rules for how these functions arise and get transferred around government, described below. The Secretary of State can make regulations about flag display These pieces of secondary legislation, as their names suggest, are made under the authority of the Town and Country Planning Act 1990. Several sections of the Act empower regulations to be made by "the Secretary of State", e.g. in s.220(1) we read Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety. and the full Parliamentary procedure for making them is spelled out in s.333. This comports with the regulatory preambles, e.g. for the 2007 regulations, saying: The Secretary of State for Communities and Local Government, in exercise of the powers conferred by sections 220, 221, 223(1), 224(3) and 333(1) of the Town and Country Planning Act 1990, makes the following Regulations "The Secretary of State" means a specific Secretary chosen by the Prime Minister Note that the Act just said "the Secretary of State", whereas we have just read about a specific Secretary. What's going on here is that primary legislation just wants to say "whoever in Cabinet has a job that is most relevant", since functions get transferred around, departments created or abolished, etc., and nobody really wants to update a zillion Acts every time that happens. Instead, there is a framework pattern where powers will be given to "the Secretary of State" generally, but will be executed by a specific one according to the division of responsibilities in the government of the day. That will sometimes be just a matter of agreement within Cabinet, but at other times be encoded in secondary legislation - a "Transfer of Functions Order". Those Orders are also needed to handle special situations like - transferring property and legal obligations when departments are created, merged, split or abolished making amendments to legislation which did happen to mention a specific minister ministers who are not a "Secretary of State" as such, but hold another ministerial title, such as "Lord Privy Seal" These Orders are made under the Ministers of the Crown Act 1975, and are in the form of orders of the King on the advice of the Privy Council - which is to say, that the Prime Minister decides who does which jobs. Historically, this is something of an accident, since the number of Secretaries of State has increased along with the scope of government, and it was convenient to appoint lots of people to the same formal office rather than invent fresh jobs - especially in the days before ministers were paid. In any case, flag decisions would currently be made under the authority of the minister responsible for planning affairs, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove. That comes from a 2021 order when that position was created, inheriting all functions from the Secretary of State for Housing, Communities and Local Government. Those in turn derive from a 2018 order taking them from the Secretary of State for Communities and Local Government, and so on back in time. SoS authority can be exercised by other people who work for him Additionally, the SoS can delegate functions to junior ministers; for example, the 2021 regulations state that they are Signed by authority of the Secretary of State for Housing, Communities and Local Government Christopher PincherMinister of StateMinistry of Housing, Communities and Local Government Intra-departmental delegation of functions also requires the agreement of the Prime Minister, although some functions must be performed by the Secretary of State personally. That relates to the so-called "Carltona doctrine", named for a 1943 court case Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, which establishes that a minister is generally responsible for his whole department, and that when some function is conferred on the Secretary of State, it usually doesn't mean that he has to do it himself. Most administrative functions are like that, although the actual laying of secondary legislation before Parliament has to be done by a member of Parliament, i.e. a member of the ministerial team. Following the downfall of Mr Pincher, the junior minister responsible for planning is currently Rachel Maclean, so she would be likely to be taking lead responsibility for putting through planning regulations. So all this doesn't mean that Mr Gove personally decides which flags fall into which category, although observers of his career know that we can't rule that out. But he is responsible for the actions of his department, and the secondary legislation would be laid before Parliament in his name and on his instructions. On the making of flags and sausages Regarding "how and on what considerations" these decisions are made, I have no specific knowledge for flag-related policy. But in general, the secondary legislation is written by civil service lawyers on the basis of government policy, and then approved (or at least not disapproved) by Parliament. For example, after Brexit, the EU flag was removed from the list. The mechanism would be that various people who had never heard of the Town and Country Planning Act became upset about flying of the EU flag, and either wrote to ministers or were Cabinet ministers already. Internally to the department, there would have been a mandate to stop the flag being flown, civil servants would figure out the legal steps, and draft the statutory instrument. In the end we get a regulation saying In Class H in Schedule 1, in paragraph (b) of column (1) omit the words "the European Union,". even though only planning experts would know or care about "Class H in Schedule 1". Similar remarks apply to the companion regulation giving prominence to the Union flag over the Scottish flag, which was a political reaction in Westminster to the SNP-led government in Scotland. Someone who is upset about a regulation, or just wants it to be different, may be able to challenge it through the political process in the same sort of way. There are also avenues for judicial review, if regulations have been made in a way which is irrational, or exceeding the scope of what the original Act allowed, or other similar reasons - but these are difficult to pursue in court. For example, it is more than three months since the 2021 regulations were made, so it is now too late to mount a judicial challenge. | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. |
It is illegal for someone to use software applications on a found laptop computer? I am curious to know if it is illegal for someone to use software applications on a found laptop computer. For example, let's say that you go to a bus stop and there is a laptop computer sitting on a park bench near this bus stop. You sit down on the park bench, open up the laptop's lid, and discover that it is not password protected and it is displaying the Windows Desktop. At this point, would it be illegal for you to open up a software application and use it, such as an Internet browser, gaming software, business application, etc.? You have no plans to take the laptop with you, you just want to use a software application(s) on the laptop until the bus arrives, at which you are going to shut off the laptop and return it to the park bench before you get on the bus. | Would it be legal to jump into an unlocked car and start it? No. Same situation, different object. | TLDR: it's illegal to BUY it. It's illegal to USE it. Know your suppliers. That's certainly an interesting question, in light of how the market has changed in recent years, particularly due to Amazon/eBay, but even moreso due to Amazon Fulfillment and competitors. Over on diy.se, this is a constant vexation, because we see people buy crud like this all the time, and they need help installing it. And we find it's illegal to install, not even safe, and needs to be sent back in lieu of listed product. The advanced nations do have a highly effective apparatus for screening and blocking dangerous goods. However, these protections are geared toward bricks-and-mortar retail. Can you count on something bought at Wickes, Redoute or Home Depot? By and large, yes. Is it legal to export it to you? Yes, for all practical purposes. The people selling it are in an unreachable bastion in a foreign country that would not cooperate with their extradition, and would interfere with investigation. The government knows perfectly well that the stuff is complete crud, and doing so aligns with its national policies of raising hard currency and building industrial capacity, while harming the capacity of other nations. Is it legal for the item to be listed on Amazon or eBay? Amazon and eBay say "Yes". Their position is that they are merely a platform which connects buyers and sellers. They surely have excellent lawyers. Amazon is more like eBay than you might realize. Amazon opened their retail site to third party sellers. Third parties can sign up as additional sellers of a particular SKU, or write their own product listings. Since Amazon's behavior has been unchallenged, the answer seems to be "yes". Is it legal for Amazon to bring it into their warehousing systems? Amazon also opened their warehousing system to third party use. That can be for companies that don't sell on Amazon... or it can be for companies that do both Amazon and off-Amazon sales; in the latter case you order elsewhere but Amazon fulfills (ships) the item. When a company both sells the item on Amazon and it ships from an Amazon warehouse, it qualifies for "Prime" shipping where Amazon offers that. Amazon also offers "Commingling" for established SKUs. The idea is that if you have widgets in the Madrid warehouse, and I have widgets in a Warsaw warehouse... and a Madrid customer buys mine - why not ship them yours since they are all the same? I get credit for the sale and Amazon "owes you one". When you get a sale in Madrid, Amazon has one in Barcelona so they ship that one to your customer. Commingling is great, but what happens when I inject a pallet full of those SKUs - and they're counterfeits? Amazon doesn't know the difference, and your Warsaw customer gets my counterfeit. So do Amazon's Berlin and Wroclaw customers. Amazon ships them around the network to balance the warehouses, and now my counterfeit has contaminated the supply. I'm sitting in China. Whatcha gonna do about it? Again, Amazon has top lawyers, who have surely done their diligence. Still, the program is ambitious, and e-commerce giants break the law all the time with their ambitions. In the US, there's the "Express Shipment" rule, which allows small orders ($800 or less) with no duty and an informal entry process. So they ship to Mexican warehouses, and then bring the items over by the truckload. Wait, how can a truckload be less than $800? Because they don't bring it over until there's an end-user customer order, and they argue "these are for individual customers". This qualifies them to breeze through customs, bypassing the quality and safety controls that prevent Home Depot from doing the exact same thing with a truckload that hasn't found customers yet. Is it legal for you (as the end consumer) to import it? No. The rules for Conformité Européenne are that the importer is responsible. When you as an end customer buy mail-order from China, you are the importer. Under EU law, if you bring a CE-marked item into the EU, you are responsible for meeting the CE design standards, and doing in-house lab testing to affirm the performance of the product. By having the CE mark on the thing you imported, you are attesting to having done that. Further, the various nations may require that a certified independent testing lab verify your testing and claims. This was historically done by national testing labs like BSI, TUV, CSA or UL. However by treaty they are largely cross-recognized: US OSHA keeps a canonical list of "Nationally (by USA) Recognized Testing Labs" (NRTLs) that every other agency and many other countries defer to. Big Clive is probably fine, since Clive's purpose is public ridicule, not usage. Is it legal for you to install it in your house? Oh, heck no. Every nation has rules as to what certifications equipment must meet to legally be installed in a building's electrical system. For instance North America's El NEC, widely adopted or copied, has 110.2: 110.2 Approval. The conductors [wires] and equipment required or permitted by this Code shall be acceptable only if approved. "Approved" means by competent testing labs; i.e. OSHA's list of NRTLs. So no, you can't install non-approved equipment in any jurisdiction with a similar rule (and you pretty much need such a rule for inspections to have any teeth). | Note that what is being bought or sold here is actually information about the exploit. Attempting to criminally penalize the transmission of information in the US often runs into First Amendment issues. If a person has good reason to know that information is going to be used to commit a crime, or is likely to be so used, and there is no plausible legitimate use for the information, that person might be charged with complicity or conspiracy for distributing the information. But where there are legitimate uses, that is much less likely. Here the information could be used to defend against the exploit, or to identify and remove software subject to the exploit, or for research into such exploits generally. There may be other legit uses as well. Some years ago the Federal government attempted to prosecute a person for exporting a book describing how to create an encryption program. The courts eventually ruled that this was protected speech. I suspect a similar ruling would be made in the sort of case described in the question, but the details would matter. | This could be a violation of 18 USC 1030 (and a crime). A number of things go into requirements for conviction under this law. First, it has to be a computer, which is defined as an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device Any printer that I have encountered in the past 40 years counts as "a computer". Second, (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—...(C) information from any protected computer; It is highly likely that the person printing has to receive some information from the printer, and respond accordingly so you have your "obtains information" element. Maybe not useful information, but information nevertheless. It also has to be a protected computer, (B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States Well, a computer connected to the internet is a protected computer, see US v. Trotter, 478 F.3d 918. Also, the access must be "without authorization or exceeds authorized access". The law doesn't explain with "without authorization" means, but the latter is defined as to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter If the law were stated in terms of "prohibited access", meaning "express denial of permission", and if the computer owner had set the computer to "prohibited access" by default (password protected), there would be no issue -- accessing the computer is prohibited. "Unauthorized" can also mean "has not been explicitly authorized", i.e. lacking any indication one way or the other. Every computer access is initially unauthorized, until authorization is granted; and re-trying a login after mis-typing a user name (and being denied access) is not a violation of this law. There does not appear to be case law that addresses the status of computers just left open to the public, and whether using a computer that is so exposed constitutes "unauthorized access". Also, it is not clear that the defendant in this case has "obtained information", since with printing, information flows into the computer. There is also a clause about recklessly causing damage, but I don't see what damage would result ("damage" is defined as "any impairment to the integrity or availability of data, a program, a system, or information"), and how printing would be "reckless". It seems somewhat unlikely that this would be deemed to be a crime, though if you experiment, you could be on the cutting edge of new case law. | The software can’t be patented Since it was published before the patent application was lodged, the patent application should be rejected since it is based on prior art. You (or anyone else) can lodge an objection to the patent application on that basis to help the patent examiner find the prior art. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | Presumably by "is illegal" you mean "violates copyright law". Copyright infringement is simply "copying / distributing without authorization", which refers to the original work and not some other work. The act of originally writing a book is not "copying" (likewise "taking a picture", etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under 17 USC 504(b), The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement. | how could these ordinary people sue somebody for taking their pictures without permission, when there are tabloid journalists who do this every day to celebrities ? (And obviously they get away with it.) Tabloid journalists only get away with it when the pictures are taken in public, where there is no expectation of privacy. No permission is required in this case. Conversely, the IT guy apparently took photos of the laptop users when they were at home etc. where privacy is pretty much expected and therefore permission is required. |
Do I need to hire attorney? What next steps for me on this case? My daughter was sued for an accident that happened 2 years ago. Police responding to the accident determined she was at fault. For sake of argument, let's say my daughter's name is Jane Doe, and she is an employee of XYZ LLC. Other party to the accident is suing "Jane Doe & XYZ LLC". Well, "XYZ LLC" is just an advertisement that Jane put on her car for her employer. It was a personal car, and was not being used for company business. Insurance company did not pay a dime of her suffering and medical bills. They paid for her car. They are still fighting her. Doesn't the plaintiff work with the insurance company? Is Jane supposed to fight this with her? Jane was 17 at the time, but was covered under her Dad's policy. Could the plaintiff go after the dad's money? | Your personal liability depends on your state law regarding the family car doctrine, so the answer there is "maybe" (Texas is not a state with that doctrine, so simple ownership of the car does not confer liability). You would be liable if your supervision of the child was negligent, which means approximately that you knew or should have known that she was a bad driver and would cause damage. Still, the insurance company is suppose to indemnify you (plural) against such loses, as long as they are legally required to do so. That would include many considerations, such as whether the driver was covered under the policy, whether the car was being used contrary to the terms of the policy (being used commercially), and so on. The insurance company is entitled to make a reasonable determination of whether they are responsible for the loss (and if so, to what extent). If they actually decline to cover the loss, you would need to sue them to make them comply with the terms of the policy (and your lawyer would give you a detailed explanation of why they are not liable, in case they aren't). The plaintiff works with his insurance company to recover his insured losses, and with his lawyer to recover any uninsured losses. His insurance company works with your insurance company, up to a point, and then the lawyers get involved. Your daughter does not work with his insurance company, and your insurance company probably has said something along the line "only talk to us". The insurance that a driver typically has may cover some of their own medical costs, but does not provide a payment for "pain and suffering": that is an uninsured loss. It is not generally required that drivers carry insurance to cover their own medical expenses – it is required that they insure against damages, in general, suffered by other parties (if the defendant is at fault). So there is probably nothing for the plaintiff to work out with his insurance company. In Texas, if the defendant is entirely at fault, defendant will be liable for 100% of plaintiff's damages. If defendant is 90% at fault, defendant will be liable for 90% of plaintiff's damages. If defendant is 49% at fault, defendant is not liable. Defendant can, in any event, also sue for damages, so if defendant is 49% at fault, defendant can recover 49% of her damages. The insurance companies might be able to talk it out and reach a clear resolution of the matter, but it could be more in their interest to throw the dice and work it out in court. One can always sue at the very start, and drop the suit if it becomes advantageous. | To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays. | She would want a litigation attorney that specializes in this kind of case. For instance if the underlying issue is an OSHA violation, there may be questions that imply a degree of culpability by the witness, and an attorney who knows that area of law (as opposed to copyright or drug-trafficking) would be in the best position to protect the interests of the witness. | Legal Services Society is a non-profit organization created by the BC Legislative Assembly through this act, created in order to serve the legal needs of certain classes of society, defined vaguely with reference to "a reasonable person of modest means". Accordingly, they have rules regarding who they can and cannot serve. and they are constrained financially. With vast demands on their resources and little by way of resources, prudent triage is called for. That is, when you show up, you shouldn't expect to talk to a senior attorney (or an attorney). From what I can determine, you cannot expect to get your problem solved right away. It is also not clear that your problem is within the scope of what they do (criminal, incarceration, serious family matters, immigration). "Giving legal advice" is something that only a few people are legally allowed to do – lawyers, who have you as their client. If the person were an attorney, they still couldn't give you legal advice until the appropriate relationship is created (and they have the relevant facts). The person you met with may be a paralegal or a law student. Under the law (sect. 8 of the act), you cannot sue them for damages because of their actions, except if carried out in bad faith. The waiver might be a bit redundant, but it is a wise idea to tell people that you can't sue them. If you want to know what you can expect from the lawyer, this publication will be helpful, though it is generic and not specific as to your particular issue. | The damages should be granted. The “dirty hands” doctrine is only applicable when seeking equitable relief - motor vehicle damages fall under the tort of negligence. | That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'? Having power of attorney doesn't mean that you become "one and the same" person, it just means that you can stand in their place legally. If somebody sues your mother, you are authorized to act on your mother's behalf, but that doesn't mean that you are liable for any judgement. Of course there is a fiduciary responsibility to act in your mothers best interest, and violating that can open you up to suits that you are responsible for (because the suit would be against you, not your mother). And, what if she runs out of money, would I be personally financially liable for covering her expenses? No, you wouldn't be. Debts would be settled the same way as if she didn't have anybody acting as PoA. She (you) could declare bankruptcy on her behalf and have the debts discharged. This doesn't obligate you to pay them. And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter? This is a personal decision for you. You could alternatively pursue having her declared as an "adult ward of the State". You need to consult a lawyer if you take on full power of attorney, to both protect you, your assets, and your responsibilities. This is something that you really need a lawyer to draft so that the lines are clear, and the expectations are as well. You may need to get a court involved if she is not of clear mind to sign these papers. | No An LLC that didn’t exist at the time of the act or omission that caused the loss being sued over is not a valid defendant. They would sue you personally and all of your assets, including the LLC, would be available to the creditor. | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. |
Can you petition for the opponent party to be sanctioned in California? In California Superior Courts, what would be some common grounds to ask the judge to sanction the opponent party? Under what circumstances would such motions be granted, and how often do any such motions presently succeed? | 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. | The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue. If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent. Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | In some jurisdictions, California probably being the most well-known in the US, there are Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes, which allow a defendant to file an anti-SLAPP claim (for sake of clarity I'm going to keep calling that person the "defendant") when the plaintiff's suit appears to have been filed for the purpose of infringing upon the defendant's rights by forcing them to bear the costs of litigation or settle the claim in order to avoid them, and itself has little merit or the plaintiff clearly does not expect it to succeed. In California, if the Anti-SLAPP claim succeeds and the plaintiff's claim is dismissed as a SLAPP, the defendant is normally awarded attorney's fees from the plaintiff. The Anti-SLAPP claim also halts discovery in order to reduce the costs on the defendant, so in effect it allows a defendant to challenge the plaintiff's right to sue them on the particular issue before the defendant has to bear the majority of costs. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | I guess the meat of your question is: If a city enacts an unconstitutional ordinance, can it evade judicial review by repealing the ordinance and arguing for mootness once the judicial proceeding reaches to a point of potential disadvantage, and reenacting the same or a very similar ordinance once the judicial proceeding is dismissed? I don't know where the bright line is (maybe SCOTUS hasn't drawn a clear line yet), but at least there has been a case in which the SCOTUS rejected the mootness argument by a city that repealed the ordinance at issue during appeal: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). Two parts of the city's ordinance were at issue: (1) the language of "connections with criminal elements" and (2) "the age restriction." On appeal, the Fifth Circuit declared (1) unconstitutional but upheld (2). The city then repealed (1) and, on appeal to the SCOTUS, argued that the issue of (1) was moot. The mootness argument was rejected. The rejection argument was very short as presented in section I of the majority opinion: It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise, rather than the existence, of judicial power. [Footnote 10] In this case, the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated. [Footnote 11] The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding. Footnote 11 might be a critical fact in rejecting the mootness argument: Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20. Therefore, I think, if a city repeatedly employs your proposed strategy, the SCOTUS is unlikely to declare the case moot. EDIT: As pointed out by "Just a guy", the mootness part of City of Mesquite is about voluntary cessation, which is a kind of strategy concomitant with mootness arguments. Voluntary cessation does not moot the case unless "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199 (1968). But the point of this answer is not on voluntary cessation in general. It is in the context of intervening legislation. A voluntary intervening legislation is usually sufficient to moot a case (e.g., Massachusetts v. Oakes, 491 U.S. 576 (1989)), but it was not so in City of Mesquite -- that's why it is different from most similar voluntary cessation cases, and resembles more closely to the NYC gun control case. Perhaps because it is a city (and was thus less burdened to reenact the same or a similar ordinance than a state legislature), perhaps because it had declared its intention to reenact, perhaps both. None of these might be controlling precedents. But, City of Mesquite and the state legislature cases like Oakes (because the NY state legislature also acted), are probably at least close ones in the jurisprudence of the SCOTUS at this point of time. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | The only applicable law is the local trespassing law. If he wants, the proprietor can demand that the patron leave, and if the patron does not leave, he can be arrested for trespassing. It uncontroversial that the First Amendment protects racist declarations. |
Right to your own photo at the opticians At the opticians, such as Boots, they use photographic technology to capture an image of your eye. Given that the image in reality is my property as it's my eye they're taking a photo of - can I request access to the photo but also not permit any distribution of it, i.e. can I ask them to send me the photo and they having to delete it right after? | Copyright in a photo belongs to the photographer, not to the subject. A picture of S (the subject) is not S's property in any sense, unless the photographer has given or sold it to S. If the photo was linked to information about S, it might be personal Data under the GDPR (or UK-GDPR) if so, S could request erasure, but various exceptions might apply. But even then S would not aquire the right to distribute or copy the image, or any of the other parts of copyright. | I assume these are digital photos that were electronically transferred (not prints physically delivered). If they were prints physically delivered, he owns those prints, since you used to own them but you unconditionally transferred ownership to him by giving them. No backsies under the law. The photos are protected by copyright law, which means that the person who took the pictures has the exclusive right to make copies, disseminate them, and authorize making copies. In order for anyone to make a copy, they need permission – a license – from you. In the world of pre-planned business deals, the copyright holder writes up a document granting B some right to use the protected material, which typically means "you can install it on your various devices but may not give copies to others". In this case, however, you didn't create an explicit written license. So if this ends up in court, the question is what implicit license you granted. The courts will not decide that you granted him the license to unrestrictedly sell or give away copies of the protected material. The most likely outcome would be that he can only keep his copy, i.e. he will not be forced to erase the copy that you sent him. What the courts would do is try to discern what license you most likely intended to grant to him. There is a provision in copyright law that allows a licensee to make backup copies of a computer program (17 USC 117), but a digital photo is not a computer program. So the lifespan of the copy that you sent would be the lifespan of the phone (I assume) that you sent it to. Since actually using a digital photo technically requires making a copy (from disk storage to computational memory), there is a legal direction (dead-end) that you could go where the photo could exist on the phone, but never be opened again. Again, the courts would have to discern what license you probably intended w.r.t. ever opening the photo – obviously you intended that the file could be opened / viewed any number of times. You could argue that the license which you granted was conditional, i.e. "you can have and use these pictures as long as we are a thing", but establishing that this was part of the license would be tricky. Free digital content often has some "as long as" condition attached to it, i.e. "you can use this program as long as you are affiliated with University of Whatever". I don't consider a conditional license to be a ridiculous interpretation, on the other hand the particular court (judge) might decide that people who sext should be forced to live with the unpleasant consequences of their decisions. If we exclude such a line of thinking, I don't see a compelling counter-argument that your ex-partner inequitably loses a right by construing the license as conditional. I don't know if there is any case law that addresses this: at any rate, copyright law would severely limit what he could do with the pictures (the tort "invasion of privacy" also limits dissemination). | I very much suspect she is in right to 1) no receive promotion emails anymore, 2) Have them close the account again and 3) have them delete her pictures. No, she does not have those rights. She agreed to a legally binding contract when she signed up for the service when she clicked "OK" to open the account. That contract outlines her "rights," as you call them, and they can be very different from what you assume to be ethical and moral bounds to a business relationship. What you imagine to be fair business practices could be generally regarded as fair and normal consumer relations; but that's not necessarily what may be in the contract. What she agreed to in the Terms of Service (TOS) could be some form of long term licensing of her photos to the service, and that could be why they won't delete the photos and why she can't delete them in bulk. The TOS states the terms of the promo emails she agreed to receive. Read the TOS; everything will be outlined. The company is in no way obligated to make life easy for her or change the contract to appeal to her; she agreed to everything, including downloading all her photos. If she didn't read the TOS and feels they copied all her photos "without her knowing", that's her fault. It's possible that the company is breaking consumer protection laws with some of their practices, but you'll need to read Canada consumer laws and see if they require ease of use, permanent op-out of emails, etc. I doubt the company would be flagrantly violating consumer law. | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | Costs There are hundreds of jurisdictions in the world with various approaches to privacy in public places. It is simply much cheaper for the publisher to avoid claims in the first place than to hire lawyers to deal with them. Even if the publisher has full legal standing to publish the faces, it would not always be able to recover costs from the failed claimants. Minimum unhappiness Faces on street views do not add much (if any) value to the service anyway. Conversely, they often upset and make unhappy the owners of the faces. | It is illegal to take or publish a picture of someone without his consent in France. There are five exceptions : people related to news events of public interest, public information purposes (when right to inform the public is bigger than right to privacy), people present in a public location when focus is not on them, public figures during their public functions and activities, people shown in a large group without distinction of one or several individuals. If you respect one of the 5 conditions, you do not require consent. Policemen do not have extended or extra protection regarding these rights: they are treated as any individual. This is described in a report from the CNDS (Commission National de Déontologie de la Sécurité): "[Les forces de l'ordre] doivent considérer comme normale l’attention que des citoyens ou des groupes de citoyens peuvent porter à leur mode d’action. Le fait d’être photographiés ou filmés durant leurs interventions ne peut constituer aucune gêne pour des policiers soucieux du respect des règles déontologiques." which translates approx. to: "Policemen must consider as normal the attention that citizens or citizen groups can pay to their mode of action. Being photographed or filmed during their interventions cannot be seen as as an embarrassment to the officers concerned to comply with ethical rules." See also this Wikimedia Commons internal policy that summarise the French law and (fr) the exceptions on droit-image.fr | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. |
If a nation rejects jurisdiction of international law, can it demand other to comply with international law? In 2020 Putin signed a law that on Russian territory Russian law supersedes international agreements. The actual wording nullifies international agreements that contradict the Constitution of Russian Federation, but, given that Putin can change the Russian Constitution at will, with pro forma referendum, of course, he can nullify anything he wills. Now the question: does the rejection of the priority of international agreements over domestic law nullifies Russia's ability to demand that other countries fulfill (different) international agreements? Can Russia say "I am not bound by agreement A because it violates the Russian Constitution I just amended to contradict A, but I demand you to comply with a different agreement B?" | International law is always subordinate to domestic law. In the Westphalian world we live in, all power rests with each and every Sovereign nation. International law is a creation of those nations and only has force where the affected nation acquiesces to it. For example, the US and Russia have refused to sign up to the International Criminal Court so that court has no jurisdiction in their territory or over their citizens. North Korea has refused to sign the Berne convention so there is no protection of foreign copyright there. Similarly, a nation, having entered a treaty, can revoke that treaty. There would be consequences but these would be geo-political, not legal. Of course nations can and do behave hypocritically - insisting that others follow the law they ignore. | Yes. The leading case relevant to the question is Missouri v. Holland, 252 U.S. 416 (1920), in which the U.S. Supreme Court held that a self-executing bird migration treaty could override state law. It is also well established that a treaty may override a previously enacted federal statute. While there might be a requirement that the treaty not be a sham that really doesn't involve another county, or otherwise have an international component, as a practical matter, meeting this requirement is something that would almost always be possible. So, the President and a two-thirds majority of the Senate, in cooperation with a foreign country, by treaty, can accomplish legislative ends with which the House would not agree. As a practical matter, however, the two-thirds majority requirement for passage of a treaty in the Senate, the partisan organization of politics in the U.S., and the correlation of the partisan makeup of the Senate and the House, means that this observation is basically an irrelevant footnote. No treaty that could secure bipartisan support by two-thirds of U.S. Senators, and also be signed by the President, would not be able to be passed in the House. There has never been a time in U.S. history where one political faction has a two-thirds majority in the Senate and another political faction had a majority in the House. As a practical matter, it is almost always easier to pass ordinary legislation approved by majorities in the House and Senate, than it is to pass a self-executing treaty. The only scenario I could image where this might happen would be one in which an "old guard" President and Senate are in place, and then one election, some new political movement suddenly nearly sweeps the House and the U.S. Senate seats that are open due to some pivotal historic event, but there hasn't been more than a single Senate election or a Presidential election since that sea change in public opinion, something that very rarely has happened in other countries. | You might be misreading the extradition criterion The UK–USA extradition treaty has an example of the clause you're asking about: An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty. Similar wording is used in all other treaties that I have reviewed: UK–Algeria ("offences which are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for at least a period of one year") UK–Argentina (no extradition when "the maximum punishment for the offence is imprisonment for less than one year") UK–Bolivia (same as Argentina) UK–Chile (same as Argentina) ... UK–U.A.E. ("offence is based is punishable under the laws of both Parties by deprivation of liberty for a period of at least one year") If there is a treaty that requires there to be a mandatory minimum punishment of at least one year, I have not found it. While you say that "[u]sually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed" and "[e]xtraditions are based on minimum sentence in the UK," my review of the treaties makes me doubt that. The rest of this answer explains how to interpret the clauses quoted above. It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year." The inquiry is focused on the offence that the conduct is alleged to give rise to and the range of punishment available for that offence generally. E.g. an offence with a minimum punishment of a fine and a maximum punishment of 16 years in prison is an offence that is "punishable... by deprivation of liberty for a period of one year or more." Said another way: it is not necessary that the offence have a mandatory minimum of one year imprisonment. It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year." See Canada v. Barrientos, 1995 ABCA 468 (CanLII) at para 103, Hetherington J., dissenting; but appeal allowed, for the reasons of Hetherington J. by the SCC in Canada v. Barrientos, [1997] 1 S.C.R. 531. In Barrientos, the courts were interpretating Article 2 of the Canada–U.S. extradition treaty, with wording substantially similar to the UK extradition treaties I reviewed above: "provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year." One remaining question is whether the decision-maker needs to consider the specific facts of defendant's conduct and make a preliminary estimation as to whether in fact a term of imprisonment more than one year is likely. This position has not been adopted in Canada. At the stage where a judge or Minister of Justice is determining the authority to proceed, this is not to become a "sort of sentencing hearing." See USA v. English, 2002 BCSC 1902 at para 23. | First off, the people of Finland say that Santa lives in Korvatunturi, which would mean he is subject to Finnish jurisdiction. But if he were born, resided and worked at the North Pole, as the original question states, this spot is in international waters, and under the Convention on the High Seas that would be terra nullius. Therefore no nation can claim sovereignty over his home (we must also assume he is not on a plane or ship flying the flag of some nation: article 11 allows the detention of a ship on the high seas only under order of authorities of the flag state). That might immunize him from civil forfeiture of his home, but there is more to jurisdiction than where your home is. Under Article 14, all states "shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State". Article 15 says what "piracy" is, which could be interpreted as referring to crimes against persons and property (but not possession of marijuana). Eritrea is not a signatory to this treaty, so they might claim legal jurisdiction, though enforcement of the claim could be challenging. The US has technically not ratified this treaty either, but we mostly observe it. Klaus could also be subject to US law (for example) in specific cases. The high seas are in the "special maritime jurisdiction" and the US can claim jurisdiction for offenses against a national of the US. Other states may have similar laws. A person whose IP had been copied can sue in their home country, so the lack of a North Pole jurisdiction would not protect Claus. B&E is prosecuted where the offense happens; he would be free of business license laws; when he enters US airspace, he is subject to FAA regulations, and would be required to have a visa and passport to enter the US. In fact, most of the alleged crimes take place within the jurisdiction of a state. | it's not illegal to sign a contract that demands illegal things, however, such a contract, in general, is called an illegal contract. Illegal contracts are null and void. Contracts that violate public policy never have force in the first place. A contract can't force people to declare lies under oath or demand them to murder someone. Thus, a contract demanding such is illegal. As a result, such a clause would not just be unenforceable, it might void the entire contract wholesale if it is not severable. In the least, any clause demanding illegal acts was null and void ab initio, and never was valid. void contracts in law germany explicitly makes contracts void that are "Sittenwidrig" in § 138 BGB and also illegal ones in § 134 BGB Declarations to the Agentur für Arbeit are made under threat of perjury, and thus lying is illegal. It is also Sittenwidrig. This makes the provision void. Murder is illegal, inciting to murder someone is illegal, and so a contract to murder someone for pay is void. Such a contract also is Sittenwidrig. Selling the right to ask to marry your daughter per see isn't illegal, but it is Sittenwidrig and as such the contract is void. california judges refer to such contracts as illegal contracts, defining this as a test where making non-enforcement of such a contract something of public interest: It is in the public interest that people tell the truth to the unemployment office, so a contract demanding you to lie is illegal. It is illegal to lie on the stand (perjury), and thus the contract is illegal. Conspiracy However, the contract can also be evidence of criminal activity in itself: It manifests the will of two parties to commit an illegal act. That is the core of a conspiracy charge. Conspiracy is illegal and usually a felony. germany: Conspiracy to commit a crime is §30 STGB | Could the US extradite the Russian Hackers who started the cyber attack against the US private sector and US government agencies and departments? No. The United States and Russia do not have an extradition treaty. See Russian Indictment and Extradition | American Constitution Society. And within Russia, extradition is constitutionally prohibited; see Chapter 2. Rights and Freedoms of Man And Citizen | The Constitution of the Russian Federation. Is there forced extradition? Maybe. Either country could use covert action or even start a war to "force" extradition, or use a form of covert or overt rendition to bring the individuals to a country to face trial. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | It depends. International aviation law is tricky. One effort to set some standards down was the Tokyo Convention, also known as the Convention on Offences and Certain Other Acts Committed On Board Aircraft. Here are some excerpts: ARTICLE 3 The State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board. . . . ARTICLE 4 A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: a) the offence has effect on the territory of such State; b) the offence has been committed by or against a national or permanent resident of such State; c) the offence is against the security of such State; d) the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State; e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement. The commander of the aircraft is also given some powers to restrain the perpetrator or any other person that poses a danger to the aircraft and/or its occupants. S/he is given some other options, such as the choice of where to deliver the offender (though this by no means implies that the person will be prosecuted by that State). The Convention (and related documents) was ratified by numerous nations. As for the bonus question, there doesn't appear to be any special EU law regarding this. The EASA does not cover these sort of offenses, though it would be the closest to a Europe-wide regulatory body that would be relevant here. |
Is downloading leaked malware source code illegal [US]? I've seen similar questions regarding leaked data/malware, and from what I've seen, it appears that code, regardless of legality, is under copyright, and therefore shouldn't be possessed. But can the copyright holders sue without identifying themselves? Is it a risk with any significance? Also I saw that merely downloading also may be "hacking" under the Computer Fraud and Abuse Act (though presumably distributing is a larger offense/more likely to be pursued). So is downloading/possessing leaked source code illegal? Secondary question: Why does this differ from the legality of reversing source code (which is perfectly allowed unless the code is patented)? | Source code is protected by copyright, even if it is designed for an unethical or illegal purpose. Making a copy without permission is copyright infringement, as is distributing a copy without permission, unless an exception to copyright applies. In the US the primary exception is fair use. Whether a use constitutes a fair use or not depends on the detailed facts, including the nature and purpose of the use, and the plausible effect on the market for the protected work. The question does not contain enough information for even a rough fair use analysis. It is generally not unlawful to create malware, only to use it to access a computer or network without permission, or to do other unlawful acts. Thus the copyright holder could sue without implicating him- or herself in a crime. However, damages would probably depend largely on the commercial value of the program, and if the only plausible use was criminal, the legitimate value might be quite low. Possessing an unauthorized copy of a work is not a crime, nor is it infringement. The maker and distributor of an unauthorized copy commits infringement, but the recipient does not. Whether unauthorized access and downloading is a crime under the CFAA depends on the factual details. Many things that might technically be crimes under the CFAA are not prosecuted. That is a matter for the relevant prosecutor to determine. | There is no loophole because a work released in object code form only — without the Corresponding Source — is not released under GPLv3, even if you say it is. GPLv3 only requires them to also provide whatever source came with it False. Providing the Corresponding Source is compulsory (§6 as pointed by @cHao). If they do not have access to it, it means the work has not been released under GPLv3. | The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this. Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement. If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that. It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name "Portable Network Graphics" and the abbreviation "PNG" in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that "Portable Network Graphics" is rather descriptive, and not particularly distinctive. Descriptive marks, like "Tasty Pizza" generally get weaker protection, while more distinctive marks, such as "LuAnn's Tastee Pizza" are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. | If the tool circumvents Windows' copy protection (which is a computer question, not a legal one, but I cannot imagine a circumstance in which this isn't access-circumvention), then it is a violation of 17 USC 1201, which forbids "circumvent[ing] a technological measure that effectively controls access to a work protected under this title". It is both illegal to use, and to "manufacture, import, offer to the public, provide, or otherwise traffic" in such a program. | When the question is "Can I be sued for..." there can't ever be a really useful answer, because anyone can be sued for just about anything. The suit may be tossed as pointless early in the process, but it can be filed. That said, could there be a valid ground of suit against a developer for creating a scraper? Possibly. Scraping a site could be against the site's TOS. It could be largely a way of committing copyright infringement. It could be unlawful in some other way. For most sites, scraping is not unlawful. Google does it all the time. If there is no legitimate use for the scraper, or very nearly none, so that any user is likely to be acting maliciously and unlawfully, and if the developer knows this, or any reasonable developer should know this, then the developer could possibly be found liable for the illegitimate actions of those who use the scarper. If there is a legit use for the scraper, or the developer would plausibly think that there is, then such development is not illegal, and a successful suit against the developer is unlikely. |
What kind of lawyer would a witness need to protect themselves My wife used to work for a company 'A'. Some employees of that company, as well as some state employees are being sued in federal court for civil rights violations (my wife is not named in the suit). The company is paying for counsel for the defendants that worked for them at the time. That counsel has reached out to my wife saying that the plaintiff wants to depose her. There has been no contact between plaintiff's counsel and my wife. I have concerns about this one sided contact. My wife feels she did everything right in regards to the matter, and I trust her opinion. However I'm encouraging her to retain counsel to make sure neither side tries take advantage. My question is, what kind of lawyer should we be looking for? My wife has no interest in helping either party beyond the extent required by law and would prefer to not have to testify in person since the trial is currently in a court that is more than 5 hours away from where we live. | She would want a litigation attorney that specializes in this kind of case. For instance if the underlying issue is an OSHA violation, there may be questions that imply a degree of culpability by the witness, and an attorney who knows that area of law (as opposed to copyright or drug-trafficking) would be in the best position to protect the interests of the witness. | 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. | In the US, they would not be automatically prosecuted. The prosecutor would have to find out about the testimony, decide to prosecute, and go through all the normal processes they otherwise would, but they have an additional piece of evidence. Per the 5th Amendment to the US Constitution, a witness cannot be forced to answer a question that would incriminate them. If the question was objected to on this ground and the objection overruled, the witness' answer would not be admissible against that witness at trial, and the prosecutor would have to prove the case using other evidence. | The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence. | Smith makes three arguments in his appeal, that the trial court erred by: allowing Smith's trial counsel to withdraw on the sixth day of trial and failing to appoint substitute counsel for Smith thereafter, and that the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial. Smith does not raise the question that you mention: the law against choosing between testifying and having counsel. That question was raised by the state's attorney: There are cases that say the [c]ourt cannot make a defendant choose between the right to testify and the right to counsel... [T]here is a Hobson's choice here between Mr. Smith testifying and Mr. Smith having an attorney. And the courts have ruled at times that there can't be a choice between those things. Speaking of Hobson's choice: United States ex rel. Wilcox v. Johnson, 555 F. 2d 115 - Court of Appeals, 3rd Circuit 1977 the appellee here "was put to a Hobson's choice": decline to testify and lose the opportunity of conveying his version of the facts to the jury, or take the stand and forego his fundamental right to be assisted by counsel. The Trial Judge thus conditioned the exercise of Mr. Wilcox's statutory right to testify upon the waiver of rights guaranteed by the Constitution. This was an impermissible infringement upon the appellee's right to testify and his Sixth Amendment right to counsel. also: US v. Scott, 909 F. 2d 488 - Court of Appeals, 11th Circuit 1990 To advise [the defendant] that he could be precluded from testifying, without confirmation that [the defendant] intended to commit perjury, or could proceed pro se impermissibly forced Scott to choose between two constitutionally protected rights. and: Wilson v. State, 12 So.3d 292 (Fla. Dist. Ct. App. 2009) This case concerns a defendant's desire to testify in greater detail about the incidents giving rise to the criminal charges, confronted by his attorney's belief that more testimony was not a good idea. The judge offered the defendant the choice of testifying further by giving up his attorney, and representing himself. The defendant chose not to testify. We hold that the trial court improperly forced a choice between two constitutional rights, and reverse. Here is a really recent case where The Connecticut Supreme Court gave defendant a new trial after his lawyer quit (went into snooze mode) when the defendant insisted on testifying. State of Connecticut v. Maurice Francis, (SC 19305) The record reflects that the court and defense counsel understood the defendant to be self-represented during his testimony. Defense counsel made it abundantly clear that they had no intention of representing the defendant should he testify and would file a motion to withdraw if necessary to avoid doing so. After canvassing the defendant regarding the pitfalls of proceeding pro se, the trial court ruled that it would have to let the defendant ‘‘self-represent . . . during this point . . . .’’ Consistent with this ruling, the court’s docket sheet reflects the court clerk’s notations indicating that, for purposes of the defendant’s testimony only, the defendant was allowed to represent himself and standby counsel was appointed. It further indicated that, for the remainder of the trial, counsel was retained to represent the defendant. Because of this ruling, defense counsel did not need to file a motion to withdraw, as their temporary status as standby counsel remedied the representation problem that they had sought to avoid. An interesting distinction among these cases is the reason the attorney conditioned representation on withholding testimony. One reason is ethical – knowledge that the client is going to lie. The other reason is strategic; the attorney thinks the witness will hurt the case. Edit to discuss the ethics question as it was brought up in the comments. Comment: However the defendant did not lie, the lawyer provided no evidence the defendant did lie, and the lawyer never stated why/how/what he thought the defendant might lie about. The lawyer did not tell the court, and could not ethically tell the court. The superior court said: Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3. The lawyer mentioned 1.16 as the reason he needed to withdraw. It basically says you can't represent someone if the representation would be an ethics violation: Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of law or the Rules of Professional Conduct; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. And then Comment 3 says that if a lawyer wants to withdraw because of an ethics conflict the judge may let him go without further inquiry. Comment 3 When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3. However, the appellate court writes that the trial court could have asked about comment 2 which says that suggestion of perjury is not enough to force withdrawal. Comment 2 lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. But, and this is the big but - this is not enough for the appellate court to overturn the trial court. ...we may not consider the correctness of the court's ruling de novo or second guess its exercise of discretion... Rather, we are limited to a determination of whether the court's decision was “manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.” The rule violation at risk here is 3.3(a)(3): (a) A lawyer shall not knowingly... offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. It's comment 9 that the state wanted the trial court to consider. It seems to me that she wanted to hint to the defense attorney that he could ethically hear the testimony if he didn't know that it was false. Comment 9 Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. It seems to me that comment 8 is more helpful, but I wasn't there. Comment 8 The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood. | The term "lawyer up" usually refers to a person asserting their right to silence and counsel, which means that police interrogation must stop. A lawyer would "lawyer up" in that sense if he was being interrogated by the law. Michael Cohen, on the other hand, retained an attorney because of the threat of legal interrogation. As a general rule, absolutely everyone who is the subject of a legal investigation should seek legal counsel, to protect their rights. Although lawyers are broadly trained in many aspects of the law, they aren't experts in all such aspects, so it would probably not be wise for a tax attorney to defend himself in a criminal trial, and a family law expert might not be the best guy to hire to advise you on a complex real estate matter. Since the particular case is highly political, added insulation in the form of an attorney between you and the investigators is to be expected. | I think you would do much better to describe the situation, and the result you wish to achieve. Include enough detail for the lawyer to understand the nature of the case, but keep it brief. More details should come once the lawyer has agreed to take the case, or to give you an interview/consultation to discuss it. Later in your letter, if you like, you might include "We understand that ORC 2741.02, 2741.06, and 2741.07 may give us a basis for suit" but I would not go into any more detail about the law in an initial letter. If during the consultation (in person or by phone or zoom or some such), the lawyer does not mention laws you have learned of and think relevant, you could mention them and ask why the lawyer is not addressing them. The lawyer does not need or want to be told what you think the law is, the lawyer needs to know what the situation is and what you hope to do about it. That includes who "we" are. Update As the answer from ohwilleke says, a telephone all might be better than a letter. But in either case, the key things the lawyer will need to know are: 1) who are you?; 2) what is the situation you are concerned with (details may be important here)?; 3) what do you want to accomplish through the lawyer's services?; 4) who are the other parties involved? You will want to learn: Does the lawyer m(olr law firm) handle that sort of case?; Are they willing to take you on as clients?; 3) Hpw much experience has this lawyer had with this sort of case?; 4) What are the likely upfront costs?; and 5) What are the chances of success? Items 4 and 5 may not get answers in a first round of contacts. 2nd update, based on revised letter You still start with a statement of the law you think give you a claim. Please do not do that. In this draft letter you do not say anything about the actual problem you have or what you want done until the sixth and next to last paragraph of the letter. Even then you are not very clear on what you want the lawyer to do. "we find ourselves forced to learn how to sue an ex-customer" sounds as if you are asking for education, not legal services. I would suggest something more like: We are an association of traditional artisans. An Ohio business {insert business name} that had formerly purchased and resold some of our work has been using the images of us and our families to advertise its goods without permission. We want this stopped and also want monetary damages for past use. We think we may have a claim under {ORC sections}. In any case we want this stopped by whatever legal process would be most appropriate. That puts the situation first, your desire second, and any comment about the law later (or it could be left out). | You want a lawyer who accepts tenant-side landlord tenant cases, usually a solo practitioner or small law firm or legal clinic. Medium to large sized law firms usually don't practice that kind of law at all, or only represent landlords, as a matter of policy. The usual problem, however, is that lawyers are often too expensive relative to the amount in controversy to make sense to hire to fully represent you in a matter like this one. You might want to have a "limited engagement" such as a one time consult with a lawyer, rather than a full retention of a lawyer, over an issue like this one. |
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